You are right but in my opinion, we had to be clear. One could easily specifically mention the conditions as in DMMA 1939 because if you read the question, he specifically asked for the "conditions" and according to me, DMMA 1939 is very very relevant in this regard. Many people I know did NOT write this but I think there should be the mentioning of this act.

Moreover, I do no think that there is STRICT condition of non-intervention of court. If we consult Mullah, he does NOT strictly says that Khula is a dissolution of marriage by wife WITHOUT intervention of court.

Islam does not give woman the arbitrary right to divorce as in case of the husband. If woman asks for dissolution and leaves her dower, even then it is NOT automatically a tala'ak.

I hope you are getting my point. If you have authentic information then do share.

Dear!

In DF Mullah's book there are three main types of dissolution of marriage/divorce mentioned;

1. Talaq (absolute right of husband untill and unless delegated by him)

2. Khula/Mubarrat (dissolution by agreement bet. Wife and husband, without intervention of court)
*incase of khula the dissolution is proposed by wife, subsequently agreed upon by husband in favor of wife.
*incase of mubarrat, the dissolution is by mutual understanding bet. Husband and wife of seperation.

3. Dissolution by intervention of court by husband or wife

These three broad types are mentioned in this book.

So this clearly shows that khula is a form of divorce/dissolution of marriage without intervention of court.

I may be wrong in my stance. But my stance is based upon Mulla sb.'s book. Now again, as we are expected to show familiarity with original resources, as written in FPSC syllabii for the said subject, my stance appears to me as right.

Hope you got my point. Constructive criticism over my stance would be welcomed.

Regards,

__________________
Passion is the driving force behind every success!

Please see the link below:

The rights of women in Islam - Asgharali Engineer - Google Books

Here is the detail of the question we are looking for.
(This question was even more trickier than what I had thought earlier).

The problem with the question was its vague nature. The question asked was just too general. So now it depends entirely on examiner how he interprets. But I have checked many many sources on internet and all of them DO talk of Khula when taken by intervention of court.

And yes, I ONLY consulted Mullah for Family Laws and had notes for Jurisprudence but you see how the paper setter manipulated things that Mulla's book was just too less sufficient for answering questions.

Yes Skylimit! You have very rightly said that the questions were trickier this time around. But again, as you know this is CSS, one should be prepared for the wonders in exams.

Regarding sufficiency of books, I consider DF Mullah's and Abdur Rahim's books enough as far as the CSS exam is concerned. I think I would not be naive to suppose that the examiner would also keeping the scope of these books in mind while marking. Rest Allah may help us getting good marks. :-)

__________________
Passion is the driving force behind every success!

Q.2. Define the doctrine of naskh (repeal).do you agree that naskh has been done in Shariah texts?if so then what is justification for it?

Abrogation (Naskh)

The literal meaning of naskh is cancelling or transferring. In its technical sense it is used to mean the “lifting (raf‘ ) of a legal rule through a legal evidence of a later date.” The abrogating text or evidence is called n¯asikh, while the repealed rule is called mans¯ukh. All the four Sunn¯ı schools unanimously accept the doctrine of abrogation, though they may disagree on the details. Most of the independent jurists also accepted this doctrine. It may, therefore, be assumed to be a kind of consensus. The concept of “repeal” and “overriding laws” is a necessity in a legal system and Islamic law acknowledges it. Such repeal in the texts, though, could only occur during the lifetime of the Prophet (p.b.u.h.).

According to al-Sarakhs¯ı the Jews did not accept this concept in their legal system. We may guess the reason for this: they had very little chance of implementing their system through a state, and their law has remained theoretical. It is only in the modern times that they have been able to establish a state.

Some modern Muslim scholars, who do not appreciate the working of a legal system, have also tried to deny the doctrine of abrogation. As stated, however, it is a fact established by the unanimous agreement of the schools of law and their jurists. One of the earliest cases of repeal of an earlier command was the directive to change the direction of the qiblah from Bayt al-Maqdas to the al-Masjid al-H. ar¯am.

Naskh is total (kull¯ı), where it may lift the entire law and substitute another one for it, or it may be partial (juz’¯ı), when the law is repealed for a certain class alone. This is what may be called the overriding of a general law by a special law. For example, a general law in the Qur’¯an provides penalties for all those who falsely accuse chaste women of sexual intercourse. It then provides a special law in the case of spouses accusing each other of unchastity. The provisions of the general law are not applicable to spouses, because the special law overrides that provision.

It is generally acknowledged that Islamic law works for the interest (mas. lah. ah) of human beings. Interests may keep on shifting with a change in circumstances, and the law adjusts accordingly. The law was laid down in the period of the Prophet (p.b.u.h.) gradually and in stages. The aim was to bring a society steeped in immorality to observe the highest standards of morality. This could not be done abruptly. It was done in stages, and doing so necessitated repeal and abrogation of certain laws.



Q.3. Is khula an absolute right of woman or it is subject to some conditions?how can she use this right and what are legel effects of khula?

Khul‘ (Redemption)

The terms khul‘, fidyah, s.ulh. , and mub¯ara’ah all refer to the same meaning, which is “(a transaction in which) compensation is paid by the wife for obtaining her divorce.” The term khul‘, however, in the opinion of the jurists is confined to her paying him all that he spent on her, the term s.ulh. to paying a part of it, fidyah to paying more than it, and mub¯ara’ah to her writing off a claim that she had against him. The meaning of mub¯ara‘ah current in Pakistan and India is where the parties have a mutual revulsion for each other and would be happy to dissolve the marriage. The discussion of the principles of this mode of separation is split into four points. First, the permissibility of its occurrence (legal effectiveness). Second, the conditions for its proper occurrence, that is, its valid occurrence. Third, about its nature, whether it is divorce or rescission. Fourth, about the ah. k¯am related to it.

Most of the fuqah¯a’ uphold its permissibility. Its sources are to be found in the Book and sunnah. In the Book it is the words of the Exalted, “[I]t is no sin for any of them if the woman ransom herself.” [Qur’¯an 2:229] The sunnah is the tradition of Ibn ‘Abb¯as “that the wife of Th¯abit ibn Qays came up to the Prophet (p.b.u.h.) and said, ‘O Messenger of All¯ah, I do not find anything wrong with him from the religious and moral points of view, but I detest disbelief after entering the fold of Islam.’ The Messenger of All¯ah (p.b.u.h.) said, ‘Will you return to him his orchard (that he had given to you).’ She said, ‘Yes.’ The Messenger of All¯ah said to (Th¯abit), ‘Accept the orchard and divorce her through a single repudiation.’ ” It is recorded, in these words, by al-Bukh¯ar¯ı, Ab¯u D¯aw¯ud, Al-Nas¯a’¯ı, and is a tradition agreed upon for its soundness.

Ab¯u Bakr ibn ‘Abd All¯ah al-Maz¯ın¯ı deviated from the majority opinion and said that it is not permitted to the husband to take anything from his wife. He argued for this on the basis of his understanding that the words of the Exalted, “[I]t is no sin for any of them if the woman ransom herself,” [Qur’¯an 2:229] have been abrogated by the words of the Exalted, “And if ye wish to exchange one wife for another and ye have given unto one of them a sum of money (however great), take nothing from it. Would ye take it by way of calumny and open wrong?” [Qur’¯an 4:20] The majority, however, maintain that this prohibition applies when it is taken without her consent, but it is permitted with her consent.

Q.4. What is the difference between istehsan and maslahah mursalah?how they can be used to deduct laws in new problems which are not covered by the Quran,the Sunnah or Ijma?

Istih. s¯an (Juristic Preference)

In its literal sense the word istih. s¯an means “to consider something good.” It is also applied to mean something towards which one is inclined or which one prefers, even if it is not approved by others.

Technically, it has been defined in several ways. Al-Pazdaw¯ı (al-Bazdaw¯ı) defines it as “moving away from the implications of analogy to an analogy that is stronger than it, or it is the restriction of analogy by an evidence that is stronger than it.” Al-H. alw¯an¯ı defines it as “the giving up of analogy for a stronger evidence from the Book, the Sunnah, or ijm¯a‘.” The M¯alik¯ı jurist, Ibn al-‘Arab¯I defines it as “sacrificing some of the implications of an evidence by way of exception insofar as the exception opposes some of these implications.”

From all these definitions it is obvious that istih. s¯an means the preference of a stronger evidence over analogy. In other words, it means:

• The preference of qiy¯as khaf¯ı over qiy¯as jal¯ı.

• It also means following the requirements of a stronger general principle that requires something different from strict analogy.

• It may also mean the creation of an exception to a general principle due to a stronger evidence when the general principle is based upon analogy.

Al-Sarakhs¯ı points out that some jurists have criticized istih. s¯an on the grounds that analogy is being given up for the personal opinion of the jurists. He responds that this is totally misfounded for how can a jurist give up a h.ujjah (legally admissible authority) for something that has no authority. In modern times, the words “juristic preference” may have implied something similar.

The reader should note that analogy is given up by the jurist only when he has a stronger evidence to rely on and this stronger evidence is one that is valid according to the shar¯ý‘ah. Istih. s¯an, he says, is merely the comparison of two valid evidences (sources) and the preference of the stronger over the relatively weaker. It may also mean the restriction of one with the other. He concludes that “giving up of qiy¯as is sometimes due to the text, and at other times due to ijm¯a‘ or due to the principle of necessity.”

Examples of istih. s¯an

1. Ab¯u H.an¯ıfah on deciding the issue of the person who eats druing a fast out of forgetfulness, is reported to have said: “Had it not been for the report by the people, I would have said that he should repeat his fast.” What he meant by this was that strict application of the rules of fasting requires that anyone eating food has broken the fast. A report from the Prophet (p.b.u.h.) says that “liability for three things has been lifted from my Ummah: forgetfulness; mistake; and duress.” This is a case of istih. s¯an on the basis of preferring a text over analogy.

2. Qiy¯as prohibits the contract of salam, because it involves delay in the exchange of food items listed in the tradition of rib¯a. There is, however, the tradition from the Prophet (p.b.u.h.) that says that “he made an exemption in the case of salam.”

3. Similar to salam is the case of the contract of ists.n¯a‘ or the manufacturing contract with advance payment. Analogy prohibits it on the basis of the same rules as in the case of salam. It is, however, permitted on the basis of ijm¯a‘ according to the H.anaf¯ıs.

4. Analogy requires that ritually pure water should be used for ablution. In the case of wells in which dirt or carcasses of animals have fallen, following strict analogy would mean the non use of these wells, and this would cause hardship to the people. The principle of necessity requires that use of these wells be permitted. This is done after observing formal cleaning methods.

5. The general principle of sale requires that a thing that does not exist cannot be sold. In the contract of hire (ij¯arah), the benefits or services that are being paid for do not exist at the time of the contract. The contract has been permitted on the basis of necessity, seeking support from the contract made by the Prophet Ya‘q¯ub (Jacob) as mentioned in the Qur’¯an. In all these cases, the consequences of the application of strict analogy have figured significantly in the decision and the decision preferred was one that had more healthy consequences for the people.

Mas. lah. ah Mursalah (Extended Analogy)

Mas. lah. ah is defined in its literal sense as “the acquisition of manfa‘ah (benefit) or the repulsion of mad. Arrah (injury, harm).” In the technical sense it means “the preservation of the the purposes of Islamic law in the settlement of legal issues.” The purposes of the law are interests recognized by the shar¯ı‘ah. Mas. lah. Ah mursalah is also referred to as istidl¯al mursal or simply istidl¯al.

Illustrations of mas. lah. ah mursalah

The jurists provide a number of examples to elaborate the meaning of mas. lah. Ah mursalah. Some of these are listed below:

1. The compilation of the Qur’¯an after the death of the Prophet (p.b.u.h.). Although the Prophet had indicated the order of the s¯urahs, he had not given the orders for its compilation in book form. The Companions were, therefore, not sure whether this should be done, because it was something that the Prophet had not done himself. They decided that it was essential to gather it and compile it in the “interest of the preservation of d¯ın.” History has shown that this was a very wise decision.

2. The rule for murder (qatl ‘amd) provided in the texts was that one life could be taken for one life by way of retaliation. It was not clear whether a number of persons could be subjected to qis.¯as when they participated in killing a single person. Hadhrat ‘Umar decided that all of them should be put to death. This rule it is said was based on the “preservation of life,” which is a purpose of Islamic law. This is strengthened by the words of the Qur’¯an: “In retaliation there is life for you.” ‘Umar is reported to have said (in this decision) that if all the people of Sana had conspired to kill a single person he would put all of them to death.

3. The rule for artisans accepting goods from people for doing work on such things was that they were not required to show negligence if the thing was destroyed. The burden of proving negligence was on the customer. The artisans started misusing this facility. The Companions, therefore, decided to change the rule. After this decision, if a thing was destroyed in the hands of the artisans, the artisan would be required to show that there was no negligence on his part. The decision is based upon the need to “preserve the wealth of the community.”

4. Al-Ghaz¯al¯ı has stated that on the basis of mas. lah. ah mursalah it is permitted to the ruler to impose taxes if the coffers are empty and he needs money for jih¯ad or for preserving the security of the Muslim Ummah.

5. There is no penalty in the Qur’¯an for drinking of wine. In the Sunnah the traditions vary, with some providing 80 lashes and others 40. Hadhrat ‘Al¯ı (R) fixed the penalty at 80 on the analogy of qadhf.

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“A Momin does not taunt, does not curse and reproach, does not indulge in obscene talking and obscene acts.” [Tirmidhi]

[Note: Q5 and Q6 are purely discussion based and require arguments, so their answers cannot be found exactly in any book.]


Q.7. Define legal capacity(al-ahliyyah).discuss the legal capacity of minor (sabi).

Ahl¯ıyah or Legal Capacity

The literal meaning of the word ahl¯ is absolute fitness or ability.

Ahl¯ıyah is “the ability or fitness to acquire rights and exercise them and to accept duties and perform them.” This meaning indicates two types of capacity: one based on the acceptance or acquisition of rights and the other on the performance of duties. These are called ahl¯ıyat al-wuj¯ub and ahl¯ıyat al-ad¯a’ or the capacity for acquisition (of rights) and the capacity for execution or performance of duties. Capacity for acquisition enables a person to acquire both rights and obligations, while capacity for execution gives him the ability to exercise such rights and perform his duties. In the opinion of some jurists, the term dhimmah also means the ability to acquire rights and obligations.

The majority of the jurists consider dhimmah to be an imaginary container or receptacle that holds both the capacity for acquisition and the capacity for execution. It is the location or place of residence for the two kinds of capacity. In short, dhimmah is the balance-sheet of a person showing his assets and liabilities, in terms of his rights and obligations. In Islamic law, dhimmah is deemed a requisite condition for the existence of ahl¯ıyah.
According to al-Sarakhs¯ı, dhimmah is the “trust” that was offered to the mountains, but they refused; Man accepted it. Thus, dhimmah is an attribute conferred by the Lawgiver. It is a trust resulting from a covenant (ahd). The fact that dhimmah is a covenant between the Lawgiver and the ‘abd (subject) means that dhimmah can be assigned to a natural person alone. In Western law, the term dhimmah conforms with “personality,” which is an attribute conferred on a natural person.

The Underlying Bases of Legal Capacity

Legal capacity, as stated, is of two types: ahl¯ıyat al-wuj¯ub and ahl¯ıyat al-ad¯a’. Ahl¯ıyat al-wuj¯ub is defined as the ability of a human being to acquire rights and obligations. It may, therefore, be referred to as the capacity for acquisition.

Man¯at is a thing from which another thing is suspended. The man¯at. or basis for the existence of the capacity for acquisition is the attribute of being a human or natural person (ins¯an¯ıyah). There is complete agreement among jurists that this form of capacity is possessed by each human being irrespective of his being a mukallaf.

Capacity for execution, on the other hand, is defined as the “capability of a human being to issue statements and perform acts to which the Lawgiver has assigned certain legal effects.” The man¯at. Or basis of the capacity for execution is ‘aql (intellect) and (rushd) discretion. ‘Aql here implies the full development of the mental faculty. As there is no definitive method for checking whether this faculty is fully developed, the Lawgiver has associated it with bul¯ugh or puberty.

Thus, the presumption is that a pubescent person is assumed to possess ‘aql necessary for the existence of the capacity for execution. This presumption, however, is rebuttable, and if it is proved that though a person has attained puberty, he does not yet possess ‘aql, capacity for execution cannot be assigned to such a person. This is the view of the majority of the jurists.

The H.anaf¯ıs acknowledge a deficient capacity for execution for purposes of some transactions for a person who has attained a degree of discretion, even if his mental faculties are not yet fully developed. Thus, a minor (s.ab¯ı) who possesses discretion may be assigned such a capacity, for the khit.¯ab of mu‘¯amal¯at.

Again, there is no way here of determining whether the minor has attained discretion. The H.anaf¯ı jurists have, therefore, fixed the minimum age of seven years for assigning such a capacity; anyone over seven years of age who has not yet attained puberty may be assigned such a capacity.

Accordingly, this type of capacity is divided into three kinds on the basis of the type of liability associated with an act:

1. Capacity for the khit.¯ab jin¯a’¯ı or legal capacity for criminal liability. It is based on the ability to comprehend the khit.¯ab jin¯a’¯ı, ie, the communication pertaining to criminal acts.

2. Capacity for the khit.¯ab of ‘ib¯ad¯at or legal capacity for ‘ib¯ad¯at. It is based on the ability to understand the khit.¯ab of ‘ib¯ad¯at, ie, the communication from the Lawgiver pertaining to acts of worship.

3. Capacity for the khit.¯ab of mu‘¯amal¯at or legal capacity for transactions. It is based on the ability to understand the khit.¯ab of mu‘¯amal¯at, ie, the communication from the Lawgiver pertaining to the mu‘¯amal¯at.

Two of these are civil and criminal liability, while the third is an addition because of religious law. The reason for separating the capacity for execution into these three types is to indicate that a person may, for example, be in possession of the capacity for transactions, but not the capacity for punishments. To put it differently, all three kinds of capacity may be found in the person who is sane and a major, but one or more of these may be lacking in other persons.

Complete Capacity

Muslim jurists divide legal capacity into three types: complete, deficient and imperfect. The terms k¯amilah,n¯aqis.ah and q¯as. irah are used to distinguish between such capacities.

Complete capacity for acquisition is found in a human being after his birth. This makes him eligible for the acquisition of all kinds of rights and obligations. Complete capacity for execution is established for a human being when he or she attains full mental development, and acquires the ability to discriminate. This stage is associated with the external standard of puberty. The physical signs indicating the attainment of these signs, puberty is presumed at the age of fifteen in both males and females according to the majority of the jurists, and at the age of eighteen for males and seventeen for females according to Ab¯u H. an¯ıfah.

Attaining bul¯ugh (puberty) alone is not sufficient, however. For a person to acquire complete capacity for execution, in addition to puberty, the possession of rushd (discrimination; maturity of actions) is stipulated as well. The dal¯ıl, or legal evidence, for this is the verse of the Qur’¯an:

Make trial of orphans until they reach the age of marriage; then if ye find sound judgement in them, release their property to them; but consume it not wastefully, nor in haste against their growing up.
[Qur’¯an 4 : 6]

This verse lays down clearly that there are two conditions that must be fulfilled before the wealth of orphans can be handed over to them. These are bul¯ugh al-nik¯ah. and rushd.

The term rushd, according to the majority, signifies the handling of financial matters in accordance with the dictates of reason. The rash¯ıd is a person who can identify avenues of profit as well as loss, and act accordingly to preserve his wealth. Rushd is the opposite of safah (foolishness), which implies waste and prodigality. Sh¯afi‘¯ı jurists define rushd as maturity of actions in matters of finance as well as of d¯ın.

In their view, a person who has attained puberty and is adept in dealing with financial matters cannot be called rash¯ıd, unless he obeys the ah. k¯am of the shar¯ı‘ah in matters of ‘ib¯ad¯at as well. A person, then, is eligible for taking over his wealth if he is both a b¯aligh and a rash¯ıd.

This is the general view. Ab¯u H. an¯ıfah, however, maintains that a person who attains the age of twenty-five years, must be delivered his property irrespective of his attaining rushd. In addition to this, he maintains that if a person attains bul¯ugh and rushd and is given his property, but subsequently loses his rushd, while yet under twenty-five, he cannot be subjected to interdiction (h. ajr ). Ab¯u H. an¯ıfah appears to be giving preference to life and freedom of the individual over his wealth in these cases. The majority of the jurists (jumh¯ur) subject a person to interdiction if he has not attained rushd or even when he loses it subsequently, irrespective of his age. On attaining complete capacity, an individual comes within the purview of the different kinds of khit.¯ab. He, therefore, becomes liable to punishments because of the khit.¯ab jin¯a’¯ı being directed towards him, just as he becomes liable because of the khit.¯ab of transactions and ib¯ad¯at.

The stages leading to complete legal capacity

The conditions laid down by the H. anaf¯ı jurists indicate that there are three stages through which an individual passes with respect to his capacity for execution.

1. The first stage is from birth till the attainment of partial discretion, which is considered to be the age of seven years. During this period, the child is assumed to lack ‘aql and discretion completely, and is ineligible for the assignment of a capacity for execution.

2. The second stage commences from the age of seven and continues up to actual puberty or the legal age of puberty, whichever is earlier. Deficient capacity for execution is normally assigned during this stage, as the individual possesses a certain amount of ‘aql and discretion.

3. The final stage commences from actual physical puberty or the legal age determined for it, whichever is earlier. On reaching this age the individual is assigned complete capacity for execution, and becomes eligible for each kind of khit.¯ab. An exception arises in the case of safah and the individual may be placed under interdiction for some time. Rushd (discretion) is a condition for attaining this stage, in addition to puberty.

Deficient and Imperfect Capacity

Deficient capacity is assigned in cases where the man¯at or basis of legal capacity is not fully developed.

Thus, a person may not have been born as yet or he may not have reached full mental development. In other cases, the attribute of being a human may be missing altogether. Imperfect capacity is assigned in cases where the bases of capacity, being a human and possession of discretion, are present, but an external attribute has been introduced that does not permit the recognition of the legal validity of certain acts.

Capacity of the minor (s.ab¯ı)

A child possesses a complete capacity for acquisition of rights and obligations, but until he attains the age of actual or legal puberty, he lacks the capacity for execution. To facilitate matters, this child is made liable by the shar¯ı‘ah only for those obligations that he can meet. Deficient capacity for execution is assigned to a non-pubescent who possesses some discretion, or to a ma‘t¯uh who has attained puberty yet lacks complete mental development.

The person who possesses deficient capacity is not subject to the khit.¯ab jin¯a’¯ı; he cannot, therefore, be held criminally liable. The minor, however, is subjected to ta’d¯ıb (discipline)—the reason being that the khit.¯ab jin¯a’¯ı is applicable to that person alone who comprehends the khit.¯ab fully. This is based on the principle of legality in Islamic law.

With respect to the ‘ib¯ad¯at, there are detailed discussions whether the khit.¯ab is addressed to the s.ab¯I and ma‘t¯uh by way of nadb (recommendation) or khiy¯ar (choice), or whether it is addressed to them at all. There is no dispute that there is reward (thaw¯ab) for such a person for the performance of the ‘ib¯ad¯at. The H.anaf¯ıs treat the issue of legal capacity of the minor in a somewhat different way. Our major concern here is for the capacity of such a person for the purpose of transactions.

1. Financial transactions are established against the dhimmah of the s.ab¯ı. Though he cannot meet them personally due to the absence of the capacity for execution, the Lawgiver allows his wal¯ı (guardian) to stand in his place and represent him through a substitutory duty. The s.ab¯ı is also liable for any damage caused to another’s property, and for the maintenance of his wives and near relatives. He is also liable, except in the opinion of the H.anaf¯ı school, for the payment of zak¯at. All financial transactions are divided into three types for determining the liability of the discriminating minor.

(a) Purely beneficial transactions. The transactions falling under this category are the acceptance of a gift or of s.adaqah. These are allowed to the person who has not attained puberty, but who can discriminate and has been permitted by his wal¯ı (guardian) to exercise such acceptance.

__________________
“A Momin does not taunt, does not curse and reproach, does not indulge in obscene talking and obscene acts.” [Tirmidhi]

Brother Mulla's Book is far more reliable than this book.I also endorse Arsalan's view point and u too go by studying Mulla.
hope u got it,

__________________
The Greatest gift you can give to someone is the PURITY of your attention.....!
<.....Richard Moss.....>