JAMIA MILLIA ISLAMIA

FACULTY OF LAW

ISLAMIC JURISPRUDENCE ASSIGNMENT

TOPIC: THE MUSLIM PERSONAL LAW (SHARIAT) APPLICATION ACT, 1937

III SEMESTER (REGULAR)

ROLL. NO. - 6

SUBMITTED TO: PROFESSOR GHULAM YAZDANI

SUBMITTED BY: ADIBA KHAN

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TABLE OF CONTENT

1. Introduction……………………………………………………………………….3

2. Historical Perspective……………………………………………………………...3

3. The Shatriat Application Act, 1937……………………………………………….4

4. Impact of Shariat Act on various communities…………………………………....7

5. Rights of Women under Muslim Law……………………………………………..8

6. Conclusion…………………………………………………………………………8

7. Bibliography……………………………………………………………………….9

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Introduction: Initially the Muslim law was applied to Muslims in British India as a matter of
Policy. This policy is the result of the adoption of tradition inherited from the Mughal rulers.
Sometimes the expression Muhammadabn law is used in place os Islamic law or Muslim law
in this matter Fayzee sharply contended that “the religion taught by the Prophet was Islam,
not Muhammadanism; and the people who believe in it are Muslims not Muhammadans. By
Muhammadan law ment that the portion of the Islamic Civil Law which applied in India to
Muslims as a personal law.” If we see in Islam the authority to enact law is primiraly belongs
to God the Muslim Personal Law (Shariat) Act is the most important enactment to modify
Muslim Law the view of Islamic law was recognised by the British Government. The Muslim
Personal Law (Shariat) Application Act 1937 is the most important enactment in modifying
the Muslim law.

Historical Perspective

The Britisher had no desire to interfere with the religion susceptibilities of their subjects also
they did not desire any break with the past; also their chief objective was to have security in
social conditions so as to facilitate trade. This policy’s earliest trace is to be found in the
charter of George II, granted in 1753. In the Warren Hasting’s plan for the administration of
Justice, 1772 it was provided that maulvis and pandits would attend the courts to expound the
law and to assist in the administration of justice. Later on by the section 27 of the regulation
of 1780 it was laid down that:

In all the suits regarding inheritance, marriage and caste,and other religious usages or the
institutions, the laws of the Quran with respect to Mohamedans, and thoseof the Shaster with
respet to Gentoos, shall beinvariably adhered to.1

If we see earlier in 1894 the Privy Council expressed in the Abdul Fata Mohammad v.
Rasammyay2, that if the primary objection of the waqf was the promotion of the family was
invalid and the gift to charity was illusory no effect could be given to it. This decision raised
considerable alarm and caused disatisfaction in the Muslim community in India

1
AAA Fyzee, Outlines of Muhmmadan Law 43( Oxford University Press, New Delhi, 5th edn.).
2
(1894) 22 Cal 619.

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In the case of Noor Jahan v. E. Tiscenko3, Calcutta High Court has held that, as regards
marriage and divorce, the Shariat requires that the Courts to apply Muslim law, only if both
the parties are Muslims. If therefore only one of them is a Muslim, the Act will not apply.

If one party is Hindu and the other is Muslim the laws and usages of the defendant were to be
applied.

In India the Shariat laws are not applied in their entirety; only a portion is made applicable
and this may be convinently divided as follows:

 Rules which are expressely applied, for inhetotance and succession;

 Rules which are applied as a matter of justice, equity and good conscience;
 Rules which are not applicabl, for criminal law, lawof evidence, slavery, etc.4

THE SHARIAT ACT 1937

The Shariat Act 1937 is the most important application of the Muslim law in India. It is just
the short enactment of six sections and its main is at restoring the law of Islam to all Muslim
communities residing in India and doing away with customs contrary to the Shariat.5 This act
is applicable to every Muslim regardless of the school to which he belongs, but a peculier
feature is that the word ‘Muslim’ is not defines.6 The Act almist abolished the legal authority
of custom among the Muslims of British India for reasons best stated in the statement of
Objeects and Reasons:

“For several years past it has been the cherished desire of the Muslims customary law should
in no case take the place of the Muslim Personal Law. The matter has been repeatedly
agitated in the press and also on the platform. The Jamiat-ul-Ulema-i-Hind, the greatest
Muslim religious body has supported the demand and invited the attention of all concerned to
the urgent necessity of introducing a measure to this effect. Customary law is a misnomer
since it has not any sound basis to stand on and is very much liable to frequent changes and
cannot be expected to attain at any time in future the certainty and definiteness which must be
the characteristic of all laws. The status of the Muslim women under the so-called customary
law is simply disgraceful. As the Muslim Women Organisations have condemned the

3
A.I.R. 1941 Cal 582.
4
Id., at 43.
5
Asaf.A.A Fyzee, Outlines of Muhmmadan Law 43( Oxford University Press, New Delhi, 5th edn.).
6
Supra note 5 at 44.

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customary law, as it adversely affects their rights, they demand that the Muslim Personal Law
(Shariat) should be made applicable to them. The introduction of the Muslim Personal Law
will automatically raise them to the position to which they are naturally entitled. In addition
to this, the present measure, if enacted, would have very salutary effect on society, because it
would ensure certainty and definiteness in the mutual rights and obligations of the public.
Muslim Personal Law (Shariat) exists in the form of veritable code and is too well known to
admit of any doubt or to entail any great labour in the shape of research, which is the chief
feature of customary law”7

This act was came into operaion on 7th October 1937 and applies to all Kinds of properties
except:

 Agricultural lands;
 Testamentary succession in certain communities; and
 Charities, other than Wakf.

The section 28 of the act states that:

“Notwithstanding any custom or usage to the contrary, in all questions (save questions
relating to agricultural land) regarding intestate succession, special property of females,
including personal properly inherited or obtained under contract or gift or any other provision
of Personal Law. marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and
mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs
(other than charities and charitable institutions and charitable and religious endowments) the
rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law
(Shariat).”

Firstly this act abrogates the custom and usage. Muslim communities following customs at
variance with Islamic law are compelled to follow the Shari‘at. Later it grants certain
exceptions. Fyzee says that the words 'intestate succession clearly show that the power of
testamentary succession enjoyed by certain communities is not taken away. These
communities are Khojas and Memons. Thus, they may follow a custom which allows the
disposition of even whole of property by way of will, and which is clearly un-Islamic. On the
other hand, if a female receives property and by customary law the property is to revert to the

7
Syed Khalid Rashid, Muslim Law 34 (Eastern Book Company, Lucknow, 5th edn.).
8
The Shariat Law Application Act, s. 2.

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heirs of the last male owner, such cutom being contrary to Islamic Law, is abolished and she
holds it in all respect as an heir under Muslim Law.9

In case of Ashrafalli v. Mahomedalli10 the Bombay High Court held that when Sentia refers
to trusts and wakfs, it not merely refers to trusts and wakfs inter vivos also includes
testamentary wakfs and trusts. Thus, on the one hand, if a Khor Muslim who is governed by
the Hindu Law in matters of succession, can give away the whole of his property by way of
'will 17 notwithstanding the provisions of the Shariat Act, on the other hand the validity of
such a trust or wakf by way of will can only be determined by Muslim Law and not by Hindu
Law.

In the case C. Mohammed Yunus v. Syed Unissa11 The Supreme Court has decided that the
words 'the rule of decision Section 2 are mandatory; the injunction is addressed to the court
and the intention of the legislature is that the Act should apply to all suits, proceedings and
even appeals which were pending on the date when the Act came into operation. It will be
noticed that Section 2 excludes from its purview agricultural land" and "charities and
charitable institutions and charitable and relis endowments" It is because these subjects are
within the competence of State Legislatures. Mulla feels that "the exception of agricultural
land is very important as only a small portion of the land of India can be excluded from thi
category, and the law as it stood before the passing of the Act must continue be applied
thereto. The exception is so expressed as to cut down the effect of all subsequent words, e.g.,
if the question relates to agricultural land, the Muhammadan Law is not made the rule of
decision in a question regarding gift.12

Regarding adoption, wills and legacies, Section 313 of the Act empowers every Muslim who
is competent to contract under the provisions of the Indian Contract Act, 1872, to adopt the
law of Shariat for himself or herself and also for his or her minor children and their
descendants. Thus the act diifferentiates adoption wills and legacies from other subjects of
personal law mentioned in section 2. This act is not retrospective; it has no validity prior to
7th October 1937.

9
Syed Khalid Rashid, Muslim Law 35 (Eastern Book Company, Lucknow, 5th edn.).
10
A.I.R. 1947 Bom 122.
11
(1962) 1 SCR 67.
12
Mulla, at p. 4.
13
The Shariat Law Application Act, s. 3.

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Impact of Shariat Act on various communities - Khojas are ismaili Shias of the Nigerian
Branch. They were originally Hindus hailing from Sind a Kutch When Sind came under
Muslim influence, many Hindus and embraced Islam due to efforts of Pir Sadruddin, a
missionary sent to Sind by the religious head of the community. After passing the of the
Shariat Act, 1937, the

Khojas are governed by Muslim law in all matters enumerated in Section of the Act including
intestate succession, but they are not so governed in matters of testamentary succession and
agricultural land. Thus, a Khoja can still dispose of whole of his property by way of will.14

Bohras (literal meaning: merchants) are Ismailis and are divided into Daudis and Sulayman
and some smaller branches. The present religious head is Mullaii Saheb of the Daudi Bohras,
who is recognised as their Dai-ul-Mutlaq (Supreme head) by all factions of Bohras. Before
the Shariat Act, Bohras were following certain non-Islamic customs in matters of inheritance.
But after 1937 they are wholly governed by Muslim Law. Memons are divided into two
groups, the Cutchi Memons and the Halai Memons. While Halai Memons are governed by
Hanafi Law, the Cutchis were first subject to Hindu Law in regard to succession and
inheritance, but by the Cutchi Memons Act, 1920 they were given an option either to subject
themselves to Muslim Law of Inheritance or remain as they were. After the Shariat Act, 1937
they retained their customary right to dispose of the whole of their property by will, unless a
declaration under Section 3 was made, in which case they were to be governed by Hanafi
Law. Shortly afterwards, however, the Cutchi Memons Act, 1938 subjected them to Hanafi
Law. The net result is that today Cutchi Memons are governed by Hanafi Law in all matters,
with only those exceptions that are allowed under the Shariat Act itself.15 Section 4 of the Act
then empowers the State Governments to make rules to carry out the purpose of the Act, and
Section 6 repeals certain Acts, to the extent that they permit inconsistent customs. (Section 5
of the Act was repealed in 1939).16

14
Syed Khalid Rashid, Muslim Law 37 (Eastern Book Company, Lucknow, 5 th edn.).
15
Supra note 14 at 37.
16
TheShariatAct,1937, is Landmark Legislation in the History of Muslim Law, available at:
http://www.shareyouressays.com/knowledge/the-shariat-act-1937-is-landmark-legislation-in-the-
history-of-muslim-law/117435 (last visited on October 25,2019).

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Rights of Women under Muslim Law

The Muslim law is not codified and because of this absence of codification absence women
are at very difficult posititon, because of this unclarity in the various rights and analysis of
the Quran. But the Muslim Pesonal Law (Shariat) Application Act 1937 recognises the rights
of the wife to acquire divorce on two grounds i.e, Ila and Zihar. Also the divorced wife is
entitled to get the maintenance from the ex- husband till the persiod of Iddat. As per the
Muslim law the divoced wife is not entitled to get maintenance after the period of Iddat or the
period after delivery of the child. Section 5 was subsequently replaced by Dissolution of
Muslim Marriages Act 1939. Muslim women can seek divorce in a court of law. In a very
popular case Mohd. Ahmad Khan v. Shah Bano Begum17, the issue was that up to what extent
Muslim Husband’s liaility to maintain his divorced wife under Section 125 of the Cr.P.C
1973. Court went into the details of the Quranic verses in order to support the view that a
Muslim Women who has been divorced by her husband has all right to be maintained even
afetr the period of Iddat. Further court upheld that provision of the maintainence under
section 125 of the Cr.P.C is not dependent on the religion of the spouses. This judgement
envoked the unprecedented debate and controversy on the Muslim woman’s rights to claim
maintenance from the husband after divorce. This ultimately led to the enactment of Muslim
women (Protection of rights on Divorce) Act 1986.

Conclusion

The main reason to establish Muslim Personal Law (Shariat) Application Act, 1937 by the
Britisher is to govenrn the region by there personal law and not to interfere in there personal
matter. The decision in the case of Abdul Fata Mohammad v. Rasammyaya by the Privy
Council made the Muslim community unsatisfactory after this and before the shariat Act
many regulations and authorising the application of Muslim Law were enforced in different
parts of the country. This act do bring the changes in the implimenation of Muslim Law also
in many landmark judgment the Hon’ble court said to appply Muslim Law after the
commencement of the Act.

17
1985 (2) SCC 556.

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Bibliography

Books

 Syed Khalid Rashid, Muslim Law (Eastern Book Company, Lucknow, 4th edn.).
 Aqil Ahamad, Mohammedan Law (Central Law Agency, Allahabad, 24th edn.).
 Tahir Mahmood, Outlines of Muhammadan Law (Oxford Univerity Press, New Delhi,
5th edn.).

Cite Reffered

 SCC online

Case Citied

 Noor Jahan v. E. Tiscenko

 Ashrafalli v. Mahomedalli
 C. Mohammed Yunus v. Syed Unissa
 Mohd. Ahmad Khan v. Shah Bano Begum