Statutory Law: Death Bed Transactions Recognized in Islamic Law
In India a Muslim in all personal matters like marriage, property and divorce is governed by Islamic law as per the Sharia. In all other matters the Muslims are governed by the Indian Penal code. One of the applications of the Sharia relates to death bed transactions. There is no equivalent of this in the personal law of the Hindus, Sikhs and Christians.
Death bed transactions mean any transaction or act executed during a serious illness that can lead to certain death. In Islamic legal parlance the word used is Marz-ul--Maut. It means any person who is a Muslim is under a genuine apprehension that he will die.
The Indian courts have defined Marz –ul- -Maut. The Calcutta High Court in the case of Hasrat Bibi vs. Gulam Jaffar ( 3C.W.N. 57) has held that when a person is suffering from an incurable disease so as to cause a genuine apprehension in the mind of the person that this disease will cause his death is Marz-ul-Maut.
Marz –ul – -Maut is an important pillar of Islamic law and is accepted by Courts in India. As per Islamic personal law the following transactions are valid during Marz-ul -Maut.
a) Marriage. It is clearly stated that no marriage solemnized during Marz –ul- -Maut is valid in Islamic law. Thus a man on his death bed cannot marry. He can however marry after he recovers from his illness. This is an important restriction in Islamic law and is accepted by all sects of Islam
b) Divorce. Regarding Divorce the reverse of the above is true. A man on his death bed can divorce his wife as per Islamic law. Both Shia and Sunni schools of Islamic law accept this proviso of the Sharia. The Indian courts have upheld this provision of Islamic law.
c) Mehr. This is the dowry agreed for the bride at the time of the marriage. In Islamic law marriage is a contract and not a sacred act. Mehr is part of the pre-nuptial agreement and is binding on both parties. It is payable to the wife and not to the parents. As such in case a divorce takes place then the wife will be entitled to Mehr as per Mehr-e- Misl.
d) Gift. This is one of the important death bed acts recognized in Islamic law. During Marz-ul--Maut a man can make a gift of his property up to 1/3rd of its value without consent of the heir in case he is not the heir of the property. When the gift deed is executed by the donee who is the heir he can gift a maximum of 1/3rd of the property with the consent of the heir.
Islamic law has many interpretations, but broadly the above is valid in case of Marz-ul -Maut.