Application of Muslim law and The Shariat Act, 1937 | Family Law - CLAT PG PDF Download

Introduction 

Hindu law was the dominant legal system governing individuals in ancient India. During the Muslim rule, while personal law remained unaffected, the majority of individuals were subject to Mohammadan Law. The British colonial period also saw the continuation of personal law freedoms.

 Muslim Law in India 

Muslim law, also known as Mohammadan Law, refers to the segment of Islamic law that regulates the personal matters of Indian Muslims.

Determining Who is a Muslim in India 

To apply Muslim law, it is essential to establish who qualifies as a Muslim in India.

Muslims can be categorized into two groups:

•  Muslims by Origin:  Those who are born into the Islamic faith.
•  Muslims by Conversion:  Individuals who formally convert to Islam.

 Muslim by Origin 

• A person who adheres to the fundamental principles of Islam is considered a Muslim. The basic tenets of Islam include:
  • The belief in the oneness of God.
  • Recognition of Muhammad as the prophet of God.
• Other essential beliefs in Islam encompass:
  • The Holy Book: The Quran.
  • Recognition of Hazrat Muhammad as the first Rasul (prophet).
  • Belief in the Day of Judgment (Kayamat) followed by life after death (Akhirat).
• If a person is born to Muslim parents, they are automatically considered a Muslim, and it is not necessary to prove strict adherence to Muslim beliefs. Merely observing some rituals from Hinduism or any other religion does not make that person a non-Muslim.
• Even if only one parent is Muslim, the child is still considered a Muslim. However, under general law in India, a child typically carries the religion of the father. Muslim law is not subject to modification by customs.

 Basic Tenets of Islam 

•  Unity of God:  The belief in the oneness of God.
•  Prophethood:  Recognition of Muhammad as the prophet of God.

 Other Essential Beliefs 

•  Holy Book:  The Quran.
•  First Prophet:  Hazrat Muhammad as the first Rasul (prophet).
•  Day of Judgment:  Belief in Kayamat (Day of Judgment) followed by Akhirat (life after death).

Muslims by Conversion

• A non-Muslim can become a Muslim by professing the faith, which involves acknowledging the oneness of God and the prophethood of Muhammad. This can also be done through formal ceremonies of conversion to Islam.
• Once converted, the individual is governed by the Shariat Act.
• According to Lord Macnaughten, professing Islam, with or without formal conversion, is sufficient to remove the legal disabilities associated with having another religion.

 Case Examples 

 1. Abdul Razak v. Aga Mohammad (1893) 

• A wealthy Muslim died without an heir.
• Abdul Razak claimed the estate, asserting he was the son of the deceased's brother.
• The brother had married a Burmese woman, Mah Thai, who was Buddhist. It was unclear if she converted to Islam before or after the marriage, though she recited Muslim prayers.
• The court ruled the marriage void under Muslim Law, making Abdul Razak illegitimate and ineligible to inherit.

 2. Resham Bibi v. Khuda Baksha (1938) 

• A Muslim wife sought to end her unhappy marriage by renouncing Islam and requesting the application of Muslim law on apostasy to dissolve the marriage.
• The judge ordered her to eat pork, which she refused, indicating her insincerity in apostasy.
• The court acknowledged that religious belief is a mental state, not a tangible entity, but still granted her request to dissolve the marriage.

Conversion to Islam

• Going to the mosque
• Affirmation to the Imam's questions, such as "Do you voluntarily accept Islam?"
• Recital of the Kalma
• The Imam may give a Muslim name to the convert.
• Registration in a book kept at the mosque.

 Conversion from One Sect to Another 

• Conversion from one Muslim sect to another does not constitute apostasy.
• If a convert does not practice the new sect's beliefs, they will still be considered a Muslim.

 Bonafide Conversion 

• Conversion should be genuine.
• In the case of  Skinner v. Order (1871) 14 MIA 309  , a Christian woman and a married Christian man converted to Islam through a ceremony to legalize their marriage.
• The court questioned the validity of the marriage, declaring it null and void due to deception.

 Fraudulent and Dishonest Conversions 

• Several cases of fraudulent and dishonest conversions have been brought before the courts.
•  Ram Kumari Case (1891)  : A Hindu woman converted to Islam for the automatic dissolution of her marriage and subsequently married another man.
•  Rakeyabibi v Anil Kumar (1948) 22 Cal 119  : A wife converted to Islam to escape her impotent husband.
• In both cases, the conversions were deemed not to be bonafide.

Effects of Conversion 

The effects of conversion can be discussed based on the following questions:

• How far can conversion change the existing rights and status of the convert?
• How far does Muslim law apply to the convert and their descendants?

 Rights and Status of Converts in India 

1.  Polygamy and Conversion 

• In the case of  Sarla Mudgal v. Union of India (AIR 1995 SC 1531)  , it was established that if a husband married monogamously and then converts to Islam, he is allowed to practice polygamy.
• However, if he takes another wife after converting, he could be charged with bigamy under  Section 494 of the Indian Penal Code (IPC)  , making the second marriage void.

2.  Conversion and Dissolution of Marriage 

• When one spouse converts to Islam, if the other spouse also converts within three months, the marriage remains intact.
• In India, a marriage cannot be dissolved solely on the grounds of one spouse converting to Islam.

3.  Application of Muslim Law to Converts 

• Upon conversion, a person is generally subject to Muslim law of succession.
• During the British period, various laws allowed individuals to be governed by custom after conversion. However, the  Shariat Act of 1937  prohibited the application of customary laws in place of Muslim Personal Law.

Shariat Act, 1937 

• Under  Section 2  of the Shariat Act, 1937, ten matters are specified where every Muslim is governed by Muslim law.
• These matters include marriage, dissolution of marriage, maintenance, dower, guardianship, gifts, trust and trust properties, and wakf.
• Exceptions include agricultural lands, charities other than wakf, and charitable and religious endowments.
• In certain cases, a convert may still be governed by customs, such as in matters of adoptions, wills, and legacies unless a declaration is filed to be governed by Muslim law.
• For example, communities like  Khojas, Boharas, Kacchi and Halai memons, and Girasias of Broach  were governed by custom before the Shariat Act.

History of Converts in India 

1.  Khojas 

• Originally a trading class of  Hindus  from  Sind  and  Cutch  , the Khojas underwent wholesale conversion after the conquest.
• Their leader, Aga Khan, is believed to be the final interpreter of the religion after the Prophet, with their religious book being  Desaavatar  .
• The Khojas are divided into three sects: Ismaili, Ithana Ashari, and Hanafi.
• Before the Shariat Act, their inheritance and succession were governed by custom. Now, intestate succession is under Muslim law, while testamentary succession is under customary law, allowing Khojas to will their entire property.

2.  Boharas 

• Originally Hindus, the Boharas are now Ismailis from  Gujarat  , primarily traders and businessmen.
• They are divided into  Daudis  and  Sulaymanis  , with the head of the Bohara community being  Dai-Mutlaq  , who authored the holy book  Da’imce I-Ilam  .
• Before 1937, the Boharas were governed by custom for inheritance. Now, intestate succession is under Muslim law, while testamentary succession is under custom.

3.  Memons 

• Originally Hindus from  Porbandar  and  Kathiawar  (Halai Memons) and  Cutchi Memons  from  Cutchi  , the Memon community saw changes in their governance over time.
• Prior to 1920, Cutchi Memons were governed by Hindu law of succession, while other matters were under Muslim law.
• The  Cutchi Memon Act, 1920  allowed them to adopt Muslim law of succession by declaration.
• After the Shariat Act, the Cutchi Memon Act 1938 established that they are ruled by the Hanafi school for inheritance, while Halai Memons are now purely under Muslim law.

4.  Mapillas 

• South Indian Mapillas are governed by the  Mapilla Succession Act, 1918  and  Mapilla Wills Act, 1928  , which applied Muslim law even to succession.
• However, these laws do not apply to Mapilla Tarwad, which is governed under the  Mapilla Marumakkattayam Act, 1939  .
• Once a tarwad is partitioned, the partitioned shares are governed by Muslim law of succession.

5.  Kashmiri Muslims 

• Kashmiri Muslims are not subject to the Shariat but observe customary Muslim law.
• This includes the right of a widow to inherit her husband’s estate during her lifetime, the exclusion of other daughters from inheriting their father’s property, and the rights of an adoptive son in the property of his adoptive father.
• The  Shri. Pratap J&K Law (Consolidation) Act, 1977  codified these customs.

6.  Muslim Tribes of Punjab & Haryana 

• Customary succession laws applied to marriage, minority, divorce, adoption, guardianship, special property of females, will, gift, and partition.
• However, Shariat law now applies to these matters.

7.  Governance by Customary Laws 

• A convert may still be governed by  customary laws  in matters not covered by  Sections 2 and 3  of the Shariat Act.
• For example, the concept of  ancestral property  is applicable to Muslims of Punjab and Haryana.

8.  Agricultural Land and Shariat Act 

• Section 2 of the Shariat Act excludes agricultural land.
• However, in  Andhra Pradesh  ,  Kerala  , and  Madras  , the Shariat is applicable to agricultural lands as well, similar to religious institutions.

9.  Repeal of British Statutes 

• Several British statutes have been repealed by the Shariat Act.

10.  Cessation of Muslim Identity 

• If a Muslim converts to another religion or renounces Islam, he ceases to be a Muslim.