Book Review

A.M. Bhattacharjee Muslim Law and the Constitution by S.A.

Kader, published by Eastern Law House Private Ltd., Kolkata,
Third Edition, 2016.

Qazi Mohammed Usman1

This is a welcome addition to the ever growing literature on Muslim Personal Law
and its constitutionality. The book under review, authored by a renowned retired
judge of Madras High Court, endeavored to have insight into some observations
on Muslim Law, constitutionality of Muslim personal law, personal issues of
Muslims, i.e., marriage, divorce, polygamy, maintenance etc.

This book has become more relevant today given the issue relating to Muslim
personal laws namely triple Talaq which is pending before the Supreme Court of
India.

The book presents a very exhaustive and comprehensive discussion on different

aspects on various personal laws issues in the light of Constitution. The author has
attempted to capture varied facets of Muslim personal law and has analyzed them
at the touchstone of the constitution. Issues like marriage, divorce, succession,
guardianship, pre-emption, conversion have been dealt with elaborately.

The book is thematically segmented into eight Lectures, namely, Muslim Laws-
some General Observations; Muslim Laws- Amenability of the Constitution;
Conversion & Muslim Law of Marriage and the Constitution; Conversion-Muslim
Law of Succession and the Constitution; Muslim Law of Marriage and Divorce
and the Constitution; Muslim Law of Maintenance and Guardianship and the
Constitution; Muslim Law of Pre-emption and the Constitution and Muslim Law
1
. Presently working as Asst. Professor, Faculty of Law, Jamia Millia Islamia, New Delhi.

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and the Constitution which have been imbibed into separate chapters. Further,
each chapter of the book is followed by conclusion or some kind of summary,
which makes the book more authentic and user friendly.

The book is an authentic document on various facets of personal laws and its
validity. The decisions of different high courts and Supreme Court have been used
frequently. The book has also mentioned the opinions and views of several legal
experts and scholars, which makes the book all the more relevant for
academicians, law students, advocates and judges of the law courts.

In chapter 1, i.e., Muslim Law: Some General Observations, the author attempted
to trace the origin of Muslim law. He also endeavored to settle the Islamic law as
Muslim law instead of Muhammadan law not because the latter expression is
misleading or inaccurate or objectionable, but the former is latest and in
consonance with the most important enactments making Islamic law a law of India
passed by the government dealing with the Muslim personal law, namely the
Muslim Personal Law (Shariyat) Application Act, 1937, the Dissolution of
Muslim Marriage Act, 1939 and the Wakf Act, 1954. He, however, pointed out
that Islam is generally regarded to be “the result of teaching and preaching of
Prophet Mohammed (PBUH) and to have been promulgated by the prophet”.
According to him, the word Islam means ‘peace’ and ‘submission’. In its religious
sense, it denotes ‘submission to the Will of God’ and in its secular sense, the
establishment of peace.

He also made an attempted to distinguish between public and private laws, and
suggested that personal laws, i.e., both Hindu and Muslim laws, as administered
since the British period, would appear to be wider as well as narrower than private
law. He states that personal laws are wider than private law as they cover matters
relating to, for example, Public Wakfs and public religious and charitable
Endowments, they are narrower as they do not cover matters relating to private

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contracts and private transfer of properties. He also pointed out that the
applicability of personal law in India depends on religion or race and not on
nationality or domicile.

While removing the controversy as to whether the Muslim Personal Law

(Shariyat) Application Act, 1937 containing the Muslim Personal Law is ‘law of
the land’ or not, he explains that the enactment is a legislative charter adopting and
directing the application of the Muslim Law to the Muslims and if the enactment is
a law of the land, the laws adopted and covered thereby are also the laws of the
land. The expression ‘law of the land’ should not be confused with and need not
be confined with the general laws of the land. Local laws applying to a part of the
land and special laws applying to a particular subject are also the laws of the land.
Muslim Personal Laws are not local laws as they are applicable in the whole of
India and not merely a particular part thereof. They may be special laws as they do
not apply to all the Indians but apply only to Indian Muslims.

The author further dealt with the question whether the Quran, the Hadis, the Ijma
and the Qiyas are the effective sources of Muslim Laws?, are they ceased to be the
effective sources? and what are the factors retarding the further development of
Muslim Law in India?

In chapter 2, the author has been successful in proving that personal laws are ‘laws
in force’ within the meaning of Articles 13(1) and 372(1) of the constitution and
also State actions within the meaning of Articles 14 and 15 and are accordingly
subject to all the provisions of the constitution and its Part III in particular. In this
chapter, while quoting some eminent jurists, the author attempts to comprehend
the making of laws and submitted that the Muslim law administered in India is
obviously law, for it contained also sets of rules regulating external actions of
Muslims and were enforced by the sovereign political authority through its judicial
and other organs.

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The author has attempted to provide a full length discussion on the issue whether
personal laws of the parties are within the scope of the Constitution of India and if
yes, can Constitution provide the scriptures? The author tries to establish with the
support of relevant case laws as decided by the Supreme Court and different High
courts that personal laws are not beyond the scope of Articles 13 and 372. These
decisions also accepted the amenability of the personal laws of the Hindus and the
Muslims to the provisions of the Constitution.

The striking feature of this book is that in the very initial chapters particularly
chapter III, it has established that the personal laws are not the beyond the scope of
the constitution and in following chapters, the various constitutional provisions
have been used to analyze the issues relating to personal laws.

Chapter 3 deals with the effects of conversion into the Muslim law of marriage
and its constitutionality. Responding to this issue, the author has concluded that
when one of spouses renounces Islam and becomes Hindu, Muslim Law would
cease to apply as a matter of course as the parties are no longer Muslims and
Hindu law also cannot begin to govern to the case as a matter of course as the
provisions of the relevant enactments directly dealing with Hindu Law would
apply only where the parties are Hindus. However, where both the parties to a
Muslim marriage renounce Islam and adopt Hinduism, then they and their
marriage come out of the provisions of the Shariyat Act, 1937 and other
enactments directing application of Muslim Law. The author further pointed out
that the principle noted above will equally apply where one or both of the parties
to a Hindu marriage renounce Hinduism and adopts or adopt Islam.

While dealing with the effect of conversion in the Muslim Law of Succession as
applied by Indian courts, the author, in chapter 4, has pointed out that the rule
under earlier Muslim Law, a non-muslim convert cannot inherit from a muslim, is
still the law except to the extent that it is modified by the Caste Disabilities

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Removal Act, 1850 whereunder right of inheritance of a convert from Islam would
not be affected, whereas his descendants born after such conversion still continued
to be excluded from inheriting their ancestor’s non converts relations on the
ground of differences of religion as they were under the law prevailing prior to the
Caste Disabilities Removal Act, 1850.

In chapter 5, the author, while dealing with the issue of Muslim Law of marriage
and divorce has gone to say that polygamy for Muslim males and monogamy for
Muslim female is ultra vires Articles 15 and 16 of the Indian Constitution and the
law permitting polygamy for Muslim males having become void since the
commencement of the Constitution. However, he quoted the decision in a case of
Krishna Singh v. Mathura Ahir2 where Supreme Court laid down that Part III of
the Constitution does not touch upon the Personal Laws of the parties. In this
chapter, the author also discussed Inter-religious marriage of the Muslims and
different kinds of divorce permitted under Islamic law.

While responding to the next issue, i.e., Muslim Law of Pre-emption and the
Constitution, the author pointed out that Muslim Law generally holds that the
owner of undivided property and neighbor owning the adjacent property has a
right of Pre-emption. However, he suggested that this right should be given to
muslim as well as non-muslim equally otherwise it would be violation of Articles
14 and 15 of the Constitution.

In the last chapter of the book, the author has attempted to capture all the relevant
constitutional provisions which have some ramification on issues relating to
Personal Laws or religions, e. g., equality, justice, gender discrimination, uniform
civil court and right to religion etc.

Lastly, this is a very authentic book dealing with the Muslim Personal Laws and
the constitution. There is no typing error in the book.

2
. AIR 1980 SC 707.

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