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.