2. ORIGIN OF ISLAM

ORIGIN OF ISLAM

Islamic history begins in Arabia in the 7th century with the emergence of the Prophet Muhammad.

PRE-ISLAMIC SOCIETY

The birthplace of Islam was a desert with a harsh life for the people. Accordingly, most Arabs were nomads. There were a few cities like Mecca and Medina with a settled way of life. There was no common religion and general belief was in the principles of courage, freedom and vengeance. There was no one government or administrative machinery as such. There were Caliphs (heads) of the tribes who were elected. They represented and controlled the tribesmen. Customary laws regulated relations within people of the same tribe and the relations between different tribes. Many of the customs can be called unreasonable with no restriction on marriage, no rights for the women etc. Women were not free agents and female infanticide was rampant. Still rights of adoption, to own property and transfer the same etc were recognised. The punishment was very harsh as it aimed to be deterrent. The Arabs in the pre-Islam Arabia had a rich literature. It was believed that manliness, bravery and hospitality were the traits of the true Arab.

PROPHET MOHAMMAD

The Prophet was born to Abdullah and Amina. He was born soon after his father’s death and his mother too passed away when he was only six years old. Then he was brought up by his Grand father and later by his uncle called Abu Talib. When he was 13 years old, he joined his uncle in business. When he was 25 he was employed by Khadija, a rich widow to look after her business. Subsequently, they got married. After her death, the Prophet married other women who were also widows. Ayesha Begum, his fourth wife, was the exception. She was the wife of his disciple and friend Abu Bakr. They had 2 sons and 4 daughters but only the fourth daughter, Fatima, survived the Prophet.

The Prophet used to often contemplate about God and needs of the society in the Hira caves, a lonely place in the mountains. It is believed that during the Ramzan moth of 609 Ad, the Prophet heard the voice of Angel Gabriel during his meditations in the cave. Angel Gabriel delivered the first revelation or Wahi that God had sent to the Prophet, “Read in the name of Allah, the creator of all things, who made man from a clot of blood. Read for thy Lord is most gracious, he who teaches the use of pen, teaches man what he does not know.

After this, the Prophet received many a revelations from God on different occasions. Quran is a collection of these revelations and the basic principles of the religion can be read as:

a) God (Allah) is one and only one, and Mohamad is His messenger (Rasool);

b) God is the supreme commander of all that exists in the world and all should submit to his will; and

c) All the human beings are equal.

Islam literally means ‘submission to the will of God’. It is a monotheistic religion. Khadija was amongst the first to believe these revelations and to follow them. Others eventually followed though the majority opposed the Prophet’s teachings. Then the Prophet left Mecca and went to Medina in 622 AD. This journey is referred to as Hejarat or the holy mission. Slowly and slowly the followers of the Prophet increased and he united them under a new faith and organised them into a powerful political group. By 632 AD when the Prophet died, he was the religious and socio-political head of a large Islamic commonwealth.

HISTORICAL DEVELOPMENT

The present Muslim law has come into existence due to many political and administrative developments that have taken place in the past 14 centuries.

FIRST PERIOD (622-632 AD)

This period starts with the Hejarat and ends with the death of the Prophet. Its main contribution is legislations. The Prophet had to spread the word about Islam. In Medina, the

Prophet laid down the principles to govern the behaviour of people on the basis of the revelations already made to him at Mecca. The divine words were put down as the manifest law (which became the Quran later) and Zahir or implied laws were taken from the words, conduct and silence of the Prophet (became Sunna). Thus, the basic legal principles of Islam were defined and set out during this period.

SECOND PERIOD (632-661 AD)

This is the period of the first four Caliphs or Khulfai-I-Rashdih (the rightly guided Caliphs) for they were very close companions of the Prophet. The word ‘Caliph’ refers to the successor. After the death of the Prophet, there was a disagreement as to who should be his successor as the spiritual and administrative head of the Muslim state. Majority of the people agreed on elections as a form and thus, Abu Bakr, the Prophet’s father-in-law and Ayesha Begum’s father, was elected the first Caliph. After his death, Omar was elected as the second Caliph who was assassinated after ten years in 644 A.D. Osman succeeded him and was assassinated by enemies in 656 AD. Then Ali, Fatima’s husband, was elected as the Caliph but he too was killed in 661 AD.

The divine revelations given to the Prophet were scattered and it was during this period that the messages were collected and arranged subject-wise in the form of Quran. The first Quran was by Zaid, a close companion of the Prophet, during Abu Bakr’s rule. This collection was discarded after flaws and contradictions were spotted at many places. Osman, the third Caliph, asked Zaid to redo the compilation. Thus, the Quran and the traditions became the sources of Muslim law. Omar, the second Caliph, appointed the first Kazi to decide secular disputes and declared that the law is supreme and above all.

THIRD PERIOD (661-900 AD)

Ali was the last of the ‘rightly guided Caliphs’ and had two sons, Hasan and Hussain. After Ali’s demise, Hasan was made the Caliph but he voluntarily resigned in favour of Muavia of the Umaiyad family because he did not wish to get involved in administrative matters. Due to this, the seat of Caliphate shifted to Damscus from Medina and the office of Caliph became hereditary rather than elected. Muavia’ son Yezid took over as the next head of the Muslim commonwealth. At Yezid’s instigation, Hasan’ wife poisoned him even though he was not involved in the administration. Hussain revolted against Uezid but was killed at Karbala. As the Caliphate translated into a hereditary kingship, the development of law played a second fiddle to expansion of the empire. In 750 AD, Abbasids, the descendents of the Prophet’s Uncle Abbas, captured the Umaiyads dynasty. They proclaimed themselves as the spiritual heads of the commonwealth and the Baghdad was the centre of power.

The development of law came from the efforts of scholars of Mecca, Medina and Kufa. But there were often contradictory opinions and interpretation. The sub-sects started forming with each scholar claiming to have the right interpretation. The traditions of the Prophet were collected and the authoritative ones were accepted as law. Collections by Bukhari and Malik-Ibn Malik are two of the collections. Similarly, where the law was not to be found in the Quran or the traditions, eminent jurists undertook a theoretical exposition. Ijma and Qiyas were discovered in this period. Thus, there existed a scientific and logical approach towards legislation and soon the principles of equity, reasoning and public welfare, etc followed too.

THE FOURTH PERIOD (900-1924 AD)

The Moghuls overthrew the Abbasids in 1258 A.D. after a rule that extended to five centuries. In 1261 A.D. Abdul Kasim Ahmed was made the Caliph and his dynasty ruled for two centuries. They did not have any administrative powers. In the beginning of the 16th century, the Caliphate was transferred to the Ottoman ruler Selim I. Hence, Constantinople replaced Cairo as the Dar-ul-Khilafat.

Subsequently, Mustafa Kamal Ataturk abolished the Sultanate of Turkey in 1922 and the National Assembly of Ankara abolished The Caliphate in 1924.

In this period, the four Sunni schools were established. Otherwise there was not much progress in the legal sphere as there was no further exposition of law. No jurist was deemed competent for individual interpretation and Taqlid (imitation) was the new source. There were numerous exhaustive commentaries of the laws already laid out. The opinions of these writers were called Fatwas. Fatwai-Alamgiri and Fatwai Qadi Khan are two of the important fatwas.

THE FIFTH PERIOD (1924-TO PRESENT DAY)

Since the Caliphate was abolished, there was no religious head to administer and execute the traditional Islamic law. It became essential that the Islamic law be separated from religion (Shariat). The actual laws were framed and codified in such a manner so that the present society could be governed with the core of the Shariat. Subject after subject was excluded from the purview of the traditional law like Criminal law and civil law.

The Moghuls made the Muslim law the law of the land in all matters. The British changed all this. Their courts used Muslim law only in certain personal matters and otherwise the Acts of the Parliament or other enactments were followed. After independence, this dual system has been followed. For example the Shariat Act says that in matters of marriage, dower, maintenance, etc, the Muslim personal law shall apply with exceptions for agricultural lands, etc. But subsequently, the Parliament enacted legislations like Dissolution of Marriage Act, 1939 and Muslim Women (Protection of rights on divorce), 1986. Most of these legislations merely clarify the provisions of

Muslim law but some do allow for liberalisation of the traditional law. The Indian courts, too, have tried to apply Muslim law with regard to the present day society. As a result judicial precedents are also a part of Muslim in India.

SCHOOLS OF ISLAM

SUNNI AND SHIA SECTS

The two largest Muslim subgroups are the Sunni and the Shia. Sunni Muslims make up the largest percentage of Muslims overall. Until then the Prophet was the universally accepted head of the Islamic commonwealth. After his death, some thought the position should be given to person who people trust and thus an elected leader would suffice. Others thought that the spiritual leadership of the Prophet was more important and that this quality would have passed on through his blood. A gathering of some Muslims at Saqifah gave their allegiance to Abu Bakr, Muhammad’s father-in-law, as the first Caliph. Shia Muslims believe that the Prophet had appointed his son-in-law Ali ibn Abi Talib as his successor. Caliph was more of an administrative head whose job was to enforce the Shariat while the Imam was the religious head of the Shia community. These two sects differed on the political and legal issues too.

Many Muslims, however, do not like to label themselves as from any of the denominations as they believe that the Quran bans the formation of sects within Islam, and therefore classify themselves as simply “Muslims”.

THE SUNNI SCHOOLS

The full name of the Sunni branch is Ahl al-Sunna wa al-Jama’ah. Abu Bakr, the Prophet’s close friend and father-in-law, was the first Caliph. Sunnis initially believed that the

position of Caliph should be democratically chosen, but after the first four Rightly Guided Calliphs, the position turned into a hereditary dynastic rule. After the fall of the Ottoman Empire in 1923, there has never been another Caliph.

According to sources, present estimates indicate that approximately 85% of the world’s Muslims are Sunni and approximately 15% are Shia.

There were various interpretations by the jurists and thus many schools came up. Sunnis recognize four madhhabs (legal traditions): Maliki, Shafei, Hanafi, and Hanbali as of now. These schools are similar and differ mostly on the details.

THE HANIFI SCHOOL

Founded by Imam Abu Hanifa, Hanafi is considered to be the most liberal school. Abu Hanifa is often referred to as the Great Imam. It is predominant among Sunni Muslims in northern Egypt, the Indian subcontinent, Iraq, Turkey and in many western countries. It is the largest of the four schools; with a following of 45% of the Muslims world-wide. The most prominent propagators of this school were the Ottoman Empire and the Mughal Empire.

Abu Hanifa tried to formulate law through the analogical deductions from the texts of the Quran. The school recognises only those traditions that have been severely tested for originality and passed. It is believed that Hanifa relied upon 18 traditions only. Qiyas and Ijma were given due importance. The doctrine of Istihsan (juristic equity) was used by this school for the first time. Some of the famous books of the school include Fatwai Alamgiri, al-Hidyaya and Radd-Al -Makhtar.

THE MALIKI SCHOOL

The Maliki school derives from the work of Imam Malik-ibn-Anas and practiced in North Africa and West Africa. It is the second-largest of the four schools, followed by approximately 25% of Muslims. It differs from the three other schools of law in the sources it uses for derivation of rulings. All four schools use the Quran as primary source, followed by the Sunna of the Prophet Muhammad, Ijma (consensus of the People) and Qiyas (analogical deductions). The Maliki school uses the practice of the people of Medina (amal ahl al-medina) as a source too. This source, as per Malik, sometimes supersedes hadith, because the practice of the people of Medina was considered “living Sunna,” as the Prophet migrated there, lived there and died there, and so did most of his companions. They followed more of Ijma than Qiyas.

Their approach to law was even more practical than that of Hanafis. They introduced the principle of Istidlal or public welfare. A married woman’s property, under this school, remains under her husband’s control. Imam Malik had a comparatively small collection of ahadith that was well authenticated and highly regarded, known as Al-Muwatta. Malik is said to have explained the title as follows: “I showed my book to seventy jurists of Medina, and every single one of them approved me for it , so I named it ‘The Approved’.”

THE SHAFEI SCHOOL

Shafei was founded by Imam Muhammad ibn Idris ash Shafei, a pupil of Malik-ibn-Anas and was related to the Prophet. It is most prevalent in Egypt, Somalia, Singapore and is the school of thought officially followed by the government of Brunei Darussalam and Malaysia. It is followed by approximately 15% of Muslims world-wide.

The Shafei School of thought stipulates authority to four sources of jurisprudence: the Quran, the Sunna of the Prophet, Ijmah and Qiyas as well as the opinions of the Prophet’s companions. The school widened the scope of Qiyas. The school emphasizes on the proper istinbaat (derivation of laws) through the rigorous application of legal principles as opposed to speculation or conjecture. Ash-Shafei argued that Sunna contradicting the Quran were unacceptable, claiming that Sunna should only be used to explain the Quran. He claimed that if a practice is widely accepted throughout the Muslim community, it cannot be in contradiction of Sunna. But a woman can not be a free agent in her marriage even if she is an adult.

Ash Shafei incorporated the principles of law or Usul in his book Kitab-ul-umm. He is also known as the founder of ‘usul’. His “Risala” contains principles of jurisprudence or legal theory.

THE HANBALI SCHOOL

Hanbal is considered to be the most conservative of the four schools. The school was started by a student of Imam Ahmad, Ahmad bin Hanbal who had studied under Ash Shafei also. He is often referred to as the ‘Traditionalist’. It is more predominant in the Arabian Peninsula. It is also referred to as the Textualist school. Hanbali rigidly followed the traditions of the Prophet and thus, ignored the other sources like Qiyas and Ijma. There was no scope for private judgements and human reasoning. Although the Hanbali school was small, it did produce many noted scholars. Musnad-ul-Imam Hanbal was a collection of 50 thousand or so traditions by Ibn Hanbal. The doctrine of Usul was perfected by this school.

THE SHIA SCHOOLS

The Arabic word Shia literally translates into the word ’supporters’ or ‘followers’. Shia Muslims believe that Ali was appointed by Muhammad to be the direct successor and leader of the Muslim community and thus regard him as the first Imam. Intially they were known as Shiat-ul-Ali (the supporters of Ali) The majority of Shia Muslims believe in a total of twelve Imams. Imam is the final interpretor and he is the leader by divine right and not by election. The twelfth Imam is believed to have vanished and is awaited to appear at a pre-determined time. Shia Muslims believe that Mohammad’s family were the best source of knowledge about the Quran, Islam, and the best-qualified teachers of Islam after Mohammad, and the most trusted carriers and protectors of Muhammad’s Sunna. Thus, Shias reject the rule of the initial three Sunni Caliphs the same way as the Sunnis reject the Imamate of the Shia Imams. Shia scholars have a larger authority than Sunni scholars and have greater room for interpretation.

Shia Islam is the second largest denomination of Islam. There were susequent divisions in the sect due to difference on doctrinal points rather on issues of interpretation.

THE ITNA ASHARIA SCHOOLS

It is also called Imamia and majority of Shias belong to this school. The followers believe that from Ali onwards, there have been 12 Imams who possessed spiritual powers. They believe that the 12th Imam who disappeared as a child will re-appear in the future. They believe in Muta marriage-temporary marriage. They are further split into Akbari and the Usuli who follow the traditions very rigidly and believe in the interpretations to work out practical problems respectively. They can be found in Iran, Iraq, Lebnon and India. Shari-ul-Islam is one of their authoritative texts.

THE ISMAILIA SCHOOL

The Ismailis and Twelvers both accept the same initial Imams from the descendants of Muhammad and share much of their early history. However, a dispute arose on the succession of the Sixth Imam, Jafar as-Sadiq. The Ismailis became those who accepted Jafar’s eldest son Ismail as the next Imam, whereas the Twelvers accepted a younger son, Musa al-Kazim. They believe that there have been only seven Imams with Ismail being the seventh one. They believe that from Ismail onwards there has been a series of concealed Imams. They can be found in the Central Asia, Syria. In India they consist of two major groups: a) Khojas who were iinitially Hindus; and b) Bohras.

Daimul-islam is an authoritative text on th doctrines of this school.

THE ZYADIS SCHOOL

Zaiddiyahs separated from the Twelver and Ismaili sects of Shia Islam over a disagreement as to who the fifth Imam was. Zayd was the son of the fourth Imam. This school incorporated some Sunni principles in it too. They can be found in Yemen. They are not present in India

ALAWI

The Alawi are classified under Twelver Shia Islam, but differ in a special regard for Ali as a manifestation of God. Alawites are considered a secretive group, and do not accept converts or openly publish their texts. They are prominent in Syria.

THE MOTAZILLA SECT

Wasil ibn Ata developed the Motazilla theology in the 8th century with. He and his followers expanded on the logic and rationalism of Greek philosophy, seeking to combine them with Islamic doctrines for they believed that both were inherently compatible. The Motazilla debated philosophical questions such as whether the Quran was created or eternal, the issue of destiny versus free will, whether God’s attributes in the Quran were to be interpreted allegorically or literally, and whether sinning believers would have eternal punishment in hell. It is believed that they were initially in the Shia Sect. They believed only in the Quran as a basis for their doctrines. They practice strict monogamy and a divorce needs the interference of a judge.

SUFI: This is not precisely a branch of its own since there are Sufis who are primarily Sunni-oriented and others who are primarily Shia-oriented. All Sufis have the mystic view of faith and God in common.

APPLICATION OF THE LAW OF THE SCHOOL/ CHANGE OF THE SCHOOL OR SECT

If the Muslim personal law has to be applied in a court of law, first the sect of the parties will be looked into as each sect has its own book of authority that may not be binding on other sects. The second step is to ascertain the sub-sect of the parties so that specific law will be applied to them.

If the parties belong to different schools, the defendant’s school is applied. In matrimonial matters, if the parties belong to different school or sects, the laws of that school/sect will be applied under which the marriage was performed and solemnized. In India, it will generally be presumed that the parties are Hanafis unless they prove otherwise and the burden of proof lies on the person who claims that they don’t belong to this school. The reason for this presumption is that the majority of the Muslims in India are Sunnis and in particular, Hanafis.

Every Muslim who has attained the age of puberty can change his sect or school to one of his liking. From the instance of adopting another sect or school, the laws of the new sect or school will apply to the person

Probation of Offenders Act Part 2

 

VARIATION OF CONDITIONS ANND FAILURE TO OBSERVE

Section 8 talks about the power of the court to vary the conditions of probation. On application of a probation officer, the court that passed the order under section 4 for the offender may, vary the conditions of any bond entered into by the offender provided it thinks that the interests of the offender and the public interest mandates so. It may, at any time during the period when the bond is effective, vary the bond by increasing or decreasing the duration of the bond or by altering the conditions in it or by inserting additional conditions. But it cannot under any circumstance exceed three years from the date of the original order.

It is in the interest of the offender and the public that this clause has been inserted. If an offender has shown true and tangible improvement, the court can vary the conditions of his probation on application by probation offender. This can in form of lesser stringent conditions to enable an offender to cope with his slow and gradual increase in responsibility. In another scenario, where an offender is unrepentant and seems to be following bad company and set to repeat his earlier actions, the court on application by the probation officer may tighten the conditions to keep him away from such company or to take away opportunity to harm an innocent member of the society.

No such variation shall be made without giving the offender and the surety or sureties mentioned in the bond an opportunity of being heard.

In case a surety refuses to give consent to any variation proposed, the court may require the offender to enter into a fresh bond. If the offender refuses or fails to do so, the court may sentence him for the offence of which he was found guilty.

The court that passed an order under section 4 may discharge the bond(s) entered into by an offender if it is satisfied on an application made by the probation officer stating that the conduct of the offender has been such as to make it unnecessary that he should be kept any longer under supervision,.

Section 9 lays down the procedure in case of offender failing to observe conditions of bond.

If the court that passed an order under section 4 in respect of a particular offender or any court that could have dealt with the offender in respect of his original offence has reason to believe that the offender has failed to observe any of the conditions of the bond or bonds entered into by him, it may issue a warrant for his arrest. Alternatively it may issue a summons to him and his sureties, if any, requiring him or them to appear before the court at such time as specified in the summons if it thinks so fit. Such reasoning or doubt may arise due to the report of a probation officer or otherwise.

The Court which dealt with the offender or is competent to deal with the offence that the offender committed can issue an arrest warrant against the offender if it thinks or has sufficient reason to believe that the offender has not observed the conditions of his bond for release on probation.

The court before which an offender is now brought may either remand him to custody until the case is concluded or it may grant him bail, with or without surety, to appear on the date that it may fix for hearing.

If after hearing the case, the court is satisfied that the offender indeed has failed to observe any of the conditions of the bond(s), it may:-

(a) sentence him for the original offence; or
(b) where the failure is for the first time, then, without prejudice to the continuance in force of the bond, impose upon him a penalty not exceeding 50 rupees.

If a penalty imposed under the section is not paid within the specified period fixed by the court, the court may sentence the offender for the original offence.

Section 10 says that the provisions of sections 122, 126, 126A, 406A, 514, 514A, 514B and 515 of the Code shall, so far as may be, apply in the case of bonds and sureties given under this Act. A reading of these sections will make the role of the surety clear under the present Act.

APPEALS AND REVISION

Section 11 talks about the jurisdiction of courts, appeal and revision and powers of courts in appeal and revision.

An order under this Act may be made by any court empowered to try and sentence the offender to imprisonment and also by the High Court or any other court when the case comes before it on appeal or in revision.

Where an order is made under sections 3 or 4 by any court trying the offender (other than a High Court), an appeal shall lie to the court to which appeals ordinarily lie from the sentences of such court.

If a person under 21 years of age is found guilty of having committed an offence and the court by which he is found guilty declines to deal with him under section 3 or section 4, and passes against him any sentence of imprisonment with or without fine from which no appeal lies or is preferred, then, the court to which appeals ordinarily lie from the sentences of the former court may call for and examine the record of the case and pass such order thereon as it thinks fit. The court calling for such a case does so of its own motion or on an application made to it by the convicted person or the probation officer.

In simple terms, it is possible that a person less than 21 years of age is found guilty and a sentence of imprisonment with or without fine is passed against him that cannot be appealed against or from which an appeal is not preferred, by the court refusing to deal with him under Section 3 or 4. In such a case, the superior court, where the appeal from such court lies, can call for and examine the case.

When an order has been made under sections 3 or 4 in respect of a particular offender, the Appellate Court or the High Court, in the exercise of its power of revision, may set aside such order and in lieu pass sentence on such offender according to law. But a greater punishment than might have been given by the court that found the offender guilty cannot be inflicted.

Section 12 deals with the removal of disqualification attaching to conviction. A person found guilty of an offence and dealt with under the provisions of sections 3 or 4 shall not suffer disqualification, if any, attaching to a conviction of an offence under such law. This section does not apply to person who, after his release under section 4, is subsequently sentenced for the original offence.

HARYANA CIVIL LAW-PAPER II 2007

INSTRUCTIONS: Time is 3 hours and Maximum marks 200. All questions carry equal marks. All the five question, parts and sub parts have to be answered in the same order/sequence as given in the paper. Answers should be precise and to the point and no extra answer sheet shall be provided. Refer to the relevant case law wherever required.

I. (a) Discuss the desirability of expressly introducing irretrievable breakdown of marriage as a ground of divorce. Critically examine how will it help in the resolution of marriage conflict problems? Illustrate your answer in the light of the judicially decided cases. (20 marks)

(b) Write short critical notes on the following:—

(i) Compulsory registration of marriages.

(ii) Consequence of solemnization of marriage between two Hindus in violation of provisions of Section 7 of Hindu Marriage Act, 1955.

(iii) Concept of partition under Mitakashara Hindu Law. (iv) Doctrine of Antecedent Debt under modern Hindu Law. (4 x 5 = 20 marks)

II. (a) Critically examine the impact of the Hindu Succession (Amendment) Act, 2005 on the Mitakashara concept of coparcenary. (20 marks)

(b) Apparently, there is a conflict between sub-section (1) and sub-section (2) of section 14 of the Hindu Succession Act, 1956. How would you like to resolve this seeming conflict in the light of relevant case law? (20 marks)

III.(a) Discuss if a Hindu widow can adopt a son to her deceased husband in the light of the relevant provisions of the Hindu Adoptions and Maintenance Act, 1956 and the decisions of the apex court.

(b) Can a mother be the natural guardian in the presence of non-caring father under the provisions of Hindu Minority and guardianship Act, 1956?

(c) Bring out the significance of the right of Hizanat under Muslim law. Is this right absolute?

(d) How the concept of marriage under Muslim law is different from that of under modem Hindu Law?

(e) Distinguish the concept of ‘ legitimacy’ under Muslim law from the concept of’Legitimation’ under modern Hindu law. (5 x 8 = 40 marks)

IV.(a) Applicability of Section 1 25 of CrPC to Muslims after the enactment of Muslim Women (Protection of Rights on Divorce) Act, 1986.

(b) A Muslim, who died leaving behind her husband, made a will of her entire property in favour of her friend “F”. What is the maximum share to which ‘F’ is entitled to under Muslim Law?

(c) A Muslim made a will of his properties in favour of his two friends ‘Y’ and ‘Z’, by stipulating that the former would get V2 and the latter ¼ of his property. His heirs did not approve of the will. Determine the respective shares to which each would be entitled under the Sunni law and Shia law.

(d) Delineate the characteristic features of Waqf under Muslim law.

(e) A maternal grand father made a gift in favour of his newly born grand child. The mother of the child accepted the gift on behalf of the minor. State the circumstances under which this gift is valid under Muslim law. (5 x 8 = 40 marks)

V. (a) ‘Custom is a question of fact and not of inferences.’ Comment.

 (b) ‘Law of limitation simply bars judicial remedy: it neither affects extra judicial remedies nor the substantive right itself.’ Comment.

(c) Discuss if a deed of dower by a Muslim husband in favour of his wife transferring to her immovable property of the value of Rs. 10,000 in lieu of satisfaction of the dower debt due to her requires registration under the relevant provisions of the Registration Act.

(d) Discuss the functional difference between void and voidable marriages.

(e) Discuss whether the ground stipulated under section 13 B of the Hindu Marriage Act is truly a ground of divorce by mutual consent. (5 x 8 40 marks)

Probation of Offender’s Act Part 1

INTRODUCTION

It is a well known fact that reformation has replaced retribution in the modern state. George Bernard Shaw said, “If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and men are not improved by injuries.” Way back in 1923, the Law Commission of India submitted a report recommending liberal punishments to persons under 21 years of age and women convicted of offences. This report through years of delays and lapses became the Probation of Offenders Act, 1958. It has 19 Sections. The central statute covers a wider range of offenses than the State laws that along with Section 360 of the CrPC formed the Probation Law in India before the 1958 Act.

 Section 360 of the CrPC is built on similar lines where the first time offenders are released on probation of good conduct or after due admonition on certain conditions.

The object of the Act is to reform the offender and for the same, to make provisions for the release of young offenders on probation on certain conditions. The Act provides a liberal attitude towards young offenders who are to be immune from imprisonment unless the Court is convinced that imprisonment is the only solution. Another curious fact is that In India, persons treated under the probation system do not suffer from any legal stigma, such as ineligibility to enter government service.

PROBATION

Probation refers to an offender living in open society subject to supervision of a probation officer rather than being imprisoned. Probation is essential as not all offences are that serious to require incarceration and it allows the offender to fulfill his responsibilities. It also keeps young impressionable minds away from the company of habitual criminals or unsavory characters in prisons. A person under probation may have to observe all the conditions that the court may impose. Probation is correctional administration and grant of probation is mandatory unless the courts give special reasons for not granting the same.

Various definitions of probation are as follows:

1. Probation is the act of suspending the sentence of a person convicted of a criminal offense and granting that person provisional freedom on the promise of good behavior

2. Probation is a system of dealing with offenders, esp. juvenile ones, by placing them under supervision.

3. Probation is a way of dealing with offenders without imprisoning them; a defendant found guilty of a crime is released by the court without imprisonment subject to conditions imposed by the court; “probation is part of the sentencing process”

4. Probation is the release into the community of a defendant who has been found guilty of a crime, typically under certain conditions, such as paying a fine, doing community service or attending a drug treatment program. Violation of the conditions can result in incarceration.

In essence, probation is when an offender under a certain age or in particular circumstances is allowed to retain his freedom and is not sent to the prison for the offence committed after imposing certain conditions on his freedom. These conditions may require him to report weekly or daily to his probation officer (The supervisor of his case) or not to smoke or reach home at a specified time, etc. The courts and Probation officers keep a watch on such an offender so as to prevent a repeat of his offence but at the same time allowing the offender to live in the normal society to learn and contribute like a useful citizen.

 

GENERAL INTRODUCTION TO THE ACT

The Act came into existence on the 16th day of May, 1958. It applies to the whole of India except the State of Jammu and Kashmir. It came in force on dates appointed by the State governments and different dates were allowed for different parts of the State.

The Definitions are given under Section 2 and they are generic. The definitions are supposed to be as under the Code of Criminal Procedure, 1898.

 

POWER OF COURT TO RELEASE, COMPENSATION, BONDS

Section 3 talks about the Power of court to release certain offenders after admonition. A person found guilty of having committed an offence punishable under section 379-381, 404, 420 of the Indian Penal Code or any offence that is punishable with imprisonment for a maximum of two years, or with fine, or with both, under the IPC or any other law can take benefit of the section. If and only if there if no previous conviction proved against him and the court which finds him guilty presently is of opinion that, with the circumstances of the case including the nature of the offence and the character of the offender, it is expedient so to do, then the court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4, release him after due admonition, notwithstanding anything contained in any other law for the time being in force.

The Section merely wished to say that if a person, not convicted previously, is found guilty of an offence that punishable with a maximum of two years or fine or both OR guilty of an offence punishable under certain sections of the IPC, the court of law where he is found guilty may release him on probation instead of sentencing him. Such a release on probation of good conduct after due admonition can be effected if the courts deems it fit after considering the offence, the character of the offender, etc.

Good conduct implies that a person will behave well, not repeat his offence or associate with unlawful activities and undertake to fulfill all the conditions that the Court may impose on him

For the section, previous conviction against a person shall include any previous order made against him under this section or section 4.

Section 4 talks about the Power of court to release certain offenders on probation of good conduct.

A person found guilty of offence not punishable with death or imprisonment for life and the court that found him so guilty may as per the circumstances of the case, the nature of the offence and the character of the offender, release him on probation of good conduct if it so deems fit. Notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct and in the meantime to keep the peace and be of good behavior.

 

In some cases a person guilty of an offence not punishable by death or imprisonment for life can also be released on probation by the court. The Court will not direct a release unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.

The court considers the report, if any, of the probation officer concerned before it will make the order.

 

Once the order has been made, if the Court deems fit in the interests of the offender and of the public, a supervision order may be passed directing that the offender shall remain under the supervision of a probation officer. The officer will be named in the order and will undertake the supervision for such specified period, not being less than one year and may in such supervision order impose such conditions as it deems necessary.

 

The Court can require for an offender to enter into a bond, with or without sureties, to observe the conditions specified in his release order and such other conditions court deems fit before he is released on probation. The additional conditions can be with respect to residence, refraining from drugs, intoxicants, etc or any other matter as the court may considers fit to prevent repetition of the offence or commission of other offences by the offender or any condition that the court deems fit with regard to the circumstances of that particular case.

Court has to explain to the offender the terms and conditions of the order and also provide him with a copy of the supervision order as well as to the sureties, if any, and the probation officer concerned in the particular case.

Section 5 says that a court has the power to require released offenders under Sections 3 and 4 to pay compensation and costs if it thinks fit. Such an order may require to be paid
(a) such compensation as the court thinks reasonable for loss or injury caused to any person by the commission of the offence ; and
(b) such costs of the proceedings as the court thinks reasonable.

The amount ordered to be paid may be recovered as a fine. If there is a suit in a civil court arising out of the same matter for which the offender has been prosecuted, the civil court shall take into account any amount paid or recovered as compensation hereunder while awarding damages. This is to set the compensation or damages in the civil court in equilibrium with that of the criminal court. For example, if a person was made to pay compensation that covered all the damage sustained by the victim by the court passing the probation order, a civil court dealing with the same suit may not order for more compensation for damages.

 

RESTRICTION OF IMPRISONMENT

Section 6 sets out the Restrictions on imprisonment of offenders under 21 years of age. A Court is not to sentence to imprisonment a person less than 21 years of age who has been found guilty of offence punishable with imprisonment but not life imprisonment. There is an exception that if the court thinks that it would not be desirable to deal with such a person under Sections 3 or 4 of this Act especially with regard to the circumstances of the case, character of the offender and the nature of offence, it may pass any sentence of imprisonment. But it shall record its reasons for doing so.

Thus, generally a person less than 21 years of age gets benefit under the section unless the circumstances of the case, character of the offender and the nature of offence make the court doubt whether such an offender will take benefit of the leniency that the law can bestow. In cases of such doubt or if a person has committed an offence punishable with life imprisonment, the court may sentence such less than 21 years of age person to imprisonment.

 

While considering the desirability of dealing with an offender referred above under sections 3 or 4, the court shall call for a report from the probation officer and consider the report, if any, and any other information available to it relating to the character and physical and mental condition of the offender.

The report of probation officer is conferred a confidential status by Section 7. The report of a probation officer referred to in sections 4 and 6 shall be treated as confidential. However, the court may, if thinks fit, communicate the substance of the report to the offender and may give him an opportunity of producing such evidence that may be relevant to the contents of the report.

 

 

 

 

A few more tips!

 

All over the blog, you will find a collection of tips that many have found helpful during their studies. Given below is a summary of some more similar effective study habits. In case you have a special tip to share, please feel free to get in touch with me or leave a comment.

 

Many of the aspirants are usually not aware of the amount of study time that is expected at this level. You will hear people talking about studying 10 hours or 14 hours or 6 hours or maybe even after work. You may think that you can do that. But those hours must be spent STUDYING usefully not merely reading or writing. If you go for coaching classes, please remember that for every one hour you spend in class you will be required  spend at least 10 hours per week studying outside of class.

 

Here, you are expected to understand the material and also to recall it, evaluate it and compare it with other material on the same subject.

 

What you can do:

 

1. Know your syllabus. Know why you are reading the material. Understand the whole but extract the essence. Have a vague idea of what questions are asked from that particular topic.

 

2. Whether reading or writing, highlight the main points. Make sure that a heading will remind you of the content within well.

 

3. Try and think of your objections or ideas regarding the topic. This will help you put technical phrases in a lingo you are comfortable with.

 

4. Estimate the time needed for study, the note making, comparison with other sources, etc.

 

5. Practical examples, cases will help you retain it. Review you notes. Abridge them if you are comfortable.

 

6. Join an institute if you feel or think that coaching is helpful. Don’t get caught up in limbo. But whether in a class or group study – study before hand to understand what is being taught. Only then will you be able to comprehend the beauty of what your teacher or guide might be saying. Listening to the lecture, you will be able to expand what you read and develop it further.

 

7. Don’t follow unverified information. Check the answers or the correct principle before you commit it to memory.

 

8. Take notes. Write down topics and subtopics in the formal vocabulary and summary of contents in your own words. Examples, diagrams are always helpful. Use your margins to jot down your doubts, questions, etc.

 

9. Always have a teacher, senior or friend with whom you can check your progress whether you are enrolled in a institute or not. This will help you understand the points involved better and keep the chances you getting misled minimal. They will also help you assess your progress in quality and mathematical terms.

 

10. Study groups are a good way to study provide all the members are serious. In case you go to an institute for coaching, you can meet later and ask questions, and discuss the lecture, give and correct assignments. Explanations will help every member in the group. There can be a lead a day for a particular subject or topic. There are many sites wherein you can search for a study partner close to home.

 

 

 

 

 

General tips

 

INTRODUCTION

 

Every Civil Services or Judicial Examinations aspirant knows that:

1. There is a lot of stiff competition out there
2. The syllabus for the examinations requires lots of work; and
3. The studies are not just for the exam but very essential for the interview and the actual job itself.

 

It is a common feature to often hear aspirants say that it is impossible to get “finished’ regardless of how many hours you study unless you block out months. For the aspirants still in college, the temptations are in plenty and procrastination common.

 

The first thing that we need to realize is that we are not aiming for perfection. We are looking to gain knowledge about a subject and knowledge how it really works. Perfection should not become an excuse to postpone your attempts at the real thing. We have to look at acquiring required knowledge, learning its application in the correct context and as prepared as we can be in a particular time period, say a year or two in case of Civil Services and 6 months and above for Judicial Exams.

 

TIPS FOR THE PLANNING AND PREPARATION

 

If there was a routine or strategy that helped you, feel free to post it here.

 

1. SET ROUTINES: Once you are studying, you are only studying. No multi tasking is allowed. If you want, select or designate a place and time strictly for studying and accomplishing your weekly targets. Going to this spot, whether it be the public library, a room in your house, it will help you get into the study mode faster. Do take a 5-10 minute break every hour or so to stretch, walk around or visit the rest room. This break is a mental and physical requirement for better retention and recall.

 

2. PREP YOURSELF: You will find reading an outline or index or flipping through the book the night before actual time allotted will make a tedious subject also seem familiar and easy. This can be done 10 minutes before going to bed. If you know what you have to do next, you will not waste precious time deciding what to study or what to do. It will help you focus on the task at hand and not let your attention wander.

 

3. SYLLABUS: Purchase the syllabus prescribed for the exam as soon as you consider giving any competitive exam. It will help you develop familiarity with the subjects as well restrict your in depth-studies. The subjects are very vast and years of study are required to master them fully. Question banks of the exams are also imperative though be careful not to go through all the papers in the beginning. You will have limited full length papers to check your progress with. Thus, read a paper or two at the maximum to familiarize yourself with the pattern of questions, answers expected, etc. A overall look into the syllabus, question papers will help you decide what to study and how. The syllabus copies of all examinations are available at book stores. UPSC syllabus may be found in the blog itself.

 

5. NOTES: Taking notes of the main points will reinforce the information you are hearing now. It will allow you to provide accurate information when you try and recall the classes. Colors used, copies etc will leave a mark in your mind. Many institutes give handouts or PowerPoint presentations. Don’t feel shy to ask them for a copy. Don’t write down everything the teacher or lead says. Write the main points and explanations. When in a class or discussion, let your mind focus on the information and its importance rather than the words. How you hear information and question it will help you develop skills for interview questions. Keep your notes updated remember to leave space for your own comments later. Margins are provided for a reason – use them wisely.

 

6. INTERACT: If you don’t understand a concept, need clarification or you disagree, ask your teacher or group lead during class itself. Else make a note and call your own teachers or elders for clarification after class. 

 

7. REVIEW: Before the week at the institute is over, make sure you review your notes summarily. Where you are in doubt, clarify the same on the last day of the week. This will not only reinforce the information but also make sure tat you do not waste the weekend revising and studying a topic you don’t understand. This summary look should not take more than 15 minutes per subject. 

 

8. REST: You will pressed hard around exam time. Nevertheless, try to sleep at fixed times and for at least 7-8 hours a day during your preparation. This will help prevent fatigue and loss of valuable information in the long run.

 

The above list can be achieved better with the following actions:

 

1. Start time management at the very start of your preparation. Have a plan

of action from the moment you decide to give the exam.

 

2. Have a calendar (weekly, monthly, yearly) with marks for deadlines for subjects/assignments, practice tests, summary study dates, revision dates and other important dates.

 

3. Have a grade or percentage system for the dates you mark. Say for the objective exams in GK set goals set goals like getting at least 60 percent questions right or keep wrong answers below 10 %, etc.

 

4. Make sure your plan of action is do-able. Break deadlines or tasks into smaller, more manageable jobs. 

 

5. Plan enough time for relaxing or simply sitting around in your weekly chart.

 

6. Use “To do” lists. Whether in a copy, diary or a small notepad, write down the tasks to be achieved. At the end of the day, cross out the ones achieved to your satisfaction. This is an important tool to keep a check on your progress and will help you stay on course. 

 

7. This examination has to be your priority. Once decided, your preparation must take preference over any other activity. You can be flexible in your hours but you must meet all your deadlines.

 

8. Reading on a regular basis is essential. In newspapers, The Hindu is the a must read. In case, you wish to read other papers choose one Hindi and one local newspaper. The Hindi newspaper will help you put in data and information in a more succinct manner in the mandatory Hindi papers in most exams.

 

9. Always preview your material and see how you want to progress in a particular subject. Read from different sources. Be aware of the fact that though you may like an author, his perspective may not be giving you an edge. Talk to people and other aspirants and find out the books that have been recommended and why.

 

10. Develop your reading and writing skills. In certain tests, it has been shown that the eyes will run over certain words and presume one context when another was intended. We don’t want you to write the perfect answer to the wrong question. Better reading speed will help you deal with materials faster. The point of fast and neat handwriting is kind of obvious.

 

11. Be sure to relate to question papers and application based logical questions while you study something.

 

12. Assign value to what you have read. If it has figures and is interesting but not usable, throw it out. You cannot put in material because its fun or you remember it. Think pertinent.

 

13. Reviews and revisions are essential. A review once a week and revision once a month of your notes or vice versa is a good idea.

 

14. If possible, write your own notes. Your thoughts and your understanding is unique to you. Experiment and find out a system that works for you. Whether it be writing twice or writing once…Anything that helps you work better and will save time at the time of examinations.

 

15. Invest in a set of markers, color pencils, colored ball pens, post-its. They are handy aids and will serve your purpose well as visual aids. Highlighters will keep your focus away from sentences and on catch phrases and thus, reduce the time spent in subsequent readings. For the interested people, there are many aids available like Tony Buzan’s Mind Maps or following a particular note making formula as in Columbia. Google the same or ask around in your friend circle. I will be posting a few aids on the blog shortly.

 

16. Organize your study place or bag. Have all the material for the week in the bag or at the table. Do not waste time getting up time and again. Studying in small chunks of time works for a lot of people, so try and take breaks instead of non stop studying for 8 to 9 hours.

 

17. Follow your normal routine throughout the year before the paper. Eat right and exercise. Your physical fitness is important in the interview. Sleep

and relax so that you can maintain a 360 degree perspective on your studies and your job eventually.

 

18. Start revision studying and give practice tests a month before the exam dates. Sample question papers is also a good alternative. Get them marked by your teachers or study group friends. Follow-up on your results. Go through the corrected answers to see and discuss where you went wrong so that you can improve.

Introduction to Muslim Law

In India, the personal law of the parties is applied even in the Courts in the matters relating to ‘personal matters’ of an individual like marriage, divorce, guardianship, etc. Family matters and property are also included in the personal laws. Thus, where the parties are Muslims, the Court will apply their personal law. Muslim Law in India refers to that portion of Islamic Civil Law that is applied to Muslims as a personal law. It consists of injunctions of Quran and has been further supplemented by Legislation and judicial precedents of the Courts. Personal laws are not general in their application and wherever a person may be in India, his personal law will follow him.

WHO IS A MUSLIM

Muslim law can be defined as the branch of civil law that regulates the family matter of the Muslims. The word ‘Muslim’ is derived from Islam and refers to a person who has adopted or follows the faith of Islam. There is no statutory definition of a Muslim. The term ‘Islam’ means ‘submission to the will of God’. In legal terminology, Islam is a religion where it is believed that

 i) God (Allah) is the one and only God; and

 ii) Prophet Mohammad is His messenger (Rasool).

 Thus, anyone who believes in the above two principles will be a Muslim.

As faith in Islam is a matter of heart and difficult to prove in Court, the Courts recognise the following as Muslims:

 1. Muslim by Birth: If a person’s parents were both Muslims, he will be regarded as a Muslim by birth. Where only one parent is a Muslim, the child will be regarded as a Muslim if only he has been raised a Muslim as held in BHAIYA SHER BAHADUR V BHAIYA GANGA BAKSH SINGH (1914) 41 IA 1. A Muslim by birth will continue to be one unless on attaining majority, he renounces Islam through a public declaration.

 2. Muslim by Conversion: Any person of sound mind and age of majority can convert in two ways –

 a) He may publicly declare that he has renounced his original religion and is now professing Islam. He should also believe that Allah is the one and only God and Prophet Mohammad is his messenger.

 b) Conversion through the ceremonies as prescribed in Islam itself. The person goes to the mosque where the Imam may ask him to read a Kalema and give him a Muslim name. The new name is then registered in the Imam’s register

 If a person formally professes Islam, he is a Muslim. This should not be a conversion based on fraud or to defeat any law; thus, if the person’s conduct and behaviour runs contrary to Islam, the presumption of conversion is rebutted.

There exists no objective test for checking the sincerity of faith. But many a times, when the conversion is only to legalise an act that is illegal in other faiths, the Courts will hold the conversion mala fide. In SARLA MUDGAL V UNION OF INIDA (1995) 3 SCC 635, a Hindu husband converted to Islam to marry a Muslim girl without first divorcing his first wife (a Hindu). The court held that the conversion was mala fide and declared the second marriage void while stating that “it is not the object of Islam or intention of the enlightened Muslim Community that Hindu husbands should be encouraged to become Muslims merely for the purpose of evading their own personal laws by marrying again.” The Supreme Court reinforced the same principle in LILY THOMAS V UNION OF INDIA A.I.R (2000) SC 1650.

Feigning adoption of another faith for mere worldly gains is treated as religious bigotry.

Once a Muslim, it is irrelevant whether he is a Muslim by birth or conversion. In 1937, the Shariat Act abolished all the customs that the converted Muslims used to follow from their original faith (except for those that are related to agricultural lands or matter not included in the Act).

Apostasy

If there is apostasy by a married person in a country where the law of the land is the Muslim law, the converted party has to offer Islam to the other partner. If the other party refuses, the marriage may be dissolved

If the Muslim law is not the law of the land, the marriage is automatically dissolved after 3 months of the conversion. This is NOT the case in India. A suit for divorce has to be filed.

An apostate will be dealt under his original religion at the time of the event or action even if he has converted to another religion. For example, if a Muslim couple is divorced after the husband’s conversion. It is the Muslim law that will apply because the marriage took place under the Muslim law.

Application of Muslim Law

The Courts apply Muslim law for personal matters or where authorised by law and legal principles.

Legal Application of Muslim Law

 

The Principles of Equity, Justice and Good Conscience

Statutory Authority

In the absence of any enacted law, the Courts apply the principles.   For example, the Muslim law of pre-emption has not been mentioned in any act and thus the courts are under no obligation to implement it.     Similarly Muslim law was applied in the case about the agricultural lands on the principles of Equity.       The High courts are free to apply the unrepealed Provisions of law before the Constitution Came into being on the basis of Art. 225   The Courts are also free to apply the local usages and enactments. Muslim law is not applied to Muslims, if There is another law applying to the parties that they choose over the particular Muslim law provision in existence dealing With the same issue. For example, Marriage under Special Marriage Act, 1954 or inheritance under the Indian Succession Act, 1925 are a few cases where Muslim law will not be applied even if both the Parties are Muslims.   Muslim law is applied even to non- Muslims, if the defendant is a Muslim and the other Party is either not a Muslim or belongs to A different school/sect. It is only a general policy.

The British applied Muslim personal law for the Muslims in India so as to maintain social stability for better trade opportunities.   Warren Hastings plan of 1772 brought in maulvis to help expound the Muslim personal law. Though the British were to enact general laws for all the affairs of Indians despite their religion, they left personal laws alone. Acts like Shariat Act, The Oudh Laws Act, 1876 authorises the Indian courts to apply Muslim personal law. The Shariat Act generally regulates the application of Muslim personal law.   Section 2 allows for the application of Muslim law in the following cases: Intestate Succession Special property of the females Marriage Dissolution of Marriage Maintenance Guardianship Gift Trust and Trust Properties Wakf   A custom or usage contrary to Muslim law cannot be applied now.   Section 3 gives the choice to a Muslim to be governed by Muslim law in matters other than those enumerated there.   Agricultural lands, charities and charitable endowments are expressly excluded from Section 2. Still the states can regulate through tenancy laws.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The Khojas and the Cutchi Memons were Hindus 400 years ago who then converted to Islam. They are generally traders and had till recently retained certain Hindu succession and inheritance laws. There was an option for them to make a statutory declaration that they would be governed under Muslim law for all purposes.

Now even that is not needed. They are covered under the Hanafi school. The Shariat Act had applied the rules of Muslim law to intestate succession in these communities. In 1938, even testamentary succession was brought into the purview of Muslim law. Now, both the communities are governed by the Muslim personal law except for those exceptions stated in the Shariat Act like agricultural lands, etc.

Initially the wills of the Cutchi Memons and the Khojas were constructed as per the Hindu law, now the Muslim law applies. Thus, they can not give away more than 1/3^rd of their property away through a will without the consent of their heir(s).

The Muslim Memons are followers of the Hanafi school and are divided into

a) Halai Memons who are found in Bombay

b) The Cutchi Memons.

The Khojas are converted Muslims who till 1937 were governed under the Hindu law with respect to certain matters.

The Mapillas are converted Muslims and were formerly regulated by their customary laws in the matters of succession that were against the Muslim Law. But now they are compulsorily governed due to the present Acts. Still a few areas like Tarvad and Tavazi are under the purview of customary law.

 Law as per Islam

 

THE SHARIAT

THE FIQH

Shariat: The term literally means “road to the watering place” or “the path to be followed’.   In Islam, law has a divine origin and God is the only true legislator.   The law is an order or hukm that is obtained through a communication from God, whether express or implied.   There is either husn (good action) or kubh (evil action).   The Shariat says what is husn must be done and that which is morally bad or kubh must be avoided. The Quran, Sunna of the Prophet, etc tell us what is husn or kubh.   The that regulates all the spheres of a man’s life. It is a moral or spiritual code. The legal considerations are secondary.   Thus, law is the direction given by God   Some directions are obligatory and others are merely desirable.   It has a wider scope as it includes all spiritual, moral and secular actions of a man. It also has an additional category of actions, namely, what is advised not to be done. It is taken before any other source. It is Muslim equivalent to the Hindu concept of Dharma. The Shariat includes farz (what is necessary) like daily prayers; haram (what is strictly prohibited) like wine; manruk (advised to refrain from) like specific kinds of fish; mandub (advised to do) like additional prayers and jaiz that to which the religion is indifferent like travelling by air.

Fiqh: It means intelligence. It refers to ‘law’ in the modern sense and literally it refers to the knowledge of law.   It is used for regulating human conduct and is secular in nature. It is jurisprudential in nature.   It refers to the knowledge of one’s rights and obligations.   It is generally deduced from the directions of God or traditions of the Prophet.   It has been created through the power of reasoning by the Muslims Jurists in the absence of the word of God or the Prophet.   It has narrower scope as it deals with only the legal actions. It deals with logical and scientific progress   Human action is treated as lawful or unlawful and the punishment comes from the state   It is comparable to the Hindu concept of Vidhi or Vyavhar.   In the classical view, it is the knowledge of one’s rights and obligations derived from the Quran, Sunna (the traditions of the Prophet), Ijma (consensus of the learned) and the Qiyas (analogical deductions).

 

The right phrase for the personal law of the Muslims is Islamic Law or Muslim law rather than Mohammedan law.

 

 

 

1. Introduction to Indian Evidence Act

 INTRODUCTION

 The object of every judicial investigation is the enforcement of a right or liability that depends on certain facts. The law of evidence can be called the system of rules whereby the questions of fact in a particular case can be ascertained. It is basically a procedural law but it has shades of substantive law. For example, the law of estoppel can defeat a man’ right. Law of Evidence is one of the fundamental subjects of law and therefore we must study it in detail and depth.

The term ‘evidence’ owes its origin to the Latin terms ‘evident’ or ‘evidere’ that mean ‘to show clearly, to discover, to ascertain or to prove.’

 

OBJECT OF THE STUDY OF THE LAW OF EVIDENCE

 Evidence refers to anything that is necessary to prove a certain fact. Thus, Evidence is a means of proof. Facts have to be proved before the relevant laws and its provisions can be applied. It is evidence that leads to authentication of facts and in the process, helps in rationalising an opinion of the judicial authorities.

Further, the law of evidence helps prevent long drawn inquiries and prevents admission of excess evidence than needed.  

 

TYPES OF EVIDENCE

1. Direct

2. Circumstantial

3.Hearsay

4. Documentary

5. Oral

6. Scientific

7. Real

8. Digital

Law related to evidence and proof is nothing but rules that must be observed in particular situations before certain forums.

If the other party in a legal proceeding admits guilt, all is well. The other party can also deny the allegations in the plaint and the existence of certain facts ma be called into question. Then the parties or their witnesses have to give evidence in the court of law so that the court may decide whether the facts exist or not. Interpretation of agreed facts is a rarity and in most cases the existence or non existence of facts as to be shown and therefore, the law of evidence plays a very important role.

Illustration: X has entered into a contract with Y to sell his house for an amount of INR 10,000. In case of a breach of contract of contract by either X or Y, a Court of Law cannot decide the rights and liabilities unless the existence of such a contract is proved.

In Indian Evidence Act, we will study who is a competent witness, on whom does the burden of proof lie and other things.

 

ARE SUCH RULES NECESSARY

The rules and regulations of evidence are essential. One view says that the court has to arrive at the truth and hear all there is to a case and then arrive at a just conclusion. And accordingly, the law of evidence poses a hindrance with its qualifications and requisites. Other view says that without rules it will take ages to resolve any case and it is too much discretion at the hands of men who will remain unchecked. The Indian Evidence Act, 1872 maintains the right proportion of rules that are not too pedantic or too discretionary. Rules of the law of evidence have to be strong so that the foundation of the administration of justice remain intact and strong.

It can also be said that the Act seeks to enact a correct and uniform rule to followed and prevent indiscipline in admitting evidence.  

 

INTRODUCTION TO IEA

The Indian Evidence Act, 1872 is largely based on the English law of Evidence. The Act does not claim to be exhaustive. Courts may look at the relevant English Common Law for interpretation as long as it is not inconsistent with the Act.

The Act consolidates, defines and amends the laws of evidence. It is a special law and hence, will not be affected by any other enactment containing provisions on matter of evidence unless and until it is expressly stated in such enactment or it has been repealed or annulled by another statute.

Parties cannot contract to exclude the provisions of the Act. Courts cannot exclude relevant evidence made relevant under the Act. Similarly, evidence excluded by the Act will be inadmissible even if essential to ascertain the truth.

 

THE LAW OF EVIDENCE IS THE LEX FORI

Law of evidence is part of the law of procedure. That why it is called the lex fori or the law of the court or forum. It means that Indian courts know and apply only the Indian law of evidence. Thus, the competency of a witness, whether a fact is proved or not is determined by the law of the country where the question arose, where the remedy is sought to be enforced and where the court sits to enforce it. For example, if a legal proceeding is going on in Sri Lanka and evidence is taken in India for the said proceeding whether by commission or by assistance of courts in India, the law which will be applied during such recording of evidence will Sri Lankan Law of Evidence.

 

THE LAW OF EVIDENCE IS THE SAME IN CIVIL AND CRIMINAL PROCEEDINGS

A civil case of will and murder will have the same law of evidence. For example, the date of death has to be clarified or confirmed for the will to come into existence and a murder date has to be set for proceeding further with the criminal investigations too. There are, however, certain sections that apply exclusively to civil matters and others that apply exclusively to criminal cases. In civil cases, mere preponderance of evidence may be enough but in criminal cases the prosecution must prove its case beyond reasonable doubt and leave the other alternatives presented very unlikely and highly suspect.

 

BASIC PRINCIPLES OF EVIDENCE

The Act deals with Relevancy of Facts, Mode of Proof and Production and Effect of Evidence. The following principles are called the basic principles and The exceptions to the above principles, the exact application has been set out very clearly in the Act:

1. Evidence must be confined to the matters in issue.

2. Hearsay evidence may not be admitted.

3. The best evidence must be given in all cases.

4. All facts having rational probative value are admissible in evidence,unless excluded by a positive rule of paramount importance.

 

HISTORY OF THE LAW OF EVIDENCE 

Today we have two basic of evidence upon which rules are formulated. One rule is that only the facts bearing importance to the matter being heard should be looked into by the courts and second that all facts that will help the court to reach a decision are admissible unless otherwise excluded like a client confessing to his legal counsel.

Among others from ancient Hindu Period, Vasistha recognised 3 kinds of evidence:

1. Lekhya (Documentary Evidence)

2. Sakshi ( Witnesses)

3. Bukhti ( Possession)

4. Divya (Ordeals)

 Though the concept of justice in Islam is that it is a divine disposition, the Mohammedan law givers have dealt with evidence in various forms as indicated by the table below:

1. Oral that may be Direct Hearsay

2. Documentary (Less preferred than oral)

Initially at many places and in many beliefs, the parties to litigation would fight each other and it was believed that divine help will come to the rightful party. Trial by battle has been abrogated only in 1817. The trials by ordeal included a person on bed of hot coals or putting ones hand n boiling water. Anyone who suffered injury was held to be impure and guilty. Though it was believed that providence will not let harm come to the innocent, often it was the priests who manipulated the tests so that certain people could go scot-free.

It was believed that if a guilty man touches the corpse it would show a reaction and then the man should be punished. Accordingly refusal to touch a corpse was also admission of guilt by the accused.

The most cruel evidence law existed in Europe with respect to witch hunts and witch craft. The woman suspected of being a witch was tied up and thrown into a pond. If she floated p, she was a witch and was burned alive at stake. If the woman were to sink to the bottom of the pond, she was not a witch. Unfortunately she would be dead by then but nevertheless innocent in the eyes of law.

Confessions due to torture are not unknown today either.

 

THE MODERN LAW AS IT PREVAILS

The concrete evidence of the ‘law of evidence’ comes from the times of the Britishers. In 1837, an Act was a passed whereby even a convicted person was allowed to give evidence. Subsequently, parties to litigation could be witnesses for their respective sides. Charles Dickens ridiculed this law and questioned the honesty of such witnesses. After all, who will testify against himself or to his disadvantage? Between 1835 and 1855, there are eleven Acts that touch upon the subject of law of evidence. And these were consolidated.

In 1856, Sir Henry Summer Maine, the then law member of the Governor General’s Council was asked to prepare and Indian Evidence Act. His draft was found unsuitable for the Indian conditions. So it fell to Sir James Fitzjames Stephan who became the law member in 1871 to come up with the Indian Evidence Act. His draft bill was approved and came into being as the Indian Evidence Act, 1872 and came into force from 1st September 1872. Before independence, many states had already accepted this law as the law in their respective state. After independence, the Indian evidence Act was held to be the law for all Indian courts.

 

Basics of Judicial Exams

A basic google search on judicial examination will not bring you the information you had hoped for. The fact that you have landed up here, shows that you followed all the hits and have specific goals and objectives. That is a very good thing. It tells me that you are willing to put in the effort that is required and secondly that you are willing to use the internet to your advantage.

Every state has its own pattern and own syllabus. For example Delhi and Haryana have objective type of questions in the prelims and subjective Mains. Rajasthan has only one paper, Mains and the stress is on drafting as well as concise answers only. In most of the papers, you will have to adhere to word limits or answer in order of question paper only. In Haryana Judicial Examination (Mains), you will get only one answer booklet for the entire paper. Should you use it unwisely, you will not be able to answer the rest of the questions.

The point of letting you know this is not to scare or confuse you. More often than not, the recent graduates are already used to a particular format of answering a paper.  This information is being given to help you adjust to the thought of a new pattern faster.

Given below, is a point wise introduction to the judicial examinations:

1. Every state has it’s own judicial examinations. In certain cases, they are overseen by the particualr High Court and by the State Public Commission in others.

2. The examination pattern is keeping in mind the posts advertised. The blog, presently, doesnot contain information for ADJ examinations etc.

3. You should, ideally speaking, first prepare for the Mains and then for the Prelimnary. In case of a time crunch, three months is more than sufficient to see you through.

4. For Mains, stress on fundamentally understanding the material. Sections and unrelated specifics can be ignored as most examinations will provide a bare act during the course of the paper. It is your familiarity with the bare act, questioning attitude for the rationale behind usage of words or sentences in statements and problems as well as generally knowledge of application of a section will see you through with flying colors.

5. For example, reading the bare act time and again, being aware of what lies where and the ability to remember information from the index of sections consitutes familiarity with the bare act. The questioning attitude will help you in your Law Mains, the Essays, the GK paper as well as the interview. Do not ignore it. If you have not studied a particular point, this attitude will help you eliminate the wrong options. Understanding application of sections will come through pursuing commentaries and digest or by following cases in the related fields.

6. For prelimnary examinations, we have to have an overview of the subjects and good knowledge about the landmark cases and the history of legal setup in India and abroad. For example, Who was the first Chief Justice of India? Where is the International Court of Justice situated? How many judges are there in the ICJ? etc.

7. Along with the Law syllabus (which is different for different states), you will have papers for Hindi and English. These will include Essays, Comprehension, Proverbs and Grammer etc.

The judicial examinations are easy to crack provided you have studied and understood the core principles of law. I am here to help you try and recognise these as well as provide free sample question papers, previous years question papers(solved) and any other information that you will require to prepare for the examinations.

I have attempted the papers and cleared. But please note that the views expressed here are my own and not subscribed to by any Commission or Examining Authority. I am only providing information based on my information. In case of doubt, please do not use any of this material for I am not, in any manner whatsoever, guaranteeing success. Thus, I will not be liable for any loss, if any, occurs due to information presented on this blog or advice given by me. I am only trying to equip you with the tools I found helpful.

Hello!

Hello.

I am Kanwar. This is a blog basically for students trying to get a brief and basic outlook on law topics among others. I will keep posting all my notes and writeups on law subjects and I hope you can make use of them and do well in your papers.

Let me clarify very well in the beginning that I dont believe that marks make a good professional. I have more than  enough reason to believe that actual worth is not measured by marks. However, we must have our degrees before we can practice. Thus, I hope the concise notes help you pass the exams while you use your now free time to really learn the skills you will need which are not taught in schools and colleges.

I ll also try and post the syllabi for Indian Civil Services as well as Judicial Branch Examinations along with updated question papers and related notes.

In case, you have any material that you would like to share, please contact me. Along the way if you could help point any ommissions in my notes, I would be grateful and correct the same. Accordingly, in case you have a doubt, I ll do my best to assist you.