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What Every Indian Should Know About Muslim Law

February 09, 2017
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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 are those laws which are enacted by the rulers or legislation.

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.

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.

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.

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.

Sunni School

Shia School

Concept of Marriage in Muslim (Nikah)

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]

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

What Makes Islam Different from other Religions

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.

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 –

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.

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.

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 –

Essentials of a Wakf

Persons Entitled to Make a Wakf

Classification of Dissolution of Marriage

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 of the Wife

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.

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

Discrimination in Various Personal Laws

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

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

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.

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

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

Suggestions

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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