Muslim personal law

In this blog post, Upasana Chamkel, from Balaji Law College, Pune, talks about everything that every Indian should know about Islamic Law.

“Islam is a religion of mercy to all people, both Muslims and non-Muslims.The Prophet was described as being a mercy in the Quran due to the message he brought for humanity”

“And we have not sent you but as a mercy to all the worlds.” (Quran)

Islamic Law is a branch of Muslim theology giving practical expression to the faith which lays down how a Muslim should conduct in accordance with his religion, both towards God and towards other men.

According to Prophet Mohammad, the Muslim Law is a commandment of God and the sovereign in the Muslim states and it is his (Muslims) duty to follow it literally.

Islam means peace by submission and obedience to the will and commandments of God and those who accept Islam are called Muslim, meaning, those who have accepted the message of peace by the submission of God.

The Islamic Era

Islam in the religious sense connotes a submission on the will of God and in literal sense it means – peace, greeting, safety and salvation. Islamic society is not based on caste distinctions or accident of birth in a particular family.

Under Islam, excellence consists only in deeds and here worship of God means service of fellowmen and the good of humanity. The duties of a man are more important than his right.

It is said – God will not be merciful to him who is not merciful to men and all creation is the family of God, and all creation, the most beloved of God is he who does most well to his family.

Nature of Muslim Law

  • Man-Made Laws

Man-made laws are those laws which are enacted by the rulers or legislation.

  • Divine Laws

Divine Laws are certain principles in accordance with which we are compelled to act because God desires to do so.

Sources of Muslim Laws

The Muslim Law has been derived from various primary as well as secondary sources.

  • Primary Sources
  • Quran
  • The word Quran is derived from the Arabic word “Quran” and properly signifies the reading or that which ought to be read.

Each and every word used in the book is Quran. Quran was revealed during the last 23 years of the life of the Prophet of Islam at Mecca and Medina.

  • Sunna or Ahadees
  • Ahadees is what was said by Prophet and Sunhat is his practice and action. Whatever the Prophet said or did without reference to God is treated as his tradition and is the second source of Muslim law.
  • Ijma
  • Ijma means the agreement of the Muslim jurists of a particular age on a particular question of law. In other words, it is the consensus of jurists’ opinion. Persons having knowledge of law were called Mujtahids (jurists).
  • Qiyas (Analogical Deduction)
  • It is fourth among the ancient sources of Islamic Law. The law may be deduced from what has been already laid down by these three authorities by the process. It was a method of comparing the problem of society with a similar problem for which solution was given in the texts.
  • Secondary Sources
  • Judicial Decision (Precedent)
  • The subordinate courts are bound to follow the laid down by the superior court. This is called the principle of precedents and is followed in India on the pattern of the British courts.

Muslim Law is no exception to this judicial practice and therefore, a point of law decided by the Supreme Court or a High Court of India becomes a source of law for the courts subordinate to them.

  • Legislation
  • It is generally believed in Islam that Allah alone is the supreme legislator and no other agency or body on the earth have authority to make laws. This belief is so deep–rooted that even today any legislative modification may be treated as an encroachment upon the traditional Islamic Law.
  • Custom (URF)
  • When Islam came into existence most of the customs were found by the Prophet to be evil and bad.

Such bad customs were totally abolished by him and he declared them to be Un- Islamic but there were certain Pre-Islamic customs (dower, talaq etc) which were good and tolerable.

  • Schools of Muslim Law
  • The death of Prophet Mohammad in 636 A.D., a dispute arose in the Muslim community regarding the appointment of a successor to the Prophet because the Prophet had not nominated his successor.
  • A great majority of Muslim suggested that there should be an election for the successor of the Prophet.
  • This view was advocated by Ayesha begum, the youngest wife of the Prophet. This section of the Muslim society pleaded for elections, a method of finding out the successor of the Prophet, also because the Prophet himself had suggested election.
  • The Prophet’s suggestions or sayings are called his traditions (Sunnat).
  • Accordingly, an election was held in which Abu Bakr, who was the father of Ayesha Begum, was elected and became the first Caliph.
  • This group of Muslims, with its leader Abu Bakr, formed the Sunni sect of Islam.
  • There was a minority section of Muslim who did not agree to the principle of election. That group emphasized upon the spiritual headship of the Prophet rather than his administrative control.
  • This minority group was represented by Fatima, daughter of the Prophet.
  • This section of the Muslims rejected the election and relied upon the principle of succession.
  • They dissociated themselves from the majority and constituted a separate sect called Shia.

Sunni School

  • Hanafi School or Kufa School
  • Maliki School or Medina School
  • Shafi School
  • Hanbali School

Shia School

  • Ithna Asharia or Twelvers
  • Ismaili School
  • Khojas (Eastern)
  • Bohras (Western)
  • Zaidiyas School or Seveners

Concept of Marriage in Muslim (Nikah)

  • Nikah literally means ‘tie up together’. As against the uncertain relationship of the husband and wife in Pre-Islamic society, Islam introduced marriage (Nikah) in which the husband and wife are bound together for an indefinite period.
  • Man and woman agree together to lead married life and this agreement is called Nikah (marriage) and the two parties accept the responsibilities and obligations and thus live together as husband and wife.

Quran lays down this condition in very clear words:

Marry the women who seems good to you – two or three or four. If you fear that you cannot do justice to so many, marry one only.[1]

  • Legal Aspects
  • That polygamy is neither mandatory nor encouraged but is merely permitted.
  • Like the contract, the parties to the marriage must be competent.
  • Like the contract, the Muslim marriage requires the condition of the proposal (Ijab) and the acceptance (Kabul).
  • Consent of the parties is an essential ingredient for a contract. In Muslim marriage also a free consent of the parties to a marriage is required.

In other words, the marriage should not be induced by coercion or undue influence or fraud.

  • Consideration has also been regarded as the essential ingredient for a valid contract. In Muslim marriage, dower is regarded as the consideration for the contract of marriage.
  • Like a contract, the terms of a marriage contract, within legal limits, may be settled by the parties themselves.
  • Just as there are rules for regulating the rights and duties of the parties upon the breach of a contract, there is also a provision for respective rights and duties of husband and wife on divorce or dissolution of marriage.

What Makes Islam Different from other Religions

  • The Muslim Personal Law (Shariat) Application Act, 1937

The object of the Act is, as its Preamble states, to make provision for the application of the Muslim Personal Law (Shariat) to Muslims in India.

  • The Act came into force on 7th October 1937.
  • Since 1937 therefore, the Shariat Application Act mandates aspects of Muslim social life such as marriage, divorce, inheritance and family relations. The Act lays out that in matters of personal dispute, the State shall not interfere.
  • The Shariat Act, The Dissolution of Muslim Marriage Act and the Muslim Women (protection of Rights on Divorce) Act etc, which are based on the tenets of Holy Quran, govern the personal matters of Muslims.

Thus, it is clear that there is no uniformity in all personal laws as they confer unequal rights depending on the religion and the gender.

The common areas covered by a civil code include – laws related to acquisitions and administration of property, marriage, divorce and adoption. The three central statutes were also passed during the British period. They are –

  • The Wakf Act, 1913
  • The Muslim Personal Law (Shariat) Application, 1937
  • The Dissolution of Muslim Marriage Act, 1939

In 1937, the Muslim Personal Law (Shariat) Application Act was passed with a view to abrogate these customs and bring Muslim communities under the Muslim Law.

  • Law of Wakfs
  • The institution of Wakf or the provision of the dedication of property – movable or immovable – for religious purposes and for Wakf the uplift of the poorer sections of the society have been a distinguishing feature of the socio-economic structure of Islam.

Devotion to the way of God or the way of goodness or piety and a strong desire to win divine approbation has been the root cause of the origin and development of the institution.

  • The term Wakf means detention stopping or tying up. In its legal sense, it means dedication in perpetuity of some specific property for a pious purpose or a succession of pious purposes.
  • Wakf means the permanent dedication by a person professing Islam of any movable or immovable property for any purpose recognized by Muslim Law as pious, religious or charitable and includes any other endowment or grant for the aforesaid purpose, a Wakf by a user and a Wakf created by a Non-Muslim.

Definition of Wakf

Section 3(r) of the Wakfs Act, 1995 defines it as follow:

Wakf means the permanent dedication by a person professing Islam, of any movable or immovable property, for any purpose recognized by the Muslim Law as pious, religious or charitable, and includes –

  • A Wakf by user but such Wakf shall not cease to be a Wakf by reason only of the user having ceased irrespective of the period of such cesser,
  • Grant for any purpose recognized by the Muslim Law as pious, religious or charitable, and
  • A Wakf-alal-aulad to the extent to which the property is dedicated for any purpose recognized by Muslim Law as pious, religious or charitable.

Essentials of a Wakf

  • Wakf must be perpetual or permanent dedication.
  • Wakf must be irrevocable.
  • Wakf must be absolute and unconditional.
  • Wakf must be immediate and not contingent.
  • Wakf not to be conditional.
  • The Wakf must extinguish his ownership of the property.
  • Object must be religious or charitable.

Persons Entitled to Make a Wakf

  • The Wakf must profess Islam.
  • The Wakf may be a male or female.
  • The Wakf must be a major.
  • The Wakf must be of sound mind and free consent.
  • The Wakf must be the owner of the property.
  • Divorce (Talaq)
  • Among almost all the nation of antiquity, divorce was regarded as a natural corollary of marital rights.
  • Even though the provision of divorce was recognized in all religions, Islam is perhaps the first religion in the world which has expressly recognized the termination of marriage by way of divorce.
  • Prophet Mohammad restrained the power of divorce and gave to the women the right of obligation separation on reasonable grounds.
  • Talaq in its original sense means repudiation or rejection but under Muslim Law, it means a release from the marriage tie, immediately or eventually.
  • Under the Muslim Law, a marriage is dissolved either by the death of the husband or wife or by divorce. After the death of a wife, the husband can dissolve.
  • The Marriage tie at his will. A divorce can also take place by mutual agreement but the wife cannot divorce herself from her husband without his consent.

Classification of Dissolution of Marriage

  • By death of a party to the marriage
  • By divorce
  • By husband
  • By Wife
  • By mutual consent
  • By judicial decree under dissolution of Muslim Marriage Act, 1939
  • By Husband
  • Talaq-ul-sunnat
  • Ahsan
  • Hasan
  • Talaq-ul-biddat
  • Written divorce
  • Triple divorce
  • Ila
  • Zihar
  • By Wife
  • Talaaq-i-tafweez
  • Lian
  • By Mutual Consent
  • Khula
  • Mubarat
  • By Judicial Divorce
  • The husband is missing for 4 years.
  • Husband’s failure to maintain the wife for 2 years.
  • Imprisonment of the husband for 7 years.
  • Husband’s failure to perform marital obligation for 3 years.
  • Impotency of the husband.
  • Husband insanity, leprosy or venereal disease for 2 years.
  • Repudiation of marriage or option of puberty.
  • Cruelty by the husband.
  • Any other ground which is recognized as valid for the dissolution of marriage under Muslim Law.

Judgement

Recently in Shaira Bano Case, Talaq-e-Bidat is a challenge which gives a man the right to divorce his wife by uttering Talaq three times without waiting for her consent on the matter. And Allahabad high court held Triple Talaq unconstitutional, says – no personal law board is above constitution.

  • Maintenance (Nafkah)
  • The obligation of a husband to maintain his wife arises out of the status of the marriage. A right to maintenance forms a part of the personal law.
  • Muslim Law of maintenance which is enforceable in India is based on the Muslim personal law laid down by the courts and law incorporated in the encasements such as the criminal procedure code, 1973 and the Muslim women (Protection of Right on Divorce) Act, 1986.
  • Maintenance includes all the basic necessities of life which is required by a person for the sustenance of his or her life.
  • The obligation of the husband to maintain his wife is absolute, irrespective of the fact that the wife bears a sound financial position and he is not in a position to maintain her.

Maintenance of the Wife

  • Maintenance of wife under Section 125 of Cr.P.C 1973,
  • The Muslim wife’s right to maintenance is determined not only under her personal law but also under her personal law but also under the Cr.P.C.
  • A wife, whether Muslim or Non-Muslim, is entitled to claim maintenance against the husband under Sec. 125 of the Cr.P.C.
  • Section 125[1] of the Cr.P.C., 1973 runs as follows
  • If any person having sufficient means neglects or refuses to maintain
  • His wife, unable to maintain herself, or
  • His legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
  • His legitimate or illegitimate child (not being married daughter) who has attained majority where such child is, by reason of any physical or mental abnormality or injury, unable to maintain itself, or
  • His father or mother, unable to maintain himself or herself.
  • Maintenance of divorced women under Muslim personal law
  • A Muslim husband’s duty to maintain his divorced wife extends only up to the period of Iddat and thereafter, his liability is over.
  • A wife’s right to be maintained by the husband has been recognized by all personal law in varying degrees.
  • The Muslim women (Protection of Rights on Divorce) Act, 1986
  • The Act extends to the whole of India and makes provisions for the maintenance of divorced Muslim women during and after the period of Iddat and also for enforcing her claim to unpaid dower and other exclusive properties.
  • Adoption

Adoption is the transplantation of a son from the family, in which he is born, into another family by gift made by his natural parents to his adopting parents.

Islam does not recognize adoption but any person can adopt a child under the Juvenile Justice (Care and Protection of Children) Act 2000 irrespective of religion he or she follows and even if the personal laws of the particular religion do not permit it.

  • Uniform Civil Code in India
  • In India, there had never been an Indian personal law. Instead, there are several personal laws, application to various religious communities i.e. the Hindus, Muslim, Christian, Jews and Parsees.
  • Each of this is known as the personal law of the particular community and covers matters of the personal relationship like marriage, adoption, inheritance and succession, maintenance and guardianship.

Two major personal laws in India are the Hindu and the Muslim.

  • The Constitution enjoins upon the state to Secure for the citizen a uniform civil code throughout the territory of India.
  • The bone of contention revolving around Uniform Civil Code has been secularism and the freedom of religion enumerated in the Constitution of India.

Discrimination in Various Personal Laws

  • Monogamy:

Under Muslim Law, polygamous marriage for Muslim male is valid while for Hindus, Parsis, Christian, monogamy is an essential condition for valid marriage.

  • Extra-Judicial Divorce:

A Muslim male can give extra-judicial divorce; Hindu, Parsis and Christians can effect divorce only through court.

  • Divorce:

A Muslim man can give divorce to wife at whim or pleasure but under Hindu, Christian and Parsi law divorce, a wife can be divorced only on grounds mentioned in their respective laws.

  • Husband’s Apostasy:

Automatic dissolution of Muslim marriage- this provision is not applicable to wife.

  • Maintenance:

Under Muslim Law, wife is entitled to maintenance during the Iddat period only while other laws allows a post-divorce permanent alimony.

  • Judicial Decisions
  • In case of Mohammad Ahmed Khan v. Shah Bano Begam[2], a petition was filed by Shah Bano under Section 125 of the Criminal Procedure Code against her husband. Supreme Court upheld that a Muslim wife has a right under Section 125 of the Criminal Procedural Code. Hence, Section 125 overrides the personal law.
  • In Ahmadabad Women’s Action Group (AWAG) V. Union of India[3], a PIL was filed challenging gender discriminatory provisions in Hindu, Muslim and Christian statutory law. This time Supreme Court became a bit reserved and held that the matter of removal of gender discrimination in personal laws involves issues of state policies with which the court will not ordinary have any concern.

Suggestions

  • Polygamy should be banned.
  • Compulsory registration of marriage.
  • Recognition of women as a natural guardian.

Conclusion

Justice without equality was not palatable to the framers of the constitution. Secularism, justice, liberty, equality and fraternity are all inseparable from one another.

The notion that all secularism consists of equal status to all religions which can continue to include all aspect of life finds an echo in the reassurance sought or given that a Uniform Civil Code will embody what is best in all personal laws, rather than demanding that the Uniform Civil Code should confer the best possible rights on citizens.

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References –

[1]Quran Sura IV, Ayat, 3.
[2] AIR 1985 SC 945
[3] AIR 1997 SC 3614

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