FAMILY LAW

THE SHIA LAW

Nemil ShahRoll No.49, 2nd Year,BSLS, Faculty of Law,The M.S.University of Baroda.

DOCTRINE OF RETURN & INCREASE

Like Sunnis Law, Shia Law solves the problems of excess by the application of the doctrine of rudd, though in the actual application of the doctrine there are some differences between the two.

The Shias do not recognize the doctrine of increase.

Under Shia Law, if total share of sharers exceeds the heritable property i.e. Exceeds the unity, the share of all sharers is not proportionally reduced but it is always deducted from the shares of following two heirs : - Daughter or Daughters Full or Consanguine sister or Sisters

DOCTRINE OF INCREASE or Aul

A, Mohmammedan Wife dies leaving husband and two full sisters :

H – ½ = 3/6 = 1/22 Full Sisters - 2/3 = 4/6 (reduced 4/6 – 1/6)

= ½

Total 7/6 (Without Reduced)

Under Sunni Law if there are residue, there are no residuaries, the residue return to the Sharers. But in Shia Law the total absence of the residuaries as a class not required by Shia Law, only if the residuaries in the class to which the Sharers belong is absent, it will be sufficient for the application of the doctrine of the Return.

DOCTRINE OF RETURN or Rudd

The above given General rule has certain exceptions which are as follows : The Husband : The Husband is not entitled to the

‘Return’ so long there is any other heir of the deceased exist. If there is no any other heir, the Husband will take whole estate by ‘Return’.

The Wife : As Husband, wife too is not entitled to ‘Return’ so long there is any other heir of the deceased exist. The old view was that if there is no other heir, wife would not take the whole estate, she would take only her share ¼ and surplus would escheat to the Government.

EXCEPTIONS :

The Mother : The Mother is not entitled to the ‘Return’ If the deceased dies leaving daughter or any of the following: a) one or more full or consanguine brothers, b) one full or consanguine brother, two full or consanguine sisters, or c) four full or consanguine sisters. To Prevent the mother from taking return, the surplus reverts to the father and daughter in the proportion of their respective share.

The Uterine Brothers and Sister : Uterine Brother and Sister are not entitled to the ‘Return’, if they co-exist with a full sister and sisters divide the return in proportion to the Sharers.

EXCEPTIONS :