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Chapter 1 - Introduction : Who is Muslim, Conversion, Apostasy

In India, the personal law of the parties is applied even in the Courts in the matters relating to ‘personal matters’ of an individual like marriage, divorce, guardianship, etc. Family matters and property are also included in the personal laws. Thus, where the parties are Muslims, the Court will apply their personal law. Muslim Law in India refers to that portion of Islamic Civil Law that is applied to Muslims as a personal law. It consists of injunctions of Quran and has been further supplemented by Legislation and judicial precedents of the Courts. Personal laws are not general in their application and wherever a person may be in India, his personal law will follow him.
Muslim law can be defined as the branch of civil law that regulates the family matter of the Muslims.The word ‘Muslim’ is derived from Islam and refers to a person who has adopted or follows the faith of Islam. There is no statutory definition of a Muslim. The term ‘Islam’ means ‘submission to the will of God’. In legal terminology, Islam is a religion where it is believed that
i) God (Allah) is the one and only God; and
ii) Prophet Mohammad is His messenger (Rasool).
Thus, anyone who believes in the above two principles will be a Muslim.
As faith in Islam is a matter of heart and difficult to prove in Court, the Courts recognise the following as Muslims:
1. Muslim by Birth: If a person’s parents were both Muslims, he will be regarded as a Muslim by birth. Where only one parent is a Muslim, the child will be regarded as a Muslim if only he has been raised a Muslim as held in BHAIYA SHER BAHADUR V BHAIYA GANGA BAKSH SINGH (1914) 41 IA 1. A Muslim by birth will continue to be one unless on attaining majority, he renounces Islam through a public declaration.
2. Muslim by ConversionAny person of sound mind and age of majority can convert in two ways –
a) He may publicly declare that he has renounced his original religion and is now professing Islam. He should also believe that Allah is the one and only God and Prophet Mohammad is his messenger.
b) Conversion through the ceremonies as prescribed in Islam itself. The person goes to the mosque where the Imam may ask him to read a Kalema and give him a Muslim name. The new name is then registered in the Imam’s register
If a person formally professes Islam, he is a Muslim. This should not be a conversion based on fraud or to defeat any law; thus, if the person’s conduct and behaviour runs contrary to Islam, the presumption of conversion is rebutted.
There exists no objective test for checking the sincerity of faith. But many a times, when the conversion is only to legalise an act that is illegal in other faiths, the Courts will hold the conversion mala fide. In SARLA MUDGAL V UNION OF INIDA (1995) 3 SCC 635, a Hindu husband converted to Islam to marry a Muslim girl without first divorcing his first wife (a Hindu). The court held that the conversion was mala fide and declared the second marriage void while stating that “it is not the object of Islam or intention of the enlightened Muslim Community that Hindu husbands should be encouraged to become Muslims merely for the purpose of evading their own personal laws by marrying again.” The Supreme Court reinforced the same principle in LILY THOMAS V UNION OF INDIA A.I.R (2000) SC 1650.
Feigning adoption of another faith for mere worldly gains is treated as religious bigotry.
Once a Muslim, it is irrelevant whether he is a Muslim by birth or conversion. In 1937, the Shariat Act abolished all the customs that the converted Muslims used to follow from their original faith (except for those that are related to agricultural lands or matter not included in the Act).
If there is apostasy by a married person in a country where the law of the land is the Muslim law, the converted party has to offer Islam to the other partner. If the other party refuses, the marriage may be dissolved
If the Muslim law is not the law of the land, the marriage is automatically dissolved after 3 months of the conversion. This is NOT the case in India. A suit for divorce has to be filed.
An apostate will be dealt under his original religion at the time of the event or action even if he has converted to another religion. For example, if a Muslim couple is divorced after the husband’s conversion. It is the Muslim law that will apply because the marriage took place under the Muslim law.
Application of Muslim Law
The Courts apply Muslim law for personal matters or where authorised by law and legal principles.
Legal Application of Muslim Law
The Principles of Equity, Justice and Good Conscience
Statutory Authority
In the absence of any enacted law, the Courts apply the principles.
For example, the Muslim law of pre-emption has not been mentioned in any act and thus the courts are under no obligation to implement it.
Similarly Muslim law was applied in the case about the agricultural lands on the principles of Equity.

The High courts are free to apply the unrepealed Provisions of law before the Constitution Came into being on the basis of Art. 225
The Courts are also free to apply the local usages and enactments.
Muslim law is not applied to Muslims, if There is another law applying to the parties that they choose over the particular Muslim law provision in existence dealing With the same issue.
For example, Marriage under Special Marriage Act, 1954 or inheritance under the Indian Succession Act, 1925 are a few cases where Muslim law will not be applied even if both the Parties are Muslims.
Muslim law is applied even to non- Muslims, if the defendant is a Muslim and the other Party is either not a Muslim or belongs to A different school/sect. It is only a generalpolicy.

The British applied Muslim personal law for the Muslims in India so as to maintain social stability for better trade opportunities.
Warren Hastings plan of 1772 brought in maulvis to help expound the Muslim personal law. Though the British were to enact general laws for all the affairs of Indians despite their religion, they left personal laws alone. Acts like Shariat Act, The Oudh Laws Act, 1876 authorises the Indian courts to apply Muslim personal law.
The Shariat Act generally regulates the application of Muslim personal law.
Section 2 allows for the application of Muslim law in the following cases:
1.     Intestate Succession
2.     Special property of the females
3.     Marriage
4.     Dissolution of Marriage
5.     Maintenance
6.     Guardianship
7.     Gift
8.     Trust and Trust Properties
9.     Wakf
A custom or usage contrary to Muslim law cannot be applied now.
Section 3 gives the choice to a Muslim to be governed by Muslim law in matters other than those enumerated there.
Agricultural lands, charities and charitable endowments are expressly excluded from Section 2. Still the states can regulate through tenancy laws.
 The Khojas and the Cutchi Memons were Hindus 400 years ago who then converted to Islam. They are generally traders and had till recently retained certain Hindu succession and inheritance laws. There was an option for them to make a statutory declaration that they would be governed under Muslim law for all purposes.
Now even that is not needed. They are covered under the Hanafi school. The Shariat Act had applied the rules of Muslim law to intestate succession in these communities. In 1938, even testamentary succession was brought into the purview of Muslim law. Now, both the communities are governed by the Muslim personal law except for those exceptions stated in the Shariat Act like agricultural lands, etc.
Initially the wills of the Cutchi Memons and the Khojas were constructed as per the Hindu law, now the Muslim law applies. Thus, they can not give away more than 1/3rd of their property away through a will without the consent of their heir(s).
The Muslim Memons are followers of the Hanafi school and are divided into
a) Halai Memons who are found in Bombay
b) The Cutchi Memons.
The Khojas are converted Muslims who till 1937 were governed under the Hindu law with respect to certain matters.
The Mapillas are converted Muslims and were formerly regulated by their customary laws in the matters of succession that were against the Muslim Law. But now they are compulsorily governed due to the present Acts. Still a few areas like Tarvad and Tavazi are under the purview of customary law.
Law as per Islam
Shariat: The term literally means “road to the watering place” or “the path to be followed’.
In Islam, law has a divine origin and God is the only true legislator.
The law is an order or hukm that is obtained through a communication from God, whether express or implied.
There is either husn (good action) or kubh (evil action).
The Shariat says what is husn must be done and that which is morally bad or kubh must be avoided. The Quran, Sunna of the Prophet, etc tell us what is husn or kubh.
The that regulates all the spheres of a man’s life. It is a moral or spiritual code. The legal considerations are secondary.
Thus, law is the direction given by God
Some directions are obligatory and others are merely desirable.
It has a wider scope as it includes all spiritual, moral and secular actions of a man.
It also has an additional category of actions, namely, what is advised not to be done.
It is taken before any other source.
It is Muslim equivalent to the Hindu concept of Dharma.
The Shariat includes farz (what is necessary) like daily prayers; haram (what is strictly prohibited) like wine; manruk (advised to refrain from) like specific kinds of fish; mandub (advised to do) like additional prayers and jaiz that to which the religion is indifferent like travelling by air.
Fiqh: It means intelligence. It refers to ‘law’ in the modern sense and literally it refers to the knowledge of law.
It is used for regulating human conduct and is secular in nature. It is jurisprudential in nature.
It refers to the knowledge of one’s rights and obligations.
It is generally deduced from the directions of God or traditions of the Prophet.
It has been created through the power of reasoning by the Muslims Jurists in the absence of the word of God or the Prophet.
It has narrower scope as it deals with only the legal actions. It deals with logical and scientific progress
Human action is treated as lawful or unlawful and the punishment comes from the state
It is comparable to the Hindu concept of Vidhi or Vyavhar.
In the classical view, it is the knowledge of one’s rights and obligations derived from the Quran, Sunna (the traditions of the Prophet), Ijma (consensus of the learned) and the Qiyas (analogical deductions).
The right phrase for the personal law of the Muslims is Islamic Law or Muslim law rather than Mohammedan law.
Note: I am excited to announce my second law book for Muslim Law to be published by New Era Law Publications this summer. The book has all the latest case laws, updated information (Wakf Act of 1995 among others) and easy to understand explanations of concepts. Nevertheless, the material posted here (from college notes) will stay online and I will keep adding more topics.

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