Mohammedan
Law
Acknowledgement–Witnesses
are partisan witnesses totally unworthy of credit–Onus to prove that defendant
I (Khorshed Alam) is the son of a prostitute Baramoni, is on the plaintiff, but
he could not discharge it.
Khorshed
Alam vs Amir Sultan Ali Hyder 38 DLR (AD) 133.
Acknowledgement–Onus
of proof–Status of an individual–When it is assailed much higher degree of
proof necessary–All courts below overlooked this point– Trial Court ought not
to have allowed such question to be led in Entire plaintiff’s evidence on this
point should have been discarded–Presumption of law on the point not
rebutted–Plaintiff having failed to prove that defendant J was the son of
Baramoni his suit to be dismissed.
Khorshed
Alam vs Amir Sultan Ali Hyder 38 DLR (ADJ 133.
Acknowledgement
by a man of a child– Case-law on the subject.
Khorshed
Alam vs Amir Sultan Ali Hyder 38 DLR (AD) 133.
–When
acknowledgement established–Onus to rebut in the person who denies marriage.
Khorshed
Alam vs Amir Sultan Ali Hyder 38 DLR (AD) 133.
–Legitimacy–
For legitimacy valid marriage is essential.
Khorshed
Alam vs Amir Sultan Ali Hyder 38 DLR (ADJ 133.
–When
illegitimacy is proved beyond doubt, by reason of the marriage of his parents
being either disproved, etc. cannot be legitimatised by acknowledgement.
Khorshed
Alam vs Amir Sultan Ali Hyder 38 DLR (ADJ 133.
–A concubine
giving birth to a son– Such son cannot be legitimate son.
Khorshed
Alam vs Amir Sultan Ali Hyder 38 DLR (ADJ 133.
–Under
Mohammedan Law, “a person to be legitimate son of another person must be
the offspring of a marriage between his mother and his alleged father and that
any other offspring is the offspring of Zina, that is, illicit connection and
cannot be legitimate”.
Khorshed
Alam vs Amir Sultan Ali Hyder 38 DLR (AD) 133.
–Acknowledgement–
Subsequent disowning the acknowledgement, of no legal effect.
Khorshed
Alam vs Amir Sultan Ali Hyder 38 DLR (AD) 133.
Custody of minor child–
The personal
law of the parties and the child’s welfare doctrine are not in conflict on
question of custody and even if they were, the welfare doctrine would have
precedence.
Ayesha
Khanam vs Major Sabbir Ahmed 46DLR 399.
Guardianship–
Mother is
not the legal guardian of the immovable property of her minor children though
she may be in charge of the same. Her position is no better than that of any
other person who has the charge of the person or property of a minor and she is
nothing but “de facto guardian” having no power to convey to another
any right or interest in the immovable property.
Meherun
Hossain vs Nazrul Islam 46 DLR86.
Conjugal life–
The court’s
decree that it is wholly up to the wishes of the wife to have or not to have
conjugal life with the husband is a concept contrary to the Islamic tenet of
marital relationship.
Sheerin Alam
Chowdhury vs Captain Shamsul Alam Chowdhury 48 DLR 79.
Faith in Quran–
Under the
Hindu Law clear proof of usage can outweigh the written text of law. But it is
not so in the case of Islamic law. For, it is an article of faith of a Muslim
that he should follow without questioning what has been revealed in the Quran
and disobedience thereof is a sin.
Hefzur Rahman (Md) vs Shamsun Nahar Begum and
another 47 DLR 54.
Maintenance for wife–
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.
Hefzur Rahman (Md) vs Shamsun Nahar Begum and
another 47 DLR 54.
‘Khula’–
If it so
appears that the husband and wife cannot live together in peace and amity and
the wife offers consideration for the dissolution of the marriage she is
entitled to get it dissolved by way of ‘khula’.
Sheerin Alam
Chowdhury vs Captain Shamsul Alam Chowdhury 48 DLR 79.
Section 168–
The
transaction of heba-bil-ewaj is in fact a sale. Therefore, as a sale cannot be
completed without price is paid heba-bil-ewaj also cannot be called valid
unless ewaj is paid.
Nurul Islam
and others vs Azimon Bewa 51 DLR 451.
Section 252–
Mere living
together by the petitioner and the opposite party as found by some of the PWs
does not bring the couple within the bond of marriage.
Anwar
Hossain vs Momtaz Begum 51 DLR 444.
Mohammedan
Law Hizanat (Custody of Infant)
Right of mother to custody of infant children–
The mother
is entitled to the custody (hizanat) of her male child until he has completed
the age of seven years and of her female child until she has attained puberty.
The right continues though she is divorced by the father of the child unless
she marries a second husband in which case the custody belongs to the
father–Right of father and paternal male relations to custody of boy over seven
and girl who has attained puberty–The father is entitled to the custody of a
boy over seven years of age and of an unmarried girl who has attained puberty.
Failing the father, the custody belongs to the paternal relations in the order
given in section 355 above, and subject to the proviso of that section–If there
be none of these, it is for the Court to appoint a guardian of the person of
the minor.” Mullah’s Principles of Muhammedan Law.
Md Abu Bakar
Siddiqui vs SMA Bakar 38 DLR (AD) 106.
– Question
regarding hizanat (custody) of a minor boy or daughter not solely dependant on
his or her age but the consideration is the welfare of the minor and this has
assumed to be the determining factor even though the opinion of well–known
Muhammedan jurists may not be followed.
Md Abu Bakar
Siddiqui vs SMA Bakar 38 DLR (AD) 106.
–No uniform
law obtains in the Muslim world–Difference amongst the principal jurists.
Departure is permissible.
Md Abu Bakar
Siddiqui vs SMA Bakar 38 DLR (AD) 106.
–Hidayah and
Fatawa-Alamgiri are the standard authorities in Hanafi Branch of Sunni Law.
Md Abu Bakar
Siddiqui vs SMA Bakar 38 DLR (AD) 106.
–Rule about
hizanat propounded in the Hanafi law in permissible circumstances, can be
departed from on consideration of minor’s welfare.
Md Abu Bakar
Siddiqui vs SMA Bakar 38 DLR (AD) 106.
–In matters
of personal laws in Bangladesh Sunni Muslims are governed by Hanafi School of
law.
Md Abu Bakar
Siddiqui vs SMA Bakar 38 DLR (AD) 106.
–Mother
preferred to be the guardian of the minor.
Md Abu Bakar
Siddiqui vs SMA Bakar 38 DLR (AD) 106.
Muhammedan
Law (Gift)
Three
essentials of a gift (Heba) under Muslim Law.
Md Abu Bakar
Sikder vs Monowara Begum 40 DLR 392.
–Delivery of
possession under Mohammedan Law. The
requirement of law is substantially met if the delivery of possession is taken
or accepted by the donee constructively.
Md Abu Bakar
Sikder vs Monowara Begum 40 DLR 392.
Mohammedan
Law (Wakf)
Unauthorised
transfer for valuable consideration of a wakf property by a previous
mutwalli–Limitation period for recovery thereof is 12 years from the death or
resignation of the said mutwalli under Article 134B Limitation Act.
Nezamat Ali
vs Syed Ahmed 38 DLR 45.
–Wakf
property, alienated by mutwalli––such alienation holds good during the tenure
of mutawalli, alienee’s possession during mutawalli tenure not unlawful.
Nezamat Ali
vs Syed Ahmed 38 DLR 45.
–Possession
of the alienee becomes adverse from the time of the death or removal of the
mutawalli. [Limitation Act (IX of 1908) Article 134B].
Nezamat Ali
vs Syed Ahmed 38 DLR 45.
–Mutawalli
(or Mohant) describing the wakf (or debuttor) property, as his personal
property while transferring the wakf property does not affect the nature of the
wakf (or debuttor)––Such transfer however is not void ab initio.
Nezamat Ali
vs Syed Ahmed 38 DLR 45.
–Property
held in religious trust by manager of the trust–can never be claimed as the
manager’s personal property even by asserting adverse claim.
Nezamat Ali
vs Syed Ahmed 38 DLR45.
–Wakf
property alienated by a previous mutwalli as his personal property–His
successor mutawalli’s right to sue for the property will commence from the date
of death or resignation of the previous mutawalli (Limitation Act (IX of 1908)
Article l 34B].
Nezamat Ali
vs Syed Ahmed 38 DLR 45.