INTRODUCTION TO MUSLIM LAW
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.
WHO IS A MUSLIM
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 Conversion: Any 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).
Apostasy
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
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Statutory Authority
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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.
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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.
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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
THE SHARIAT
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THE FIQH
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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.
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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).
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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.