Succession, Maintenance, and Adoption under Mohammedan Law

 Mohammedan Law relating to Succession, Maintenance, and Adoption:

1. Succession under Mohammedan Law

• Heirs in Mohammedan Law:

  • Sharers: Specific relatives entitled to fixed shares of the estate. These include:

    • Husband/Wife: The husband gets 1/4th of the estate if the wife has no children, and 1/8th if there are children. The wife gets 1/8th if there are children and 1/4th if there are no children.

    • Children: Sons and daughters inherit, with the share of a son being twice that of a daughter.

    • Parents: Each parent gets 1/6th if the deceased has children.

  • Residuaries: If there are no sharers, the remaining estate (residue) is divided among the Residuaries, who include distant relatives such as brothers, sisters, and uncles.

  • Class of Heirs: The heirs are categorized into:

    • First Class: Spouses, children, and parents.

    • Second Class: Brothers, sisters, and grandparents.

    • Third Class: Distant relatives such as uncles, aunts, etc.

  • Sunnis vs. Shias:

    • Sunni Law: Relatively more rigid, with specific shares for each heir.

    • Shia Law: Slightly more flexible in terms of distribution, especially concerning the shares of parents and the surviving spouse.

• Intestate Succession:

  • Intestate: A Muslim who dies without a will is said to die intestate. Succession is regulated by fixed rules under the personal laws, where the heirs’ shares are predefined.

  • Legitimacy of Will (Wasiyat): A will can be made for up to one-third of the estate. This portion can be distributed among non-heirs or charitable causes. The remaining two-thirds must go to legal heirs.

• Wasiyat (Will):

  • Can only dispose of one-third of the property.

  • The remaining portion must be inherited by the legal heirs, following their respective shares.

  • Conditions: A will must be valid under Muslim law, and the testator must be of sound mind, of legal age, and not coerced.

---

2. Maintenance under Mohammedan Law

• Maintenance of Wife:

  • During Marriage: The husband must provide maintenance for the wife, including food, clothing, and shelter.

  • After Divorce: A wife is entitled to maintenance during the Iddat period (waiting period after divorce) which lasts for about three menstrual cycles or until childbirth if pregnant.

  • Iddat: This is to ascertain if the wife is pregnant, to determine paternity. During the Iddat, the wife remains in the husband's house, and maintenance is the husband's responsibility.

• Maintenance of Children:

  • Minor Children: Both parents are obligated to maintain minor children, even if the children live with one of the parents or in another household. The father is primarily responsible for the maintenance of his children.

  • Major Children: If a child is incapacitated (mentally or physically), the obligation of maintenance continues. A major child who is capable of supporting themselves does not have the right to demand maintenance.

  • Duration: Maintenance lasts until the child attains puberty or financial independence.

• Maintenance of Parents:

  • Obligation of Children: If parents are incapable of maintaining themselves (due to old age or incapacity), children must support them financially. This duty is generally placed on sons, although daughters may also be asked to contribute.

  • Extent of Maintenance: Maintenance is to meet the basic needs of the parents, including food, clothing, and medical care.

• Maintenance in the Case of Divorce:

  • Husband’s Duty: In case of a divorce, a husband is required to maintain the wife during the Iddat period. After this, the wife is no longer entitled to maintenance unless a child is involved.

---

3. Adoption under Mohammedan Law

• Adoption vs. Kafala:

  • Kafala is the legal concept in Mohammedan Law that is similar to adoption but does not confer inheritance rights. A Muslim is allowed to take a child into their family and care for them, but this does not equate to full adoption.

  • No Inheritance Rights: The child does not acquire the right to inherit the adoptive parents' property, unlike adoption under other personal laws such as Hindu Law.

• Rights and Duties Under Kafala:

  • Parenting: Kafala allows the adoptive parent to raise and provide for the child but does not create a familial bond that includes inheritance.

  • Care and Welfare: The adoptive family is responsible for the child’s welfare, including education and upbringing, similar to adoption under other laws, but the child’s relationship to the biological family remains intact.

• Difference from Hindu Adoption:

  • No Right of Inheritance: Unlike in Hindu law, where the adopted child inherits the adoptive parent's property, a child under Kafala does not have such a right.

  • Limited Parental Relationship: The adopted child under Kafala does not take the family name or gain full rights within the family structure in the same way as a Hindu adopted child.