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August 17, 2017

Islamic Law of Will, What is Wasiyat in Islam

This article is a very brief overview of the traditional Sunni Islamic law pertaining to the Islamic will. The aim of this article is to arouse awareness amongst Muslims particularly those living in the West regarding this important aspect of Islamic law. It should be stressed that when writing a will one should consult an Islamic scholar/legal expert to ensure that the will complies with Islamic law as well as the law of the country of residence.
When a Muslim dies there are four duties which need to be performed. These are:
1. payment of funeral expenses
2. payment of his/her debts
3. execution his/her will
4. distribution of the remaining estate amongst the heirs according to Sharia
The Islamic will is called al-wasiyya. A will is a transaction which comes into operation after the testator’s death. The will is executed after payment of funeral expenses and any outstanding debts. The one who makes a will (wasiyya) is called a testator (al-musi). The one on whose behalf a will is made is generally referred to as a legatee (al-musa lahu). Technically speaking the term “testatee” is perhaps a more accurate translation of al-musa lahu.

The importance of the Islamic will
The importance of the Islamic will (wasiyya) is clear from the following two hadith: “It is the duty of a Muslim who has anything to bequest not to let two nights pass without writing a will about it.” (Sahih al-Bukhari)
“A man may do good deeds for seventy years but if he acts unjustly when he leaves his last testament, the wickedness of his deed will be sealed upon him, and he will enter the Fire. If, (on the other hand), a man acts wickedly for seventy years but is just in his last will and testament, the goodness of his deed will be sealed upon him, and he will enter the Garden.” (Ahmad and Ibn Majah)
The will gives the testator an opportunity to help someone (e.g. a relative need such as an orphaned grandchild or a Christian widow) who is not entitled to inherit from him. The will can be used to clarify the nature of joint accounts, those living in commensality, appointment of guardian for one’s children and so on. In countries where the intestate succession law is different from Islamic law it becomes absolutely necessary to write a will.
The Will (Al-wasiyya)
The Islamic will includes both bequests and legacies, instructions and admonishments, and assignments of rights. No specific wording is necessary for making a will. In Islamic law the will (wasiyya) can be oral or
written, and the intention of the testator must be clear that the wasiyya is to be executed after his death. Any expression which signifies the intention of the testator is sufficient for the purpose of constituting a bequest.
There should be two witnesses to the declaration of the wasiyya. A written wasiyya where there are no witnesses to an oral declaration is valid if it written in the known handwriting/signature of the testator according to Maliki and Hanbali fiqh. The wasiyya is executed after payment of debts and funeral expenses. The majority view is that debts to Allah (SWT) such as zakah, obligatory expiation etc. should be paid whether mentioned in the will or not. However, there is difference of opinion on this matter amongst the Muslim jurists.
The Testator (Al-musi)
Every adult Muslim with reasoning ability has the legal capacity to make a will. An adult for this purpose is someone who has reached puberty. Evidence of puberty is menstruation in girls and night pollution (wet dreams) in boys. In the absence of evidence, puberty is presumed at the completion of the age of fifteen years. The Maliki and Hanbali fiqh also consider the will of a discerning (tamyiz) child as valid.
Under English Law you must be at least 18 years of age to make a valid will (similarly in most of the United States of America) unless you are a military personnel in which case you may make a valid will at the age of 17.
The testator must have the legal capacity to dispose of whatever he bequests in his will. When making a will the testator must be of sane mind, he must not be under any compulsion and he must understand the nature and effect of his testamentary act. The testator must of course own whatever he bequests.
The testator has the right to revoke his will by a subsequent will, actually or by implication. In traditional Sunni Islamic law the power of the testator is limited in two ways:
1. Firstly, he cannot bequest more than 1/3 of his net estate unless the other heirs consent to the bequest or there are no legal heirs at all or the only legal heir is the spouse who gets his/her legal share and the residue can be bequeathed.
Narrated Sa’d ibn Abi Waqqas (RA): “I was stricken by an ailment that led me to the verge of death. The Prophet came to pay me a visit. I said, “O Allah’s Apostle! I have much property and no heir except my single daughter. Shall I give two-thirds of my property in charity?” He said, “No.” I said, “Half of it?” He said, “No.” I said, “One-third of it?” He said, “You may do so, though one-third is also too much, for it is better for you to leave your offspring wealthy than to leave them poor, asking others for help…” (Sahih al-Bukhari, Sahah Muslim, Muwatta, Tirmidhi, Abu Dawud and Ibn Majah.)
2. Secondly, the testator cannot make a bequest in favour of a legal heir under traditional Sunni Muslim law. However, some Islamic countries do allow a bequest in favour of a legal heir providing the bequest does not exceed the bequeathable onethird. Legal heir in this context is one who is a legal heir at the time of death of the testator. Narrated Abu Hurayrah (RA): Allah’s Prophet (SAWS) said, “Allah has appointed for everyone who has a right what is due to him, and no bequest must be made to an heir. (Abu Dawud). Similar hadith narrated by Abu Umamah (RA) and reported by Ibn Majah, Ahmad and others.
The Legatee (Al-musa lahu)
Generally speaking, for a bequest to be valid, a legatee must be in existence at the time of death of the testator except in the case of a general and continuing legatee such as the poor, orphans etc.
The legatee must be capable of owning the bequest. Any bequest made in favour of any legal heir already entitled to a share is invalid under traditional Sunni Muslim law unless consented to by other legal heirs. An acknowledgement of debt in favour of a legal heir is valid. Acceptance or rejection of a bequest by the legatee is only relevant after the death of the testator and not before. Generally speaking once a legatee has accepted or rejected a bequest he cannot change his mind subsequently.
If the legatee dies without accepting or rejecting the bequest, the bequest becomes part of the legatee’s estate according to the Hanafi fiqh because non-rejection is regarded as acceptance. According to the other three main Sunni madhahib, the right to accept or reject the bequest passes onto the heirs of the legatee.
There is difference of opinion as to the time at which ownership of a bequest is transferred from the testator (or his heirs) to the legatee. According to the Hanafi and Shafii fiqh the transfer of ownership is at the time of death of the testator, according to the Maliki and Hanbali fiqh the transfer of ownership is at the time of accepting the bequest.
All the Sunni madhahib agree that if the legatee dies before the testator, the bequest is invalid since a bequest can only be accepted after the death of the testator. If there is uncertainty as to whether or not the legatee survived the testator, such as a missing legatee, the bequest is invalid because the legatee must be alive at the time of death of the testator for the will to be valid.
If the testator and legatee die together, such as in an air crash, and it is not certain who died first, the bequest is invalid according to the Hanafi, Maliki and Shafii fiqh. But according to the Hanbali fiqh, the bequest devolves upon the legatee’s heirs who may accept or reject it.
Executor of the will (Al-wasi Al-mukhtar)
The executor (al-wasi) of the will is the manager of the estate appointed by the testator.The executor has to carry out the wishes of the testator according to Islamic law, to watch the interests of the children and of the estate. The authority of the executor should be specified. Hanafi and Maliki fiqh state that the executor should be trustworthy and truthful; the Shafii fiqh state that the executor must be just. The Hanafi fiqh considers the appointment of a non-Muslim executor to be valid. The testator may appoint more than one executor, male or female. The testator should state if each executor can act independently of the other executor(s). If one starts acting as an executor, one will be regarded as having accepted the appointment, both in Islamic and in English law.

Source: Tibyan.com

Mutta Marriage or Temporary Marriage Contract in Shia Islam

Muta marriage is valid type of marriage in Shia jurisprudence. The Shia law recognizes two kinds of marriage;

Permanent marriage
Muta Marriage or Temporary Marriage

A Shia of the male sex may contract a muta marriage with a woman professing the Muslim, Christian or Jewish religion, or even with a woman who is a fire-worshiper, but not with a woman following any other religion. But a Shia woman may not contract muta marriage with a non-Muslim.
It is essential to the validity of a muta marriage that, the period of cohabitation should be fixed and this may be a day, a month, a year or a term of year and some dower should be specified. When the term and the dower have been fixed, the contract is valid. If the term is fixed but the dower is not specified, the contract is void. But if the dower is specified, and the term is not fixed the contract, though void as a muta, may operate as a permanent marriage.

Consequences of Muta Marriage/characteristics of Muta Marriage

  1. Muta marriage does not create mutual rights of inheritance between the man and the woman but children conceived while it exists a legitimate and capable of inheriting from both parents.
  2. A muta marriage is dissolved ipso facto by the expiry of the term. No right of divorce is recognized in the case of a muta marriage, but the husband may at his will put and end to the contact of marriage by making a gift of the term to the wife, even before te expiration of the fixed term.
  3. If muta marriage is not consummated, the woman is entitled to half the dower.
  4. A woman married in the muta form is not entitled to maintenance under the Shia law.

Muta marriage is criticized by many Sunni jurists and also now day’s Human Right activists are against this sort of marriage and they consider it form of exploitation against women.

Types of Muslim Marriage or Nikah: Valid,Void & Irregular Nikah

Marriage of Nikkah is the most important instituion in Islam. There are three types of Marriages in Islam;

  1. Valid or Sahih
  2. Irregular or Fasid
  3. Void or Batil

Valid Muslim Marriage

According to Hanfi jurists Muslim Marriage can be three types. In case marriage is free from all sort of defects and infirmity, perfect in every respect and absolutely valid, it is called Saheeh. It conforms with all the requirements laid down by the Shara for the marriage;

  • The existence of proposal and acceptance
  • Presence of the witnesses
  • A competency to the contract of marriage
  • Fitness for marriage

Void and Irregular Muslim Marriage

A marriage in which there is a deviation, howsoever, trivial or slight, from the rules of Sharia is not altogether nugatory. These defective marriages are classified into the two categories. In case the defect is of a radical and serious nature the marriage may be nugatory and voic ab initio. So to say in the eye of law it is no marriage at all. Such marriage called Batil or void marriage. Irregular or vicious or fasid marriage is one which is neither perfectly valid nor altogether void. In such case the irregularity or defect in the marriage is not fatal to its existence and marriage of suck kind called fasid or defective marriage.

Instances of Valid, Void and Irregular Marriages

  • A marriage without witnesses is irregular marriage.
  • Fifth marriage of Muslim in presence of four wives is also irregular.
  • Second marriage by Muslim female in presence of first Nikkah is void.
  • Marriage with women undergoing Iddat is also irregular.
  • A marriage prohibited by reason of difference of religion is irregular.

Essentials of Muslim Marriage or Nikkah

It is essential to the validity of a marriage that there should be a proposal made by or on behalf of one of the parties to the marriage, and an acceptance of the proposal by or on behalf of female witnesses, who must be sane and adult Muslim. The proposal and acceptance must both be expressed at one meeting; a proposal made at one meeting and acceptance made at another meeting does not constitute a valid Muslim marriage. Neither writing nor any religious ceremony is essential.

Capacity for marriage/eligibility for marriage

Followings are the essentials of Muslim Marriage/Nikkah

Every Muslim of sound ind who has attained puberty, may benter into a contract of marriage (Puberty means age when person become adult).

Lunatics and minors who have not attained puberty may be validly contracted in marriage by their respective guardians.

A marriage of a Muslim who is of sound mind and has attained puberty, is void, if it is brought about without his consent. Puberty is presumed, in the absence of evidence, on completion of the age of sixteen years in case of female and eighteen years for female.

Consent of parties is absolutely necessary especially Islam lay emphasis on the consent of women. And adult female may engage in the contract, without her guardian’s consent. A woman who is an adult, and of sound mind, may be married by virtue of her own consent although the contract may not have been made or acceded to by her guardians.

The manner and form in which a marriage is to be solemnized is unambiguously decreed in Islam. The particular characteristic of Nikkah is that it is performed publicly in the present of witnesses and ijab-o-kabool has to be ascertained by the Nikah Khawan and brought to the notice all present for their information.

Fatwa in Islamic Law – Importance of Fatwa in Modern World

Fatwa is very important in Islamic law and Islamic jurisdiction. Fatwa is opinion of Islamic scholar about a specific issue in the light of Holy Quran and Sunnah. Now days many Islamic Ulams issued such Fatwas that are criticised by western law makers and human right activists.
Recently The Darul Uloom, Deoband, India, thought it does commendable work, also issues fatwas which reduce women to a status that is secondary to that of a man. Similarly fatwas about Talaq are also criticised.
Such judgments and fatwas are issued because some jurist or the other had so opined hundreds of years ago keeping in view the social and local conditions of that time. Many of these fatwas are based on controversial Hadiths/Sunnah and there is no Ijma (consensus) in such affairs. These scholars only consult medieval sources and followed Taqlid (mechanical followings) because it is considered as safest by many Islamic jurists.

Ibm Hazm was famous Islamic jurist of medieval times from Spain. He was also of the opinion that one can be called alim (knowledgeable) as long as one is engaged in seeking knowledge. But one who thins the knows enough is, in fact, ignorant. Today most of our Islamic scholars think that they know enough. Ibn Hazm also said that independence of thinking is very important in juristic judgments.
The Quran is the fundamental source for Islamic jurisprudence, but Ibn Hazm puts the Quranic verses in three categories; first those verses which need no other source to understand, second those verses which can be understood in the light of other verses and third those verses which can be understood in the light of authentic hadith (authentic is one which has been narrated by most reliable and many narrators).
Today most of the jurists rely more on Hadiths than on Quran while issuing Fatwas. Ibn Hazm strongly criticised those scholars who blindly follow taqlid and not think independently. Al Shatibi was also very creative scholar and he said that one must first understand the maqasid and masalih means the basic objectives and welfare of the people for whom the Sharia law are being framed.
Due to such fatwas the image of Islam is negative in today world. If we keep the objectives and welfare of the people foremost and delve into thinking for ourselves in our own time, Islamic laws would become not only highly just but model to be followed by all. We must directly consult Quran and accept only very authentic Hadiths for issuing fatwas.

What is Definition of Muslim & What is Kalma Tayyaba

There are two basic and fundamental conditions to be a Muslim or Muhammadan;
1– Oneness of Allah Almighty.
2– Prophet Muhammad (PBUH) is the last prophet of Allah.
Simply stated any person who professes the Muhammadan religion, that is, acknowledges, that there is but one God, and that Muhammad PBUH is his Prophet, is a Muhammadan. Such a person may be a Muhammadan by birth or he may be a Muhammadan by conversion. It is not necessary that he should observe any particular rites or ceremonies, or be an orthodox believer in that religion; no court can test the gauge the sincerity of religious belief. It is sufficient if the professes the Muhammadan religion in the sense that he accepts the unity of God and the Prophetic character of Muhammad PBUH.

For becoming a Muslim all authoritative books of Islam are agreed that if a person believes in the unity of God(Allah) and Muhammad PBUH to be his prophet and also says that he is Muslim then he becomes a Muslim and no other formalities or rituals are to be gone through by him. There is unanimity among all Islamic scholars of all thoughts that ‘Kalma Tayyaba’ means ‘thee is no god except Allah and Muhammad PBUH is his messenger’. To be a Muslim a person must believe on ‘Kalma Tayyaba’. A person born a Muslim remains Muslim until he renounces the Islamic religion.

What are the Basic Sources of islamic Law or Sharia

Islam is complete code of life. Islam is ‘Deen’ which mean complete in all respects. Islamic law system is comprehensive and complete system which provides guidance in every aspect of the life. The fundamental sources of Islamic law or Sharia law are the Holy Quran and Sunnah of Prophet Muhammad (PBHH). All Muslim sects whether Sunni or Shia agree upon these two sources.

The Quran is the first and primary source of Islamic law. Quran is book of God or Allah and even after 1400 years it is in its original form and not a single word is changed. Quran provides basic laws which are the fundamentals of Islamic Sharia. It is without any doubt the most basic, uncontroversial and fundamental source of Islamic Sharia or Islamic Laws.

The second primary source of Islamic laws is the Sunnah of Prophet Muhammad (PBUH). Sunnah means all the actions and saying of Holy Prophet. Sunnah is also known as Hadis or Precept.
Ijma is third source of Islamic Law. Basically Ijma means consensus of people on particular issue when there is no guidance available from Holy Quran and Sunnah.
Ijtehad is the fourth source of Islamic Law. When something is not clear from the Holy Quran or Sunnah then deduction can be used. It is the process of deduction which is not to change the law of the text.
Qiyas is also the source of Islamic law. We can compare it with legal fiction in western Jurisprudence. It is based on Quran, Sunnah and Ijma.
These above mentioned source are main source of Islamic law other source includes;
1-    Istihsan
2-    Istislah
3-    Maslaih-al-Mursalah
4-    Istidlal
5-    Illat
6-    Urf
7-    Taqlid

Marriage, Nikkah in Islam Definition and Concept

Marriage is very important institution in Islam. Marriage or Nikah’ can be defined as a contract which has for its object the procreation and the legalizing of children. A legal marriage in Islam can be defined as ‘a marriage contracted and solemnized in accordance with Shariah with all its constituents and condition and without any legal impediment.
Islam defines the many important objects of marriage. First and most important is the procreation and legalization of children. Holy Quran define the objects of marriage; Sukun mean satisfaction or comfort, lit, peace of mind, Muaddat mean love and Rahmat mean kindness, sympathy or compassion. No doubt the main object and result of a matrimonial alliance is indisputably the procreation of children and solace which a man is to get according to the Holy Quran out of a marriage is not merely the satisfaction of a sexual desire but something which is innate in that desire and for which nature ahs created that desire in human beings.

Toady there is misconception about Islam that Islam does not give freedom and rights to women which is totally wrong because in Islam the respect of women is of very important. Islam has never conferred power/right upon the husband to take law into his hands and to kill his spouse for any wrong committed by her. Even in case of fornication the Qazi has to decide and fix the liability and impose penalty and it is not for the husband to perform the duty of Qazi and impose penalty of her choice.
I will briefly explain the important ingredients and other aspects of marriage in Islam in my next article.