This article explores “Marz ul Maut,” a concept in Islamic law about giving gifts when someone is very sick or close to passing away.
This legal practice is important in Islam and the article will discuss how it works, its conditions and how it differs between Sunni and Shia traditions.
Marz ul Maut signifies gifts made during one’s deathbed. It refers to the practice of bequeathing assets or property when an individual is approaching the end of life due to illness or the anticipation of imminent death.
The term is derived from Arabic, where “Marz” translates to sickness or malady and “Maut” means death. Marz ul Maut involves specific conditions for validity, including a clear declaration of the gift, acceptance by the recipient and the actual or constructive transfer of possession. This concept is crucial in Islamic laws, outlining the legal framework for gifts made under the unique circumstances of impending death.
Gifts made during one’s deathbed are not without limitations, mainly because it is challenging for the parties involved (heirs and the recipient) to prove the validity of the gift. This difficulty arises from the nature of oral bequeathing and the need for clear evidence. Marz ul Maut, in essence, resembles a gift and must meet the conditions outlined for Hiba (gift). These conditions include:
- An explicit and unambiguous declaration of the gift by the donor;
- The declaration, whether oral or written;
- Acceptance of the gift by the donee, either explicitly or implicitly;
- Actual or constructive delivery of the possession of the subject matter.
Marz ul Maut is considered a gift due to its similarity in conditions with Hiba. However, there is a distinction in the case of Marz ul Maut, where only 1/3rd of the property can be bequeathed to the donee, in contrast to a gift intervivos, which may involve the entire property. This limitation aligns with the principles of Wills or Wasiyat, where only 1/3rd of the property can be given away to protect the rights of heirs. The same restriction applies to Marz ul Maut, unless the heirs provide consent.
This unique blend of the Law of Wills (Wasiyat) and the Law of Gifts (Hiba) categorizes Marz ul Maut as a gift but with the requisites of a Will under Mohammadan Law, highlighting its “Hybrid or Amphibious” nature.
In the case of Cain v. Moon, the Judicial Committee emphasised that the decisive factor in determining the validity of the gift is whether the deed of gift was executed by the donor under the apprehension of death.
The subjective nature of the apprehension is highlighted in the case of Hassarat Bibi v. Golam Jaffar, where the definitions and indications of a death-illness are specified:
- The donor should be suffering from a sickness or malady ultimately causing their death.
- The sickness should induce fear or apprehension of death in the person, making them believe they are going to die.
- The illness should render the person unable to attend to their day-to-day tasks, as mentioned in Mustak Ahmed v. Abdul Wahid and Karimamssa Bibi v. Hamidua.
- A person with a long-standing sickness suddenly taking a serious turn, spiralling into the apprehension of death.
In Mumtaz Ahmed v. Wasi-un-Nissa, it was established that the doctrine of Marz ul Maut applies only when the gift is made under the imminent pressure of death. It is akin to an intuition for the patient that they are going to die with no chance of recovery.
In the case of Shaik Nurbi v. Pathan Mastanbi and others, the necessary conditions for a valid deathbed gift (Marz ul Maut) were outlined as follows according to Mohammedan Law:
- The illness or malady must have directly caused the donor’s death.
- The sick person must have some subjective apprehension of death or a preponderance of death.
- External indicators, such as the inability to attend to ordinary activities, must be present.
- Delivery of possession must occur (derived from Hiba).
In evaluating each case of a deathbed gift, the specific facts and circumstances must be examined independently to determine if the sickness qualifies as Marz ul Maut. It’s crucial to note that the person should die specifically from the sickness or malady in question. If death results from another cause, Marz ul Maut could be considered a Hiba, provided all Hiba essentials are met. The donee must prove that the deathbed gift resulted from the donor’s apprehension of death and that the death was caused by the sickness present at the time of making the gift.
Regarding the second requirement, the person suffering from illness should make the gift due to the fear or apprehension of death from the sickness. This should be visibly observed and confirmed by those attending to the person, including physicians. The definition of death-illness is considered valid if it is highly probable to issue fatally.
The third condition necessitates that the sick person’s illness is of such a nature that they are unable to carry out their daily routines.
In Mustak Ahmed v. Abdul Wahid, it was stated that Marz ul Maut or mortal sickness, is characterized by a fear of death for the sick person, an inability to attend to business and death occurring within a year due to the condition, regardless of confinement to a deathbed.
If the illness is prolonged and a year passes without a change in the sick person’s state, they are considered akin to a healthy person. However, if the illness worsens and the person dies before a year passes from the time of change, their state is classified as mortal sickness.
In this section, we will delve into important topics such as the diseases covered under Marz ul Maut, deathbed gifts in other religions and the consideration of Marz ul Maut as a contract.
For Marz ul Maut to be applicable, the donor or testator must be unwell. The nature of sickness can vary and it is important to note that the apprehension of death differs from person to person. Some may succumb to common cold due to a weakened immune system, while others may face more severe illnesses like cancer. It is not mandatory for the person to be bedridden; the sickness should, however, hinder the individual from performing their daily activities.
With advancements in medicine, individuals with life-threatening illnesses can extend their lives beyond a year. Therefore, when determining Marz ul Maut, it is crucial to consider that the illness becomes mortal again from the point when it is deemed as such by a physician. Simple diseases like diabetes and blood pressure, manageable with modern medicine and lifestyle changes, do not fall under mortal sickness.
Conditions such as paralysis, diabetes, asthma, etc., are generally not considered mortal sickness unless they are severe and pose a medical concern. The case of Muhammad Gulshere K. v. Mariyam B. emphasized that long and lingering diseases, diluting the apprehension of death over a period exceeding one year, do not qualify as sickness for Marz ul Maut.
On the other hand, rapid consumption and galloping conditions, like pneumonia, fall under the doctrine of Marz ul Maut when they induce thoughts of imminent death and render the person helpless. In such cases, if the person makes a gift, it can be considered a Marz ul Maut.
In Hindu law, gifts made due to the apprehension of death, known as Donatio Mortis Causa, are also valid. This is governed by Section 191 of the Indian Succession Act, 1925. In the case of Deo Saran v. Deoki Bharathi, the essential conditions for a gift are outlined. The gift can be either movable or immovable property, contingent on the death of the donor due to sickness.
A marriage contracted on the deathbed is considered invalid. However, there is a provision to validate it: if the person survives the illness and remains alive, consummation of the marriage will render it valid.
Waqf is a concept in Islam governed by the Waqf Act, 1995. It refers to an endowment made by a Muslim for religious, educational or charitable purposes.
A deathbed waqf is subject to the same rules that govern other deathbed dispositions. It will take effect only up to 1/3rd of the property unless the heirs provide their consent.
In Sunni and Shia Islamic traditions, the applicability of Marz ul Maut (gifts made during one’s deathbed) varies in several aspects. In Sunni law, the consent of all heirs is imperative for bequests to an heir.
On the other hand, in Shia law, a bequest up to 1/3rd of the property is considered valid even without unanimous consent. Regarding bequests to an unborn child, Sunni law validates it only if the child is born within 6 months of making the will (Marz ul Maut), while Shia law extends this period to 10 months.
The act of giving birth to a child is deemed under Marz ul Maut in Sunni law but not under Shia law. Additionally, the acknowledgement of debt on the deathbed in favour of an heir is non-effective in Sunni law, whereas Shia law recognizes and binds such acknowledgments up to 1/3rd of the property. These distinctions highlight the nuanced differences in the application of Marz ul Maut between Sunni and Shia legal traditions.
Marz ul Maut refers to gifts made during one’s deathbed, recognized under both Sunni and Shia laws. This legal concept addresses the conditions and implications of bequests made by individuals approaching the end of their life due to illness or imminent death.
For a Marz ul Maut to be valid, specific criteria must be met, including an explicit declaration of the gift, acceptance by the donee and actual or constructive delivery of the possession. The amount that can be bequeathed and the rules surrounding Marz ul Maut vary between Sunni and Shia traditions, adding complexity to the understanding and application of this legal principle within Islamic inheritance laws.
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