Mentoassociates.com – Legal Articles

1. This Act protects the rights of Muslim Women who have been divorced by their husbands or who have obtained the divorce from their husbands.

2. A divorced Muslim women is entitled to reasonable and fair provision and maintenance within Iddat period from her former husband. Similarly the divorced Muslim woman is entitled to all the properties given to her before or at the time of marriage or after her marriage by her relatives, friends, husband, relatives of husband and friends of the husband.

3. A Divorced Muslim Women is also entitled to an amount equal to the sum of dower agreed to be paid to her at the time of her marriage or at any time there after.

4. If a divorced Muslim Women herself maintains the children born to her before or after her divorce, the husband shall make her a reasonable and fair provision and pay her maintenance for 2 years from the date of birth of children.

5. If the husband fails to discharge his duties under this act, the wife is entitled to make an application to jurisdictional magistrate for suitable orders. If a husband fails to comply with the order of the magistrate, the magistrate is empowered to sentence such person to an imprisonment for a term which may extend to 1 year.

6. A magistrate can also pass necessary orders of maintenance, against the relatives of divorced Muslim Women who has not remarried and who is not able to look after herself. The relatives may include children, parents etc. If a divorced woman has no relatives the magistrate can order the state Wakf board to pay such maintenance.

In Daniel Latif –vs- Union of India, AIR 2001 SC 3958 the Supreme Court held that the husband is duty bound to give maintenance to the divorced wife and she is entitled for lifelong post divorce maintenance within iddat period

1. If the marriage was consummated, the wife may marry another husband after the completion of iddat. If the marriage was not consummated she can marry immediately. If the marriage was consummated and if the husband had up to 4 wives at the time of divorce (including the divorced wife) he may marry another wife after the completion of iddat of the divorced wife.

2. If the marriage was consummated the wife is entitled to immediate payment of the whole of the unpaid Dower. If the marriage was not consummated and the amount of Dower is specified then she is entitled to half of the amount. If the marriage was consummated and no amount is specified she is only entitled to 3 articles of dress. If marriage is dissolved upon the apostasy of the wife she is entitled to the whole of dower if consummation has taken place.

3. When the divorce becomes irrevocable, mutual rights of the inheritance comes to an end. If the divorce was pronounced during the death illness, the wife’s right to inheritance continues to the expiry of her iddat.

4. After the divorce has become irrevocable, if the divorced couple engages in sexual intercourse the same is unlawful. Children as a result of such intercourse are illegitimate.

5. The parties are generally permitted to remarry after the divorce.

1. Father is bound to maintain his sons until the age of puberty and daughters until they are married. Even if the children are in the custody of the mother, father is duty bound to maintain them.

2. If the father is poor and incapable of earning the mother is bound to maintain the children. If both the father and mother are incapable to maintain the children, the duty lies on the grandfather.

3. Children in easy circumstances are bound to maintain their poor parents. A person is bound to maintain his paternal and maternal grandparents if they are poor.

4. If the father neglects to maintain his legitimate or illegitimate children, the children can sue him under the provisions of Sec.125 of Cr PC, 1974.

1. Application for appointment of a guardian for the property or person of a minor comes under the purview of Guardians and Wards Act 1890. Minor is a person who has not completed the age of 18 years. The courts normally keep in mind the welfare of the minor while passing an order on guardianship.

2. The mother is entitled to the custody of the male child until he has completed the age of 7 years and the female child until she attains puberty. This right continues even after she is divorced by the father of the child. If the mother remarries, custody of the children goes to the father.

3. After the mother, the custody of the boy under the age of 7 years and the girl who has not attained Puberty belongs to the female relatives in an order.

4. In the default of mother and other female relative the custody of boy below 7 years and the girl who has not attained puberty goes to father and other relatives in an order. However a male is entitled to the custody of an unmarried girl, only if he stands within the prohibited degree of relationship with her (consanguinity and affinity). Even if a girl is married, but has not attained puberty, the mother is entitled to the custody of the girl against the husband of the girl.

5. Father is entitled to the custody of boy over 7 years of age and unmarried girl who has attained Puberty. In default of father the custody belongs to paternal relations in an order.

6. Custody of illegitimate children belongs to mother and her relations.

7. The following persons are entitled to be the guardian of the property of the minor in the following order:
i) The father.
ii) The executor appointed by will of father.
iii) The father’s father.
iv)The executor appointed by will of father’s father.
In the absence of the above legal guardians the court can appoint a guardian for the property of the minor.

8. The person who has voluntarily placed himself in charge of the person and property of a minor is called a de facto guardian. He is neither a legal guardian nor a guardian appointed by the court.

9. A legal guardian normally has no power to sell the property of the minor. But he has the power in few exceptional cases. The guardian appointed by the court can alienate or encumber the property of the minor only with the permission of the court. A de facto guardian has no power to alienate or encumber the property of minor. A guardian of a minor cannot bind a minor or his estate by an agreement of purchase of an immovable property.

10.The thumb rule for custody of children is in whose custody, the interests of the minor children are best protected. The same has been upheld by the courts in Syed Saleemuddin-vs-Dr. Rukhasana (AIR 2001 SC 2172) and Chandrakala Menon –vs- Vipin Menon (1993) 2 SCC 6.

In Noor Saba Khatton –vs- Mohammaed Quasim AIR 1997 SC 3280, Supreme Court held that the Muslim father is duty bound to pay maintenance to his children until they are capable of managing themselves or until they are married

1. Dower is also known as Mahr. It is money or property which a Muslim wife is entitled from the husband in consideration of marriage. A husband can settle any amount he likes by way of dower upon his wife. The amount of dower may be fixed either before the marriage or at the time of marriage or after the marriage. The Dower amount can be increased after marriage. A contract of Dower made by a father on behalf of the minor son is binding on the son.

2. If the amount of Dower is not fixed, the wife is entitled to what is known as Proper Dower. The wife is entitled to Proper Dower even if the marriage was performed with a condition that she should not claim any Dower. The Proper Dower is fixed taking into consideration the amount of Dower settled upon other female members of wife’s family.

3. The Dower becomes confirmed under the following situations:
a. By consummation of marriage.
b. By valid retirement.
c. By the death of husband/wife.

4. The Dower which is payable on demand is known as ‘Prompt Dower’. The Dower which is payable on dissolution of marriage by death or divorce is known as ‘Deferred Dower’

5. The wife may remit the Dower or any part thereof in favour of the husband or his heirs even without consideration. If the Dower is not paid the wife or her heirs can file a suit to claim the same. The Muslim wife may refuse to live with her husband and admit him to sexual intercourse so long as the Prompt Dower is not paid.

6. The heirs of a deceased Mohamadean are liable for Dower debt of the deceased, proportionate to their share in the estate of the deceased. The Dower is a debt, at the same time it is an unsecured debt. The wife is not entitled for a charge on the husband’s property though such a charge may be created by an agreement.

7. A widow who has lawfully obtained possession of the property of her late husband has the right to retain that possession until her Dower is paid. The right to hold possession does not give the widow any title to the property. But if she is disposed she can sue for recovery of Possession. The right to retain the physical possession of the property does not arise to the Muslim wife during the continuation of marriage; it arises only on the dissolution of marriage either by death or divorce. A Muslim widow who retains possession of her husband’s property under a Dower claim has no right to alienate the property by sale, mortgage etc. If she alienates the property, the alienation is valid only to the extent of her share. It does not affect the share of other heirs.

1. Under the Muslim law, the husband is duty bound to maintain wife provided (i) she is faithful to him and (ii) obeys his reasonable orders. If a wife refuses herself to the husband due to non payment of prompt dower or she leaves the house of husband on account of his cruelty, the wife is entitled for maintenance. If the husband does not maintain the wife, the wife is entitled to sue him for maintenance or she can apply for an order of maintenance under the provisions of CrPc, 1974.

2. After divorce, a Muslim wife is entitled for maintenance during the period of iddath. If a wife is not informed about the divorce, she is entitled for maintenance until the same is informed to her. Agreements between husband and wife for future maintenance are perfectly legal.

1. Master Plan -2015 provides a uniform FAR of 2.50 irrespective of road width in the Central Business District of Bangalore.

2. In the Master Plan- 2015, 20% of the residential building is permissible for commercial use.

EMI= (L x I) x (1+I) ^N
———————
[(1+I) ^N]-1

Where L=loan amount
I= Interest rate per annum divided by 12
^= to the power of
N= loan period in months

MARRIAGE UNDER THE MUSLIM LAW

1. Nature: Under the Muslim law, marriage is a contract for the procreation and legalizing of children.

2. Eligibility: Every Mahomedan who has sound mind and who has attained puberty can enter into a contract of marriage. Lunatics and minors who have not attained puberty may be contracted in marriage by their guardian. Puberty is presumed at the age of 15 years.

3. Procedure for a marriage: There should be a proposal made by one or behalf of one of the parties and an acceptance by or behalf of the other party to the marriage. The proposal and acceptance shall be in the presence and hearing of two male or one male and two female adult Mohammedans as witnesses. The proposal and acceptance must be expressed at one meeting. Any writing or religious ceremony is not essential for a Muslim marriage.

4. Presumption of marriage: Under the following circumstances, a marriage is presumed, in the absence of direct evidence.
a. Prolonged and continual co-habitation as husband and wife.
b. Acknowledgement by man of the paternity of the child born to the woman.
c. Acknowledgement by man of the woman as his wife.

5. Irregular marriage: An irregular marriage is not unlawful, in itself, but unlawful for something else. The prohibition may be temporary or relative or the irregularity may arise from accidental circumstances. An irregular marriage has no legal effect before consummation. The children of an irregular marriage are legitimate. It may be terminated by either party before or after consummation. The following marriages are irregular marriages:
a. A marriage without witnesses.
b. If a Mahommedan marries a fifth wife when he already has four wives.
c. A marriage with a woman before completion of her iddat.
d. Marriage of a Mahomedan male with an idolatress or fire worshipper.
e. Marriage of a Mahommedan woman with a Jewish, Christian, an idolator or a fire worshipper.
e. Marriages where there is unlawful conjunction.

6. Void marriages: A void marriage is an unlawful marriage. There is absolute prohibition against such a marriage. It is no marriage at all and does not create any civil rights or obligations between the parties. The children of a void marriage are illegitimate. The following marriages are void:
a. The marriage of Mahommedan who has attained puberty and is of sound mind, but without his consent.
b. A marriage with a woman who has her husband alive or who has not been divorced by him.
c. Marriage of a Mahommedan with his mother, grandmother, daughter, grand daughter, his sister, niece or great niece (consanguinity reasons)
d. Marriage of a Mahommedan with his wife’s mother or grand mother, wife’s daughter or grand daughter, wife of his father or paternal grandfather, wife of his son, son’s son or daughter’s son(affinity reasons)
e. A marriage prohibited by fosterage.

7. Iddat: Iddat is the period during which a woman who is divorced or whose husband is dead is prohibited from remarrying. The prohibition is imposed to ascertain whether she is pregnant by her husband to avoid the confusion of parentage.

8. Inter religious marriages:
a. A Mahomedan male may marry a Jewish or Christian woman but not an idolatress or fire worshipper.
b. A Mahommedan woman cannot marry a Jewish, Christian, an idolator or a fire worshipper.

9. Sunni Shia marriages: A Sunni can marry a Shia.

10. Muta Marriage: a. Muta marriages are temporary marriages practised among Shias.
b. A Shia male may contract a muta marriage with a woman professing Mahomedan, Christian, Jewish or a fire worshipper.
c. A Shia woman cannot contract muta marriage with a non Muslim.
d. Conditions for the muta marriage: The period of co habitation and the amount of dower shall be fixed.
e. A muta marriage does not create mutual rights of inheritance between the man and woman, but the children are legitimate and can inherit from both the parents. A muta marriage is dissolved on the expiry of the term. A husband can put an end to the contract of marriage even before the expiration of the period.

11. Marriage of minors:

a. Minors (who have not attained puberty) are not competent to enter into a contract of marriage. They may be contracted in marriage by their guardian.

b. The right to contract a minor in a marriage lies successively to father, paternal grandfather, brother and other male relations on the father’s side. Thereafter the right lies on mother, maternal uncle or aunt and other maternal relations.

c. A minor girl can dissolve her marriage, on attaining puberty, under the provisions of the Dissolution of Muslim Marriages Act, 1939. Any repudiation must be confirmed by the court.

In Javed-vs- State ofr Haryana, AIR 2003 SC 3057, Supreme Court has held that Polygamy can be regulated or prohibited by legislation in the interests of public order, morality and health or by any law providing for social reform or welfare.

For example, Rule 28 of the Karnataka Civil Service Conduct rules, 1966 prohibits the second marriage for a government servant, who has a wife living, without the permission of government, even though the second marriage is permitted under his personal law. Similarly no female government servant shall marry any person, who has a wife living, without the permission of the government.

1) Does Karnataka Apartment ownership Act (hereinafter referred to as Act) apply to all apartments in Karnataka?

No. It only applies to those apartments where the property is submitted to the provisions of this act by duly executing and registering a Declaration.

2) What is property as per the Karnataka Apartment ownership Act?

Property under the act means the land, building, all improvements and structures thereon, all easements, rights and appurtenances thereto.

3) Can commercial property be submitted to the provisions of the Act?

No. The property shall be mainly used for residential purposes.

4) Who is the competent authority under the act?

The Registrar of Co-operative societies.

5) What forms the majority of apartment owners?

The apartment owners with 51 % or more of the votes in accordance with the percentage assigned in the declaration to the apartments for voting purposes.

6) Whether each apartment owner is required to execute a declaration under the act?

Yes, each apartment owner is required to execute a declaration under sec. 5(2) of the act. This is different from the declaration u/s. 2 of the act.

7) How is the undivided interest of an apartment owner in the common areas and facilities calculated?

It is calculated as a percentage by taking as a basis the value of the apartment in relation to the value of the property.

8) Is it mandatory to file the copy of declaration and bye-laws in the office of competent authority?

Yes.

9) Is it mandatory to register the declaration and deed of apartment in respect of each apartment?

Yes.

10) Can a property be removed from the provisions of the act?

Yes, all the apartment owners can remove a property from the provisions of the act by an instrument to that effect duly executed.

11) What happens to the status of the property once it is removed from the provisions of the act?

Once it is removed from the provisions of the act the property shall be deemed to be owned in common by the apartment owners.

12) On whom the act is binding?

The act is binding on all apartment owners, tenants of owners, employees of owners and tenants or any other person who may in any manner use the property or any part thereof.

13) In what form the declaration under section 2 needs to be executed and registered?

In form ‘A’

14) In what form the declaration under section 5(2) needs to be executed?

In Form ‘B’

15) Within how many days the declaration u/s 5(2) needs to be filed with the competent authority?

Within 30 days from the date of execution.

16) Within how many days shall the apartment owner file the true copy of deed of apartment in the office of the competent authority?

Within 30 days from the date of execution.