Legislative Framework of the application of Islamic law in India: The Muslim Personal

Law (Shar ‘at) Application Act, 1937

Islamic Jurisprudence Assignment

Submitted by

Name: Hiba Ansari

Student ID: 201908249

B.A. LL.B. (Third Semester) (Self-Finance)

Faculty of Law, Jamia Millia Islamia

Submitted to Dr. Ghulam Yazdani, Associate Professor (faculty of law, Jamia Millia Islamia,
New Delhi)

(date of submission-31st October 2020)

ABSTRACT

India is a multi-religious nation. Here the followers of Hinduism are in an overwhelming

majority and Muslims constitute numerically the biggest minority. Other prominent religious
minorities in the country are Christians and Parsis (apart from Buddhists, Jains and Sikhs to
whom that part of Hindu personal law which was codified in 1955-56 is applicable).' During
the Muslim rule in India all these communities were governed, in matters relating to personal
status, family law, succession and ancestral
property, by their respective traditional laws and custom. When the British established
political authority in the sub-continent they adopted a similar policy and guaranteed
continued application of the various personal laws to the respective religious
communities."This policy remains un- changed till the present day and all the aforesaid
communities continue to have their own personal laws.
The term personal law as traditionally used in India is not synonymous with either of the two
corresponding terms used in Muslim countries, namely, law of family rights (huqliq al-aila)
.and law of personal status. (ahwal al-shakhsiya). It has a rather wide scope and covers
marriage and its dissolution, family rights and obligations, testamentary and intestate
succession, personal p, religious and charitable endowments and pre-emption. These and the
like matters relating to Muslim community in India are ordinarily governed by the Sharia
law, locally described as Muslim personal law.
Since 1937, the application of Islamic personal law in India has, been governed by the
provisions of the Muslim Personal Law (Shari'at) Application Act. A word about the history
of this Act is necessary here.
For several years it has been the cherished desire of the Muslims of British India that
Customary Law should in no case take the place of Muslim Personal Law. The matter has
been repeatedly agitated in the the press as well as on the platform. The jamiat-ul-Ulema-i-
Hind, the greatest moslem 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 inasmuch as it has not any sound basis to stand upon and is very much
liable to frequent changes and cannot be expected to attain any time in the future that
certainty and definiteness which must be the characteristic of all laws. The status of Muslim
women under the so-called Customary Law is simple disgraceful. All the Muslim Women
Organisations have, therefore, condemned the 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 Muslim Personal Law will automatically raise them to the position
to which they are naturally entitled to. In addition to this 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 exists in the form of a
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.1

How did the Shariat originate?

Before Islam was introduced as a religion to Arabia, a tribal social structure prevailed there.
The tribe as a whole determined what was law and the rules were unwritten. These laws
modified with time, as and when society felt the need for change. By the seventh century, the
Muslim community got established in Medina and soon started spreading to the surrounding
regions. With the establishment of Islam, the will of God, as transmitted in the Quran as the
revelations of Muhammad, came to supersede every tribal custom. These writings in the
Quran along with unwritten customs, also known as the Shariat is what governs Islamic
society. Additionally, the Shariat is also based on the Hadith. Originally, they were very
broad and general solutions to practical problems in society.2

1
Dinshah Fardunji Mulla, Principles of Mahomedan Law 478 (LexisNexis, 14th floor, Building no 10, Tower-B,
DLF Cyber City, Gurgaon 2017, 22nd edition)
2
Adrija Roychowdhury, “Shariat and Muslim Personal law: All your questions answered” The Indian Express,
October 17, 2020
How did the Shariat evolve over time?

It would be a huge mistake to argue that the shariat has remained static over centuries, as the
immutable word of God as established in the seventh century. During the period when the
Prophet was alive, the legislative mentioned in the Quran kept developing in response to
practical problems faced by the Prophet and his community. After his death too, the presence
of different schools of sharia and the way different modern Islamic countries have applied it
to their legal domain, is evidence of the capacity in the Islamic law to be interpreted and
developed in ways meeting the needs of society.

There are four different schools of Islamic Law, each of which interprets the writings in the
Quran in different ways and consists of varying rules and regulations for the Islamic
community world over. The four schools (Hanafiyya, Malikiyya, Shafiyya and Hanabaliyya)
developed in four different centuries. Countries with Muslim population have each adopted
their Islamic laws based upon one of these schools depending upon their specific situation.

Accordingly, modern Islamic nation states have responded to the needs of modernity by
embracing the shariat in ways suiting their social and political needs. For instance, Egypt
responded to the calls of modernity in the late nineteenth century by extending secular laws
based upon theories drawn from the West. In Saudi Arabia on the other hand, the Islamic law,
as interpreted by the Hanabali Shafiyya school of thought is strictly followed.3

How was the Muslim law applied in India?

The Muslim Personal Law (Shariat) Application Act was passed in 1937 with the aim to
formulate an Islamic law code for Indian Muslims. The British who were at this point in time
governing India, were trying to ensure that Indians be ruled according to their own cultural
norms. When it came to distinguishing between laws made for Hindus and those for the
Muslims, they laid out the statement that “clear proof of usage will outweigh the written text
of the law” in the case of Hindus. For the Muslims on the other hand, the writings in the
Quran would be of foremost importance. Since 1937 therefore, the shariat Application Act

3
Adrija Roychowdhury, “Shariat and Muslim Personal law: All your questions answered” The Indian Express,
October 17, 2020
mandates aspects of Muslim social life such as marriage, divorce, inheritance and family
relations. The act lays out that in matter of personal dispute the State shall not interfere.

Are personal laws specific to Muslims in India?

Such legislations have been made over the years for other religious groups in India as well,
thereby framing separate civil codes for different religions in the country. For instance, the
Hindu Succession Act of 1956 which lays out guidelines for property inheritance among
Hindus, Buddhists, Jains and Sikhs. The Parsi Marriage and Divorce Act of 1936 lays out
rules to be followed by the Parsis according to their religious traditions. The Hindu Marriage
Act of 1955 had codified laws related to marriage among Hindus. In face, in 1955 this Act
had been amended to include laws on divorce and separation which were previously not part
of it.
Apart from these separate civil codes related to marriage, there exists a Special Marriage Act
as well which was last amended in 1954. It lays out provisions for marital laws irrespective of
the religion to which the persons concerned belong. Muslims too can get married under this
law.

Is the Shariat Application Act in India unchangeable?

The applicability of the Shariat Act has come under controversy in the past as well. There
have been previous instances when the issue of protection of women’s rights as part of the
broader fundamental rights came into conflict with religious rights. Most well known among
these is the Shah Bano case. In 1985, 62-year-old Shah Bano, filed a lawsuit, seeking
alimony from her former husband. The Supreme Court, in this case, had held up her right to
alimony, but the judgment was vehemently opposed by the Islamic community who
considered it to be going against the written rules in the Quran. The case triggered a
controversy regarding the extent to which courts can interfere into personal/religious laws.
The Congress government which was then in power, passed the Muslim Women (Protection
of Rights on Divorce Act), which made it necessary for the husband to pay alimony to his
wife, but only during the period of iddat, that is 90 days after divorce.
There have been plenty of instances of protests against personal laws. One of the prime
agendas of the women’s movement in India since the 1930s has been the discrimination faced
by women in personal laws, across all religions. Earlier in March this year, Justice B. Kemal
Pasha, a sitting Judge of the Kerala High Court had made a strong protest against Muslim
women being denied equal rights under the Muslim Personal Law. However, voices of
protest against reforms in the personal laws has made it extremely difficult to make amends.
The Shariat Application Act in India protects the application of Islamic laws in personal legal
relationships, but the Act does not define the laws. It clearly states that in matters of personal
disputes, the State shall not interfere and a religious authority would pass a declaration based
on his interpretations of the Quran and the Hadith. Given this background of the matter it is
difficult to have it undergo changes since it raises the question, to what extent should the
State (which is supposed to be secular) interfere with the personal affairs of the civilians.
While the protection of the rights of women has been called into time and again in such
cases, “majority of those practising Islam consider the laws of the Shariat to be completely
correct and so they cannot be subjected to legislative changes considering the fact that
freedom of religion, practices and so on, are part of fundamental rights,” says practising
lawyer M.R. Shamshad.4

Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 provides that the law
of the Shariat and not any custom or usage, will apply to all Muslims in India in the following
matter:
(a) marriage, various forms of its dissolution, dower, maintenance, guardship,
(b) intestate succession (except the questions relating to agricultural lands5), and
(c ) gifts, trusts and wakfs (with the exception of charities and endowments6).
Regarding adoption and wills, the act empowers every Muslim, who is competent to contract
under the provisions of the Indian Contract Act, 1872, to adopt the law of the Sharia for
himself or herself and also for his or her minor children and their descendants.
Thus, the Act differentiates adoption, wills and legacies from other subjects of personal law
mentioned in section2.

Section 4 of the Act gives power to the State governmnets to frame rules for the filing of such
a declaration and for other details attached therewith.
Adoption has no recognition in Islamic law. If a person adopts a son or a daughter, the law of
Islam will not confer on the adopted person the status or rights of a natural son or daughter.

4
Adrija Roychowdhury, “Shariat and Muslim Personal law: All your questions answered” The Indian Express,
October 17, 2020
5
The saving clauses noted here in parantheses are not applicable in State of Tamil Nadu and in the Andhra
Area of the State of Andhra Pradesh.
6
Section 3(1).
The provision of Quran is quite clear on the subject of adoption. It says, in effect, that one
who is not another person’s son does not become his natural son merely by virtue of a
declaration. In India, however, the custom of adoption prevails in some Muslim tribes of the
Punjab and some adjoining prevails in some Muslim tribes of the Punjab and some adjoining
places.
The same is the position of testamentary succession under the provisions of the Act of 1937.
The Khoja and Cutchi Memon communities among Indian Muslims had, under custom, an
unrestricted testamentary power. The Act of 1937 did not make an outright abolition of this
power. It gave to Muslims, including those belonging to the said communities, an option
either to continue to be governed by the customary law or to adopt the Muslim law of wills.

The school of Law

Principles of the traditional Islamic law as applicable in India are not uniform. The Hanafi
legal system governs a vast majority of the Sunni Muslims, whereas those in the southern
states of the country generally follow the Shafii school. The Shia muslims of India mostly
belong to the Ithna ashari (Jafri) school. However, in western India is also a sizeable number
of Muslims adhering to the Ismaili school.7

Reform of Muslim Marriage law

A major portion of the Muslim law in India remains uncodified till this day. Legislation
dealing with Muslim legal affairs has so far been undertaken in respect of only administration
of wakfs and some aspects of the law of marriage and divorce. There are several central and
state enactments dealing with the administration of either wakf properties in general or
particular shrines. These are out of the scope of this study. A survey of the statute law
pertaining to the Muslim law of marriage and divorce follows.

The Dissolution of Muslim Marriages Act, 1939 is applicable to all Muslims of India who
may otherwise adhere to the Hanofi, Shnfii, 111m'll "Asharl or lsma'il! law. So, to the extent
of matters covered by its provisions, the Act has effected uniformity in the Indo-Islamic
personal law.

7
The Muslim Personal law, page no.170, available at:
http://14.139.60.114:8080/jspui/bitstream/123456789/732/19/India.pdf
Wife’s Right to Dower

Section 5 of the Act of 1939 makes it clear that in the event of dis- solution of a marriage
under its provisions, the wife shall be governed, in respect of dower, by the ordinary rules of
Muslim law according to the school to which the parties to the case may belong. Any rights
that she may have in the matter under Islamic law will remain unaffected by the decree of the
Court.

Effect of Conversion

Section 4 of the Act deals with the effect of conversion by a Muslim wife. It provides that
renunciation of Islam by a Muslim wife, by conversion to a different faith or otherwise, shall
not by itself operate to dissolve her existing marriage. After renouncing Islam she can still
claim dissolution of her marriage on any of the grounds mentioned in section 2. The
provision of section 4 is, however, not applicable to a woman who con- verted to Islam by
renouncing some other faith and subsequently re-embraced her former faith,23 In such a case,
renunciation of Islam will still effect an immediate dissolution of marriage. It may be
mentioned that the purpose or the provision of section 4 is to dissuade a Muslim woman from
renouncing Islam only to obtain dissolution of her marriage against the wishes of the
husband. The husband himself can, however, still divorce a wife who has renounced Islam.
The Act of 1939 does not make any change in the law relating to the effect of a Muslim
husband's apostasy on his marriage with
a wife who continues to be a Muslim.

Laws shared by Muslims with other Religious Communities

(1) Common Family Laws
In respect of some aspects of family law, all citizen!' of India, including Muslims, ale
governed by certain common enactments. Those principles of the various personal laws,
including Islamic law, which conflict with the provisions of these enactments are, therefore,
no more enforceable by the courts.
(a) The caste disabilities removal Act, 1856
It provides that so much of any law or usage as inflicts on any person forfeiture of any
rights or property, or may be held in any way to impair or affect any rights of inheritance, by
reason of his or her renouncing or having been excluded from the communion of any religion
or caste, shall cease to be enforced as law.8
(b) The child Marriage Restraint act, 1929
This Act restrains solemnisation of the marriage of a man below the age of eighteen and a
girl below that of fifteen years of age. A marriage solemnised in disregard of its provisions
will not be invalid. The act only inflicts penalties on the persons responsible for such a
marriage.
(c ) the Indian evidence Act, 1872
The law relating to gestation is regulated by section 112 of this Act.
It provides that the fact that any person was born during the continuance of a valid marriage
between his or her mother and any man, or within two hundred and eighty days after its
dissolution, the mother remaining unmarried, shall be a conclusive proof of his or her
legitimacy unless it can be proved that the parties to the marriage had no access to each other
at any time when he or she could have been begotten.

(2) Special Family laws

Besides personal laws governing various religious communities, some special family laws
have also been enacted in India. The latter do not supersede any personal law, but they can be
opted for by any citizen of India in-his or her discretion. These special family laws are found
in the following enactments.
(a) The Special Marriage Act, 1954
Any two persons, whether professing the same religion or different religions or no religion
at all, can contract a marriage under the Special Marriage Act, 1954, provided that they fulfil
the conditions mentioned in the Act, which include monogamy." The Act provides for
dissolution of marriage by the Court on certain social and medical grounds specified in it, and
does not recognise any other form of divorce." An existing marriage solemnized under any
personal law can be registered under the Act, and thereupon its provisions will be applicable
to the couple and the issues, in supersession of the corresponding principles of the personal
law of the parties.
(b) Indian succession Act, 1925
Those provisions of the Indian Succession Act, 1925, which deal with the substantive law
relating to inheritance and wills are not ordinarily applicable to various religious

8
Section 2(a).
communities, including Muslims. But a couple married under the Special Marriage act, 1954,
or whose marriage is registered under the provisions of the said Act, will be governed, in the
matters relating to intestate and testamentary succession, by the aforesaid provisions of the
Succession act of 1925.9

The Controversy on Further reform

One of the ‘Directive Principles of State Policy’ under the Constitution of India says:
The State shall endeavour to secure for the citizens a uniform civil code throughout the
territory of India."
The step will, if and when taken up, result in the replacement of all the personal laws
currently prevailing in the country, including the Islamic personal law as well as all the
common and special family laws referred to above, by a common civil code. At present,
implementation of this directive, although demanded by certain political organizations as
well as individuals, seems to be a distant goal."
As an alternative, proposals are made for the reform of Muslim family law in order to bring it
in consonance with the codified personal laws of other religious communities." The main
principles of Muslim law suggested to be reformed are those relating to polygamy, unilateral
divorce and orphaned grandchildren's right to inheritance. Among the advocates such reform
there are Muslims as well as non-Muslims, and also some foreigners. It is specifically
suggested by some Muslim lawyers that certain reforms introduced into Muslim family law
in the West Asian countries may be adopted in India.
An overwhelming majority of Muslims is, however, opposed to any change in their personal
law. In 1963a move was made in the Parliament to consider the reform of Islamic Personal
Law, but on account of great resentment by the Muslim community, conveyed to the
Parliament by the then Vice President, Zakir Husain, it was not pursued." Since then, one of
the most persistent demands of the Muslim minority has been for the preservation of that part
of the Shari'« law which is applicable in India under the provisions of the Muslim Personal
Law (Shari‘at) Application Act,1937.
As a concession to the sentiments of a vast majority of Muslims, no concrete step for the
reform of any aspect of Islamic personal law has been taken in the post-independence period
in India.10

9
The Special Marriage Act, 1954, section 21.
10
The Muslim Personal law, page no.179-180, available at:
http://14.139.60.114:8080/jspui/bitstream/123456789/732/19/India.pdf
Bibliography
1- D. N. Mulla, (2017) Principles of Mahomedan Law 22nd Edition
2- Adrija Roychowdhury, “Shariat and Muslim Personal law: All your
questions answered” The Indian Express, October 17, 2020
3- Muslim Family Law Reform , available at:
http://14.139.60.114:8080/jspui/bitstream/123456789/732/19/India.pdf