This article is written by Oishika Banerji of Amity Law School, Kolkata. This article provides a detailed discussion of the Muslim Personal Law (Shariat) Act, 1937.
The partition of India in 1947 not only divided India into two independent domains but also changed the laws applicable to the nation entirely. Before the 1947 partition, the subject matters of inheritance, succession, marriage, divorce, family relationship, and dower were regulated under the able guidance of the religious laws whose roots existed in the age-old customs. Such laws were often subjected to alteration by various legislations due to the underlying ideologies framing such kinds of laws. The reason behind the promulgation of the Muslim Personal Law (Shariat) Act, 1937 was to erase the customary exercises existing with regards to the Muslims. Previously, this Act was not applicable in the North-West Frontier Province as they had their own legislation with divergent traits by the name of NWFP Muslim Personal Law (Shariat) Application Act, 1935. But as of now, the Act of 1937 extends to the whole of India as has been provided under Section 1(2) of the Act. This article aims to provide a detailed analysis of this Act of 1937.
The Muslim Personal Law (Shariat) Act, 1937
The Muslim Personal Law (Shariat) Act, 1937 is a short statute with five provisions only. With each provision holding its own significance, individual analysis of each of them stands relevant. The scheme of the Act of 1937 is provided hereunder:
- Section 1: Short title and extent
- Section 2: Application of Personal Law to Muslims
- Section 3: Power to make a declaration
- Section 4: Rule-making power
- Section 6: Repeals
Application of the Act, 1937
Section 2 of the Muslim Personal Law (Shariat) Act, 1937 talks about the application of Personal Law to Muslims. The provision reads as “Notwithstanding any customs or usage to the contrary, in all questions (save questions 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, illa, zihar, lian, khula and mubaraat, maintenance, dower, guardianship gifts, trusts 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 provision thus covers ten subject matters within its umbrella which are:
- Intestate succession;
- Dissolution of marriage that also includes all kinds of divorce as well namely talaq, illa, zihar, lian, khula, and mubarat;
- The special property of the females;
- Trust, and its associated properties; and
In order to interpret this provision, two essential phrases present in this Section needs to be highlighted, which are:
- “Notwithstanding any customs or usage to the contrary”, and
- “Shall be the Muslim Personal Law (Shariat)”.
These two phrases complement each other, and one loses its meaning in the absence of the other. This is because a harmonious construction between the prevalent custom, and the law of the land have been adopted by this legislation so as to provide necessary importance to both of them. Before delving into the objective of this provision it is necessary to point out the reason behind the existence of such a Section in the Act. As has been discussed previously, the underlying principle of this Act is to eliminate the governing role of religious and customary laws by means of legislative enactments in order to avoid a rise in discriminatory laws. Thus with the introduction of the Muslim Personal Law (Shariat) Act, 1937, such goals have been aimed to be achieved. Section 2 incorporates this reason behind the formulation of the Act thereby mandating the application of the Muslim Personal Law (Shariat). This mandating nature will thus bound the Indian courts to administer only Muslim Law whenever disputes arise in the case of the subject matters provided in this provision. It is to be noted that Section 2 does not talk about adoption, legacies, and wills. This, therefore, does not bound the courts to apply Muslim Law in such cases.
But, this provision comes with its own detriment which is included in the provision itself. Section 2 expressly excludes the domain of agricultural land from its ambit and from the scope of the entire Act thereby reinforcing the inheritance customs that categorically excluded women from being entitled to inherited agricultural land and therefore, women continued to be deprived of their legitimate share on agricultural lands as was provided under the Islamic Law. While the male heirs continued to enjoy their inherited share of agricultural land, the female heirs remained shadowed. The exclusion of agricultural land from the scope of the Act obstructs the Act from achieving its purpose. With the purpose of the Act getting nullified, replacing customs with legislative enactments has no role to play.
Section 3: Power to make a declaration
Section 3 just like Section 2 of the Act categorically excludes females to make a declaration regarding obtaining benefits from agricultural land. The provision reads as,
“(1) Any person who satisfies the prescribed authority
(a) that he is a Muslim, and
(b) that he is competent to contract within the meaning of section 11 of the Indian Contract Act, 1872 (9 of 1872), and
(c) that he is a resident of [the territories to which this Act extends],
may by a declaration in the prescribed form and filed before the prescribed authority declare that he desires to obtain the benefit of [the provisions of this section], and thereafter the provisions of section 2 shall apply to the declarant and all his minor children and their descendants as if in addition to the matters enumerated therein adoption, wills and legacies were also specified.
(2) Where the prescribed authority refuses to accept a declaration under sub-section (1), the person desiring to make the same may appeal to such officer as the State Government may, by general or special order, appoint in this behalf, and such officer may, if he is satisfied that the appellant is entitled to make the declaration, order the prescribed authority to accept the same.”
Section 3 of the Act talks about the power to make a declaration. Now, in order to use this power, a person should satisfy three criteria provided by this provision, which are;
- The person has to be a Muslim;
- The person is competent (under the meaning of the term provided in Section 11 of the Indian Contract Act, 1872) to enter into a contract; and
- The person is a resident of India.
The point to be noted in this provision is that all the provided parameters need to be abided by in order to exercise the power vested under Section 3 of the Muslim Personal Law (Shariat) Act, 1937. As we have discussed as to who can avail the power, it is important to understand the consequence that comes with the usage of this power. Section 3 acts as a tool for ensuring mobility of Section 2 of this Act. The Section provides that an individual after abiding by the prerequisites of the provision can declare his desire to acquire the benefit of the provision followed by which Section 2 will be applicable to the declarant of such benefit along with all his minor children and their descendants.
Section 3 also covers a few subjects that Section 2 has not talked about. They include wills, legacies, and adoption. By doing so, the provision provides discretion for the courts to apply Muslim Law in such subjects only if a Muslim declares that he wants to be ruled by the provisions of the Shariat Act, 1937 as he will be for the rest of the ten subjected provided under Section 2 of the Act. Such a declaration should be made in a prescribed form before the prescribed authority and will be governed by the procedure provided under Section 3(2), and Section 4 of the Shariat Act, 1937. As Section 3 provides the power to make a declaration, to a Muslim to be governed by the Muslim Law, in absence of such declaration, the provision provides an implied power to the courts to not be bound by such law while deciding a matter ruled by Section 2, and 3 in dispute.
The rule-making power of the State Governments under the Act of 1937
Section 4 of the Muslim Personal Law (Shariat) Act, 1937 vests the rule-making power in accordance with the provisions and the purpose of the Act on the State governments. The Section reads as,
“(1) The [State Government] may make rules to carry into effect the purposes of this Act.
(2) In particular and without prejudice to the generality of the foregoing powers, such rules may provide for all or any of the following matters, namely:
(a) for prescribing the authority before whom and the form in which declarations under this Act shall be made;
(b) for prescribing the fees to be paid for the filing of declarations and for the attendance at private residences of any person in the discharge of his duties under this Act; and for prescribing the times at which such fees shall be payable and the manner in which they shall be levied.
(3) Rules made under the provisions of this section shall be published in the Official Gazette and shall thereupon have effect as if enacted in this Act.
(4) [Every rule made by the State Government under this Act shall be laid, as soon as it is made, before the State Legislature].”
This provision along with Section 3 of the Act of 1937 governs the procedure for a declaration by a Muslim as provided under Section 3 (1). The prescribing authority and the fees that need to be submitted before such authority for filing of declaration need to be decided by the State governments. It is to be noted that the Act of 1937 is Central legislation and at the time of its promulgation, it could not have been made specifically for the states. Because of this, the Act appears to be flexible enough to incorporate the rule-making power of the state government in accordance with the needs of the Muslims of that state, provided the purpose of the Act should by no way stand defeated.
Repeals under the Muslim Personal Law (Shariat) Act, 1937
Section 6 of the Shariat Act of 1937 talks about repealing certain provisions of a few statutes which appears to be inconsistent with the provisions of the Shariat Act of 1937. These Acts vested authorities on the courts of India to implement Muslim Law before the Shariat Act of 1937 was promulgated. These Acts were:
- Section 26 of the Bombay Regulation 4 of 1827;
- Section 16 of the Madras Civil Courts Act, 1873 (3 of 1873);
- Section 3 of the Oudh Laws Act, 1876 (18 of 1876);
- Section 5 of the Punjab Laws Act, 1872 (5 of 1872);
- Section 5 of the Central Provinces Laws Act, 1875 (20 of 1875); and
- Section 4 of the Ajmer Laws Regulation, 1877 (Regn. 3 of 1877).
The Muslim Personal Law (Shariat) Act, 1937 being a Central legislature enactment could not consider making state laws as the same existed beyond its legislative competence. Therefore, relevant subject matters such as agricultural land, charities, and charitable endowments were left alone. This has three implications which are:
- The Act failed to achieve its purpose of ensuring equal rights to both males and females which were restricted on the application of customary laws.
- When there arise disputes concerning these three subjects of agricultural land, charitable endowments, and charities, courts will not be able to apply Muslim Law under the authority provided by the Shariat Act, 1937.
- Because of the absence of provincial laws in these three subjects, State legislatures have the authority to formulate laws on these matters. For example, in the State of Tamil Nadu, Muslims are regulated by Muslim personal law in subject-matters of agricultural land because there has been an amendment of Section 2 of the Act of 1937 to include these subject matters which are not governed by the Act in general.
Taking a note of these three existing loopholes, it can be said that although the legislation seems to walk along with social changes, it walks two steps backwards because of the associated hindrances.
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