Nikah : What do you Qubool?

 Dr Puneet Agrawal

Muslim marriage in Islam is said to be part of half deen, the religion. You are here at the blog perhaps because you could not find your Muslim soul mate and miserably failed in completing half your deen. While feeling sad about why you are shown a religiously failed being over this blog and feel is a waste of time to be here than better search a second Muslim bride on some matrimony site. Go for it who has stopped you! Nikah is your privilege, and happy living your right. I pray for your innovative ideas to enhance your next Zawaj experience. Before you struck with another disaster known as a failed marriage, that may strike immediately after Nikah these days, you should refresh your idea about the theory of Marriage in Islam and particularly in India.

I do not wish to revive the Quranic fundamentals of marriage here, as a learned disciple of Islam, you must be aware of it by default via preaching since childhood. What you need to know about Nikah as a “failed husband” and what will be needed as basic knowledge while dealing complex legal situations in the Court is dealt with here.

There is nothing extra grown for a Muslim marriage in Indian soil, the marital cultivation has taken all raw material from the Arabic - Islamic tradition with local, social and legal adaptation.

Marriage is a civil, socio-legal contract between bride and groom. A formal, binding contract – verbal or on paper is considered integral to a religiously valid Islamic marriage and outlines the rights and responsibilities of the groom and bride. This contract is a strong covenant as expressed in Quran 4:21. It outlines the rights and responsibilities of the groom and bride or other parties involved in marriage proceedings under Shariat.

What is expected from you is that before you jump into the legal arena should to be aware of various terms and fundamentals of Nikah or Muslim marriage in India? With a non-exhaustive list, you should at least know:

1.    The Quranic and Shariat discourses over marriage: Purpose, need, capacity, essentials, effects of marriage.

2.       Who should marry and when?

3.       How Nikah should occur?

4.       The duties and rights of married couples towards each other and the society at large.

5.       The concept of sex and other marital obligations as per Shariat and the Indian Law.

6.       Registration of Marriage under Muslim Law

7.       Valid (sahih), Void (Batil), Irregular (Fasid), Temporary (Muta) marriage

8.       Presumption of Marriage

9.      Conditions of marriage

10.   Iddat

11.   Polygamy: Provision, restrictions and practice-procedure of how and when to do it.  

12.   Concept and the practice of handling of Dower (Mahr).

13.   Shariat Act of 1937

14.   Child Marriage Restraint Laws

15.   Special Marriage Act

16.   Indian Contract Act and Akd

17.   Restitution of Conjugal Rights

18.   Difference between Shia and Sunni Marriage

19.   Religious conversion to Islam, renunciation and related rights and restrictions

Because in India, Muslim Law is not codified, the problems persist at many levels over the interpretation and applicability of legally acceptable conditions derived from the Shariat. The confusion starts from the day of marriage, with the word “marriage” itself. It is a matter of query still existing whether Muslim marriage is only a civil contract or a sacrament? While unleashing the various definitions it is quite a big problem to say which one is the most appropriate under several conflicting judicial pronouncements over it.

Marriage (Nikah) amongst Muslims is in the nature of a contract or “solemn pact” (Misaq-e-ghaliz) between persons of two opposite sexes, soliciting each other’s consent for the company, making it a lawful contract (Aqd). The concept is somewhat different from Hindu Law where marriages are regarded as a sacrament. There is a difference of opinion whether marriages in Muslims are mere civil contracts. The votaries of the theory of marriage being more than a civil contract base their opinion on the fact that the Prophet described Nikah as his “Sunnat”. Only the form of Muslim marriage is contractual and non-ceremonial but so far as the concept of marriage is concerned, it is something more than a contract. Though marriage under Muslim Law is only a civil contract yet the rights and responsibilities consequent upon it are of such importance to the welfare of humanity, that a high degree of sanctity is attached to it. But in spite of the sacredness of the character of the marriage- tie, Islam recognizes the necessity, in exceptional circumstances, of keeping the way open for its dissolution.

There are three aspects of marriage in Islamic law, which are necessary to understand the institution of marriage as a whole, namely, (i) Legal, (ii) Social, (iii) Religious. Marriage under Muslim law gives rise to certain definite obligations. Some of such obligations now find mention in the provisions of various acts. There is a clear distinction in the present state of law, between legal and moral obligations. Legal obligations are enforceable in law.

So, you may be a good character, committed, a religiously fantastic husband but that hardly matters. What is expected from you is to be “legally fantastic” in serving your wife as per your contract with her, expressed or implied, you have to do it.

Laugh, play and joke with your wife. It's sunnah!  It is your right to behave normally and not to expect abnormal.  You have accepted this willingly, said in full hoshohawas: “Qubool”. But now I am sure you have understood that this Qubool certainly meant, “I accept the terms and conditions.”

Shariat courts: Where do they exist?

  Dr Puneet Agrawal

A  court is any person or institution, often as a government institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law. The term "the Court" is also used to refer to the presiding officer or officials, usually one or more judges. The judge or panel of judges may also be collectively referred to as "the bench" (in contrast to attorneys and barristers, collectively referred to as "the bar"). This is a Constitutional body in India with strict rules of conduct and protocol.

Classical Muslim jurisprudence was elaborated by private religious scholars, largely through legal opinions (fatwas) issued by qualified jurists (muftis). It was historically applied in Shariat courts by ruler-appointed judges, who dealt mainly with civil disputes and community affairs. Sultanic courts, the police and market inspectors administered criminal justice, which was influenced by Shariat but not bound by its rules. Over the centuries, Sunni muftis were gradually incorporated into state bureaucracies, and fiqh (the science of material law) was complemented by various economic, criminal and administrative laws issued by Muslim rulers.

In the modern era, traditional laws in the Muslim world have been widely replaced by statutes inspired by European models. While the constitutions of most Muslim-majority states contain references to Shariat, its classical rules were largely retained only in personal status (family) laws. Legislators who codified these laws sought to modernize them without abandoning their foundations in traditional jurisprudence.

A Muslim marriage is solemnized as a written financial contract, in the presence of two Muslim male witnesses, and it includes a brideprice (Mahr) payable from a Muslim man to a Muslim woman. The brideprice is considered by a Shariat court as a form of debt. Written contracts were traditionally considered paramount in Shariat courts in the matters of dispute that are debt-related, which includes marriage contracts. Written contracts in debt-related cases, when notarized by a judge, is deemed more reliable.

Shariat, in Arabic, means Islamic jurisprudence. Muslims, especially of the majority Sunni sect, have traditionally relied on what is now known as Dar ul Qaza (Qaziat) for guidance in matters of Islamic law and to resolve disputes related to marriage, divorce, inheritance. In popular terminology, Dar ul Qaza-- literally, house of judgement -- is referred to as “Shariat court”. It is essentially an arbitration council headed by Qazi, a scholar of Islamic law, who acts as the judge, but he is no judge in the real sense. Now even Qazis are made to refrain from the arbitration proceedings. The appointed counsellors can only act as per the consent of the parties under dispute.

What is this controversy all about? The controversy erupted after senior AIMPLB member Zafaryab Jilani spoke about the board's "plans" to establish Shariat courts or Dar-ul-Qaza across the country.  Since 1993, the board has been setting up Dar-ul-Qazas to resolve marital disputes and other issues before going to other courts

In July 2005, a Delhi lawyer filed suit with the Supreme Court of India seeking to ban “Shariat courts” (Dar ul Qazas) and Islamic legal opinions, arguing that they constitute a “parallel judicial system” that undermines the state's legal institutions. The Supreme Court ruled in July 2014 that Shariat courts have no legal sanction and their decisions are not binding. It, however, refused to ban them.

With all such institutionalized policy of activism or some agenda of futuristic designs, curiosity and misunderstanding has crept into the minds of common Muslim men. This is often interpreted to denote a punitive legal system exhibiting little concern for national or Constitutional laws and customs.

So what exactly is a Dar-ul-Qaza? In India, it is an institution/forum for jurisprudence to interpret Islamic law headed by a Qazi. Its verdict or directions cannot be legally enforced. They deal with matters like family, laws of marriage, divorce, inheritance, maintenance, custody of child etc. These are mere arbitration centres for the aggrieved parties. Dar-ul-Qazas traditionally deals with matters allowed under the Muslim Personal Law (Shariat) Application Act, 1937. There are more than 400 Dar-ul-Qazas operational in the country. In 2014, the Supreme Court noted that Dar-ul-Qazas have no legal sanction but they are not illegal either. There is no compulsion on people approaching a Dar-ul-Qaza to abide by its decision. But the question is are they entitled to decree any decision? No, they are not a parallel Court in any way. Whether binding or not, they cannot give any decision, except a suggestion, that too should end up in a suggestion to approach the regular Court of Law in case of a failed mediation. Suggestions may include the idea of an ideal Muslim way of living as per Shariat.

Mostly, Dar ul Qaza is called upon to resolve marital disputes. They seek to reconcile the couple and recommend separation only after all other options are exhausted. To settle a dispute, a Muslim man or woman can approach Dar ul Qaza and submit an application. If all parties to the dispute agree to arbitration, Qazi will summon them and their witnesses, take their written statements, examine the matter in light of the Islamic law and deliver a ruling. It’s up to the parties involved whether they want to abide by the ruling or not. If any of the parties do not agree to the verdict, there is nothing Qazi can do. The main objection to Shariat courts that most critics have concerns the enforceability of the verdict. They insist it is binding, which makes Darul Qaza a parallel court.

Dar-ul-Qazas can help no one in getting get easy justice. They can provide no justice or a decree. They can merely act as a mediator for facilitation for a consensual decision, based totally on the agreement of both the parties with no force or fraud or under any religious obligation that goes against the fundamental rights and the public policy.

There are perpetual allegations that expansion of Dar-ul-Qazas would lead to an increase in atrocities against Muslim women. Though men have their separate allegations of nexus formation, inconsistency, didacticism and blackmailing. So, if there is no institutional faith then why wait? Move to the right and only place for justice.

Other allegations like how can AIMPLB appoint Qazi?  It is against the Constitution and it is anti-national activity.  Mediation and arbitration centres are very different from Shariat courts. In the case of arbitration/mediation, an issue can be referred only when both the parties agree to it and choose their own counsellors. They don’t have judges (Qazis) but counsellors who settle the disputes by consulting both the parties. Also, if these bodies are to be given this power to settle disputes outside the court, this decision has to come from Parliament by proper legislation and not by a private entity like the All India Muslim Personal Law Board (AIMPLB).

As a common practice, the so-called Shariat courts are operational at many places and their decisions are never challenged by the people. We need to understand that if the orders of Shariat courts are not challenged, this doesn’t show the acceptance of people but it shows how the Muslim associations have successfully misled the common people to believe these bodies are courts and if they do not follow their orders, it would be anti-Islamic. It is a matter of choice of people, but the problem arises when later in future if any of the party feeling aggrieved, pops up again then the so-called  Shariat court decision will have no value nor the agreement done at the local level will solve any legal purpose. 

Finally, another myth exists that the Supreme Court never declared Shariat courts unconstitutional. This too is a false claim. In Vishwa Lochan Madan versus Union of India and Others in 2005, the Supreme Court held that: 

As it is well settled, the adjudication by a legal authority sanctioned by law is enforceable and binding and meant to be obeyed unless upset by an authority provided by law itself. The power to adjudicate must flow from a validly made law. A person deriving benefit from the adjudication must have the right to enforce it and the person required to make provision in terms of adjudication has to comply that and on its failure consequences as provided in law is to ensue. These are the fundamentals of any legal judicial system. In our opinion, the decisions of Dar-ul-Qaza or the Fatwa do not satisfy any of these requirements. Dar-ul-Qaza is neither created nor sanctioned by any law made by the competent legislature. Therefore, the opinion or the Fatwa issued by Dar-ul-Qaza or for that matter anybody is not adjudication of dispute by an authority under a judicial system sanctioned by law. A Qazi or Mufti has no authority or powers to impose his opinion and enforce his Fatwa on anyone by any coercive method. In fact, whatever may be the status of Fatwa during Mogul or British Rule, it has no place in independent India under our Constitutional scheme. It has no legal sanction and can not be enforced by any legal process either by the Dar-ul-Qaza issuing that or the person concerned or for that matter anybody. The person or the body concerned may ignore it and it will not be necessary for anybody to challenge it before any court of law. It can simply be ignored. In case any person or body tries to impose it, their act would be illegal. Therefore, the grievance of the petitioner that Dar- ul-Qazas and Nizam-e-Qaza are running a parallel judicial system is misconceived.

In any event, the decision or the Fatwa issued by whatever body being not emanating from any the judicial system recognised by law, it is not binding on anyone including the person, who had asked for it. Further, such adjudication or Fatwa does not have a force of law and, therefore, cannot be enforced by any process using coercive methods. Any person trying to enforce that by any method shall be illegal and has to be dealt with in accordance with the law.

Similarly, The Kazis Act, 1880 was enacted only for the purpose of attendance of a Kazi at marriage and the Act does not confer any power on them to issue certificates recognizing divorces.  

With these allegations, questions and the alleged act of running Dar-ul-Qazas as parallel Shariat courts, there have been several PILs files in the country where strict actions were taken against such acts. Even the Contempt of Court proceedings were moved against the office-bearers.  

As a litigant in India, in the capacity of a Muslim husband, you should now be very clear about the fact that Shariat Court is no substitute for civil or criminal law Courts in India. The bigger question is that even if Shariat courts are made a parallel Court to some extent in India, will all the Muslim citizens follow the rules? Fifty per cent of the Muslim population will not accept its decisions. For Kazis and Muftis are men and they are pro men by their mind, body soul - With this allegation they will be discarded. Hence, the better option of regular Judiciary, who somehow believes in the “ablaa” nature of the woman, while experimenting with the already existing ample number of women-friendly laws is always preferred. Bhookhe Ghode ko sab hara hara hi dikhta hai, and it is no offence if it is a hungry Ghodi!  Hence, learn the art of horse riding, that too under strict rules of Court of Law, the informal Shariat court galloping will be of no use for the matter.

Shariat Law - What it means in India?

 Dr Puneet Agrawal

We are not going to discuss here the teachings of the Quran or what Shariat says about farz or namaz not about what is haram in a life of a Muslim but rather should see what does Shariat means in the eyes of the law in India and particularly in the matrimonial perspectives. Though the teachings are in a direct way relates to the conduct of the inhabitants as husbands and wives and even the Courts lift corollaries from the religious texts when they need some specific interpretation over an issue. But normally the legislation is taken as the base for adjudicating the legal disputes, except for those matters where no such enactment or provision is found capable to do justice.

Muslim family law is one of the areas where the Muslim Personal Law (Shariat) Application Act, 1937  has clearly stated that the rule of decision in a case where the parties are Muslims shall be the Shariat. So, the next question arises is to know what is Shariat in the eyes of law for the purpose of Matrimonial disputes. 

A word as to the meaning of the expression “Shariat”. A.A.A. Fyzee describes “Shariat” as follows:

Coming to law proper, it is necessary to remember that there are two different conceptions of law. Law may be considered to be of divine origin, as is the case with the Hindu law and the Islamic law, or it may be conceived as man-made. The latter conception is the guiding principle of all modern legislation; it is, as Ostrorog has pointed out, the Greek, Roman, Celtic or Germanic notion of law. We may be compelled to act in accordance with certain principles because God desires us to do so, or in the alternative, because the King or the Assembly of wise men or the leader of the community or social custom demand it of us, for the good of the people in general. In the case of Hindu law, it is based first on the Vedas or Sruti (that which is heard); secondly on the Smriti (that which is remembered by the sages or rishis).

 Although the effect of custom is undoubtedly great yet dharma, as defined by Hindu lawyers, implies a course of conduct which is approved by God.

Now, what is the Islamic notion of law? In the words of Justice Mahmood, ‘It is to be remembered that Hindu and Muhammadan law are so intimately connected with religion that they cannot readily be dissevered from it’. There is in Islam a doctrine of ‘certitude’ (ilm al-yaqin) in the matter of Good and Evil. We in our weakness cannot understand what Good and Evil are unless we are guided in the matter by an inspired Prophet. Good and Evil – husn (beauty) and qubh (ugliness) – are to be taken in the ethical acceptation of the terms. What is morally beautiful that must be done, and what is morally ugly must not be done. That is law or Shariat and nothing else can be law. But what is absolutely and indubitably beautiful, and what is absolutely and indubitably ugly?

These are the important legal questions; and who can answer them? Certainly not man, say the Muslim legists. We have the Quran which is the very word of God.

Supplementary to it we have Hadith which are Traditions of the Prophet – the records of his actions and his sayings – from which we must derive help and inspiration in arriving at legal decisions. If there is nothing either in the Quran or in the Hadith to answer the particular question which is before us, we have to follow the dictates of secular reason in accordance with certain definite principles. These principles constitute the basis of sacred law or Shariat as the Muslim doctors understand it. And it is these fundamental juristic notions which we must try to study and analyse before we approach the study of the Islamic civil law as a whole, or even that small part of it which in India is known as Muslim law.

Modern jurists emphasize the importance of law for understanding the character and ethos of a people. Law, says a modern jurist, ‘streams from the soul of a people like national poetry, it is as holy as the national religion, it grows and spreads like language; religious, ethical, and poetical elements all contribute to its vital force’; it is ‘the distilled essence of the civilization of a people’; it reflects the people’s soul more clearly than any other organism. This is true of Islam more than of any other faith.

The Shariat is the central core of Islam; no understanding of its civilization, its social history or its political system is possible without knowledge and appreciation of its legal system.

Shariat (lit., the road to the watering-place, the path to be followed) as a technical term means the Canon law of Islam, the totality of Allah’s commandments. Each one of such commandments is called hukm (pl. ahkam). The law of Allah and its inner meaning is not easy to grasp, and Shariat embraces all human actions. For this reason, it is not ‘law’ in the modern sense; it contains an infallible guide to ethics. It is fundamentally a Doctrine of Duties, a code of obligations. Legal considerations and individual rights have a secondary place in it; above all the tendency towards a religious evaluation of all the affairs of life is supreme.

The legal definition of Shariat is no way different than the religious one as what is understood by any common man in India. Just that the way it is accepted in the Courts and taken as a source of Muslim Law is what changes the game. Therefore, it becomes essential to first know what the religious texts say and only then it will be easy to further probe into the legal interpretation of it. There exist no legal complication, but widespread confusion survives in the mind of a Muslim man while facing Court cases. He is primarily found struggling about what to follow? The orthodox ones are bent towards their convictions and preaching they have received since childhood.  Though he is pretty aware of the religious teachings as applicable to a Muslim way of matrimonial living, as discussed in the previous posts, not all those are a code of conduct in totality in the country.

There are several reasons as to why the Shariat is not a law in totality applicable to the Muslim population.  No, not only because India is not an Islamic Country, had it been so the 1937 Act and other similar ones would not have existed as well. The baffling question is then why even this relaxation of certain provisions of Shariat applicable and why has this existed? Was it mercy, a continuing tradition, or beneficial legislation or a matter of democratic rights? The reasons had been more political in nature, but Courts have nothing to do with politics or religion. Religious texts are what they read as a statute and not what they do at large in the society inside the areas of worship, be it a building or the minds of its followers.

For example, the establishment of a Uniform Civil Code is an ongoing point of debate regarding the Indian constitution's mandate to replace Personal Laws based on the scriptures and customs of each major religious community in India with a common set of rules governing every citizen. Article 44 of the Directive Principles expect the state to apply these while formulating policies for the country. Apart from being an important issue regarding secularism in India & the fundamental right to practise religion contained in Article 25, it became one of the most controversial topics in contemporary politics during the Shah Bano case in 1985. The issues of women rights in Muslim personal Law are highly controversial. Although Article 44 of the Indian Constitution guarantees UCC to all citizens, the debate arose when the question of making certain laws applicable to all citizens without abridging the fundamental right of right to practice religious functions. The debate then focused on the Muslim Personal Law, which is partially based on the Shariat law, permitting unilateral divorce, polygamy and putting it among legally applying the Shariat law.

Personal Laws are distinguished from Public Law and cover marriage, divorce, inheritance, adoption, and maintenance. Goa retained a common family law known as the Goa civil code, due to colonial rule in the erstwhile Portuguese Goa and Damaon that was separate from British India, thus being the only Indian state to have a UCC. The Special Marriage Act, 1954 permits any citizen to have a civil marriage outside the realm of any specific religious personal law.

Personal Laws were first framed during the British Raj, mainly for Hindu and Muslim citizens. The British feared opposition from community leaders and refrained from further interfering within this domestic sphere.

The demand for a UCC was first put forward by women activists[clarification needed] at the beginning of the twentieth century, with the objective of women's rights, equality and secularism. Till Independence in 1947, a few law reforms were passed to improve the condition of women, especially Hindu widows[clarification needed]. In 1956, the Indian Parliament passed the Hindu Code Bill amidst significant opposition.

Keeping this debate aside, and giving it a marital coating, it is more sensible to know here about what is relevant in the Courts. Certain civil matters of jurisdiction for Muslims such as marriage, inheritance and waqf properties are governed by the Muslim Personal Law which was developed during British rule and subsequently became part of independent India with some amendments. Indian Muslim personal law is not developed as a Shariat Law but as an interpretation of existing Muslim laws as part of Common Law. The Supreme Court of India has ruled that Shariat or Muslim Law holds precedence for Muslims over Indian civil law in such matters.

Basically, it is more than the needs of the Constitution or Article 44 the growing demands of Muslim womankind that special enactments keep growing and curbing the application of Shariat law. This is not just a case with Muslims, the States across the nations in the globe do the same. More and more laws are made to empower the citizens with special rights thereby giving more power to the State to execute it and in one or the other way curbing the Natural Rights and Justice. The only way out is to buy some lonely island and become a Sultan of your own kingdom. Until you can afford that venture, you are bound to obey the laws of your land irrespective of whosoever made them and in whatever shape they are. So, better learn the new art of “knowing the law” to win. The criticism of existing laws, what if it is draconian or beneficial, comes under the domain of activism and are not a part of Court procedures. Legal activism can be a tool that can bring success in such litigation, but for it “knowing the law” is essential, equally as important as finding a good lawyer.

Muslim Personal Law in India

  Dr Puneet Agrawal

Now that this blog attempts to clarify the mist that surrounds a Muslim man regarding various concepts and terms that he faces while he starts probing and searching about Muslim Law and its role in India. Where he lands after much of googling is over activism, feminism, legislation, judicial regulations, judgements by name of various Banos, and Maulvis or religious bodies criticizing the Government for downsizing Shariat law. But I am sure the majority of aspiring litigants fail to find out the needed law, the law applicable over a Muslim citizen in India.

Take an instant test! See to what extent you are aware of these terms and know how they are different, or correlated and means in the Indian context:

 Muslim Law vs Muslim Personal Law?

Shariat law vs Mohammedan law in India?

Personal law vs Constitution of India

Have you ever thought about what is so personal about the term “Personal Law?” Personal law is defined as a law that applies to a certain class or group of people or a particular person, based on the religions, faith, and culture.  Their belief is decided by the sets of laws. And these laws are made by considering different customs followed by that religion.

Freedom of religion in India is a fundamental right guaranteed by the Constitution of India. The Preamble of the Indian Constitution has the word "secular", and articles 25 to 28 implying that the State will not discriminate, patronize or meddle in the profession of any religion. However, it shields individual religions or groups by adding religious rights as fundamental rights. But is this an arbitrary power? Or these lies some hidden clause that curtails your power derived from your religion or let’s say from the “Personal Law”. Yes indeed there lies a star, conditions apply clause!

The Indian version of secularism is a little bit different from what is understood in western European countries. The Indian Constitution permits the central government to intervene in religion but this intervention should be based on the Constitution only. If some tenets, principles or beliefs of any particular religion violates the constitution or the law of the land, then the Indian government is mandated to intervene and remedy the situation. Government of India has for a few times have intervened in religions historically as mandated by the Constitution. The enactment of the anti-untouchability act (SC/ST Act,1989) and also the recent law banning triple talaq among the Muslim community is an example of this Constitutionally mandated intervention. The government also intervenes when women of any religion are denied opportunities or equality as gender equality is guaranteed by the Indian constitution. There is much more to it, as a litigant you will often come across this power of the State. So, refrain yourself shouting religiously in the Court: Quran me aisa likha hai mai aisa hi karunga. The Court will move only by the legislation. The next question would be, what is that Legislation applicable to a Muslim? As discussed in the previous post, Muslim law is still uncodified in India. Hence, the applicability of Mohammedan/Muslim law or Personal law of Muslims/ Muslim Personal Law is the chief question.  

Reforms to Personal Law in India, with reference to socially unacceptable practices in different religions, have come about only by way of legislative intervention. Such legislative intervention is permissible under Articles 25(2) and 44, read with Entry 5 of the Concurrent List, contained in the Seventh Schedule of the Constitution.  

Shariat is a broad and general solutions to practical problems in society. It is a way of life of Muslims across the world. It is the separate law applicable to Muslims living in India but not in totality. In India Sharia is not a legal set up rather a way of life of Muslims and considered divine. Only certain aspects of Shariat are acceptable as Muslim Personal Law in India. Rest the “Laws of India” are applicable over the Muslims like any other citizen in the country.

Personal law in India includes law applicable to a community by religion. "Personal laws" include both codified and uncodified laws. To the extent that personal laws include codified laws, there cannot be any dispute that such laws are "laws" under Articles 13 and 372. Whether before or after the Constitution, such laws have been enacted by the then existing sovereign and they continue to be in force even on the change of the sovereign unless they are repealed or treated as void under Articles 13 of the Constitution.

The applicability of the Mohammedan Law, its extent and its limitation, its provisions that are applicable and those not applicable India is what makes the demarcation and the idea clear. For it, there exists an exhaustive list and explanation for each of them.  Certain enactments exist to solve this purpose, in fact, these special empowering Acts allow the application of Shariat as Personal Law in a limited manner. For the purpose of matrimonial disputes, one of such Act is important.  

All the Muslims in India are governed by the Muslim Personal Law (Shariat) Application Act, 1937 (MPL). This law deals with marriage, succession, inheritance and charities among Muslims. This Act was drafted for the application of the Islamic Law Code of Shariat to Muslims in India in personal affairs. The MPL has a wide spectrum of action and applicability, here we are concerned mainly with the one related to Muslim marriages. It is a short Act consisting of 6 Sections.

Section 2 of the Act itself clarifies: 

Application of Personal law to Muslims. - Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal properly inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, 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).

It is expressly enacted that in all questions relating to the matters specified, "the rule of decision" in cases where the parties are Muslims shall be the Muslim Personal Law. It was enacted to put an end to the unholy, oppressive and discriminatory customs and usages in the Muslim community.

The question, “what is bad in theology was once good in law but after Shariat was declared as the personal law, whether what is Quranically wrong can be legally right”, has always been a matter of discussion in the Indian Courts. The Legislation is however very straightforward. The statement of objects and reasons of this Act are quite well defined and are as follows:

For several years past it has been the cherished desire of the Muslims of British India that Customary Law should in no case take the place of Muslim Personal Law. The matter has been repeatedly agitated in the press as well as on the platform. The Jamiat-ul-Ulema-i-Hind, the greatest Moslem religious body has supported the demand and invited the attention of all concerned to the urgent necessity of introducing a measure to this effect. Customary Law is a misnomer in as much as it has not any sound basis to stand upon and is very much liable to frequent changes and cannot be expected to attain at any time in the future that certainty and definiteness which must be the characteristic of all laws. The status of Muslim women under the so-called Customary Law is simply disgraceful. All the Muslim Women Organizations have therefore condemned the Customary Law as it adversely affects their rights. They demand that the Muslim Personal Law (Shariat) should be made applicable to them. The introduction of Muslim Personal Law will automatically raise them to the position to which they are naturally entitled. In addition to this present measure, if enacted, would have a very salutary effect on society because it would ensure certainty and definiteness in the mutual rights and obligations of the public. Muslim Personal Law (Shariat) exists in the form of a veritable code and is too well known to admit of any doubt or to entail any great labour in the shape of research, which is the chief feature of Customary Law.

The Shariat Application Act was enacted by the British government in India in 1937, and, after India became independent from Britain, the Shariat Act (MPL) was maintained in Indian society. The law was originally introduced as a matter of policy by the British government, but upon independence, MPL became significant to Muslim identity and religion. This primary aspect of religion has created controversy across both Muslim communities and Hindu political organizations.

Recent debates related to MPL are particularly in favour of abolishing the existing legal system for several reasons. It is said that the current organization of MPL in place discriminates against women in three distinct ways; they are that

1) A Muslim man is allowed to marry up to four wives at a time,

2) He can divorce his wife without entering into any legal processes, and

3) He does not need to provide financial support to his ex-wife after three months of the divorce, whereas men of other religions are likely required to support their ex-wives forever.

Recent judicial reforms and forming legislation over Triple Talaq are a few reactions to such debates. As a matrimonial litigant you should be aware of the context of such changes and what legislation is all about. With an excuse of ignorance of the law, a failed marriage can be a crime for a husband in the Court of law. 

The Muslim Law

 Dr Puneet Agrawal

No other aspect of the law is so debated in this country as that of the Muslim law. The reason behind it is that the law which has been applied since long and still continues to be applied in this continent is not, in fact, Islamic law in its original form but a distorted version of it. This distortion was made by British judges who had no knowledge of Islamic law and they did not even try to read and conceptualize the essence of Islamic law in its Arabic form they rather tried to interpret Islamic law according to common law. This concern of Furquan Ahmad may have historic value but it solves no purpose for a Muslim man under litigation. A law is a law, from whatever source or form it has evolved from, it is binding over all those to whom it applies.

An enthusiast Muslim who strictly believes in his religion or any semi-modern religious model of Indo-Western culture may think that the Muslim Personal Law as applicable in India today is Shariat law. However, it is not so. Those Muslims who defend Muslim Personal Law as Shariat law do not understand the difference between Muslim Personal Law applicable today and the Shariat law. In fact, it was called Anglo-Mohammedan law before independence but was renamed as Muslim Personal Law after independence.

Muslim law in India is uncodified, the Parliament has made some laws to regulate some Islamic practices. For example, the Muslim Personal Law (Shariat) Application Act, 1937 governs marriage, succession, and inheritance. The Dissolution of Muslim Marriages Act, 1939 is another law regulating certain divorce cases amongst Muslims.

The Holy Quran is the most religious and inspiring book in the Muslim world and is rightly designated as the main and the original source of Muslim Law, religion and culture, and also of the social, moral and other values, of Muslim society. It is remarkable for its simplicity and practicability. Muslims in India are governed by their personal law: Mohammadan/Muslim Law.

 The main sources of Muslim Law are:

(a) Quran (b) Ahadis and Sunna (c) Ijmaa (d) Qiyas (e) Custom (f) Judicial Precedents (g) Legislation.

Being a popular belief amongst the Muslim community that The Prophet was the supreme maker of law; hence no one can make Muslim law. In case any change is made it is considered as an invasion. This, though being a perpetual dilemma due to social change, or pressing needs of the dynamism in the society, is not a reality, particularly in a democratic country like India. In spite of this popular belief and religious mandate, there are a number of Acts and Legislations that governs the Muslim citizenry.

To codify or not to codify Muslim Personal Law, that is the question in India today. The Constitution empowers both the legislature and the judiciary to have regulating powers over the personal laws, to bring them up to speed with the times. The majority population of Indian Muslim men believe that it is with great dexterity that such powers should be exercised, it is still a better option than wiping out their existence and imposing a Uniform Civil Code, which comes too close to a violation of Article 25, for comfort. Moreover, formulating one codified law for Muslims is a Herculean task, as the drafters would have to accommodate the variance of beliefs and differences within the religion itself. Islam in India and across the globe is not aloof of such variance.  Thus, theoretically, even if such codification were made possible, the reconciling of the faith of the various sects with regard to its interpretation is another hurdle. 

On the contrary, it has been seen that the Muslim women community leans towards the codification and reform of existing Muslim Law. While the Courts have been very proactively assertive about the need for a uniform code, the possible negative repercussions cannot be neglected. To be or not to be, the existing form of Law is not favourable for men and the worst is yet to come, be it codified or not. So, what is the remedy? Change of faith or live like tongue rests between teeth? The better bet would be to stay aware and learn how to survive in a difficult situation. Prevention is a cure, the best part would be to make an informed choice by asking "Caution Money" before marriage, but if the tragedy has already befallen then knowing the law shall be inevitable. 

It is shown widely that Muslim laws are said to provide women with fewer rights and impede policy change. India’s family law systems specific to religious groups underwent important gender-equalizing changes over the last generation. Muslim alimony and divorce laws were changed on this basis, giving women more rights without abandoning cultural accommodation. Legal mobilization and the outlook of policymakers—specifically their approach to regulating family life, their understanding of group norms, and their normative vision of family life—shaped the major changes in Indian Muslim law.  

It is very strange that once you try finding something interesting to read over the internet on the "Muslim law", your search results would get biased too like the laws as the material found in the list would be shouting over issues not asked for in the search. Polygamy, alimony, talaq, and various "Banos" will popup over the screen. Muslim Jurisprudence related to Indian courts is almost missing. This is one of the major cause of ignorance, the propagandist approach of a few has kept Muslim male further away from the libraries and literature that can benefit them. However, the results are of much interest because our concern also revolves around matrimony. Though much is expected to be revealed from the core, what if not codified. Muslim law is one of the most underrated areas of law, be it lawyers or the Judiciary, Maulvies or the State Legislation, it is taken for granted.

The beginning : Protecting Muslim men

 Dr Puneet Agrawal

In India, a Muslim man, especially a middle-class man, with his old parents and family members is equally in a state of fear and trauma as like any of the Hindu or Christian male. Apart from the laws that favour women, and legal hardships that a husband may face in a matrimonial dispute, the “religio-legal” ignorance is what is predominant among Muslim men. This is primarily because a state of duality exists in the mind of a Muslim husband: Indian Laws and enactments vs Shariat Law? What will work when and with whom and where? Though a Muslim is born with a stringent idea of Shariat and any sort of alternative, be it mandatory or obligatory, is hard to swallow.

 Questions that a baffling Muslim litigant usually found struggling  with:

• What exactly is the Muslim Personal Law (MPL), how did it originate and why?
• What is the relationship between Shariat and MPL?
• What is the meaning of limited application of Mohammedan Law in India?
• Is Shariat Law applicable in India in matrimonial disputes?
• Is law same for Hindus, Muslims and Christians in terms of Matrimonial disputes?
• Can Muslims in India entertain provisions of Shariat in totality? 
• What role does Indian Courts play in applying Shariat in disputes between Muslim husband and wife?
• How Shariat applies to the inter-caste or inter-religious marriages in India between Muslims?
• Can Indian Courts define or interpret Shariat Law as per social and legal needs? If yes, how and up to what extent?
• When is Shariat law not applicable over the Muslims?
• What all laws are applicable and govern Muslim men in India apart from the Shariat Law?
• What is the supremacy of Indian Laws over Shariat Law?
• Are Muslims husbands legally treated as second-grade citizen over Muslim woman? Or vice versa? 
• What are the legal advantages and disadvantages of being a Muslim man born in India and particularly as a Muslim husband?
• What all Indian Laws are in contradiction with the Shariat Laws?
• Are there any Shariat Courts in India? What are their powers and limitations?
• How a Muslim man should marry in India to remain protected from litigations?
• What are the important Acts, sections, rules, regulations, orders, notifications, laws and Rulings that a Muslim man should know to be an aware litigant?
• How to feel confident about legal terms and jargons?
• Up to what extent you can learn law to fight your case, and what is that you should not do while under litigation.
• What is "Muslim Family Law"? 
• What are Court procedures and fighting strategies and tactics?
• How to know about what it means: Fighting a case vs winning a case?
• How to extract relevant information from the internet and refrain from the misleading information available in abundance?
• How to unlearn what is dangerously poured in by the propagandists online?
• What is your duty towards other Muslim men under distress, and how to be benefitted from each other?
• Are the religious circles and bodies like AIMPLB helpful in a legal battle?
• What are the issues relating to the codification of Muslim Law and how it may affect Muslim men?

And

• How can this blog and its coordinators help Muslim men under pre or post-marital discord and matrimonial litigations?
• How can expert legal advice be obtained by NRIs or distantly located Muslim men in India?

Hopefully, these questions shall be dealt with in the articles ahead, starting with a basic idea of Muslim Law here.

The articles in the blog shall be like episodes in a daily soap, though individually each of shall be informative, the real benefit would arrive if you read the previous articles like a sequel in the sequence of their publishing. 

Knowing is everything!