KSLU Solved Question Papers
Family Law II (Mohammedan Law and Indian Succession Act)
Previous Year Question Paper with Solution
B.A. LL.B. (Five Years) · Sem 6
2021 Mar (100 marks) Examination
munotes.in
Mumbai
B.A. LL.B. (Five Years) Sem 6 Family Law II (Mohammedan Law and Indian Succession Act) 2021 Mar (100 marks) Question Paper with Solutions
First published on munotes.in on 21 October 2026.
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The question paper reproduced here is the paper as set by Karnataka State Law University at the 2021 Mar (100 marks) examination.
Contents
The questions below are the paper as Karnataka State Law University set it at the 2021 Mar (100 marks) examination, in the order it was set.
MarksPage
The Paper as Set
The questions in this volume are the questions asked at the 2021 Mar (100 marks) examination, reproduced as Karnataka State Law University set them, in the order it set them. Long reading passages are shortened to their first and last lines and our summary; the original paper prints them in full. Only the answers are ours. See the original question paper.
Duration 3 hours · Total marks 100 · 13 questions answered
How to use this volume
Solve the paper first, under exam conditions and against the clock. Then read the answers here and mark your own. Reading a solution before attempting the question feels productive and teaches very little, because recognising an answer is not the same as being able to write one.
Q1Who is a Muslim ? Explain different schools of Muslim law.[16]
Answer
For full marks, cover: part A, who is a Muslim: why the question matters in court (section 2 of the Shariat Act 1937 applies only "where the parties are Muslims"); the one test of faith; Muslims by birth; Muslims by conversion and the requirement of a genuine conversion (Lily Thomas); sects and the Ahmadi case (Narantakath Avullah); loss of the status by apostasy and section 4 of the 1939 Act; part B, the schools: how they arose, in three historical stages; the four Sunni schools and the three Shia schools, each with its distinctive features and its place in India; a table of seven differences between Hanafi and Ithna Ashari law; how a court fixes a party's school (Siddiq Ahmad) and what happens between schools (Qurban Husain); the effect of statute; a conclusion.
Part A: who is a Muslim
Why the question matters
Muslim personal law is applied in India because of the religion of the parties. Section 2 of the Muslim Personal Law (Shariat) Application Act 1937 makes the Shariat the rule of decision "in cases where the parties are Muslims". So before a court can apply any rule of Muslim law, it must decide that the parties are Muslims.
The one test: profession of the faith
Muslim law defines a Muslim by belief, not by birth, race or practice. Anyone who professes Islam is a Muslim. Professing Islam means accepting two propositions:
- there is no god but God (the unity of God, tawhid); and
- Muhammad is His Messenger.
These two propositions form the Kalma. A person who accepts them is a Muslim even if he neglects prayer, fasting or other duties. The courts do not test the depth or orthodoxy of anyone's belief.
Muslims by birth
- A child whose parents are both Muslims is a Muslim from birth.
- A child of a Muslim father is ordinarily regarded as a Muslim.
- Such a person remains a Muslim until he renounces Islam. Indifference to religion is not renunciation.
Muslims by conversion
An adult of sound mind of any religion may become a Muslim. No particular ceremony is legally required. Two routes are recognised:
- Formal conversion: the person declares the Kalma, usually before a religious functionary or witnesses, and may take a Muslim name.
- Profession and conduct: the person openly declares that he is a Muslim and lives as one.
The conversion must be bona fide. A court will look behind a conversion made only to gain a legal advantage. Examples are a conversion made to take a second wife or to escape an existing marriage. Such a conversion may be ignored for the purpose it was meant to serve. A person cannot use a change of religion to defeat the rights of others.
Lily Thomas v. Union of India (2000) 6 SCC 224. Hindu husbands had converted to Islam so that they could marry a second time without dissolving the first marriage. The Supreme Court held that conversion does not dissolve a Hindu marriage. It only gives the other spouse a ground for divorce. So the second marriage was void, and the husband was liable for bigamy. The case shows that the law looks at the purpose of a conversion, and does not let it be used against a spouse's rights.
Sects and doctrine
A Muslim does not stop being a Muslim because his sect holds unusual views.
Narantakath Avullah v. Parakkal Mammu (1922) 43 MLJ 663 (Madras High Court). A husband joined the Ahmadiyya movement. His wife treated this as apostasy, said the marriage had ended, and married again. She was prosecuted for bigamy. The High Court found that the Ahmadis accept the Kalma, the prophethood of Muhammad and the Quran. Krishnan J. adopted the view that whoever professes the unity of God and Muhammad's prophethood is a Muslim. So the husband had not left Islam, his marriage subsisted, and the wife's second marriage was bigamous.
Leaving Islam
A Muslim who renounces Islam ceases to be governed by Muslim personal law. Classical law treated apostasy as dissolving the marriage at once. Section 4 of the Dissolution of Muslim Marriages Act 1939 changed that for a wife. Her renunciation of Islam does not by itself dissolve her marriage. A wife who was a convert to Islam and returns to her old faith is excepted.
Part B: the schools of Muslim law
How the schools arose: three stages
- The succession dispute. After the Prophet's death in 632, Muslims divided over who should lead. The majority accepted the elected caliphs and became the Sunnis. A minority held that leadership belonged to Ali, the Prophet's cousin and son-in-law, and to the Imams descended from him. They became the Shias.
- The age of the jurists. In the eighth and ninth centuries scholars in different cities built systems of law from the same texts. Their methods differed, so their schools differed. The Sunni schools differ mainly on method.
- The divisions within Shia Islam. The Shias later divided over the line of Imams. Their schools differ from the Sunni ones on authority and on the materials accepted.
The Sunni schools
1. Hanafi. The school of Abu Hanifa of Kufa and his two disciples, Abu Yusuf and Muhammad. It developed in a commercial city and made wide use of reason, analogy and juristic preference (istihsan). It became the official school of the Ottoman and Mughal states. The great majority of Indian Muslims are Hanafi. The Hedaya and the Fatawa-e-Alamgiri, compiled under Aurangzeb, are its main texts in India.
2. Maliki. The school of Malik ibn Anas of Medina. It relied heavily on the practice of the people of Medina and on public interest (istislah). It gives a wife wide grounds for judicial divorce, and its rules inspired the grounds in the 1939 Act. It is followed mainly in North and West Africa.
3. Shafii. The school of al-Shafii, who organised the theory of the four sources and limited free reasoning. In India it is found among Muslims of the western and southern coasts, including Kerala.
4. Hanbali. The school of Ahmad ibn Hanbal, the strictest in following the texts and traditions. It allows the least room for analogy. It has very few followers in India.
The Shia schools
1. Ithna Ashari (the Twelvers). They recognise twelve Imams, the last of whom is believed to be hidden. They are the most numerous Shias in India, with communities in Lucknow, Hyderabad and elsewhere. They are divided into Akhbaris, who rely on the traditions, and Usulis, who allow qualified jurists to reason.
2. Ismaili. They follow the line of Imams through Ismail. In India they include the Khojas, whose head is the Aga Khan, and the Bohras.
3. Zaidi. The followers of Zaid, the closest of the Shias to the Sunnis. They are rarely met in India.
A further group, the Mutazila, was a rationalist school of theology rather than of law. Its influence on Indian law is historical only.
Differences that change the answer
| Question | Hanafi law | Ithna Ashari law |
|---|---|---|
| Minimum dower | ten dirhams | no minimum |
| Custody of a son by the mother | until seven | until two |
| Return of surplus (radd) to a spouse | not to a spouse, as a rule | to the widower, never to a widow |
| Wakf completed by | declaration alone | delivery of possession |
| Gift of an undivided share (musha) | irregular until divided | valid |
| Death of a pre-emptor before decree | right ends | right passes to heirs |
| Distant kindred | a separate third class of heirs | blood relations take in classes; no separate class |
How a court fixes the school
- Presumption. Since most Indian Muslims are Sunni, and most Sunnis Hanafi, a Muslim party is presumed to be a Hanafi Sunni.
- Proof. A party who says he is Shia, or of another Sunni school, must prove it, usually from family practice and observances.
- Change. An adult Muslim may change his school, for example from Sunni to Shia. From then on the new school governs his affairs.
- The deceased's school. In inheritance the school of the deceased governs, not that of the heirs.
Siddiq Ahmad v. Shaukat Ali (Allahabad High Court, 13 September 2022). In a partition suit over a Sunni woman's houses, the High Court applied Hanafi inheritance rules. It recorded, following Mulla, that a Muslim is presumed to be a Sunni, and a Sunni a Hanafi, unless the contrary is shown. The case shows the presumption at work.
When parties belong to different schools
Qurban Husain v. Chote (1900) ILR 22 All 102. A Shia sued to pre-empt a house his Sunni neighbours had sold, claiming as a neighbour. Shia law gives no right of pre-emption to a mere neighbour. The Allahabad High Court dismissed his suit. The right rests on reciprocity, and a Shia cannot claim a benefit of Sunni law that he would not concede if the position were reversed. The case shows that a difference of school can decide a dispute between Muslims.
Statutes cut across the schools
Four statutes apply to Muslims of every school. They are the Shariat Act 1937 and the Dissolution of Muslim Marriages Act 1939. They also include the Muslim Women (Protection of Rights on Divorce) Act 1986 and the Muslim Women (Protection of Rights on Marriage) Act 2019. Where a statute speaks, the differences between the schools give way.
Conclusion. A Muslim is any person who professes the unity of God and the prophethood of Muhammad. He may be one by birth or by a genuine conversion, whatever his sect. Narantakath Avullah shows that sectarian belief does not take that status away. Muslims divide into Sunni schools (Hanafi, Maliki, Shafii, Hanbali) and Shia schools (Ithna Ashari, Ismaili, Zaidi). The school can change the answer on dower, custody, inheritance, gifts and pre-emption. Indian courts presume a Muslim to be a Hanafi Sunni, as Siddiq Ahmad records. Qurban Husain shows the schools meeting in a single dispute.
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