INTRODUCTION
Extradition may be briefly described as the surrender of an alleged or convicted criminal by one State to another. More precisely, extradition may be defined as the process by which one State upon the request of another surrenders to the latter a person found within its jurisdiction for trial and punishment or, if he has been already convicted, only for punishment, on account of a crime punishable by the laws of the requesting State and committed outside the territory of the requested State .
The purpose of extradition is to bring the individual within the requesting country’s boundaries in order to make a determination of guilt or innocence, or to impose punishment . Extradition plays an important role in the international battle against crime. It owes its existence to the so-called principle of territoriality of criminal law, according to which a State will not apply its penal statutes to acts committed outside its own boundaries except where the protection of special national interests is at stake. In view of the solidarity of nations in the repression of criminality, however, a State, though refusing to impose direct penal sanctions to offences committed abroad, is usually willing to cooperate otherwise in bringing the perpetrator to justice lest he goes unpunished.
The practice of extradition originated in the ancient middle- and far-eastern civilizations as a matter of courtesy and good will between sovereigns. The earliest recorded extradition treaty dates to 1280 B.C., between Ramses II, the Pharaoh of Egypt, and King Hattusli III of the Hittites, and provided for the mutual return of criminals . The first, similar provision appeared in Western Europe in 1174 A.D., between Henry II of England and William the Lion, King of Scotland. Over the following centuries, however, extradition remained an ad hoc arrangement between sovereigns, performed as a need arose.
During the 17th to 19th centuries, the Chinese Qing State extradited criminals from neighbouring Korea, Vietnam, and Burma on the basis of reciprocity . The Chinese authorities extended their control over the rendition process by instructing the returned individual’s government as to the proper method of punishment. In general, ancient treaties for the surrender of criminals targeted what today would be considered political offences. As late as the end of the seventeenth century, political offenders were not granted any special protection from extradition.
Within the last fifty years, however, various international agreements have propelled the importance of individual rights to the forefront of international law . International agreements, including the Universal Declaration of Human Rights (“UDHR”) and the International Covenant on Civil and Political Rights (“ICCPR”) recognized the individual’s standing to assert violations of her rights . The modern trend is to expand human rights and to eliminate traditional barriers to individual standing . The recent narrowing of the political offence exception in extradition law and the circumventing of proper procedure, at a time when human rights is experiencing unparalleled growth, represent grave threats to individual rights .
HISTORICAL OVERVIEW
The practice of extradition cannot be said to be new as it dates back to at least the thirteenth century B.C. when an extradition treaty was signed between an Egyptian Pharaoh and a Hittite King .
Extradition treaties were later used by European monarchs to gain custody over fugitive political offenders, this practice has existed within the United States since the country’s origin, and internationally since the first diplomatic agreement . The practice of extradition has existed for over three thousand years .
As far as non western countries are concern this practice originated in some of the world’s earliest, civilizations such as the Egyptian, Chinese, Chaldean, and Assyro-Babylonian . The practice originated in the ancient middle- and far-eastern civilizations as a matter of courtesy and good will between sovereigns. The earliest recorded extradition treaty dates to 1280 B.C., between Ramses II, the Pharaoh of Egypt, and King Hattusli III of the Hittites, and provided for the mutual return of criminals . The first, similar provision appeared in Western Europe in 1174 A.D., between Henry II of England and William the Lion, King of Scotland. Over the following centuries, however, extradition remained an ad hoc arrangement between sovereigns, performed as a need arose.
Historically, sovereigns sought the return of persons guilty of crimes of lèse majesté. Such crimes included treason, attempts to assassinate the monarch, and any behavior the government considered against the monarch or against the state's Political well-being .
Traditionally, extradition law is based on treaties. Two states typically agree in a bilateral treaty to surrender to each other fugitives charged with any offences considered extraditable under the agreement. A state seeking extradition of a fugitive (the requesting state) addresses its requests to the government of the state where the fugitive is present (the requested state), and the government invariably acts upon these requests. Domestic extradition statutes occasionally supplement substantive treaty law, but in general they merely specify extradition procedures .
The extradition law that developed from these beginnings assigns a major role to government officers, leaving a very restricted one for courts. The law prevents judges from inquiring into judicial and penal conditions in the requesting country and creates a pattern of judicial deference to government decisions at all levels of the process. It was after early nineteenth centuries that sovereigns began to concentrate on extradition treaties for common crimes because of the development of new, better, and quicker forms of transportation, which allowed criminals greater ability to commit crimes over a larger region .
RISE OF EXTRADITION TREATIES
Numerous treaties have been concluded stipulating the cases in which extradition shall take place. Under them, individual prosecuted for the more serious crimes, political crimes excepted, are surrendered to the prosecuting state, if not punished locally. But this solution of the problem of extradition was little known before the nineteenth century. Matters began to undergo a change in the eighteenth century, first as between neighboring states and then more widely as international travel developed in the nineteenth century giving wanted criminals greater opportunities to flee. Treaties of extradition thus became necessary and a great many now exist.
There also developed a tendency towards the conclusion of multilateral extradition treaties between states in certain parts of the world. The first were the treaties between American states in 1889 and 1902, leading eventually to the inter-american convention on extradition 1981. A council of Europe convention on extradition was concluded in 1957 and similar convention have been concluded between Arab states and also between certain African states.
Sometimes states may be find it convenient to replace formal extradition arrangements with some simpler system for the arrest and return of wanted criminals particularly, for example, if the states concerned have a common frontiers across which people move with relative ease. Thus as between the united kingdom and the republic of Ireland, a wanted person may be arrested in one state and sent to the other on the basis of warrant issued in the later state and backed in the extraditing state. Extradition may also sometimes take place as a matter of comity in absence of an extradition treaty , if the states concerned are willing to allow it, although this has occasioned protests from a third side whose nationals are extradited in such circumstances.
Where extradition take place in the absence of treaty, the state granting extradition may attach special importance to assurance of reciprocity on the part of requesting state, which assurance may themselves be in such terms as to constitute an international agreement. The surrender of fugitive criminals to the authorities of another state may also be provided for in treaties which not general extradition treaties in usual sense, but which, in dealing with some specific subject, contain provision for the return of people alleged to have committed infractions of the law relating to the subject matter of the agreement. In such cases failure to use extradition procedure will not usually deprive the courts of the prosecuting state of jurisdiction over the accused, nor will the failure to observe in all their detail the requirement of the extradition procedure where the accused has been extradited to the prosecuting state. Where the criminal, who has succeeding in escaping into the territory of another state, is erroneously handed over, without the formality of extradition having been complied with, by the police of the local state to the police of the prosecuting state, the permanent court of arbitration held in sarvakar case , that the local state cannot demand that the prosecuting state shall send the criminal back and ask for his formal extradition.
Several multilateral treaties dealing with the offences evoking the general contamination of the international community have adopted the practice of obliging the parties either to extradite persons found on their territory but wanted on trail for such an offence by another party, or to try such persons themselves. This principle of aut dedre aut judicare has, been adopted in the Genocide convention 1948.
NATIONAL EXTRADITION LAWS
Many states have enacted special laws, which enumerate those crimes for which extradition shall be granted and asked in return, and which at the same time regulate the procedure in extradition cases. These laws furnish the basis for the conclusion of extradition treaties which will be framed in terms consistent with said laws.
The first state with such an extradition law was Belgium in 1833, which remained, however, for more than a generation quite exceptional. The united kingdom introduced its first extradition act in 1870. this act, as subsequently amended, has furnished the basis for the extradition treaties between the united kingdom and a large number of other states. It has now been replaced by Extradition Act, 1989, which consolidates the extradition law of the United Kingdom.
States which poses no extradition laws and whose constitution does not mention the matter, leave it to their government to conclude the extradition treaties according to their discretion. In these countries the governments are usually competent to extradite an individual, even if no extradition treaty exists.
EXTRADITION OF NATIONALS
In principle any individual whether he is a national of the prosecuting state, or of the state which is required to extradite him or of a third state, may be extradited. Many states, however, such as France and Germany never extradite on of their own nationals to a foreign state, but themselves have the power to punish them for grave crimes committed abroad. Other state including United Kingdom, have not adopted this principle and in the absence of treaty provisions to the contrary, make no distinction between their own nationals and other persons whose extradition from their territory is requested.
A conflict between international law and a states internal law may arises if an individual must be extradited according to an extraordinary treaty, but cannot be extradited according to the internal law of the state from which extradition is demanded.
EXTRADITABLE CRIMES
International law allows a state to grant extradition for any crime it thinks fit. Extradition is, however, a procedure usually appropriate only for the more serious offences and accordingly, the internal extradition law of most states limits the extraditable crimes either to certain specified crimes or to crimes subject to a specified level of punishment. Similarly a state subject to its treaty obligation, may refuse extradition for any crime. States which have extradition laws needs to ensure that their extradition treaties are consistent with those laws; where the laws limit the crime for which extradition may be granted that limitation will be reflected in the treaties, either by the inclusion of an agreed list of extraditable crimes or by an agreed level of punishment to which a crime must be subject in order to be extraditable or by a combination of the two. The specification of the extraditable crimes in a bilateral treaty but also by multilateral treaties dealing with the suppression of certain offences, which may provide for those offences to be deemed included in extradition treaties concluded by the contracting parties.
A further limitation upon the crimes for which extradition is granted is the requirement of ‘double criminality’ which is usually included in the extradition treaties, and according to which extradition is only granted in respect of a deed which is crime according to law of the state which is asked to extradite, as well as of the state which demands extradition. Although not necessarily a crime of the same in each, so long there is substantial similarity between the offences in each state. However, it is not for the court of the requested state to try the case on its merit as if it were a criminal prosecution; they usually only need ascertain whether the evidence submitted is prima facie sufficient to justify judicial proceedings against the accused, although not even this degree of evidence is required by some states.
Political criminals are, as a rule, not extradited and according to many extradition treaties, military deserters and person who have committed offences against religion are likewise excluded from extradition; many states refuse extradition if the death penalty will be enforced for the crime. On the other hand, although it comes close to enforcing foreign revenue laws, some treaties provide for extradition for fiscal offences.
CONDITIONS FOR EXTRADITION
Extradition is granted only if asked for , and after the formalities have taken places which are stipulated in the treaties of extradition and the extradition laws, if any. The usual procedure is for there to be a request for extradition submitted through diplomatic channels, identifying the fugitive criminals stating that a warrant for his arrest has been issued and outlining the facts of the offences: in urgent cases there is often a procedure for provisional arrest pending the receipt of the more formal documents requesting extradition. Extradition is effected through the handing over of the criminal by the police of the extraditing state to the police of the prosecuting state. The law of the united kingdom, and of many other states provides an opportunity for a wanted person to have the lawfulness of his extradition determined by the courts; but this is primarily a matter of the internal law of each state, and not a requirement of customary international law. Furthermore, where a state is a party of treaties for the protection of human rights it will be necessary for it to ensure that the grant of extradition by it in any particular case is consistent with its human rights obligation, which may be relevant even if the requesting state is not also a party to the human rights treaty in question.
Most extradition treaties embody the so called the principle of specialty, whereby it is a condition of extradition that the surrendered individual shall be tried and punished for those crimes exclusively for which his extradition has been asked and granted or for those at least which the extradition treaty concerned enumerates. If nevertheless, an extradited individual is tried and punished for another crime, the extraditing state has a right to complain. Where a state is by treaty committed to observe the principle of specialty, another state will not assume that it will act in bad faith and ignore that commitment if a fugitive is extradited to it. In those cases where the same set of facts can constitute several offences it is not unusual to provide in treaties that the accused may be tried not only for the offences specified in the request for the extradition but also for any other lesser offence proved by the facts established to the extraditing state in connection with that request.
INDIAN POSITION
In India the provisions of Indian Extradition Act, 1962, govern the extradition of a fugitive from India to a foreign country or vice-versa. The basis of extradition could be a treaty between India and a foreign country. Under section 3 of this Act, a notification could be issued by the Government of India extending the provisions of the Act to the country/countries notified.
Information regarding the fugitive criminals wanted in foreign countries is received directly from the concerned country or through the General Secretariat of the ICPO-Interpol in the form of red notices. The Interpol Wing of the Central Bureau of Investigation immediately passes it on to the concerned police organizations. The red notices received from the General Secretariat are circulated to all the State Police authorities and immigration authorities .
The question arises that what action, if any, can be taken by the Police on receipt of an information regarding a fugitive criminal wanted in a foreign country. In this connection the following provisions of law are relevant:
Action can be taken under the Indian Extradition Act Article No. 34 (b) of 1962. This act provides procedure for the arrest and extradition of fugitive criminals under certain conditions, which includes receipt of the request through diplomatic channels ONLY and under the warrant issued by a Magistrate having a competent jurisdiction.
Action can also be taken under the provisions of Section 41 (1) (g) of the Cr.P.C., 1973 which authorizes the police to arrest a fugitive criminal without a warrant, however, they must immediately refer the matter to Interpol Wing for onward transmission to the Government of India for taking a decision on extradition or otherwise.
In case the fugitive criminal is an Indian national, action can also be taken under Section 188 Cr.P.C., 1973 as if the offence has been committed at any place in India at which he may be found. The trial of such a fugitive criminal can only take place with the previous sanction of the Central Government.
As far as India is concern this issue is always in light because of number of cases, such as Nadeem’s extradition for involvement in Gulsan Kumar Murder case & demand of Dawood for involvement in Bombay Bomb Blast of 1992, in which we are still waiting for positive response. When one talks of extradition, quite a few names come to mind. The most tragic case was that of Rajan Pillai, who was sentenced to jail in Singapore for economic offences. He, however, took refuge in India. The Singaporean government requested his extradition. He would possibly have been sent back to Singapore, but he died under mysterious circumstances while in judicial custody in the Delhi jail. Underworld don and prime accused in the Mumbai blasts Abu Salem, who has been extradited from Portugal along with wife Monica Bedi is also a land mark in this regard.
Most of us know about the concept of extradition rightly or wrongly with respect to the cases named above but this tem paper examines one of the important aspect of extradition which is in relation with extradition of political offenders which though is not in much lime light as far as Indian Public is concern but much debated among the others as well as among intellectuals in India.
Intervening in the discussion on the draft resolution on international terrorism in the ongoing 70th Interpol Annual General Assembly at Budapest(2001) , the CBI-Interpol India chief, Mr. P.C. Sharma, urged member-countries to give serious thought to putting in place certain legislation relating to extradition of wanted terrorists.
“It is not sufficient to merely locate and identify suspected terrorists. At this stage, it is imperative on all nations to demonstrate the will to help in the fight against terrorism. This can be done only by handing over the wanted persons who could be made to face fair trial and answer for the consequences of their action,”
As India has not been successful in getting criminals who have taken refuge in Western countries returned to the subcontinent, there is a growing feeling in government circles that those countries are siding with the accused.
ABU SALEM'S EXTRADITION
The Story
When Abu Salem entered the US, they tipped off the Federal Bureau of Investigation (FBI), which tailed him. Abu managed to get out of the US and entered Portugal through Lisbon after rigging up his papers. They went on to tip the Lisbon authorities that immediately seized the Indian gangster. And, the tables turned. Abu Salem found himself on the receiving end and, the Mumbai police, on their part had, scores to settle with the gangster whose extradition from Portugal is shrouded with as much controversy as his role in the city's blackest blasts .
The extradition of underworld don Abu Salem was a tribute to the co-ordination among the Central Bureau of Investigation, the ministry of home affairs, the ministry of external affairs and the Indian embassy in Lisbon, Portugal, and was made possible by the excellent co-operation received from the Portuguese authorities. The extradition was a landmark event for many reasons .
The Difficulty& The International Obligations:
There is no extradition treaty between India and Portugal. The absence of such a treaty initially created legal difficulties. Therefore this becomes an area where political considerations play a prominent role, unless there is an applicable bilateral extradition treaty.
Indeed, a country does not need a treaty to decide that a fugitive found within its jurisdiction should be extradited to another country that requests extradition. It can, if it wants to, take that decision without any treaty obligations whatsoever, even by exercise of executive discretion. Where there is a bilateral extradition treaty, the states party to it normally goes by its terms. The process of extradition usually involves interposition of the Judiciary in both countries, and this has permitted the emergence of some discernible principles of international law governing extradition .
International law recognizes four points as a basis of exercise of criminal jurisdiction by a sovereign state, namely, territoriality (the state where the offence has been committed), nationality (the national state of the offender or the accused), the protective principle (the state whose essential economic or other interests have been directly and adversely affected by the offence), and universality (the offence being an international crime) .
While these are situations largely governed by the political relations between the two countries involved, yet even a political/administrative decision to extradite or deport is likely to go before the law dispensing authorities including the judiciary in the extradition-requested state .
Indian government sought his extradition under the United Nations Convention on Suppression of Terrorism of 2000 under which all member nations have to help each other in the war against terrorism. Portugal and India are both signatories to the Convention. In the meantime, the Portuguese court sentenced Salem and his girlfriend Monica Bedi to four years imprisonment for illegally entering and staying in Portugal on forged passports. The court also ordered that their extradition could be made only after they have completed their prison term. When the CBI got to know of Salem's plea the Portuguese lawyer representing the Indian government rushed to the court to remind the judge about his previous order about extraditing the duo on completing their 4-year sentence .
JUDICIAL APPROACH: OBLIGATING THE EXTRADITION AGREEMENT
The Portuguese court ordered their extradition after the Indian government, through its lawyer, gave a solemn assurance that if convicted they would not be sentenced to death. The assurance was given since European law prohibits extradition of any accused to such a country where capital punishment is in vogue.
It is essential here to give a glance at the earlier decided case of Gill & Sandhu . In early 1987, the government of India requested the United States to extradite Ranjit Singh Gill and Sukhminder Singh Sandhu, claiming that the two were responsible for robberies and murders committed in the Punjab, in India. Magistrate Ronald J. Hedges, however, found that he could not consider evidence of the mistreatment to which Gill and Sandhu could be subjected if returned to India.
The court stayed their release pending an appeal by the Indian government. In reaching his decision, Judge Robert J. Sweet considered four primary issues: (1) the scope of the district courts’ review of extradition proceedings; (2) the fairness of the hearing procedures; (3) the probable cause determination; and (4) the possible antipathetic treatment awaiting Gill and Sandhu in India.
Also in the case of Daya Singh Lahoria v. Union of India The grievance of the petitioner Daya Singh Lahoria, in the Writ Petition is, that the Criminal Courts in the country have no jurisdiction to try in respect of offences which do not form a part of extradition judgment by virtue of which the petitioner has been brought to this country and he can be tried only for the offences mentioned in the Extradition Decree.
It was the contention of the petitioner that he cannot be tried for the offences other than the offences mentioned in the extradition order as that would be a contravention of Section 21 of the Extradition Act as well as the contravention of the provisions of the International Law and the very Charter of Extradition treaty.
Therefore in view of these it is clear that both on international law as well as the relevant statute in this country entail that a fugitive brought into this country under an Extradition Decree can be tried only for the offences mentioned in the Extradition Decree and for no other offence and the Criminal Courts of this country will have no jurisdiction to try such fugitive for any other offence.
CONCLUSION
As per the Portuguese Constitution, no one can be extradited in respect of offences punishable by death penalty under the law of the state requesting extradition . Hence, Section 34 C of the Indian Extradition Act, 1962, will be applicable which states that
“notwithstanding anything contained in any other law for the time being in force, where a fugitive criminal, who has committed an extradition offence punishable with death in India, is surrendered or returned by a foreign State on the request of the Central government.”
And therefore the laws of that foreign state do not provide for the death penalty for such an offence, such fugitive criminal shall be liable for punishment for life only for that offence. Extradition has been defined by Oppenheim as “the delivery of an accused or a convicted individual to the State on whose territory he is alleged to have committed, or to have been convicted of, a crime by the State on whose territory the alleged criminal happens for the time to be.” The right to demand extradition and the duty to surrender an alleged criminal to the demanding State is created by a treaty.
As the question of surrendering an alleged criminal to the demanding State always involves the question of human rights, therefore the essence of maintaining the sanctity of the agreement (that Salem shall not be awarded death penalty) shall be attributed to the concept of human rights involved in extradition laws, which lays emphasis on the law of the country in which the offender seems to be at the time of extradition.
Sunday, August 29, 2010
Family Law - Powers of Mutawali
INTRODUCTION
A mutawalli is not a trustee, but a manager or superintendent of property. The wakf property does not vest in him; it belongs to the Almighty and is in very deed ‘God’s Acre’. The mutawalli is not the owner of the property, but merely the servant of god, managing the property for the good of his creatures.
Under the Mahomedan law the moment a wakf is created all rights of property pass out of the wakif and vest in the Almighty. The mutawalli has no right in the property belonging to the wakf; the property is not vested in him, and is not a trustee in the technical sense. He is merely a superintendent or manager. The admissions of a mutawalli about the nature of the trust are not binding on his successors.
A mutawalli may sue in his personal capacity for a declaration that he is mutawalli without suing for possession. Where in a suit, the plaintiffs admit that the defendant is in possession of the suit properties but they assert that he is there as mutawalli and that his possession is on behalf of the Sunni Muhammadan community and for that reason the plaintiffs say that a declaratory suit will lie and that they need not sue for possession, then the burden lies on the plaintiffs to prove their claim. As the defendant is admittedly in possession and except for the fact that the plaintiffs claim that he is in possession of their behalf the plaintiffs are out of possession, they must prove that the defendant is in possession on their behalf. The only way in which the plaintiffs can do that is by showing that the properties in suit are wakf property.
A mutawalli is entitled to sue for possession, though the property is not vested in him. If the mutawalli's name has been recorded as a co-sharer, he is entitled under sec. 226 of the Agra Tenancy Act 1926, to sue the lambardar for his share of the profits.
The office of mutawalli of a public wakf, being in the nature of a public office, the question as to which of two persons is entitled to be mutawalli cannot be referred to arbitration. But where A claims that certain property is wakf property and that he is the mutawalli thereof and B denies that the property is wakf property, an award made by an arbitrator that each shall be entitled to an equal share in the management and profits of the property until the matter is decided by the Court, is perfectly valid.
The functions of a mutawalli are the same as those of a trustee though he is not a trustee either generally or under the Indian Trusts Act.
Although the wakf property is not vested in the mutawalli, he merely has the same rights of management as an individual owner. He is not bound to allow the use of the wakf property for objects which though laudable in them are not objects of the wakf. The Muslim community cannot compel the mutawalli of a mosque to allow a school building to be erected on a site attached to the mosque. Again although a mutawalli is not a trustee in the sense in which the expression is used in English law he has duties akin to those of 'a trustee and if he wrongfully deprives a beneficiary of the profits he is liable for interest. It has even been said that in the case of a private wakf, the mutawalli is not a mere superintendent or manager but he is practically speaking the owner.
A de facto mutawalli is not unknown in Mohammedan law. A de facto mutawalli can sue for rents without establishing his de jure character. In this case the owner of a house created a wakf and appointed himself as a mutawalli. He then appointed certain persons as his agents and gave them a power of attorney which included powers of management and bringing suits to evict tenants and to recover rent. The agent brought the suit as agent. It was held that the suit was validly constituted.
The liabilities of a mutawalli not duly appointed are the same as those of a duly appointed mutawalli. Where the defendants have been looking after the suit properties in one capacity or the other and been enjoying the usufruct thereof, they are trustees de son tort and the mere fact that they put forward their own title to the properties would not make them trespassers.
Now there is conflict of views as far as the different sects are concerned. In one case the court appointed a Shia to be mutawalli of a Sunni wakf, but he was person of considerable local influence both among the Sunnis and Shias. In another case the court refused to appoint a woman of the Babi sect to be mutwalli of a Shia wakf, though she was a lineal descendent of the founder of the wakf who was himself a Shia.
WAKF AND ITS IMPORTANCE
The word wakf literally means 'detention' but in Islamic law it means (i) state lands which are inalienable, used for charitable purposes; and (ii) pious endowments. In India generally we are concerned with the second meaning, and wakf is thus a pious endowment which is inalienable and therefore supposed to be everlasting although, in actual practice, this quality of perpetuity is cut down by several limitations.
It is tolerably certain that prior to Islam there were no wakfs in Arabia. The earliest wakf mentioned by the legal authorities is that of 'Umar the Second Caliph.
Ibn Omar reported – ‘Omar ibn al-Khattab got land in Khaybar; so he came to the Prophet, peace and blessings of Allah be on him, to consult him about it. He said, "0 Messenger of Allah! I have got land in Khaybar than which I have never obtained more valuable property; what dost thou advise about it?" He said: "If thou likest, make the property itself to remain inalien¬able. and give (the profit from) it in charity." So Omar made it a charity on the condition that it shall not be sold, or given away as a gift, or inherited, and made it a charity among the needy and the relatives and to set free slaves and in the way of Allah and for the travellers and to entertain guests; there being no blame on him who managed it if he ate out of it and made (others) eat, not accumulating wealth thereby.
The origin of wakf is to be sought in the strongly marked impulse to charitable deeds which is characteristic of Islam. The importance of the institution will be better understood by taking into consideration the enormous extent of wakf land in the various countries of Islam. In the Turkey of 1925, three-fourths of the arable land, estimated at 50,000,000 Turkish pounds, was endowed as wakf. At the end of the nineteenth century, one-half of the cultivable land in Algiers was dedicated. Similarly in Tunis one-third, and in Egypt one-eighth, of the cultivated soil was 'in the ownership of God'. But it was already realized by the beginning of the twentieth century, first by France and later in Turkey and Egypt, that the possession of the Dead Hand spelled ruin. The institution of wakf was in some respects a handicap to the natural growth and development of a healthy national economy.
The religious motive of wakf is the origin of the legal fiction that wakf property belongs to Almighty God; the economic ruin that it brings about is indicated by the significant phrase 'The Dead Hand'. Wakf to some extent ameliorates poverty, but it has also its dark side. When a father provides a certain income for his children and descendants, the impulse to seek education and the initiative to improve their lot gradually decrease. Charitable aid often keeps people away from industry, and lethargy breeds degeneration. Furthermore, some people who desire fame by making foundations and endowments obtain property by shady means, amounting even to extortion and exploita¬tion. Agricultural land deteriorates in the course of time; no one is concerned with keeping it in good trim; the yield lessens, and even perpetual leases come to be recognized. In India, instances of the mismanagement of wakfs, of the worth¬lessness of mutawallis (managers), and of the destruction of wakf property have often come before the courts. Consider¬ing all these matters, it can by no means be said that the institution of wakf as a whole has been an unmixed blessing to the community.
If the conditions relating to wakfs in Muslim countries are examined in general, and in India in particular, two general tendencies will appear with unmistakable clarity. First, everywhere there is a tendency towards greater state control; and secondly, there is probably a move in the direction of reduction of wakfs, and particularly of personal and family wakfs. As illustrative of the former, we have the numerous Wakf Acts all over India; of the latter, it is impossible to be certain, but people are beginning to realize the disadvantages of tying up property in perpetuity, where succeeding generations obtain successively smaller fractions of the income, part of which-if not the whole-is often squandered in vexatious and frivolous litigation, and duly 'absorbed' by unscrupulous lawyers.
APPOINTMENT OF MUTAWALLI
WHO MAY BE APPOINTED MUTAWALLI?
The founder of a wakf may appoint the following persons as Mutawalli:
a. himself, or
b. his children and descendents, or
c. any other person, even a female , or a non-Mohammedan.
But where the mutawalli has to perform religious duties or spiritual functions which cannot be performed by a female, e.g the duties of a spiritual superior, or one who reads sermons or mujavar of a Dargah, or an imam in a mosque whose function is to lead the congregation, a female is not competent to hold the office of a mutawalli, and cannot be appointed as such.
Neither a minor nor a person of unsound mind can be appointed mutawalli. But where the office of mutwalli is hereditary and the person entitled to succeed to the office is a minor, or where the mode of succession to the office is defined in the deed of wakf and the person is entitled to succeed to the office on the death of the first or other mutawalli to act in his place during his minority.
Female as mulawalli.- The Privy Council have said that there is no legal prohibition against a woman holding a mutawalliship when the trust by its nature involves no spiritual duties such as a woman could not discharge in person or by deputy. In a case, where a woman was the founder of a wakf for a mosque and other religious and charitable purposes, and appointed herself first mutawalli, and directed that two male relations should be mutawallis after her and then directed that their legal heirs should succeed as mutawallis. The Calcutta High Court held that the expression legal heirs did not exclude female heirs. The Madras High Court has held that a woman can be appointed head mujawar of an astan or platform where mohurram ceremonies are performed. The Court observed that the rule of exclusion did not apply if the religious duties were such as could be performed by deputy. The Bombay High Court has also taken the view that in the absence of any usage a woman can be appointed a mujawar. In a Bombay case it was considered that religious duties cannot be performed by proxy and it was accordingly held that a female is excluded from succession to land assigned as remuneration of a Mulla or village preacher. The decision may well be supported on narrower grounds as the performance of the duties of a preacher like those of the Imam of a mosque depends upon the personality of the incumbent and cannot be assigned to a deputy. But in the case of an appointment, where the duties are secular or religious, the Court may prefer to appoint a male mutawalli owing to the habits of seclusion of Mohammedan females.
The founder of the wakf has the power to appoint the first mutawalli, and to lay down a scheme for the administration of the trust and for succession to the office of mutawalli. He may nominate the successors by name, or indicate the class together with their qualifications, from whom the mutawalli may be appointed, and may invest the mutawalli with power to nominate a successor after his death or relinquishment of office.
If any person appointed as mutawalli dies, or refuses to act in the trust, or is removed by the Court, or if the office if mutawalli otherwise becomes vacant, and there is no provision in the deed of wakf regarding succession to the office, a new mutawalli may be appointed.
a. by the founder of the wakf,
b. by the executor (if any);
c. if there be no executor, the mutawalli for the time being may appoint a successor on his death-bed;
d. if no such appointment is made, the Court may appoint a mutawalli. In making the appointment the Court will have regard to the following rules:-
(i) the Court should not disregard the directions of the founder except for the manifest benefit of the endowment;
(ii) the Court should not appoint a stranger, so long as there is any member of the founder’s family in existence qualified to hold the office;
(iii) where there is a contest between a lineal descendant of the founder and one who is not a lineal descendant, the Court is not bound to appoint the lineal descendent, but has a discretion in the matter, and may in the exercise of that discretion appoint the other claimant to be mutawalli.
LINEAL DESCENDANT
In Shahar Banoo v. Aga Mohammed, the founder was a Shia and his lineal descendant, who claimed to be appointed mutawalli was a female of Babi sect.The Trial Judge appointed her a mutawalli, but the High Court set aside the appointment and appointed another person. This was not on the ground that she was not qualified, but because as a female she would have to perform many of her duties by deputy, and as a biwi she might take zealous interest in carrying out the religious observances of the Shia school for which the trust was founded. This decision was upheld by the Privy Council on appeal. In considering the authorities their Lordships said:
“The authorities seem to their lordships to fall far short of establishing the absolute right of the lineal descendents of the founder of the endowment, in a case like the present, in which that founder has not prescribed any line of devolution.”
If the line of devolution is prescribed from generation to generation it does not follow that a female, or persons claiming through females, are excluded though it may not be desirable to appoint a female owing to their habits and seclusion. In a case where the founder of a wakf was Mohammedan lady who had appointed herself as first mutawalli and directed that the succession should be to the legal heirs of the second mutawalli it was held that female heirs were not excluded. Where the wakif appointed his son as mutawalli it was held that the words ( ba farzandan-farzandan) should succeed as mutawallis, it was held that the words ba farzandan did not exclude the daughters of male descendents, but excluded the children of daughters.
RESIGNATION OF WAKIF AS MUTAWALLI
In Ali Asghar v. Farid Uddin, the wakif appointed himself as the first mutawalli, and after his death A. The wakif resigned from the mutawalliship and appointed B as mutawalli . It was held that A was entitled to become the mutawalli only on the death of the wakif, and as there was nothing on the resignation of the first mutawalli, there was a vacancy, and the wakif was entitled to appoint B as mutawalli, but such appointment was valid only for the lifetime of the wakif. “There is nothing in Mohammedan law”, said Braund J., ‘which prevents the appropriator or wakif, who is himself the first mutawalli from resigning his office, and, not out of its own residuary or general powers as wakif or appropriator, appointing to his own successor provided that thereby he does not oust any express power already conferred by the deed of wakf.” Where the wakif has reserved the power of appointing a mutawalli, he is entitled to appoint a mutawalli, but he is not entitled to dismiss him, unless he has reserved to himself the power to do so.
POWER OF COURTS
As regards the management of public, religious or charitable trusts, the privy council in Mohammed Ismail v. Ahmed Moola said:
“ It has further been contended that under the Mohammedan law the court has no discretion in the matter (i.e. in appointment of trustees of the mosque in question) and that it must give effect to the rule laid down by the founder in all matters relating to the appointment and succession of trustees and mutawallis. Their Lordships cannot help thinking that the extreme proposition urged on behalf of the appellants is based on misconception. The Muslim law, like the English law, draws a wide distinction between public and private trusts. Generally speaking, in case of a wakf or trust created for specific individuals or a determinate body of individuals, the Kazi, whose place in the British Indian System is taken by the Civil Court, has, in carrying the trust into execution to give effect, so far as possible, to the expressed wishes of the founder. With respect, however, to public religious or charitable trusts, of which a public mosque is a common and well-known example, the Kazi’s discretion is very wide. He may not depart from the intentions of the founder or from any rule fixed by him as to the objects of the benefaction; but as regards management, which must by governed by circumstances, he has complete discretion. He may differ to the wishes of the founder so far as they are comfortable to changed conditions and circumstances, but his primary duty is to consider the interests of the general body of the public for whose benefit the trust is created. He may in his judicial discretion vary any rule of management which he may find either not practicable or not in the interests of the institution.” Even if a wakf deed has provided that a certain person should be appointed mutawalli during the minority of a mutawalli, the Court ought not to appoint the person as mutawalli of he has repudiated the wakf.
It has been held by the Orissa High Court that the participation by the public in the management of the mosque by subscriptions and donations is not inconsistent with the mutawalliship of the person in office. A member of the public by completing the construction of the mosque and by making improvements in it, whether with his own funds or funds raised by public subscriptions, cannot disentitle the person who has the right to mutawalliship and himself become the mutawalli. Mohammedan Law permits anybody to do such acts of piety which the mutawalli cannot refuse.
The mutawalli has to carry out the provisions of the wakf strictly. In considering whether there should be a deviation from the original user of a mosque, the civil court, which has taken the place of the Kazi, has to decide on the evidence available whether the interest of the public to whom the mosque is dedicated require a change in the object of the foundation, whether the conditions necessary from making the change exist and whether the object of the founder was comprehensive enough to include the change.
VACANCY MAY BE FILLED UPON AN APPLICATION
Where there is a vacancy in the office of mutawalli, and there is no question of removing an existing trustee, the vacancy may be filled up by an application to the court. It is not necessary to bring a suit under section 92 of the Code of Civil Procedure; but before making the appointment the court should issue notices to all persons interested.
APPOINTMENT BY CONGREGATION
In the case of an institution confined to a particular locality, such as a mosque of a graveyard, the appointment of a mutawalli may be made by the congregation of the locality.
MUTWALLI MAY APPOINT SUCCERSSOR ON HIS DEATH-BED
If the founder and his executor are both dead, and there is no provision in the wakfnama or succession to the office, the mutawalli for the time being may appoint a successor on his death-bed. He cannot, however do so while he is in health, as distinguished from death-illness. Nor if the office goes by hereditary right.
A mutawalli may on his death-bed appoint even a stranger as his successor; he is not bound to appoint a member of the founder’s family. The Lahore High Court has decided that the above rule applies only where the mutawalli transfers the mutawalliship to another, but he may appoint his successor by will (g); but in appeal to the Privy Council, their lordships refrained from expressing an opinion on this point.
.
A mutawalli cannot delegate his functions in his life-time while he is in good health. He can, however, nominate his successor in his life-time and even while in good health, but it must be effective after his death. It’s only the delegation or parting with his duties when he is in good health that is prohibited: The Privy Council explained this in the following passage:
"Death may come without warning or expectation of death may not be realized. In the former case no appointment will be made, and in the latter any appointment will be ineffective."
OFFICE OF MUTAWALLI NOT HEREDITARY
The Mohammedan law does not recognise any right of inheritance to the office of mutawalli. But the office may become hereditary by custom, in which case the custom should be followed. Where there is a vacancy in the office of mutawalli, and the Court is called upon 10 appoint a mutawalli, the Court will ordinarily appoint a member of the founder's family in preference to a stranger, and a senior member in preference to a junior member. But where no such appointment is to be made, and the suit is merely one 10 oust from the office of mutawalli, a defendant who is already in possession and enjoyment of the office, the Court will not oust the defendant from the office merely because the plaintiff is the elder brother and the defendant a younger brother, or because the plaintiff is a member of the founder's family and the defendant a stranger. The reason is that according to Mohammedan law, no right of inheritance attaches to the office of mutawalli. The office, however, may be hereditary by custom. Such a custom, however, is opposed to the general law, and must be supported by strict proof (k).
A suit was filed for a declaration that the plaintiff was mutawalli and for a permanent. injunction restraining the defendant from interfering. The defenses raised were limitation and prescription and that the suit was bad as no consequential relief was asked. It was held that the mutawalliship being heritable or hereditary the suit was maintainable as the property vests in the Almighty and a suit for the possession of the office of a mutawalli was sufficient. The claim for permanent injunction made this a suit for declaration and a claim for recovery of the office of a mutawalli. It was held that one trespasser cannot tack on the possession of another trespasser when there is no connection between the two.
POWERS OF MUTAWALLI
POWER OF MUTAWALLI TO SELL OF MORTGAGE
A mutawalli has no power, without the permission of the Court, to mortgage, sell or exchange wakf property or any part thereof, unless he is expressly empowered by the deed of wakf to do so.
A mutawalli of a wakf,although not a trustee in the true sense of the term, is still bound by the various obligations of a trustee. He like a trustee or a person standing in a fiduciary capacity cannot advance his own interests or the interests of his close relations by virtue of the position held by him. The use of the funds of the wakf for acquisition of a property by a mutawaIli in the name of his, wife would amount to a breach of trust and the property so acquired would be treated as wakf property.
A mutawaIli is not allowed to sell, mortgage or lease the wakf property unless he obtains permission of Court which has the general powers controlling the actions of mutawalli. Save and except as recognized by any custom, the law does not favor the right to act as mutawalli becoming heritable. When the mutawalli does, the wakif is still alive, possesses the right to appoint another and in his absence his curator and in the absence of both, the Court appoints the successor mutawalli. Mutawalli has no ownership rights or estate in the wakf property, he holds the property as a manager for fulfilling the purpose of wakf. Even a Sajja Danishina, who has larger interest in the usufruct has no right in the property endowed. These features distinguish a mutawalli from a shebait. The elements which render shebaitship a property are absent in mutawalliship and mutawalliship is an office.
Power of sale - An instance of such power is a deed of wakf which authorized the mutawalli to sell the property and utilize the proceeds for the construction and maintenance of a resthouse at Mecca (I). But a sale after the death of the Wakif by the mutawalli according to the directions in a void wakf is void against the heirs.
Unauthorized mortgage cannot be partly valid- The Court removed a mutawalli for mortgaging the wakf property, and appointed a new mutawalli. When the new mutawalli sued to recover possession from the mortgage, the latter claimed that the mortgage was valid as to the portion of the property which was settled for the benefit of the settler’s family. The Judicial Committee held that such a contention was inconsistent with the character of a wakf under which all rights of property pass out of the wakif and vest in Almighty God.
Retrospeclive confirmation. - It has been held in Calcutta that a mortgage of wakf property, though made without the previous sanction of the Court, may be retrospectively confirmed by the Court. A mortgage without the previous leave of the Court is not void ab initio. The Allahabad High Court acting on this principle validated a usufructuary mortgage by a mutawalli. Both these cases proceeded on the grounds that (1) the mortgage was necessary for the purposes of the wakf, and (2) that the pledge was not of the corpus but of the income. The Madras High Court has also decided that an alienation which was for the benefit of the wakf can be retrospectively confirmed. The same view has been taken by the Orissa High Court.
The court exercises the same powers as a Kazi and the orders of the court are revisable under S. 115 of the Code of Civil Procedure. The court can grant permission for transfer of property.
Unauthorized alienation – who can sue the muttawalli? - Where a mutawalli makes an unauthorized alienation of wakf property, any beneficiary has the right to bring a suit for possession. It is not necessary to file a represeritative suit.
Unauthorized alienation and limitation.- The law as regards the period of limitation for a suit to follow wakf property in the hands of a mutawalli and to set aside unauthorized transfers of such property, and to recover possession thereof from the transferee, was amended and altered by Act I of 1929. The amendments consist of an addition of para. 2 to s.10 of the original Act (Limitaion Act, 1908), and of the insertion of new articles, being arts. 48B, 134A, 134B and 134C.
POWER OF MUTAWALLI TO GRANT LEASE
A mutawalli has no power to grant a lease of wakf property, if it be agricultural, for a term exceeding three years, and, if non-agricultural, for a term exceeding one year-
a. unless he has been expressly authorized by the deed of wakf to do so; or
b. where he has no such authority, unless he has obtained the leave of the Court to do so; such leave maybe granted even if the founder has expressly prohibited a lease for a longer term.
A mutawalli cannot lease agricultural land for more than three years and other land for more than one year without the permission of the Wakf Board. A longer lease than the one permitted is not void, but voidable at the instance of the mutawalli or the beneficiaries. It can be validated by the Board even retrospectively.
A mutawalli executed a lease of property subject to a wakf for a period exceeding one year without the sanction of the Court. It was held that the test to apply would be:
(a) whether the transaction was for a legal necessity, or
(b) whether it was for the benefit of the wakf, or
(c) whether it was of the benefit of the beneficiaries.
If so found the sanction can be given retrospectively and the transaction need not be struck down. The transaction is voidable and not void ab initio.
Permanent lease. - It follows that a permanent lease cannot be granted by a mutawalli without leave of the Court. Such leave must be obtained on an application to the District Judge. A Munsiff cannot validate such a lease by an order made in a pending suit. A single judge of the Bombay High Court, however, has held that where a mutawalli has leased wakf property for a long term without the sanction of the Court, the Court has the power to sanction the lease retrospectively if it is satisfied that the transaction is for the benefit of the wakf. The lease however binds to mutawalli personally during his lifetime and he cannot repudiate it and evict the lessee. Where a mutawalli under a lease of Wakf property for agricultural purposes granted a right of a permanent nature, it was held by the Patna High Court that the lease was valid for the first three years and since ho steps were taken to avoid the voidable lease, the lessee's possession continued to be lawful and was not that of a trespasser.
CREDITOR’S RIGHT
As a mutawalli (unless authorized by the deed of wakf) has no power of alienation without the leave of the Court, a creditor advancing money to a mutawalli for carrying out the purpose of the trust has no right to be indemnified out of the trust property. In this respect a creditor of a mutawalli is in a worse position than a creditor of the shebait of a Hindu endowment. A decree against A.B. "as mutawalli" is not sufficient to create a charge on the wakf property of which A.B. is mutawalli. A decree will not bind, the wakf property unless it expressly says so; and in that case the proper procedure, in execution is to appoint a receiver of the income of the endowment.
REMUNERATION OF MUTAWALLI
The founder may provide for the remuneration of the mutawalli. Such remuneration may be a fixed sum or it may be a residue of the income of the wakf property after defraying the expenses necessary for the maintenance of the wakf. If no provision is made by the founder for the remuneration of the mutawalli, the Court may fix a sum not exceeding one-tenth of the income of the wakf property. If the amount fixed by the founder is too small; the Court may increase the allowance, but it must not exceed the limit of one-tenth.
The wakf concerned being a wakf•al-al-aulad, the mutawallis were also beneficiaries and the right, title and interest which other mutawallis or their predecessor, in interest had in the estate vested by transfer, surrender or abandonment in her husband and on his death in herself. The prayer for declaration or right to wakf properties is as substantial as the claim in respect of the order of the commissioner of wakf. Such relief in respect of immovable properties situated outside the jurisdiction of the Court cannot be entertained by the Court.
REMOVAL OF MUTAWALLI
Once a mutawalli has been duly appointed, the wakf has no power to remove him from the office. The court, however, can in a fit case remove a mutawalli and appoint another in his place. On proof of misfeasance, breach of trust, insolvency, or on the muta¬walli claiming adversely to the wakf, a court has the right to remove him.
A mutawalli has no right to transfer the office to another, but he may appoint deputies or agents to assist him in the administration of the wakf. The wakf, however, who is himself the first mutawalti, can resign his office during his own lifetime and appoint another mutawalli.
An illiterate pardanashin woman purported to transfer her mutawalliship to a person who stood in a fiduciary capacity to her. It was held, first, that the onus was heavily on persons who set up such a deed to prove that the mind of the lady went with the deed, that this onus was not discharged and that the transfer was void. Secondly, where the deed itself does not lay down rules for the transfer of the tawliyat, and the transfer has been purported to be made to a person not in the direct line of succession, such a transfer cannot be set up and must fail.
The Privy Council has decided an important point regard¬ing the office of tawliyat held jointly by several mutawallis. A, B and C was appointed joint mutawaltis of a certain wakf. No direction was given regarding the succession of the mutawallis, and no custom or usage was proved. A died during the lifetime of Band C, leaving a will whereby he appointed X as mutawalti after him. It was held that such appointment was not valid, for the office of mutawalliship (tawliyat) was one and indivisible, and on the death of A, it passed by survivorship to Band C.
A Full Bench of the Allahabad High Court has laid down that the provisions of the Indian Trusts Act do not apply to a wakf 'ala'l-awlad, and the removal of a mutawalli can be effected only by means of a regular suit and not in summary proceedings started upon a mere application.
STATUTORY CONTROL
Since 1923 a number of Acts have been passed by the Central and State Legislatures regulating the administration of wakfs. The most important of these is the Mussalman Wakf Act, 1923 (XLII of 1923), which was passed for making provision for the better management of wakf property and for ensuring the keeping and publication of proper accounts. The chief provisions are that mutawalis are bound to furnish the District Court with a statement containing a description and particulars of wakf property; that muta-wallIs are bound to file proper accounts of the administration of the wakf property, and that any person may require the mutawaili to furnish further information.
The Mussalman Wakf Act, 1923, which does not apply to family wakfs, has been modified to suit local conditions in several states of India: (i) in Bengal, it has been replaced by the Bengal Wakf Act, 1934 (Act XIII of 1934); (ii) in Bombay, it has been modified by the Mussalman Wakf (Bombay Amendment) Act XVIII of 1935; and (iij) in Uttar Pradesh, the United Provinces Muslim Wakfs Act, XIII of 1936, replaces the Act of 1923.
Another important Act is the Wakfs Act, 1954 (XXIX of 1954) to provide for the better administration and supervision of wakfs; details will be found in Mulla and Tyabji, but it may be mentioned that it has been extended only to some and not all the States in India.
In addition to the Wakf Acts, there are a number of enactments which deal with private and charitable endowments in India' and the law on the subject may be found in Tyabji §§51O sqq.; and a useful list of statutory provisions will be found in Mulla §212, 212A, 225 and Saksena, Muslim Law, 4th ed. (Luck¬now, 1963),644 sqq.
CONCLUSION
A mutawalli may sue in his personal capacity for a declaration that he is mutawalli without suing for possession. Where in a suit, the plaintiffs admit that the defendant is in possession of the suit properties but they assert that he is there as mutawalli and that his possession is on behalf of the Sunni Muhammadan community and for that reason the plaintiffs say that a declaratory suit will lie and that they need not sue for possession, then the burden lies on the plaintiffs to prove their claim. As the defendant is admittedly in possession and except for the fact that the plaintiffs claim that he is in possession of their behalf the plaintiffs are out of possession, they must prove that the defendant is in possession on their behalf. The only way in which the plaintiffs can do that is by showing that the properties in suit are wakf property.
The founder of the wakf has the power to appoint the first mutawalli, and to lay down a scheme for the administration of the trust and for succession to the office of mutawalli. He may nominate the successors by name, or indicate the class together with their qualifications, from whom the mutawalli may be appointed, and may invest the mutawalli with power to nominate a successor after his death or relinquishment of office.
If any person appointed as mutawalli dies, or refuses to act in the trust, or is removed by the Court, or if the office if mutawalli otherwise becomes vacant, and there is no provision in the deed of wakf regarding succession to the office, a new mutawalli may be appointed.
A mutawalli has no power to grant a lease of wakf property, if it be agricultural, for a term exceeding three years, and, if non-agricultural, for a term exceeding one year.
A mutawaIli is not allowed to sell, mortgage or lease the wakf property unless he obtains permission of Court which has the general powers controlling the actions of mutawalli. Save and except as recognized by any custom, the law does not favor the right to act as mutawalli becoming heritable.
A mutawalli has no right to transfer the office to another, but he may appoint deputies or agents to assist him in the administration of the wakf. The wakf, however, who is himself the first mutawalli, can resign his office during his own lifetime and appoint another mutawalli
A mutawalli is not a trustee, but a manager or superintendent of property. The wakf property does not vest in him; it belongs to the Almighty and is in very deed ‘God’s Acre’. The mutawalli is not the owner of the property, but merely the servant of god, managing the property for the good of his creatures.
Under the Mahomedan law the moment a wakf is created all rights of property pass out of the wakif and vest in the Almighty. The mutawalli has no right in the property belonging to the wakf; the property is not vested in him, and is not a trustee in the technical sense. He is merely a superintendent or manager. The admissions of a mutawalli about the nature of the trust are not binding on his successors.
A mutawalli may sue in his personal capacity for a declaration that he is mutawalli without suing for possession. Where in a suit, the plaintiffs admit that the defendant is in possession of the suit properties but they assert that he is there as mutawalli and that his possession is on behalf of the Sunni Muhammadan community and for that reason the plaintiffs say that a declaratory suit will lie and that they need not sue for possession, then the burden lies on the plaintiffs to prove their claim. As the defendant is admittedly in possession and except for the fact that the plaintiffs claim that he is in possession of their behalf the plaintiffs are out of possession, they must prove that the defendant is in possession on their behalf. The only way in which the plaintiffs can do that is by showing that the properties in suit are wakf property.
A mutawalli is entitled to sue for possession, though the property is not vested in him. If the mutawalli's name has been recorded as a co-sharer, he is entitled under sec. 226 of the Agra Tenancy Act 1926, to sue the lambardar for his share of the profits.
The office of mutawalli of a public wakf, being in the nature of a public office, the question as to which of two persons is entitled to be mutawalli cannot be referred to arbitration. But where A claims that certain property is wakf property and that he is the mutawalli thereof and B denies that the property is wakf property, an award made by an arbitrator that each shall be entitled to an equal share in the management and profits of the property until the matter is decided by the Court, is perfectly valid.
The functions of a mutawalli are the same as those of a trustee though he is not a trustee either generally or under the Indian Trusts Act.
Although the wakf property is not vested in the mutawalli, he merely has the same rights of management as an individual owner. He is not bound to allow the use of the wakf property for objects which though laudable in them are not objects of the wakf. The Muslim community cannot compel the mutawalli of a mosque to allow a school building to be erected on a site attached to the mosque. Again although a mutawalli is not a trustee in the sense in which the expression is used in English law he has duties akin to those of 'a trustee and if he wrongfully deprives a beneficiary of the profits he is liable for interest. It has even been said that in the case of a private wakf, the mutawalli is not a mere superintendent or manager but he is practically speaking the owner.
A de facto mutawalli is not unknown in Mohammedan law. A de facto mutawalli can sue for rents without establishing his de jure character. In this case the owner of a house created a wakf and appointed himself as a mutawalli. He then appointed certain persons as his agents and gave them a power of attorney which included powers of management and bringing suits to evict tenants and to recover rent. The agent brought the suit as agent. It was held that the suit was validly constituted.
The liabilities of a mutawalli not duly appointed are the same as those of a duly appointed mutawalli. Where the defendants have been looking after the suit properties in one capacity or the other and been enjoying the usufruct thereof, they are trustees de son tort and the mere fact that they put forward their own title to the properties would not make them trespassers.
Now there is conflict of views as far as the different sects are concerned. In one case the court appointed a Shia to be mutawalli of a Sunni wakf, but he was person of considerable local influence both among the Sunnis and Shias. In another case the court refused to appoint a woman of the Babi sect to be mutwalli of a Shia wakf, though she was a lineal descendent of the founder of the wakf who was himself a Shia.
WAKF AND ITS IMPORTANCE
The word wakf literally means 'detention' but in Islamic law it means (i) state lands which are inalienable, used for charitable purposes; and (ii) pious endowments. In India generally we are concerned with the second meaning, and wakf is thus a pious endowment which is inalienable and therefore supposed to be everlasting although, in actual practice, this quality of perpetuity is cut down by several limitations.
It is tolerably certain that prior to Islam there were no wakfs in Arabia. The earliest wakf mentioned by the legal authorities is that of 'Umar the Second Caliph.
Ibn Omar reported – ‘Omar ibn al-Khattab got land in Khaybar; so he came to the Prophet, peace and blessings of Allah be on him, to consult him about it. He said, "0 Messenger of Allah! I have got land in Khaybar than which I have never obtained more valuable property; what dost thou advise about it?" He said: "If thou likest, make the property itself to remain inalien¬able. and give (the profit from) it in charity." So Omar made it a charity on the condition that it shall not be sold, or given away as a gift, or inherited, and made it a charity among the needy and the relatives and to set free slaves and in the way of Allah and for the travellers and to entertain guests; there being no blame on him who managed it if he ate out of it and made (others) eat, not accumulating wealth thereby.
The origin of wakf is to be sought in the strongly marked impulse to charitable deeds which is characteristic of Islam. The importance of the institution will be better understood by taking into consideration the enormous extent of wakf land in the various countries of Islam. In the Turkey of 1925, three-fourths of the arable land, estimated at 50,000,000 Turkish pounds, was endowed as wakf. At the end of the nineteenth century, one-half of the cultivable land in Algiers was dedicated. Similarly in Tunis one-third, and in Egypt one-eighth, of the cultivated soil was 'in the ownership of God'. But it was already realized by the beginning of the twentieth century, first by France and later in Turkey and Egypt, that the possession of the Dead Hand spelled ruin. The institution of wakf was in some respects a handicap to the natural growth and development of a healthy national economy.
The religious motive of wakf is the origin of the legal fiction that wakf property belongs to Almighty God; the economic ruin that it brings about is indicated by the significant phrase 'The Dead Hand'. Wakf to some extent ameliorates poverty, but it has also its dark side. When a father provides a certain income for his children and descendants, the impulse to seek education and the initiative to improve their lot gradually decrease. Charitable aid often keeps people away from industry, and lethargy breeds degeneration. Furthermore, some people who desire fame by making foundations and endowments obtain property by shady means, amounting even to extortion and exploita¬tion. Agricultural land deteriorates in the course of time; no one is concerned with keeping it in good trim; the yield lessens, and even perpetual leases come to be recognized. In India, instances of the mismanagement of wakfs, of the worth¬lessness of mutawallis (managers), and of the destruction of wakf property have often come before the courts. Consider¬ing all these matters, it can by no means be said that the institution of wakf as a whole has been an unmixed blessing to the community.
If the conditions relating to wakfs in Muslim countries are examined in general, and in India in particular, two general tendencies will appear with unmistakable clarity. First, everywhere there is a tendency towards greater state control; and secondly, there is probably a move in the direction of reduction of wakfs, and particularly of personal and family wakfs. As illustrative of the former, we have the numerous Wakf Acts all over India; of the latter, it is impossible to be certain, but people are beginning to realize the disadvantages of tying up property in perpetuity, where succeeding generations obtain successively smaller fractions of the income, part of which-if not the whole-is often squandered in vexatious and frivolous litigation, and duly 'absorbed' by unscrupulous lawyers.
APPOINTMENT OF MUTAWALLI
WHO MAY BE APPOINTED MUTAWALLI?
The founder of a wakf may appoint the following persons as Mutawalli:
a. himself, or
b. his children and descendents, or
c. any other person, even a female , or a non-Mohammedan.
But where the mutawalli has to perform religious duties or spiritual functions which cannot be performed by a female, e.g the duties of a spiritual superior, or one who reads sermons or mujavar of a Dargah, or an imam in a mosque whose function is to lead the congregation, a female is not competent to hold the office of a mutawalli, and cannot be appointed as such.
Neither a minor nor a person of unsound mind can be appointed mutawalli. But where the office of mutwalli is hereditary and the person entitled to succeed to the office is a minor, or where the mode of succession to the office is defined in the deed of wakf and the person is entitled to succeed to the office on the death of the first or other mutawalli to act in his place during his minority.
Female as mulawalli.- The Privy Council have said that there is no legal prohibition against a woman holding a mutawalliship when the trust by its nature involves no spiritual duties such as a woman could not discharge in person or by deputy. In a case, where a woman was the founder of a wakf for a mosque and other religious and charitable purposes, and appointed herself first mutawalli, and directed that two male relations should be mutawallis after her and then directed that their legal heirs should succeed as mutawallis. The Calcutta High Court held that the expression legal heirs did not exclude female heirs. The Madras High Court has held that a woman can be appointed head mujawar of an astan or platform where mohurram ceremonies are performed. The Court observed that the rule of exclusion did not apply if the religious duties were such as could be performed by deputy. The Bombay High Court has also taken the view that in the absence of any usage a woman can be appointed a mujawar. In a Bombay case it was considered that religious duties cannot be performed by proxy and it was accordingly held that a female is excluded from succession to land assigned as remuneration of a Mulla or village preacher. The decision may well be supported on narrower grounds as the performance of the duties of a preacher like those of the Imam of a mosque depends upon the personality of the incumbent and cannot be assigned to a deputy. But in the case of an appointment, where the duties are secular or religious, the Court may prefer to appoint a male mutawalli owing to the habits of seclusion of Mohammedan females.
The founder of the wakf has the power to appoint the first mutawalli, and to lay down a scheme for the administration of the trust and for succession to the office of mutawalli. He may nominate the successors by name, or indicate the class together with their qualifications, from whom the mutawalli may be appointed, and may invest the mutawalli with power to nominate a successor after his death or relinquishment of office.
If any person appointed as mutawalli dies, or refuses to act in the trust, or is removed by the Court, or if the office if mutawalli otherwise becomes vacant, and there is no provision in the deed of wakf regarding succession to the office, a new mutawalli may be appointed.
a. by the founder of the wakf,
b. by the executor (if any);
c. if there be no executor, the mutawalli for the time being may appoint a successor on his death-bed;
d. if no such appointment is made, the Court may appoint a mutawalli. In making the appointment the Court will have regard to the following rules:-
(i) the Court should not disregard the directions of the founder except for the manifest benefit of the endowment;
(ii) the Court should not appoint a stranger, so long as there is any member of the founder’s family in existence qualified to hold the office;
(iii) where there is a contest between a lineal descendant of the founder and one who is not a lineal descendant, the Court is not bound to appoint the lineal descendent, but has a discretion in the matter, and may in the exercise of that discretion appoint the other claimant to be mutawalli.
LINEAL DESCENDANT
In Shahar Banoo v. Aga Mohammed, the founder was a Shia and his lineal descendant, who claimed to be appointed mutawalli was a female of Babi sect.The Trial Judge appointed her a mutawalli, but the High Court set aside the appointment and appointed another person. This was not on the ground that she was not qualified, but because as a female she would have to perform many of her duties by deputy, and as a biwi she might take zealous interest in carrying out the religious observances of the Shia school for which the trust was founded. This decision was upheld by the Privy Council on appeal. In considering the authorities their Lordships said:
“The authorities seem to their lordships to fall far short of establishing the absolute right of the lineal descendents of the founder of the endowment, in a case like the present, in which that founder has not prescribed any line of devolution.”
If the line of devolution is prescribed from generation to generation it does not follow that a female, or persons claiming through females, are excluded though it may not be desirable to appoint a female owing to their habits and seclusion. In a case where the founder of a wakf was Mohammedan lady who had appointed herself as first mutawalli and directed that the succession should be to the legal heirs of the second mutawalli it was held that female heirs were not excluded. Where the wakif appointed his son as mutawalli it was held that the words ( ba farzandan-farzandan) should succeed as mutawallis, it was held that the words ba farzandan did not exclude the daughters of male descendents, but excluded the children of daughters.
RESIGNATION OF WAKIF AS MUTAWALLI
In Ali Asghar v. Farid Uddin, the wakif appointed himself as the first mutawalli, and after his death A. The wakif resigned from the mutawalliship and appointed B as mutawalli . It was held that A was entitled to become the mutawalli only on the death of the wakif, and as there was nothing on the resignation of the first mutawalli, there was a vacancy, and the wakif was entitled to appoint B as mutawalli, but such appointment was valid only for the lifetime of the wakif. “There is nothing in Mohammedan law”, said Braund J., ‘which prevents the appropriator or wakif, who is himself the first mutawalli from resigning his office, and, not out of its own residuary or general powers as wakif or appropriator, appointing to his own successor provided that thereby he does not oust any express power already conferred by the deed of wakf.” Where the wakif has reserved the power of appointing a mutawalli, he is entitled to appoint a mutawalli, but he is not entitled to dismiss him, unless he has reserved to himself the power to do so.
POWER OF COURTS
As regards the management of public, religious or charitable trusts, the privy council in Mohammed Ismail v. Ahmed Moola said:
“ It has further been contended that under the Mohammedan law the court has no discretion in the matter (i.e. in appointment of trustees of the mosque in question) and that it must give effect to the rule laid down by the founder in all matters relating to the appointment and succession of trustees and mutawallis. Their Lordships cannot help thinking that the extreme proposition urged on behalf of the appellants is based on misconception. The Muslim law, like the English law, draws a wide distinction between public and private trusts. Generally speaking, in case of a wakf or trust created for specific individuals or a determinate body of individuals, the Kazi, whose place in the British Indian System is taken by the Civil Court, has, in carrying the trust into execution to give effect, so far as possible, to the expressed wishes of the founder. With respect, however, to public religious or charitable trusts, of which a public mosque is a common and well-known example, the Kazi’s discretion is very wide. He may not depart from the intentions of the founder or from any rule fixed by him as to the objects of the benefaction; but as regards management, which must by governed by circumstances, he has complete discretion. He may differ to the wishes of the founder so far as they are comfortable to changed conditions and circumstances, but his primary duty is to consider the interests of the general body of the public for whose benefit the trust is created. He may in his judicial discretion vary any rule of management which he may find either not practicable or not in the interests of the institution.” Even if a wakf deed has provided that a certain person should be appointed mutawalli during the minority of a mutawalli, the Court ought not to appoint the person as mutawalli of he has repudiated the wakf.
It has been held by the Orissa High Court that the participation by the public in the management of the mosque by subscriptions and donations is not inconsistent with the mutawalliship of the person in office. A member of the public by completing the construction of the mosque and by making improvements in it, whether with his own funds or funds raised by public subscriptions, cannot disentitle the person who has the right to mutawalliship and himself become the mutawalli. Mohammedan Law permits anybody to do such acts of piety which the mutawalli cannot refuse.
The mutawalli has to carry out the provisions of the wakf strictly. In considering whether there should be a deviation from the original user of a mosque, the civil court, which has taken the place of the Kazi, has to decide on the evidence available whether the interest of the public to whom the mosque is dedicated require a change in the object of the foundation, whether the conditions necessary from making the change exist and whether the object of the founder was comprehensive enough to include the change.
VACANCY MAY BE FILLED UPON AN APPLICATION
Where there is a vacancy in the office of mutawalli, and there is no question of removing an existing trustee, the vacancy may be filled up by an application to the court. It is not necessary to bring a suit under section 92 of the Code of Civil Procedure; but before making the appointment the court should issue notices to all persons interested.
APPOINTMENT BY CONGREGATION
In the case of an institution confined to a particular locality, such as a mosque of a graveyard, the appointment of a mutawalli may be made by the congregation of the locality.
MUTWALLI MAY APPOINT SUCCERSSOR ON HIS DEATH-BED
If the founder and his executor are both dead, and there is no provision in the wakfnama or succession to the office, the mutawalli for the time being may appoint a successor on his death-bed. He cannot, however do so while he is in health, as distinguished from death-illness. Nor if the office goes by hereditary right.
A mutawalli may on his death-bed appoint even a stranger as his successor; he is not bound to appoint a member of the founder’s family. The Lahore High Court has decided that the above rule applies only where the mutawalli transfers the mutawalliship to another, but he may appoint his successor by will (g); but in appeal to the Privy Council, their lordships refrained from expressing an opinion on this point.
.
A mutawalli cannot delegate his functions in his life-time while he is in good health. He can, however, nominate his successor in his life-time and even while in good health, but it must be effective after his death. It’s only the delegation or parting with his duties when he is in good health that is prohibited: The Privy Council explained this in the following passage:
"Death may come without warning or expectation of death may not be realized. In the former case no appointment will be made, and in the latter any appointment will be ineffective."
OFFICE OF MUTAWALLI NOT HEREDITARY
The Mohammedan law does not recognise any right of inheritance to the office of mutawalli. But the office may become hereditary by custom, in which case the custom should be followed. Where there is a vacancy in the office of mutawalli, and the Court is called upon 10 appoint a mutawalli, the Court will ordinarily appoint a member of the founder's family in preference to a stranger, and a senior member in preference to a junior member. But where no such appointment is to be made, and the suit is merely one 10 oust from the office of mutawalli, a defendant who is already in possession and enjoyment of the office, the Court will not oust the defendant from the office merely because the plaintiff is the elder brother and the defendant a younger brother, or because the plaintiff is a member of the founder's family and the defendant a stranger. The reason is that according to Mohammedan law, no right of inheritance attaches to the office of mutawalli. The office, however, may be hereditary by custom. Such a custom, however, is opposed to the general law, and must be supported by strict proof (k).
A suit was filed for a declaration that the plaintiff was mutawalli and for a permanent. injunction restraining the defendant from interfering. The defenses raised were limitation and prescription and that the suit was bad as no consequential relief was asked. It was held that the mutawalliship being heritable or hereditary the suit was maintainable as the property vests in the Almighty and a suit for the possession of the office of a mutawalli was sufficient. The claim for permanent injunction made this a suit for declaration and a claim for recovery of the office of a mutawalli. It was held that one trespasser cannot tack on the possession of another trespasser when there is no connection between the two.
POWERS OF MUTAWALLI
POWER OF MUTAWALLI TO SELL OF MORTGAGE
A mutawalli has no power, without the permission of the Court, to mortgage, sell or exchange wakf property or any part thereof, unless he is expressly empowered by the deed of wakf to do so.
A mutawalli of a wakf,although not a trustee in the true sense of the term, is still bound by the various obligations of a trustee. He like a trustee or a person standing in a fiduciary capacity cannot advance his own interests or the interests of his close relations by virtue of the position held by him. The use of the funds of the wakf for acquisition of a property by a mutawaIli in the name of his, wife would amount to a breach of trust and the property so acquired would be treated as wakf property.
A mutawaIli is not allowed to sell, mortgage or lease the wakf property unless he obtains permission of Court which has the general powers controlling the actions of mutawalli. Save and except as recognized by any custom, the law does not favor the right to act as mutawalli becoming heritable. When the mutawalli does, the wakif is still alive, possesses the right to appoint another and in his absence his curator and in the absence of both, the Court appoints the successor mutawalli. Mutawalli has no ownership rights or estate in the wakf property, he holds the property as a manager for fulfilling the purpose of wakf. Even a Sajja Danishina, who has larger interest in the usufruct has no right in the property endowed. These features distinguish a mutawalli from a shebait. The elements which render shebaitship a property are absent in mutawalliship and mutawalliship is an office.
Power of sale - An instance of such power is a deed of wakf which authorized the mutawalli to sell the property and utilize the proceeds for the construction and maintenance of a resthouse at Mecca (I). But a sale after the death of the Wakif by the mutawalli according to the directions in a void wakf is void against the heirs.
Unauthorized mortgage cannot be partly valid- The Court removed a mutawalli for mortgaging the wakf property, and appointed a new mutawalli. When the new mutawalli sued to recover possession from the mortgage, the latter claimed that the mortgage was valid as to the portion of the property which was settled for the benefit of the settler’s family. The Judicial Committee held that such a contention was inconsistent with the character of a wakf under which all rights of property pass out of the wakif and vest in Almighty God.
Retrospeclive confirmation. - It has been held in Calcutta that a mortgage of wakf property, though made without the previous sanction of the Court, may be retrospectively confirmed by the Court. A mortgage without the previous leave of the Court is not void ab initio. The Allahabad High Court acting on this principle validated a usufructuary mortgage by a mutawalli. Both these cases proceeded on the grounds that (1) the mortgage was necessary for the purposes of the wakf, and (2) that the pledge was not of the corpus but of the income. The Madras High Court has also decided that an alienation which was for the benefit of the wakf can be retrospectively confirmed. The same view has been taken by the Orissa High Court.
The court exercises the same powers as a Kazi and the orders of the court are revisable under S. 115 of the Code of Civil Procedure. The court can grant permission for transfer of property.
Unauthorized alienation – who can sue the muttawalli? - Where a mutawalli makes an unauthorized alienation of wakf property, any beneficiary has the right to bring a suit for possession. It is not necessary to file a represeritative suit.
Unauthorized alienation and limitation.- The law as regards the period of limitation for a suit to follow wakf property in the hands of a mutawalli and to set aside unauthorized transfers of such property, and to recover possession thereof from the transferee, was amended and altered by Act I of 1929. The amendments consist of an addition of para. 2 to s.10 of the original Act (Limitaion Act, 1908), and of the insertion of new articles, being arts. 48B, 134A, 134B and 134C.
POWER OF MUTAWALLI TO GRANT LEASE
A mutawalli has no power to grant a lease of wakf property, if it be agricultural, for a term exceeding three years, and, if non-agricultural, for a term exceeding one year-
a. unless he has been expressly authorized by the deed of wakf to do so; or
b. where he has no such authority, unless he has obtained the leave of the Court to do so; such leave maybe granted even if the founder has expressly prohibited a lease for a longer term.
A mutawalli cannot lease agricultural land for more than three years and other land for more than one year without the permission of the Wakf Board. A longer lease than the one permitted is not void, but voidable at the instance of the mutawalli or the beneficiaries. It can be validated by the Board even retrospectively.
A mutawalli executed a lease of property subject to a wakf for a period exceeding one year without the sanction of the Court. It was held that the test to apply would be:
(a) whether the transaction was for a legal necessity, or
(b) whether it was for the benefit of the wakf, or
(c) whether it was of the benefit of the beneficiaries.
If so found the sanction can be given retrospectively and the transaction need not be struck down. The transaction is voidable and not void ab initio.
Permanent lease. - It follows that a permanent lease cannot be granted by a mutawalli without leave of the Court. Such leave must be obtained on an application to the District Judge. A Munsiff cannot validate such a lease by an order made in a pending suit. A single judge of the Bombay High Court, however, has held that where a mutawalli has leased wakf property for a long term without the sanction of the Court, the Court has the power to sanction the lease retrospectively if it is satisfied that the transaction is for the benefit of the wakf. The lease however binds to mutawalli personally during his lifetime and he cannot repudiate it and evict the lessee. Where a mutawalli under a lease of Wakf property for agricultural purposes granted a right of a permanent nature, it was held by the Patna High Court that the lease was valid for the first three years and since ho steps were taken to avoid the voidable lease, the lessee's possession continued to be lawful and was not that of a trespasser.
CREDITOR’S RIGHT
As a mutawalli (unless authorized by the deed of wakf) has no power of alienation without the leave of the Court, a creditor advancing money to a mutawalli for carrying out the purpose of the trust has no right to be indemnified out of the trust property. In this respect a creditor of a mutawalli is in a worse position than a creditor of the shebait of a Hindu endowment. A decree against A.B. "as mutawalli" is not sufficient to create a charge on the wakf property of which A.B. is mutawalli. A decree will not bind, the wakf property unless it expressly says so; and in that case the proper procedure, in execution is to appoint a receiver of the income of the endowment.
REMUNERATION OF MUTAWALLI
The founder may provide for the remuneration of the mutawalli. Such remuneration may be a fixed sum or it may be a residue of the income of the wakf property after defraying the expenses necessary for the maintenance of the wakf. If no provision is made by the founder for the remuneration of the mutawalli, the Court may fix a sum not exceeding one-tenth of the income of the wakf property. If the amount fixed by the founder is too small; the Court may increase the allowance, but it must not exceed the limit of one-tenth.
The wakf concerned being a wakf•al-al-aulad, the mutawallis were also beneficiaries and the right, title and interest which other mutawallis or their predecessor, in interest had in the estate vested by transfer, surrender or abandonment in her husband and on his death in herself. The prayer for declaration or right to wakf properties is as substantial as the claim in respect of the order of the commissioner of wakf. Such relief in respect of immovable properties situated outside the jurisdiction of the Court cannot be entertained by the Court.
REMOVAL OF MUTAWALLI
Once a mutawalli has been duly appointed, the wakf has no power to remove him from the office. The court, however, can in a fit case remove a mutawalli and appoint another in his place. On proof of misfeasance, breach of trust, insolvency, or on the muta¬walli claiming adversely to the wakf, a court has the right to remove him.
A mutawalli has no right to transfer the office to another, but he may appoint deputies or agents to assist him in the administration of the wakf. The wakf, however, who is himself the first mutawalti, can resign his office during his own lifetime and appoint another mutawalli.
An illiterate pardanashin woman purported to transfer her mutawalliship to a person who stood in a fiduciary capacity to her. It was held, first, that the onus was heavily on persons who set up such a deed to prove that the mind of the lady went with the deed, that this onus was not discharged and that the transfer was void. Secondly, where the deed itself does not lay down rules for the transfer of the tawliyat, and the transfer has been purported to be made to a person not in the direct line of succession, such a transfer cannot be set up and must fail.
The Privy Council has decided an important point regard¬ing the office of tawliyat held jointly by several mutawallis. A, B and C was appointed joint mutawaltis of a certain wakf. No direction was given regarding the succession of the mutawallis, and no custom or usage was proved. A died during the lifetime of Band C, leaving a will whereby he appointed X as mutawalti after him. It was held that such appointment was not valid, for the office of mutawalliship (tawliyat) was one and indivisible, and on the death of A, it passed by survivorship to Band C.
A Full Bench of the Allahabad High Court has laid down that the provisions of the Indian Trusts Act do not apply to a wakf 'ala'l-awlad, and the removal of a mutawalli can be effected only by means of a regular suit and not in summary proceedings started upon a mere application.
STATUTORY CONTROL
Since 1923 a number of Acts have been passed by the Central and State Legislatures regulating the administration of wakfs. The most important of these is the Mussalman Wakf Act, 1923 (XLII of 1923), which was passed for making provision for the better management of wakf property and for ensuring the keeping and publication of proper accounts. The chief provisions are that mutawalis are bound to furnish the District Court with a statement containing a description and particulars of wakf property; that muta-wallIs are bound to file proper accounts of the administration of the wakf property, and that any person may require the mutawaili to furnish further information.
The Mussalman Wakf Act, 1923, which does not apply to family wakfs, has been modified to suit local conditions in several states of India: (i) in Bengal, it has been replaced by the Bengal Wakf Act, 1934 (Act XIII of 1934); (ii) in Bombay, it has been modified by the Mussalman Wakf (Bombay Amendment) Act XVIII of 1935; and (iij) in Uttar Pradesh, the United Provinces Muslim Wakfs Act, XIII of 1936, replaces the Act of 1923.
Another important Act is the Wakfs Act, 1954 (XXIX of 1954) to provide for the better administration and supervision of wakfs; details will be found in Mulla and Tyabji, but it may be mentioned that it has been extended only to some and not all the States in India.
In addition to the Wakf Acts, there are a number of enactments which deal with private and charitable endowments in India' and the law on the subject may be found in Tyabji §§51O sqq.; and a useful list of statutory provisions will be found in Mulla §212, 212A, 225 and Saksena, Muslim Law, 4th ed. (Luck¬now, 1963),644 sqq.
CONCLUSION
A mutawalli may sue in his personal capacity for a declaration that he is mutawalli without suing for possession. Where in a suit, the plaintiffs admit that the defendant is in possession of the suit properties but they assert that he is there as mutawalli and that his possession is on behalf of the Sunni Muhammadan community and for that reason the plaintiffs say that a declaratory suit will lie and that they need not sue for possession, then the burden lies on the plaintiffs to prove their claim. As the defendant is admittedly in possession and except for the fact that the plaintiffs claim that he is in possession of their behalf the plaintiffs are out of possession, they must prove that the defendant is in possession on their behalf. The only way in which the plaintiffs can do that is by showing that the properties in suit are wakf property.
The founder of the wakf has the power to appoint the first mutawalli, and to lay down a scheme for the administration of the trust and for succession to the office of mutawalli. He may nominate the successors by name, or indicate the class together with their qualifications, from whom the mutawalli may be appointed, and may invest the mutawalli with power to nominate a successor after his death or relinquishment of office.
If any person appointed as mutawalli dies, or refuses to act in the trust, or is removed by the Court, or if the office if mutawalli otherwise becomes vacant, and there is no provision in the deed of wakf regarding succession to the office, a new mutawalli may be appointed.
A mutawalli has no power to grant a lease of wakf property, if it be agricultural, for a term exceeding three years, and, if non-agricultural, for a term exceeding one year.
A mutawaIli is not allowed to sell, mortgage or lease the wakf property unless he obtains permission of Court which has the general powers controlling the actions of mutawalli. Save and except as recognized by any custom, the law does not favor the right to act as mutawalli becoming heritable.
A mutawalli has no right to transfer the office to another, but he may appoint deputies or agents to assist him in the administration of the wakf. The wakf, however, who is himself the first mutawalli, can resign his office during his own lifetime and appoint another mutawalli
Family Law - Maintenance under Muslim Law
INTRODUCTION
The principles of maintenance are determined by the strength of claims and affections and duties of persons on whom such obligation has been cast. The Muslim jurists did not keep legal and moral obligations distinct. The moral and legal duties, in case of maintenance, are connected with each other. Such right of maintenance, apart from being a legal obligation, is a moral obligation also. Maintenance includes all those things which are important for survival and contains suitable food, raiment and lodging and cost of education. The term “Maintenance” also includes expenses for mental and physical well being of a minor child in accordance to the status of the family in the society. In case of education under maintenance there is no hard and fast rule as to what should be the standard of education.
In some cases there are conditions laid down on the duty of providing maintenance and the right of receiving maintenance. And also in some cases the right and duty of providing and receiving maintenance depends on the circumstances and condition of the persons bound to maintain and the persons who are entitled to receive respectively.
The persons entitled to maintenance are:
- Wife,
- Children,
- Grandchildren,
- Parents,
- Grandparents,
- Son’s wife,
- Step-mother, and
- Other relations by blood.
Now the relations, which are liable to maintain, can be divided into two classes:
1. relations by blood who are-
- ascendants or descendants; or
- collaterals within the prohibited degrees; and
2. relations by affinity -
a. the husband;
b. father of the husband; and
c. step-son.
Conditions for the right to maintenance
Under Mohammedan law every person’s maintenance should be given from his own property whether he is a minor or a major. As a general rule, the right of maintenance is available only to the necessitous persons who are poor and cannot earn their maintenance. The exception to this general rule provides that in certain cases the persons who are not necessitous are also entitled to maintenance. One such example is the right of the wife even though she has the means to maintain herself. Also the parents and grandparents are entitled to maintenance even if they are not necessitous but provided that they are poor then only they can claim the maintenance. Maintenance of sons, till they attain puberty, and daughters, till they are married, is also considered as an exception.
It may be noted that the wife is the only one who is entitled to maintenance even if she has got some means of maintaining herself, and the husband is without any means. Also the children before puberty are not entitled to maintenance if they are not poor and have got their own means of maintaining themselves.
A Muslim husband is bound to maintain the wife as long as she is faithful to him and obeys such orders which can be considered as reasonable in the eyes of law. But he is not bound to maintain her if she refused herself or is otherwise disobedient. In Baillie’s Digest of Mohammedan Law, it has been stated:[1]
“If, when called upon to remove to his house, she refuses to do so of right, that is, to obtain payment of her dower, she is entitled to maintenance; but if she refuses to do so without rights, as when her dower is paid, or deferred, or has been given to her husband she has no claim to maintenance.
If a woman be a nashizah or rebellious, she has no right to maintenance until she returns to her husband’s house. By this expression is to be understood a woman who goes out from her husband’s house(manzil) and denied herself to him, in contradiction to one who merely refuses to abide in her husband’s apartment(beit), which is not necessary for the purpose of restraint . If, however, the house her own property, and she forbids him from entering it, she is not entitled to maintenance unless she had asked him to remove her to his won house, or to hire a house for her. When she ceased to be a nashizah or rebellious, she is again entitled to maintenance.”
Also it has been observed in Ameer Ali’s Mohammedan Law[2]: “but the right of the wife to maintenance is subject to the condition that she is not refractory or does not refuse to live with her husband without the lawful cause.
Priority of obligations to maintain shall be in the following order:
- firstly, on the husband,
- secondly, on the father,
- thirdly, on the mother,
- fourthly, jointly on the grand-parents and grand-children,
- fifthly, on the children,
- finally, on the collateral relations.
CHAPTER 1
MAINTENANCE OF WIFE
Wife’s right to maintenance under the personal law – In the case of maintenance during the continuance of the marriage, if a wife is validly married then her husband would be liable for her maintenance even if she can maintain herself or when the husband is poor. This is subject to the following conditions:
- the wife should have attained an age at which she can render conjugal rights to the husband;
- except for some reasonable cause, she should be accessible for sexual intercourse; and
- except for some reasonable cause, she should reside with the husband and obeys his all reasonable demands.
In case of maintenance after dissolution of the marriage by divorce, the wife is entitled to maintenance, except where the divorce is the result of her own misconduct, till the date of the expiry of the period of iddat or the date of communication of the divorce to her, whichever is later but not after that.
According to the percepts in Quran and the traditions, maintenance of the wife is the duty of the husband. In some cases even the wife is entitled to a separate apartment for herself. According to Abu Hanifa and Muhammad, a husband, in certain circumstances, is liable to maintain one servant of the wife. But, according to Abu Hanifa, a poor husband is not required to maintain the servant of the wife. According to the Shafei law, the husband even though he is poor is under a duty to maintain a servant for his wife.
The wife is absolutely entitled to get maintenance from the husband even though she may have means to maintain herself[3], and the husband may himself be without any means. The obligation to maintain the wife cannot be shared.
1.1 Part Maintenance
In Mulla’s Muhhamedan Law, it is stated as follows:
“ 278. Order for maintenance – If the husband neglects or refuses to maintain his wife, without any lawful cause, the wife may sue him for maintenance, but she is not entitled to a decree for past maintenance, unless the claim is based on a specific agreement. Or, she may apply for an order of maintenance under the provisions of the Code of criminal Procedure, 1898, s. 488, in which case the court may order the husband to make a monthly allowance in the whole of her maintenance not exceeding five hundred rupees.”[4]
According to Shafei law, a wife is entitled to past maintenance though there may be no agreement. In the Madras High court decision in Mohammad Haji v. Kalimabi[5], a Division Bench consisting of Abdur Rahim and Srinivasa Ayyangar, JJ., held:
“That in Shafei law the wife is entitled to recover arrears of maintenance, though not due under a decree of court or mutual agreement, contrary to the Hanafi Law, admits no doubt. For according to the theory of the former system, maintenance is a debt and not in the nature of a gratuity as is the doctrine of Hanafi lawyers.”
The Madras Decision quotes the following passage of Hedaya (Hamilton Vol. I, p. 398) as the rule of Hanafi Law on the subject:
“If a length of time should elapse during which the wife has not received any maintenance from her husband, she is not entitled to demand any for that time except when the Kazee had before determined or decreed it to her..”
1.2 CONDITIONS:
The right of the wife to maintenance depends on the following conditions:
- The wife must be capable on entering into matrimonial relationship- If the wife is minor i.e. she has not attained maturity then she will not be entitled to maintenance. The Hanafi Law and the Shia law also proposed the same but according to the Shafei Law, it makes no difference whether the wife is minor or not.
- The wife must be accessible for conjugal intercourse – if the husband is unable to have sexual intercourse with his wife because of any act or conduct of the wife, then the husband is not liable to maintain her. In the case where the wife is residing at a place other than her husband’s home and which is preventing the husband from having sexual intercourse with her, then in that case the husband is not liable to maintain her wife. And is she makes unjustified refusal to stay with her husband, then also she is not entitled to maintenance.[6]
But where the wife is an adult and the husband is a child or if the husband is sick or impotent, she would be entitled to maintenance. The reason for this is, if the husband is impotent and unable to discharge his marital obligations, how could he fulfill the main object of marriage, more particularly, under the Mohammedan Law where the marriage is a sacrosanct contract and not a purely religious ceremony as in the case of Hindu Law. [7]
- She must obey the reasonable commands of the Husband - the wife should obey all the commands of her husband which can be considered as just and reasonable. If the wife leaves the husband’s place without his permission she will lose her right of maintenance.[8] The wife is under a duty to obey the reasonable commands of the husband.
1.3 MAINTENANCE AFTER DISSOLUTION OF MARRIAGE
The wife is entitled to maintenance only when the marriage is in continuance but not during the term of natural life.[9] As a general rule, a husband is bound to maintain her wife as long as she is faithful to hum and obeys his reasonable orders, but she will not be entitled to past maintenance until there is an agreement to the contrary.[10]
A marriage may be dissolved in several ways, such as, by the death of wither party or divorce or may be because of some defect. Now in order to claim the right of maintenance a wife should have a proof of her marriage then only she will be entitled to the right of maintenance.
A relationship between a wife and a husband cannot be maintained and run smoothly unless both the spouses act with self-restraint and have feelings and respect for each other. In matrimonial relations, it is expected of the two partners that they should behave in such a manner which should not be contrary to the feelings of each other. No woman can see her husband marrying another woman. Under Mohammedan law, second, third or even fourth marriage is permissible. So, if a husband marries 4 wives then he will not be liable for the offence of bigamy. But if such a behavior of the husband proves to be an irritant to his wife and if the same becomes a source of mental agony to her, then he cannot take shelter under the personal laws and say that he is not liable to pay maintenance to his wife living separately.
Dissolution of marriage by death -Where the marriage is dissolved as a result of the death of the husband, then in that case the widow is not entitled to maintenance either during iddat or even though she is pregnant.[11] Shia Law has also proposed the same thing.
Dissolution of Marriage by Divorce – Where the marriage is dissolved as a result of divorce, then in that case the wife is entitled to maintenance irrespective of the fact that the divorce is a revocable one or an irrevocable one, or, whether the wife is pregnant or not.[12] In this case the wife is entitled to maintenance only till the expiry of iddat, or till the communication of the divorce. However, if the divorce is a result of the misconduct of the wife then she is not entitled to maintenance during iddat.
The wife is also entitled to sue for interim maintenance at the place where she resides at the time of the divorce and receives notice thereof.[13]
Under Hanafi Law, a wife is entitled to maintenance on divorce during the iddat; but under Shafei and Shia Law, a wife is entitled to maintenance only when the divorce is revocable; but if the wife is irrevocably divorced then she will be entitled to maintenance only when the wife is pregnant.[14]
Dissolution of Marriage by Apostasy – where the marriage is dissolved in the ground of apostasy of the husband the wife would be entitled to maintenance during iddat but not in the case where she herself had apostatized. In the case where the talaq was revocable and the woman apostatizes during iddat, then also she will not be entitled to maintenance but if the talaq was irrevocable and she returns to faith, then she would be entitled to maintenance. Shia Law says that, if a wife returns back to faith then her right of maintenance would revive immediately even though the husband was absent.
1.4 MAINTENANCE WHEN DUE
The court may direct the husband to pay daily, monthly or even annually or as may be most convenient to him. Under Shia and Shafei law, maintenance is payable from day to day.
1. 5 QUANTUM OF MAINTENANCE
The condition of both the husband and wife should be taken into consideration while determining the quantum of maintenance.
In Khwaja Ali v. Smt. Fatmabi[15], the husband nominated a sharer in General Provident Fund, Gratuity, Insurance,etc.The court held that there would be no reduction in the quantum of punishment since the quantum of maintenance can only be determined by considering the condition of the husband and not by any other person.
In a case where a poor husband became rich, the court then altered the amount of maintenance initially fixed by it.
Under the Shia Law, the quantum of punishment is decided by taking the requirements of a wife into consideration.
Under Shafei Law, the quantum of punishment is determined by considering the post of husband.
1.6 ARREARS OF MAINTENANCE
Under Hanafi Law, a wife is not entitled to recover arrears of maintenance unless there is an agreement to or a decree passed by the court.
According to Shafei school, maintenance due to a wife is a debt and not in the nature of a gratuity and in all cases the wife is cannot be precluded from claiming such maintenance.
1.7 MAINTENANCE UNDER AN AGREEMENT
If there is an agreement between the wife and the husband that in case of any ill-treatment or disagreement, etc., the agreement would be considered as valid and the wife would be entitled to maintenance.
It has been held that an application on future separation between the husband and the wife is bad and thus the agreement providing that the husband would give maintenance to the wife in the event of future separation on the desire of the wife or mere disagreement is opposed to public policy and would be void[16]. Also, an agreement in the marriage that the wife would not be entitled to maintenance is void.
Even the agreements made with third parties are enforceable and it doesn’t matter that whether they are made before or after the marriage. Thus, an agreement with the mother-in-law providing for an allowance for mewakhori ( it is a custom in Muslim families to fix a personal allowance for females, this is called kharch-i-pandan, or allowance for mewakhori ) is enforceable[17].
1.8 HUSBAND CONTRACTING SECOND WIFE – WHETHER FIRST WIFW IS ENTITELD TO MAINTENANCE?
The explanation to s. 125(3) provides that if a husband continues has contracted with another wife or keeps mistress it shall be considered as a just ground for his wife’s refusal to live with him. Even where a husband takes another wife with the permission of his wife then also refusal of the wife to live with the husband is a just ground for claiming maintenance and also she need not to prove the neglect on the part of her husband.[18]
1.9 MAINTENANCE OF MUSLIM WIFE UNDER S.125 OF CRPC
Under section 125 of CrPC, 1973[19], a wife, whether Muslim or non-Muslim is entitled to claim maintenance against the husband on the ground of the husband’s neglect or refusal to maintain her. S. 125 of the new code includes every divorcee-wife, Muslim or non-Muslim.
Second proviso to s. 125(3) lays down that if the husband makes an offer to the wife to maintain her provided that she should live with him and if the wife refuses to live with the husband, then the Magistrate may consider any ground on which the refusal has been made and may make an order for maintenance not withstanding the offer made by the husband.
The section also lays down that if the husband has contracted marriage with another woman, then it is a just ground for wife’s refusal to live with the husband. Similarly, where a husband is impotent and is unable to discharge the marital obligations, this would also amount to a just cause.
Sub-section 4 of section 125 contemplates that if a wife is living in adultery or without any reason refuses to live with her husband; the wife would not be entitled to maintenance.
The question as to whether Section 125 of the code of Criminal Procedure applies to Muslims also was concluded by two decisions of this court in Bai Tahira v. Ali Hussein Fidaalli Chothia[20].The Criminal Procedure Code provides maintenance under Section 125 for wife, sons, and daughter up to age of majority only permitted. Section 125 of Criminal Procedure Code is common to all people to move to the court for getting maintenance.
Section 3(1) (b) of the Muslim Women (Protection of Rights on Divorce) Act provides statutory liability of providing maintenance extends beyond attainment of a dependent girl till marriage. In this circumstance she has to move to the Civil Court
In Bai Tahira’s case Justice Krishna Iyyer held that:
“Welfare laws must be so read as to be effectively delivery system of salutary objects sought to be served by the legislature and when the beneficiaries are weaker section like the destitute women. The spirit of Article 15(3) has compelling compassionate relevance in the contest of Section 125 Cr.P.C. and the benefit if any in the statutory interpretation goes in favour of ill used wife and the derelict divorcee. So the Section 125 and the sister clauses must receive a compassionate expansion of sense that the words used permit.”
In Mst. Zohara Khatoon v. Mohd. Ibrahim[21] the question before the court was that whether a Muslim wife who has obtained divorce from her husband under Dissolution of Muslim Marriage Act, 1939 entitled to claim maintenance under Section 125 of CrPC. Answering to this question the Allahabad High Court was of the view that clause(b) of the explanation to Section 125 would apply only if divorce proceeds from the husband that is to say that the said clause would not apply unless the divorce was given unilaterally by the husband or was obtained by the wife from the husband. But on appeal the Supreme Court held that the view taken by the Allahabad High Court was erroneous and is based on wrong interpretation of clause (b) of the explanation to Section 125. Therefore it suggests that a Muslim wife whose divorce has been done under the Dissolution of Muslim Marriage Act, 1939 may also claim maintenance from the husband.
The Supreme Court, in Mohd. Ahmed Khan v. Shah Bano Begum and others[22] has held that if the divorced woman is able to maintain herself, the husband's liability ceases with the period of iddat, but if she is unable to maintain herself after the period of iddat, she is entitled to maintenance under section 125 of the Code of Criminal Procedure. This led to controversy as to the obligations of the Muslim husband to pay maintenance to the divorced wife.
1.10 THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT 1986 – Objectives and consequences.
According to the Muslim Women's Act she is entitled to:
a. a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband;
b. where she herself maintains the children born to her before or after her divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children;
c. an amount equal to the sum of mahr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according of Muslim law; and
d. all the properties given to her before or at the time of marriage or after her marriage by her relatives or friends or the husband or any relatives of the husband or his friends.
A “divorced women” as defined under Section 2(a) of the Act to mean a divorced woman who has married according to Muslim law and has been divorced by or has obtained divorce form her husband according to the Muslim law.
Section 5 of the given Act provides for option to be governed by the provisions of Section 125 to Section 128, Cr.P.C. It lays down that if on the date of the first hearing of the application under Section 3(2), a divorced woman and her former husband declare, by affidavit or any other declaration in writing in such form as may be prescribed, either jointly or separately that they would prefer to be governed by the provisions of Sections 125 to 128 of Cr.P.C. and file such affidavit or declaration in the Court that the Magistrate shall dispose such application accordingly.
A reading of the Act will indicate that it codifies and regulates the obligations due to a Muslim woman divorcee by putting them outside the scope of Section 125 of Cr.P.C. as the divorced woman as defined in this Act is woman who has married according to Muslim law and has been divorced by or has obtained divorce form her husband according to the Muslim law.
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CHAPTER 2
MAINTENANCE OF CHILDREN AND GRAND-CHILDREN
2.1 Right of Children to maintenance.
The children have got the priority over parents as far as maintenance is concerned. The mother cannot be compelled to provide milk to a child and the father is under a duty to provide a nurse, but this is subject to one condition that if the father has no property then he has no such duty. After weaning the father is under a duty to maintain but if the child has some property then maintenance can be taken out from his property. In case of daughters, the duty of the father to maintain extends beyond puberty and also till they are married when they have no property of their own.
2.2 Maintenance of minor children
Maintenance of children is incumbent upon the father only where [the children] possess no independent property. The father is also responsible for [the] maintenance of infant children. There is no obligation upon the mother to suckle [her] child at the breast. It is the duty of the father to provide a wet-nurse who is to stay with or near the mother. He cannot hire his own wife for the purpose but may hire one of his other wives, if any.
2.3 Liability to maintain in case of legitimate or illegitimate child
The Mohammedan law makes no specific provision for the grant of maintenance to an illegitimate child against his father at the same time there is no prohibition either. Muslim Law supports the notion that an illegitimate child is a filius nullius ( a son of nobody, illegitimate son), it owes no nasab to either parent In Muslim Law, a son to be legitimate must be the offspring of a man and his wife or that of a man and his slave; any other offspring is the offspring of 'Zina', that is illicit connection, and hence is not legitimate. Muslim laws does not confer any obligation of maintenance of illegitimate children on either parents. Though the Hanafis recognize the obligation of nurture till the child attains the age of seven; the Shias do not recognize this obligation.
Though the father under Muslim Law is not bound to maintain his illegitimate child, it seems from the judgments that Section 125 of the Criminal Procedure Code, 1973, (which provides that all such unfortunate children are maintained by their fathers) however binds such a father to pay for the maintenance of the child. The father would be liable to pay this amount even if the mother refuses to surrender the illegitimate child to him.
In the case, Sukha v. Ninni, it was held that, "An agreement to maintain an illegitimate child, for which the Mohammedan Law as such makes no provision, will in my opinion not have the effect of defeating the provisions of any law. As a matter of fact, maintenance of illegitimate children has been statutorily recognized under Section 125 of the Criminal Procedure Code of 1973 in our country and it is in consonance with this wholesome policy that the offsprings born under such circumstances are to be provided for and should not be left to the misfortunes of vagrancy and its attendant social consequences."
Whereas, in Pavitri v. Katheesumma where an illegitimate daughter born to a Muslim father and a Hindu mother brought a claim for maintenance from the assets of the dead father it was held that though "an illegitimate does not inherit properties of its putative father or his relations and from this it would follow that an illegitimate child cannot claim maintenance from the assets left by its putative father and which are in the hands of the heirs of the putative father ....even though S.125 of the Cr P C imposes a statutory obligation on a Muslim father to maintain his child even an illegitimate."
The Court further held, "whether the principles of Hindu Law apply or whether the principles of Muslim Law apply, the plaintiff in this case who was an illegitimate daughter born of a Mohammedan male and a Hindu female was not entitled to claim maintenance from the putative father or from the assets left by him apart from any rights that may have been conferred on her by Statute (Cr P C). Since the plaintiff had not based her claim upon any statutory right her suit for recovery of maintenance from the assets of her putative father was bound to fail."
2.4 Father’s Duty
Under Islamic law father is liable to maintain his sons till they attain puberty and daughters till they are married and such obligation cannot be denied on the ground of his pecuniary incapacity or indigence so long as he has the ability to earn and no one shares such obligation. He is bound to maintain even if he is indigent or the children are in the custody of the mother. In such cases, the Judge must pass a decree for maintenance against him and direct the wife to borrow money for it on the husband’s credit. Further, the duty of mother and grandfather arises only when the father is not able to maintain the children even by earning. The father has a right to refuse to maintain the children if they refuse to live with him, except for a reasonable justification for the same.[23]
2.5 Right of child to be maintained by father despite the fact that the child is in the custody of the mother
The position of a child who has not attained the age of discretion or who is not of its
free will or volition living away from the father is peculiar. If such a child is kept in custody by the mother and is prevented from returning to the father, it cannot be said that the child is at fault and that its conduct has disentitled it to maintenance. Even if a child prefers to live with the mother due to natural affection or attachment for her, that would not affect the liability of the father to maintain the child. In Mst. Akhtari Begum v. Abdul Rashid[24], is a case in which the right of a four year old child was upheld despite the fact that the child was in the custody of the mother.
The father’s obligation to maintain a daughter ceases immediately on her marriage( the marriage should be validly solemnized).
2.6 Mother’s Duty
The mother is liable to maintain the children if the father is necessitous and she herself is not poor. There are some conflicts of opinion regarding maintenance by mother and by the grandfather in such cases. Some hold that the mother alone has to maintain while others hold that the liability has to be shared proportionately according to the share of inheritance.
According to the Shia law - If the father is poor, the liability rests on the nearest paternal grandfather how highsoever, if he is not poor but not on the mother though she is not poor. After this the liability shifts on the mother. If the mother is dead or poor, then the liability moves on to the maternal grandparents.
According to Shafei law- The duty of higher ascendants arises only in default of mother or father.
2.7 Maintenance of grand-children
A grand-parent who is not poor is bound to maintain his grand-children who has no father and mother or the father is necessitous. However, such liability is subject to the child having no property. If the child has some property and the father is necessitous, the grand-parent will be entitled to reimbursement.
2.8 Married Daughters
As a general rule, based on case laws, the duty of maintaining sons even after puberty is, in certain cases, is on the parents and similarly when a daughter gets married the obligation passes into her husband’s family and there is no duty on the parents to maintain her. But some Judges have taken the view that marriage does not necessarily terminate the obligation of maintaining a daughter. The father may be obliged to maintain a widowed or divorced daughter.
2.9 When the right to maintenance ceases
According to Mohammedan law the right of the children and the grand-children to maintenance terminates as soon as puberty is attained except under certain circumstances. Minority according to Mohammedan law terminates on attainment of puberty but according to Sec. 3 of the majority act. There is a difference of opinion as to whether majority for purposes of maintenance is attained on puberty or at the age of 18 years.
2.10 Step Children
It has been held that if a man married a widow with encumbrances he is usually expected to take over the encumbrances with the widow and feed them[25]. But he is not bound to support except where there is an agreement for that purpose.
2.11 Adult Sons
In case of maintenance of necessitous adult sons there is a difference in opinion. One opinion is that the liability rests two-third in the father and one-third on the mother. This view has been approved by Hedaya. The other opinion is that the father alone is liable, if both mother and father are poor.
2.12 Statutory rights of the children
The hanafi law recognizes the relationship of an illegitimate child with the mother with mutual rights of inheritance. The Shia law does not recognize the relationship even with the mother. The duty to maintain rests, under the Hanafi law, on the mother and under the Shia law on neither parent. The right is, however, available against the father under Sec. 125 of Cr.P.C.
CHAPTER 3
MAINTENANCE OF PARENTS
3.1 Right of parents to maintenance
It is obligatory upon a man to provide maintenance for his father, mother and grandfather and grandmother if they happen to be in circumstances necessitating it. The fact that they may belong to different religions makes no difference. Except his wife, children, parents, grand-children and grandparents, a man are not obliged to maintain other relations belonging to other religions.
Maintenance is due to a relationship within the prohibited degrees in proportion to inheritance. A poor man is under no such obligation except in the case of a wife [with an] infant child. A father and mother must provide maintenance to their adult daughters and also to disabled adult sons in proportion to their respective claims of inheritance.
In the event of divorce, whatever has been given to the wife by his parents and whatever might have been given to her by her husband, all belongs to her and she can take them with her.
The parents have the next position in the right of maintenance after the children. The liability to maintain parents rests only on the children and is not shared by anyone else. As between the parents the mother is entitled to preference over the father.
There is a difference of opinion on the question whether father who is poor but can earn is entitled to maintenance.
If the son is poor but is earning something, he may be compelled to maintain if he has any surplus. If he has got wife and children all that he can be compelled to do is to bring his father to live into his family but he is not obliged to give separate maintenance.
Shia Law - the right of the two parents is equal. So also the right of the parents and children are equal. Maintenance must in each case be divided equally. But the parents are preferred to grandparents.
Parents and children are jointly liable for a person’s maintenance. Thus, if a man has both father and a son who are not poor, the liability falls equally upon them.
3.2 Proportions of liability
There is a difference as to the extent of liability of different children to maintain the parents. Ameer Ali state that the liability is in proportion to the shares inheritance. Another opinion is that if there is a considerable difference in the means, maintenance is to be provided in proportion to the means. But the better opinion seems to be that duty to support is equal. The right is equally incumbent upon a son and a daughter.
Shia Law - the liability is apportioned according to the individual means of the different persons who are bound to maintain.
Shafei Law – there is a difference of opinion as to whether the heirs are jointly liable for maintenance or only in proportion to their respective shares.
CHAPTER 4
MAINTENANCE OF GRAND-PARENTS
4.1 Liability of Grand-children
The grand-children of a person would not be liable to maintain if there is a husband, children or parents who would be under a duty to maintain, even though they may be entitled to daughter or the father must maintain. Thus, if a man has a daughter or father and a son’s son, the daughter or the father must maintain. The son’s son would not be bound to maintain even though he is entitled to inherit. As in the case of sons, the liability of all grand-children would be equal.
But where there are both grand-parents and grand-children, the liability would be of both proportionately to the extent of their shares in inheritance. Thus, of there is a father’s father and a son’s son they must provide maintenance in proportion to one-sixth and five-sixths.
Shafei law – maintenance is due from all the descendents together but they are not equal in all respects. The obligation is on the nearest. If there is equality in the degree of relationship, the obligation is in the person who will be heirs. There is, however, a difference in opinion as to whether the liability is joint or only in proportion to shares in inheritance.
If both the ascendants and descendants are alive, the latter would be primarily liable irrespective of the distance of degree of relationship.
Ahmad Khan v. Shah Bano
Before to Shah Bano’s case several times it was argued before the courts that the former husband is liable to provide maintenance only up to Iddat period. The Supreme Court judgment in the Shah Bano's case in 1985 also has to be seen in this light and the subsequent law (Muslim Women's Act, 1986) upturning the Supreme Court judgment did not influence judges minds and they continue to give judgments as before even under the new law.
There came up the case of Ahmad Khan v. Shah Bano[26] before the Supreme Court. Judgment by the Apex Court
There were massive demonstrations by the Muslims and the Rajiv Gandhi Government was compelled to upturn the Supreme Court Judgement by passing a new law known as the Muslim Women (Protection on Divorce) Act. The new law drafted with the help of Muslim clergy was supposedly based on the Quranic verse 2:241 which says that "And the divorced women, too, shall have (a right to) maintenance in a goodly manner; this is a duty for all who are conscious of God." Thus it is clear that the Holy Quran requires Muslims who fear God to provide maintenance for their divorced wives. The Muslim Ulama, however, argued that this maintenance could be given only for the period of Iddat only i.e. for three months.
Then the learned judges came to the conclusion, "Considering all the aspects we finally hold that a person after divorcing his wife is bound to maintain her on a reasonable scale beyond the period of iddat for an indefinite period that is to say, till she loses the status of a divorcee by remarrying another person." This is of course quite interesting interpretation of the verse 2:241 and it seems to be quite in keeping with the words of the verse. It is also interesting to note that there was no resentment against this judgment by the `Ulama in Bangladesh
It is quite interesting to note that while the Indian 'Ulama and Muslim leaders agitated against the Supreme Court judgment in mid-eighties and forced the Government of India to adopt new legislation for Muslim women, the Bangladesh High Court, in 1995 upheld the provision of Cr.P.C. 125 and allowed maintenance for life to a Muslim divorcee.
Hence the Muslim Women's Act makes one time provision only as against recurring payment until she remarries or dies as provided for in Cr.P.C. According to the Muslim Women Act, the husband, at the time of divorce, should pay the mehr amount (if not already paid), should make one time provision for her as provided for in the Quran and should give three months' maintenance. Thus a Muslim divorcee will get a lump sum amount at the time of divorce. The very first judgment under this Act was given by the District Magistrate of Lucknow Ms.Rekha Dixit who awarded Rs. 80,000 to a Muslim divorcee. Rs. 60,000 were awarded as one time provision and remaining amount was for mehr as well as for three months' maintenance. The amount awarded was not so bad after all. But it seems Muslim women were not satisfied and number of cases continued to be filed in various courts for maintenance under section 125 of Cr.P.C. despite the enactment to the contrary.
Justice Panigrahi maintained that the Supreme Court had unequivocally held that the provisions of section 125 of the Cr.P.C procedure override the personal law and it necessitated the enactment of the Act in Parliament in 1986. The judge said that "A divorced Muslim woman is entitled to maintenance after contemplating her future needs and the maintenance is not limited only up to the iddat period. The phrase used in Section 3 (I) (A) of the Act, 1986 is reasonable and fair provision and maintenance to be made to see that the divorced woman get sufficient means of livelihood after divorce and that she does not become destitute or is not thrown out on the street."
Several writ petitions were filed and again the same question came before the Supreme Court in the case of Daniel Latifi v. Union of India
While upholding the validity of the Act, they gave the following conclusions:
1) A Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife, which obviously includes her maintenance as well. Such a reasonable and fair provision must b made by the husband within the Iddat period in terms of Section 3(1) (a) of the Act.
2) Liability of the Muslim husband to his divorced wife arising under Section 3(1) (a) of the Act to pay maintenance is not confined to Iddat period.
3) A divorced Muslim woman who has not remarried and who is not able to maintain herself after iddat period can proceed as provided under Section 4 of the Act against her relatives who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim Law from such divorced woman including her children and parents. If any of the relatives being unable to pay maintenance, the Magistrate may direct the State Wakf board established under the Act to pay such maintenance.
4) The provisions of the Act do not violate Articles 14, 15 and 21 of the Constitution of India.
Thus it will be seen that all courts now have been interpreting the Section 3 (a) of MWA, 1986 such as to give benefit of maintenance to Muslim divorcees beyond the iddat period which is in fact the intention of the section 125 of the Cr.P.C. Instead of giving maintenance every month as provided for in Cr.P.C the husband under MWA, 1986 will have to pay lump sum within the iddat period so as to benefit the divorcee beyond iddat period. The Muslim theologians too were insisting during the Shah Bano agitation that the Quran provides for one time provision only as in the verse 2:241. There were of course different interpretations of 2:241 by the companions of the holy Prophet. But some companions like Abdullah bin Abbas did hold that the provision (mata`) has to be substantial and not merely symbolic.
Prior to the Muslim Family Laws Ordinance on 1961, Hanafi Muslim women had no forum to raise the question of recovery of arrears of maintenance. Under this Ordinance, the Arbitration Council formed could and did deal with the question and found in favour of women’s claims. However, we must note that the Ordinance, despite what was recommended by the 1956 Commission, only comprehended maintenance for married women, and not mataa for divorced women. It has already been pointed out that jurists are in agreement that it is permissible to follow a non-Hanafi school when Hanafi law does not provide relief. This is how our 1961 Ordinance came to be based on Maliki law. Thus today cases coming before Bangladeshi courts should not have a difficulty in finding a forum to provide relief to divorced women. For example, in Gul Bibi v. Muhammad Saleem[28] the argument was based on justice and common sense and the position that it is possible to borrow from another school of Muslim
In the instant case the parties admittedly follow Hanafi school of thought... However, as some thinkers of Islam do favour the positive view and such view is also consistent with reason, logic and common sense, its adoption as a rule in case of such sects which do not strictly follow that school of thought, would not be unjustified.”
Today we have the Family Courts Ordinance of 1985, which not only has a streamlined procedure but also under which women have to pay only their minimal fees. Now that the question of mataa - post divorce maintenance, has been raised before the Appellate Division of Bangladesh, we can be hope that the question has at last found an appropriate forum for decision.
In the instant case the parties admittedly follow Hanafi school of thought... However, as some thinkers of Islam do favour the positive view and such view is also consistent with reason, logic and common sense, its adoption as a rule in case of such sects which do not strictly follow that school of thought, would not be unjustified.”
Today we have the Family Courts Ordinance of 1985, which not only has a streamlined procedure but also under which women have to pay only their minimal fees. Now that the question of mataa - post divorce maintenance, has been raised before the Appellate Division of Bangladesh, we can be hope that the question has at last found an appropriate forum for decision.
CONCLUSION
From the study of the various case laws, the Following general principles can be laid down:
1. A husband is legally bound to maintain his wife during the subsistence of the marriage in accordance with his means and position in life but this very right of the wife to maintenance is subject to the condition that she must obey or she should not refuse to live with her husband without a lawful cause such as non-payment of dower.
2. If the wife is a minor so that the marriage cannot be consummated, there is no legal obligation on the husband's part, according to the Hanafis, to maintain her. However, desertion without leaving any means of support to the wife or family entitles the wife to a separation.
3. In case of a divorced wife, she is entitled to maintenance during her period of probation (iddat) and further the wife cannot re-marry a second time for three months and in the case of death of the husband for four months and ten days. This period is called iddat. Because of this condition, she is entitled to get maintenance for this period.
4. If the husband fails to pay prompt Mehr on the demand of his wife or due to his cruel treatment, the wife leaves his society, she is entitled to maintenance.
5. In determining the quantum of maintenance, regard is to be given to the status and condition of both the parties. If both the parties are wealthy, he must support her in an opulent manner; if both be poor, the husband is required to provide for her accordingly; if he be rich and she poor, he is to afford her a moderate subsistence such as is below the former and above the latter.
6. If a woman refuses to surrender herself to her husband on account of non-payment of dower, her maintenance does not drop and it would still incumbent be upon the husband.
7. If a wife is disobedient or refractory and goes abroad without her husband's consent, she is not entitled to any support from him until she returns and makes submission. The maintenance of the wife's servants is also incumbent upon her husband, provided he is in opulent circumstances.
8. If the maintenance of a wife is decreed by a Qazi or Court at a time when the husband was poor but afterwards he becomes rich, she can sue for a proportionate addition to her maintenance, and a decree must be given in her favor.
9. If a husband absents himself, leaving his effects in the hands of another, his wife is entitled to get maintenance out of the husband's effects. In fact, children and parents of the husband will also get maintenance out of the assets.
10. The right of the wife to maintain depends on the following conditions:
a. the wife must be capable of entering into matrimonial relationship.
a. the wife must be capable of entering into matrimonial relationship.
b. the wife must be accessible for conjugal intercourse.
c. she must obey the reasonable commands of the husband.
11. After weaning the father is under a duty to maintain but if the child has some property then maintenance can be taken out from his property. In case of daughters, the duty of the father to maintain extends beyond puberty and also till they are married when they have no property of their own.
12. In case of an illegitimate son, the father is bound to maintain his illegitimate child (from the judgments that Section 125 of the Criminal Procedure Code, 1973, which provides that all such unfortunate children are maintained by their fathers). The father would be liable to pay this amount even if the mother refuses to surrender the illegitimate child to him.
13. If a child prefers to live with the mother due to natural affection or attachment for her, that would not affect the liability of the father to maintain the child.
14. In case when the mother is not poor and the father is necessitous, then the mother is liable to maintain the children.
15. The liability to maintain parents rests only on the children and is not shared by anyone else. As between the parents the mother is entitled to preference over the father.
16. The grand-children of a person would not be liable to maintain if there is a husband, children or parents who would be under a duty to maintain, even though they may be entitled to daughter or the father must maintain.
[1] Baillie’s Digest, Mohammedan Law, 2nd Ed., p.442.
[2] Ameer Ali, Mohammedan Law, vol. II, 5th Ed., p. 407
[3] Said Ahmad v. Sultana Bibi; AIR 1943 Pesh. 73
[4] Mulla, Mohammedan law, 18th Ed., at p.300
[5] AIR 1918 Mad.
[6] Ali Akbar v. Fatima Begum, AIR 1929 Lah 902
[7] Sirajmohmedkhan Janmohammadkhan v. Hafizunnisa Yasinkhan, AIR 1981 SC 1972
[8] Aamir Ali, Mohammedan Law, Vol. II, at p . 419
[9] Abdool Fateh v. Zubinissa, ILR 6 Cal.
[10] Mohammad Ali v. Fareedunissa, AIR 1970 A.P. 298
[11] Agha Mohd. Jaffar v. Koolsom Babi, ILR 25 Cal
[12] Rashid Ahmad v. Anisa Khatun, AIR 1932 PC 25
[13] Mohd. Ibrahim v. Jaithoon, AIR 1951 Mad.
[14] Mohd. Tyabji’s, Mohammedan Law, 3rd. Ed. at p. 322
[15] 1987 (I) DMC 374
[16] Bal Fatima v. Ali Mohd. , ILR 37 Bom 280
[17] Sikandar Ara v. Hasan Ara, AIR 1936 Oudh . 196
[18] Abdul Gaffar v. Bibi Hafeeza Khatoon, AIR 1968 Pat. 307
(1) If any person leaving sufficient means neglects or refuses to maintain-
(a) His wife, unable to maintain herself, or
(b) His legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(c) His legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) His father or mother, unable to maintain himself or herself,
(b) His legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(c) His legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) His father or mother, unable to maintain himself or herself,
A Magistrate of' the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate1[***] as such magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct::
Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of' sufficient means.
2[Provided further that the Magistrate may, during the pendency of the Proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct:
Provided also that an application for the monthly allowance for the interim maintenance and expenses for proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person]
Explanation. For the purposes of this Chapter.
Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of' sufficient means.
2[Provided further that the Magistrate may, during the pendency of the Proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct:
Provided also that an application for the monthly allowance for the interim maintenance and expenses for proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person]
Explanation. For the purposes of this Chapter.
(a) Minor means a person who, under the provisions of the Indian Majority Act, 1975 (9 of 1875) is deemed not to have attained his majority;
(b) "Wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
(b) "Wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
3[(2) Any Such allowance for the maintenance or interim maintenance and expenses for proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.]
(3) If any Person so ordered fails without sufficient cause to company with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole, or any part of each month's 4[ allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case be,] remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:
Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the court to levy such amount within a period of one year from the dare on which it became due:
Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.
Explanation. If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to just ground for his wife's refusal to live with him.
(4) No wife shall be entitled to receive an allowance from her husband under this section she is living in adultery, or if, without any sufficient reason, she refuses to live with her, husband, or if they are living separately by mutual consent.
(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to, live with her, husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.
(3) If any Person so ordered fails without sufficient cause to company with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole, or any part of each month's 4[ allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case be,] remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:
Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the court to levy such amount within a period of one year from the dare on which it became due:
Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.
Explanation. If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to just ground for his wife's refusal to live with him.
(4) No wife shall be entitled to receive an allowance from her husband under this section she is living in adultery, or if, without any sufficient reason, she refuses to live with her, husband, or if they are living separately by mutual consent.
(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to, live with her, husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.
[20] AIR 1979 SC362
[21] 1981 Cr LJ 754
[22] AIR 1985 SC 945
[23] Baya Bai v. Esmail Ahmad, AIR 1941 Bom. 369
[24] AIR 1937 Lah. 236
[25] Mohd. Sultan v. Abdul Rehman, AIR 1937 Rang. 175
[26] AIR 1985 SC 945
[27] AIR 2001 SC 3958
[28] PLD 1978 Quetta