A muslim man who is already married and have three children .. After 24 years of his marriage the man again marries a hindu lady. Now the man wants to give his property to his three children from first wife. Can he do so?? Under which law can he do so? Can second wife claim property of that man??? What is the legal way of distribution of property in such case
Has Hindu lady converted into Islam ? Muslim law does not recognise marriage between Hindi and Muslim
2)in the alternative marriage should be solemnised under provisions of special marriage act where both retain their religions
3) Muslim can execute gift deed or hibanama in favour of his 3 children from his first wife
4) second wife cannot claim husband property during his lifetime
What is the procedure of hibabnama? And in which way can the man can do gift deed to his three children??
1. Under the customary Muslim law, a person cannot bequeath more than one-third of his property by will. However, if he has married under Special Marriage Act, then he can will away entire property, and succession is governed by Indian Succession Act, and not the Muslim personal law i.e. Shariah Act 1937.
2. His second marriage to the Hindu woman is illegal as he could not have married a non-muslim under shariah, whereas to be able to marry under SMA he ought to have divorced his first wife. So the second wife cannot claim succession to his property.
Dear Querist
The man may transfer the property to his children from first wife without any objection from his second wife because second wife has no right over the property of his husband by any law.
If she is not Muslim at the time of marry then this marriage is also null and void and she can not claim anything from his husband except the maintenance.
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According to muslimlaw there are 3 essential requirements of gift
Declaration of gift by donor
Acceptance by donee
Delivery of possession to the donee
It is not necessary that it should be in writing
A Muslim man or any man, who is in possession of his self acquired property and having marketable title to this property, can very well transfer the said property by executing a registered gift or settlement deed in favor of anyone of his own choice, no law can interfere in his decision.
In this case, the muslim man need not to go by personal law, he can very well transfer his self acquired property to all his three sons by executing a registered gift deed.
His second wife (Hindu), has no rights to claim any share in his property during his lifetime.
In any case her marriage with this man is not valid in law if she had not converted herself to Muslim religion.
What is the procedure of hibabnama? And in which way can the man can do gift deed to his three children??
Hiba or Gift in Muslim personal law:
The conception of the term "gift" as used In the Transfer of Property Act is somewhat different from the use in Mohammedan law. In the Mohammedan law a gift is a transfer of property or right by one person to another in accordance with the provisions given in the Mohammedan law.
The terms "hiba" and "gift" are often indiscriminately used but the terms "hiba" is only one of the kinds of transactions which are covered by the general term "gift".
A hiba is a transfer without consideration.
A gift by a Muslim in favour of his co-religionist must be under the Mohammedan Law.
A man may lawfully make a gift of his property to another during his lifetime, or he may give it away to some one after his death by will. The first is called a disposition inter vivos and the second a testamentary disposition. Mohammedan law permits both kinds of dispositions, but while a disposition inter vivos is unfettered as to quantum and testamentary disposition is limited to one-third of the net estate. Mohammedan law allows a man to give away the whole of his property during his lifetime, but only one-third of it can be bequeathed by will from that of a will a gift may be made to a stranger wholly excluding the heirs.
The acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void.
Under Mohammedan law, to be a valid gift, three essentials are required to exist:
(a) declaration of gift by the donor
(b) an acceptance of the gift, express or implied, by or on behalf of the donee, and
(c) delivery of possession of the subject of gift.
Another characteristic of Mohammedan law is that writing is not essential to the validity of a gift either of movable or immovable property.
This rule of Mohammedan law is unaffected by the provisions of sec. 123, Transfer of property Act and, consequently, a registered instrument is not necessary to validate a gift of immovable property.