'A' has wife 'B', an unmarried daughter 'C' and a son 'D'. 'A' makes a gift of his entire property to his son 'D'. Is the gift valid? What steps must be taken to protect the right of maintenance of 'B' and 'C' against the gift? Explain.

Question: 'A' has wife 'B', an unmarried daughter 'C' and a son 'D'. 'A' makes a gift of his entire property to his son 'D'. Is the gift valid? What steps must be taken to protect the right of maintenance of 'B' and 'C' against the gift? Explain. [UPJS 2015]

Find the question and answer of Muslim Law only on Legal Bites. ['A' has wife 'B', an unmarried daughter 'C' and a son 'D'. 'A' makes a gift of his entire property to his son 'D'. Is the gift valid? What steps must be taken to protect the right of maintenance of 'B' and 'C' against the gift? Explain.]

Answer

Under Hiba, a living Muslim voluntarily transfers the ownership of any property to another living person. Hence, it is a transfer inter vivos.

The transferor transfers ownership of the property in absolute interest and the transferee gets the complete title in respect of the property given to him. Conditions, restrictions or partial rights in the gifted property are averse to the concept of Hiba under Islamic law.

Hiba is operative with immediate effect and deprives the transferor of his control and ownership over the property.

The Hanafi lawyers define Hiba as 'an act of bounty by which a right of property is conferred in something specific without an exchange'. The Shias hold that 'a Hiba is an obligation by which property in a specific object is transferred immediately and unconditionally without any exchange and free from any pious or religious purpose on the part of the donor'. Muslim law allows a Muslim to give away his entire property by a gift inter vivos, even with the specific object of disinheriting his heirs. [Abdul v. Ahmed, (1881) 8 IA 25]

Maintenance for Wife

Under Muslim law in India, maintenance is known as 'Nafqah'. 'Nafqah' is the amount that a man spends on his family. The right to maintenance of a Muslim woman is absolute and not conditional on whether she can maintain herself or not.

Hence all Muslim women earning or not earning are eligible for the right to maintenance which is contrary to most of the other religious acts where only dependent women are eligible for the maintenance.

It is the duty and liability of the husband to provide adequate maintenance to his wife in all circumstances irrespective of his financial condition.

Maintenance of the Children

Muslim Father is under the obligation to maintain their legitimate child until he attains puberty age. Under Muslim Law, the father has to maintain his son only until he attains the majority. While he has to maintain his daughter until her marriage and till the time she goes to her husband's home.

Thus, a Muslim man cannot shed away his duty to maintain his wife and children even though he has decided to transfer his entire estate via gift to his son. And his wife and other children will be entitled to move against him personally in a court of law for a grant of maintenance.

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