B.A. LL.B. (Five Years) Sem 6 Family Law II (Mohammedan Law and Indian Succession Act) 2018 Dec Question Paper with Solutions

For full marks, cover: what a school (madhab) is and why schools arose, as different answers to the question "how is the law to be found?"; the first division, over who should lead after the Prophet (Sunni and Shia); the four Sunni schools, each by its method (Hanafi, Maliki, Shafii, Hanbali); the Shia schools by their line of Imams, with their sub-schools: Ithna Ashari (Akhbari and Usuli), Ismaili (Nizari Khojas and Mustali Bohras, the Bohras divided into Daudi and Sulaimani), and Zaidi; the Mutazila as a school of theology; how the schools give different answers in India (Chand Patel, Syid Murtaza Husain, Qurban Husain); how a court finds a party's school; a table; a conclusion.

What a school is

A school (madhab) is a body of legal doctrine built by jurists who share a method of finding the law from its sources. All schools accept the Quran and the Prophet's practice (sunna). They differ on how much weight to give to reasoning, to local practice and to the rulings of the Imams. Those differences in method produce different rules.

3. Shafii. Founded by al-Shafii (d. 820), who systematised the theory of the four sources (Quran, sunna, consensus and analogy) and restricted free reasoning. It has followers on India's western and southern coasts, including Kerala.

4. Hanbali. Founded by Ahmad ibn Hanbal (d. 855). Its method holds most closely to the texts and traditions and is most wary of analogy. It has few followers in India.

The Shia schools, by their line of Imams

1. Ithna Ashari (the Twelvers). They follow twelve Imams, the last believed to be in hiding. They are the largest Shia group in India. They have two sub-schools:

• Akhbari, who rely on the recorded traditions of the Imams; and
• Usuli, who allow qualified jurists (mujtahids) to reason from the sources.

The Sharaya-ul-Islam is treated by Indian courts as a leading authority of their law.

2. Ismaili (the Seveners). They follow the line through Ismail, the eldest son of the sixth Imam. In India they have two sub-schools:

The schools on points of family law

Marriage without a guardian. Under Hanafi law an adult woman may contract her own marriage without a guardian. The Maliki, Shafii and Hanbali schools require a guardian (wali). The Shafii school also lets a father give a virgin daughter in marriage without her consent.

Witnesses. Sunni law requires two witnesses at the marriage. Ithna Ashari law requires none for marriage, but requires two witnesses for talaq, which Sunni law does not.

Temporary marriage. Only the Ithna Ashari school recognises muta, a marriage for a fixed term. The Sunni schools treat it as no marriage.

Wakf. For Hanafis, following Abu Yusuf, a declaration completes a wakf. For Shias, delivery of possession is needed.

Inheritance. Sunni law arranges heirs as sharers, residuaries and distant kindred, and prefers relations through males. Ithna Ashari law arranges blood relations in three classes by nearness: parents and children first, then grandparents and brothers and sisters, then uncles and aunts. A nearer class excludes a remoter one. It also has no separate class of distant kindred.

Syid Murtaza Husain v. Musammat Alhan Bibi (1909) 2 Ind Cas 671 (Allahabad High Court). A Shia widow with a daughter by the deceased claimed her share in his land. The defence was that a Shia widow takes no share in land. The High Court noted earlier rulings that a childless Shia widow takes no share in her husband's land. The question of a widow with a child was unsettled. The Court followed the Sharaya-ul-Islam and held that she takes her share in both movable and immovable property.

Pre-emption: reciprocity between schools.

Qurban Husain v. Chote (1900) ILR 22 All 102. A Shia claimed pre-emption as a neighbour of a house sold by Sunnis. Shia law gives a mere neighbour no such right. The Allahabad High Court dismissed his suit, holding that pre-emption rests on reciprocity. A Shia cannot claim from Sunni law a right he would deny if the positions were reversed.

How a court finds the school

1. A Muslim is presumed to be a Sunni, and a Sunni to be a Hanafi, unless the contrary is shown.
2. A party who claims another school must prove it, usually by the family's practice.
3. An adult may change his school. The new school then governs him.

Conclusion. Muslim law divides into Sunni and Shia schools. The Sunni schools, Hanafi, Maliki, Shafii and Hanbali, are distinguished by their methods. The Shia schools are distinguished by their lines of Imams. They are Ithna Ashari with its Akhbari and Usuli sub-schools, Ismaili with its Khoja and Bohra branches, and Zaidi. The school can decide a case, as Chand Patel on irregular marriages, Syid Murtaza Husain on the Shia widow and Qurban Husain on pre-emption show. Courts presume a Muslim to be a Hanafi Sunni unless another school is proved.