Islamic Will

The Islamic Wills

This article is a very brief overview of the traditional Sunni Islamic law pertaining to the Islamic will. The aim of this article is to arouse awareness amongst Muslims particularly those living in the West regarding this important aspect of Islamic law. It should be stressed that when writing a will one should consult an Islamic scholar/legal expert to ensure that the will complies with Islamic law as well as the law of the country of residence.

When a Muslim dies there are four duties which need to be performed. These are:

  1. payment of funeral expenses
  2. payment of his/her debts
  3. execution his/her will
  4. distribution of the remaining estate amongst the heirs according to Sharia

The Islamic will is called al-wasiyya. a will is a transaction which comes into operation after the testator’s death. The will is executed after payment of funeral expenses and any outstanding debts. The one who makes a will (wasiyya) is called a testator (al-musi). the one on whose behalf a will is made is generally referred to as a legatee (al-musa lahu). Technically speaking the term “testatee” is perhaps a more accurate translation of al-musa lahu.

 

The importance of the Islamic will

The importance of the Islamic will (wasiyya) is clear from the following two hadith:

“It is the duty of a Muslim who has anything to bequest not to let two nights pass without writing a will about it.” (Sahih al-Bukhari)

“A man may do good deeds for seventy years but if he acts unjustly when he leaves his last testament, the wickedness of his deed will be sealed upon him, and he will enter the Fire. If, (on the other hand), a man acts wickedly for seventy years but is just in his last will and testament, the goodness of his deed will be sealed upon him, and he will enter the Garden.” (Ahmad and Ibn Majah)

the will gives the testator an opportunity to help someone (e.g. a relative need such as an orphaned grandchild or a Christian widow) who is not entitled to inherit from him. The will can be used to clarify the nature of joint accounts, those living in commensality, appointment of guardian for one’s children and so on. In countries where the intestate succession law is different from Islamic law it becomes absolutely necessary to write a will.

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Intentional Halala immoral & improper under Pakistan and Islamic Law

Now a days it is a general presumption and understanding in people that if the husband has pronounced verbally Talaq Three times at the same time and did not signed on any written documents as required under the law the divorce is complete. Some time due to family pressure or any other reason the husband has signed divorce papers, therefore the couple can not live together or remarry until the ex-wife marries another man, to ensure that divorce is not taken lightly. She cannot go back to this husband who has divorced her three times, unless she marries another person who out of his own free will divorces her.

This rule is given by the Shari’ah to reduce the occurrence of three divorces and to protect the honor of the woman. Nikah halala cannot be done as a condition or intention to make her lawful to her ex-husband. As per Pakistani Family Law there is a codified law and rules for registration of marriage and Divorce. After completion of Divorce registration procedure a Divorce confirmation certificate is issued, which is the legal document which certifies the occurrence of divorce.

In a landmark case reported at 1994 P.Cr.L.J. 1856 the Honourable Federal Shariat Court has held that  Divorce given by accused husband to his female co-accused become effective could not be withdrawn by him. Wife admittedly had not remarried with any other man and no halala had taken place therefore cohabitation between the same husband and wife after the divorce amounted to commission of Zina. The Trial court has passed order for conviction of accused husband and wife was consequently maintained by Federal Shariat Court, but in view of the fact of the accused husband and wife being not aware of the legal consequences of living together after non-withdrawal of the divorce, their sentences of imprisonment were substantially reduced.

Men and Women from reputable families in major cities of Pakistan i.e. Karachi, Islamabad, Lahore, Peshawar, Faisalabad, Multan and other cities face too much problem, while searching a man for Halala for keeping the transaction of Halala Secret. Generally people prefer to search for man online or search Halala centers established in city of their residence, some times in other cities, so the transaction of Halala can be kept secret from the friends and family members, but the fear of disclose in general public always remain in their heart.

To prevent making a mockery of the sacred institution of marriage and of the rights of women, where the man divorces his wife and marries her again and again, Islam imposed the two-strike rule whereby a man is allowed to divorce and remarry the same woman again only twice.  If the man divorces his wife for the third time, it would constitute an irrevocable divorce and it would be impermissible for the man to marry the same woman again unless and until she (perchance) marries another man, consummates the marriage, and the man dies or of his own will divorces her.

The term ‘Halala’ is when a man has irrevocably divorced his wife, and they (or some people) intentionally plan and arrange for another person to temporarily marry the (divorced) wife, so that the wife can again become legal again for the first husband.  This intentional plotting and planning for arranging the temporary marriage of the divorced wife with another person to intentionally circumvent the Laws of Allah and make her legal for her first husband is what is known as ‘Halala’.

Generally the Muslims living in United Kingdom, United States of America, France, Germany and other countries of Europe face too much confusion relating to Law of Halala. Generally people are misguided by Halala Centers and Halala Services providers, We encourage people and always welcome them for detailed discussion regarding law of divorce in Pakistan and we provide complete legal advice regarding Islamic Law of Talaq, marriage and consequences of Halala in Pakistan.

 

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Law Firm in Pakistan dealing with Civil Litigation, Commercial, Intellectual Property, Real Estate and Family Laws of Pakistan.
E-26, Glass Tower, Clifton
Karachi, Sindh
PK
Phone: +92 321 205 7582