ECONOMIC RELEVANCE OF WAKF IN INDIAN FAMILY LAW- A COMPARATIVE ANALYSIS WITH INDIA’S NEIGHBOURS

Abstract

Wakf is a pious endowment which is inalienable and perpetual, it is an influential institution that provides the Muslim community with social, economic and educational services. A wakf is established by waqif, a living man or woman, who owns the revenue producing property and makes it inalienable in perpetuity. It is inalienable in nature and therefore, once the property is bestowed as wakf, it cannot be gifted or sold and is deferred from inheritance. 

The definition of Wakf has evolved over the period, from Abu Hanifa to The Waqf Act, 1995. In the historically earliest view, given by Abu Hanifa, the ownership of the property is vested in the waqif and the usufruct is devoted for charitable purposes. In the opinion of the disciples of Abu Hanifa, wakf is tying up the substance under the rule of property of God hence, the ownership rights of the waqif are extinguished and the benefits arising from the land are transferred for the benefit of mankind hence, the three elements recognized are (i) ownership vests with God perpetually and irrevocably, (ii) the proprietorship of the Waqif is annihilated and (iii) the usufruct of the property is used for the benefit of mankind. The Sharia-ul-Islam defines Wakf as “A contract, the fruit or effect of which is to tie up the original of a thing and to leave its usufruct free”, this definition elaborates two elements (i) immobilization of corpus of the property and (ii) the benefits from the property is used for the benefit of mankind. Under the Mussalman Wakf Validating Act, 1913, Section 2(1) defines Wakf as “The permanent dedication by a person professing the Mussalman faith of any property for any purpose recognized by the Mussalman law as religious, pious or charitable”, the characteristics identified herein are, first, there should be a religious motive, second, the dedication of the property is permanent and finally, the profit or the income from the property should be used for the benefit of mankind. Further, a pious act in Islam means the offering or gift that is made with the purpose to obtain the approval of the Almighty. In the Waqf Act, 1995, the definition of Wakf was amended to add “movable or immovable” property, this addition to the definition did not make any sprawling change to the existing understanding or the meaning of Wakf.