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The article seeks to introduce the reader to the specific aspects of the Muslim Law as practised in India. It discusses in detail the source of the said body of law, their application and briefly mention areas which require reform. The Article also tries to situate the topic in relation to the current socio-political scenarios that exist in the country.
In India, the term Muslim law applies to the personal matters concerning that section of the Indian society composed of people following Islam. Hence the Muslim personal law governs the institutions of marriage and divorce, adoption, succession and charity in the Indian Islamic community.
The various aspects of the Muslim law were recently thrust into the limelight when debates started heating up once again regarding the ever-present question concerning the imposition of a Uniform Civil Code.
Uniform Civil Code as the term itself suggests aims to codify the currently existing diverse communal laws into single overriding legislation in accordance with the fundamental principles enshrined in the Indian Constitution.
However, the introduction of the code is fraught with several difficulties as these different that we currently in vogue originates in the religious statutes and several sections of the society especially the minority communities feel that it will eventually turn out to be a guise under which they will be subjected to the majority community’s norms.
This probability for the development of potential friction between one community and the mainstream society is especially pronounced in the Muslim world, where a unique codified judicial system which evolved out of the special Social-cultural norms and religious beliefs of the community, unlike their compatriots belonging to other religious groups.
This endemic judicial system is popularly known as the Sharia law which is the governing legislation in most of those countries who has made Islam their state religion such as Afghanistan Pakistan and Saudi Arabia.
Sources of Muslim Law
Though Islam is considered monolithic religion divisions exist on the basis of several sub sectarian practices. The most widely known of such a division Is between the Schools of Shia and Sunni. Correspondingly, the Islamic law as practised in these communities exhibits subtle variations.
- Sunni School
There are four authorities for Islamic law according to the Sunni School of thought which are
- The Quran
- Haadis or Sunnat
The Quran: The Quran is the Holy book of the Islamic population and is imposed to be of divine origin. Therefore the provisions and verses of the scripture are of inviolable and of sacred nature. Of the total of about a 6000 verses, only about 200 of them dispenses with legal matters of which 80 are dealing with matters of civil nature such as marriage, inheritance, divorce etc.
Sunna or Haadis: The next most important source of the Muslim law is Sunna r Haadis which are the collection of the words and deeds of Prophet Muhammad, the founder of the Islamic religion. These were codified in different compositions or compilations each adhered to by different sects. Among the Sunnis, the accepted compilations are those of Bukhari’s, Muslim, Ibn-e-Majh, Abu Dawood, Nasi.
Ijma: It is the third authority on Islamic law which crudely translate to consensus of jurists which means that if highly qualified Islamic scholars agree on a matter which is not in contravention with the fundamental values propounded by the preceding two sources, that particular consensus so reached becomes the law binding on the entire community.
Such consensus is usually applied in emerging and evolving social realities which may not have a base or precedent in the existing sources of defined authority such as the Quran and Haadis. These are responses to Societal realities as demanded by time and context. Such application of discretion is done as per the doctrine of ‘ijtihad’.
It emphasizes the individual’s obligation to use his logical faculties to arrive at a conclusion where the principle is silent. However, such an exercise should be open only to people who are well versed in the substance of the Quran and Hadith.
Qiyas: After ijma, the next important source of Islamic law source is the ‘Quiyas ‘ which is the application of some texts if the case can be demonstrated to be governed. The reasoning, in this case, is largely derived from drawing analogy.
In the Shia school, the authorities of law are Quran, Hadith and the dictums of Imams. They did not accept the Sunni view of considering Quiyas as an acceptable source of law. Besides the Shias does not support those Haadis compilations which emanate from households not related by blood to the prophet himself. Thus they follow only compilations such as AL-Kafi, and Tahdhib -UL-Abham as most authentic of all collections.
Muslim Personal Laws
Wakaf Acts; Concerning Property
The corpus of laws which can be labelled as Muslim laws has antiquity which begins during the time of British rule. Important legislation which was thus passed was the ‘Mussalman Wakaf Act’ enforcing a large number of rules and regulations relating to the management of Wakaf properties which mandated that the proper accounts and audits should be maintained to track the transactions concerning the properties. Several complimentary Provincial Acts were passed subsequently. Currently, the local Acts is applicable along with the Central Wakaf Act.
Shari-at Act 1937
It is the Shariat Act that consists of only six sections that regulate the application of Muslim personal law in India. Section 2 lists those matters which among Indian Muslims shall be invariably governed by the Muslim Personal Law. These include interstate succession, special property females, gift, marriage, various forms of dissolution of marriage, dower, guardianship, maintenance, trusts, trysts properties and Wakafs.
However matters concerning agriculture land, charities charitable institutions and charitable organization and religious endowments are excluded from its purview. They were excluded as they overlap with the existing state legislation.
According to section 3 of the Act, the following is also covered in its purview; adoption, wills, and legacies provided the concerned individual consent to be governed by the statutes of the Act.
The Wakf Act,1954
Wakf Act was one of the important legislation that was passed by the parliament of independent India in the year 1954 concerning the Muslims. The Act was aimed at improving the administrative practices with regard to Wakf boards. Accordingly, the law provides for constitution of a Wakf board in every state.
Muslim Marriage Dissolution Act
The Act objective is to ” consolidate and clarify the provisions of Muslim relating to suits for dissolution of marriage by women married under the Muslim law and to remove doubts as to the effect to the renunciation by the married Muslim woman on her marriage tie”.
Section 2 of the Act provides woman married under the Muslim law to obtain a decree of dissolution on various grounds on the side of husband such as cruelty, lack of correspondence, neglect, imprisonment for a period of 7 years or more, failure to perform marital obligations for more than 3 years, insanity for a period exceeding 2 years or in case marriage solemnized when she was minor(below 15).
Lately, there had been demands for the codification of these individuals Acts into one coherent whole. However, the attempts were met with strong oppositions out of fear that such efforts will inevitably lead to innovations and additions which are not appreciated by a large section of the community.
Nonetheless, experts are of the opinion that codification may result in better uniformity in legal matters across the Indian Muslim community by overriding the customary laws which are often against the spirit of Islamic law.
In addition to Shariath Act, there are some special laws applicable to specific subsections of the group. As is the case with the ‘Mappila’ Muslims of Malabar relating to the maintenance of the joint family property. The lack of codification leads to ambiguity and misinterpretation which has even come to affect court judgments.
Marriage under Islamic law
Marriage is not an optional life vacation in Islam but is the only choice as it strictly prohibits celibacy. Unlike in most other religion marriage is not accorded the status of the sacrament but simply a contract; an Ibadat or Muamalat, however as per some experts the nature of the marital contract is different from that of a civil contract as it cannot be concluded on the basis of future happenings. Neither can it be done for a fixed period. Muta marriage is an exception to this case.
According to Islamic law the essentials of marriage are;
- There should be a proposal made by or behalf of one party to the marriage and acceptance of the proposal by on or behalf of the other party.
- The proposal and acceptance must both be expressed at once meeting.
- The parties must be competent
- There must be two male or one male and two female witnesses, who must be sane and be present there at the time of marriage proposal and acceptance.
- Neither writing nor any religious ceremony is necessary.
Polyandry is strictly prohibited but polygyny is allowed under special circumstances.
Divorce Under Muslim Law
Under Muslim law, divorce may take place by the Act of the parties themselves or by a decree of the court of law. Accordingly, the valid reason for which parties may opt for divorce is the inability to live together. A divorce can be initiated either by the man or woman.
A husband may divorce his wife by repudiating the marriage without citing any reason and such acts of divorce are broadly labelled as ‘Talaq’.
Thus pronouncement of such word implying the husband’s intent is enough in this case. The Wife cannot divorce her husband on her own but can do so if the husband delegates her the right to do so. Such woman initiated divorces are called ‘Khula’ or ‘Mubarat’.
Prior to the enactment of the Dissolution of Muslim marriages Act the woman had no right to seek divorce except on grounds of false accusations of adultery, insanity or impotency of husband. The Act resulted in making divorce possible for several other causes through a court order.
Inheritance under Muslim law.
According to the Islamic law, the son get double the share of the sister whenever the two jointly inherit.
The wife is eligible to receive one-eighth of the share where there are children and one-fourth in case of no-children. In case of more than one-wife the one-eighth is divided equally among them. The husband succeeds in one-fourth of the wife’s property in case of children and half the property if there are no children on the death of his wife.
In the case of a daughter, the only household all the daughters are to get equal shares of two-third of the property. If the household has only a single girl child she inherits half of the property. One-sixth of the dead child’s property goes to the mother if there are grandchildren one -third of the property in the absence of any grandchildren.
Special property; ’Mahr’
Mahr is the total money or property that is to be given to the wife by the husband at the time of ‘Nikah’.It can be given on the very date of the marriage or after a pre-fixed period.
Hiba; Gift under Muslim Law;
Any property can be transferred as a gift. For this purpose, the giver has to make declaration expressing his wish to make one such and it should be accepted by the receiver.
The question of whether a Uniform Civil Code be applied to the entire Indian population is still a matter of much debate and deliberation and is best left to a final settlement by the judiciary and as per the laws of the land. However, this does not mean that civil society must abstain from engaging in meaningful and informed discussion.
The main point to note here that such discussion must involve all the relevant stakeholders so that the intended beneficiaries are actually heard for. Only such a democratic process will be valid and acceptable to the concerned parties, a fact that has been illustrated through various incident throughout human history.
What this effectively means that the reforms should not be imposed from above but it should evolve organically from within the community. And the state’s role here is that of a facilitator rather than an aggressive proponent.
- History of Muslim Personal Law by K Abdul Rahman
- legalservicesindia.com (provisions of Muslim law )
- Shariat Application Act,1935 (text)