Detail of MUSLIM LAW AS APPLIED AND INTERPRETED IN INDIA

MUSLIM LAW AS APPLIED AND INTERPRETED IN INDIA

MUSLIM LAW AS APPLIED AND INTERPRETED IN INDIA

Shariat Act of 1937

Muslim Personal Law (Shariat) Application Act, 1937 almost abolished the legal authority of custom among the Muslims of British India. The Act is applicable throughout India. It applies to every Muslim, of whatever sect or school, but curiously enough, the word "Muslim" is nowhere defined by it. It applies to all kinds of properties, Except: (a) agricultural lands; (b)  testamentary succession in certain communities; and (c) charities, other than Wakf.

Section 2 of the Act is important and deserves a detailed study. It runs as follows:

"Notwithstanding any custom or usage to the contrary, in all questions (save question relating to agricultural land) regarding intestate succession, special property of females, including personal property 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 mubarat'at, maintenance, dower, guardianship, gifts, trust 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)."

The object of the above Section 2 is firstly to abrogate custom and usage which may be contrary to the principles of Muslim Law and, second, to grant 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 heirs of the last male owner, such custom being contrary to Islamic Law, is abolished and she holds it in all respects as an heir under Muslim Law.

   It will be noticed that Section 2 excludes from its purview "agricultural land" and "charities and charitable institutions and charitable and religious endowments". It is because these subjects are within the competence of State Legislatures.

     Regarding adoption, wills and legacies, Section 3 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 the Shariat 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 Section 2. Unlike customs relating to the latter, those regarding adoption, wills and legacies have not been wholly abrogated by its provisions. Respecting these matters, the Act only gives an option to the Muslims to adopt Islamic Personal law if they so dire.

      Impact of Shariat Act on various business communities. - After the passing of the Shariat Act, 1973, the Khojas are governed by Muslim Law in all matters enumerated in Section 2 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.

    Bohras after 1937 are wholly governed by Muslim Law. Cutchi Memons are governed by Hanafi Law in all matters, with only those exceptions that are allowed under the Shariat Act itself.

The Dissolution of Muslim Marriages Act, 1939

This Act of 1939 consolidates the provisions of Muslim Law relating to dissolution of marriage by judicial decree.

Who is a Muslim ?

"Every person who believes in the unity of God and the mission of Muhammad as a Prophet is a Mussulman to whatever sect he may belong."

    This simple definition of a Muslim has been propounded by Justice Ameer Ali in his book on Muslims Law first and since then it has been invariably followed by different High Courts.

    According to Shariah  a child born of parents, either of whom is or both of whom are Muslims, is presumed to be a Muslim. In India, however, a child born of a Muslim father is presumed to be a Muslim but not a child of a Muslim mother and non-Muslim father, as was held by the Privy Council in Skinner v. Orde, (1871) and by the Oudh High Court in Mohd. Azim Khan v. Saadat Ali, (1931).

    A Muslim remains a Muslim unless he renounces Islam. A non-Muslim may embrace Islam and become a Muslim by conversion. It is not necessary to go into the motives of the convert, because there is no test or gauge to determine the sincerity of religious belief.

    Majority of Muslims in India are Hanafis. The courts presume every Muslim to be a Hanafi unless otherwise contended.

Islamic Courts

In the Imrana case, the Supreme Court held that Fatwa is an opinion, only an expert is expected to give. It is not a decree and is neither binding on anyone nor enforceable. Only an adjudication by a legal authority sanctioned by law is enforceable and binding. Further, no Dar-ul-Qaza or for that matter anybody or institution by any name shall give verdict or issue fatwa touching upon rights, status and obligation of individual unless asked for by such individual concerned. In case of incapacity of individual, fatwa can be sought by any person interested in welfare of such individual