Muslim personal law in India

Muslims in India are governed by The Muslim Personal Law (Shariat) Application Act, 1937.[1] This law deals with marriage, succession, inheritance and charities among Muslims. The Dissolution of Muslim Marriages Act, 1939 deals with the circumstances in which Muslim women can obtain divorce.[2] The Muslim Women (Protection of Rights on Divorce) Act, 1986 deals with the rights of Muslim women who have been divorced by their husbands and to provide for matters connected therewith.[3] These laws are not applicable in Goa state, where the Goa Civil Code is applicable for all persons irrespective of their religion. These laws are also not applicable to Muslims who have married under the Special Marriage Act, 1954.[4] While other religious communities in India have codified laws, Muslim personal law is not codified in India.

History

There is no proof for administration of Muslim personal law until 1206 in Indian peninsula, even though there were Muslim invasions during this period.[5] During the reign of Slave dynasty (1206-1290 A.D), Khalji dynasty (1290- 1321), the Tughlak dynasty (1321-1413), the Lodi dynasty (1451 - 1526) and the Sur dynasty (1539- 1555), the court of Shariat, assisted by the Mufti, dealt with the cases involving personal law among Muslims. During Sher Shah's regime, the powers of Shariat court were restricted and Muslim law was modified to suit the requirements of the times.[5] During the regime of Mughal kings Babur and Humayun, the earlier laws were followed, and the ulemas (religious scholars) had considerable influence on legal decisions. During Akhbar's regime, Ulemas' powers were significantly reduced and shattered the dominance of the orthodox Sunni school. During Jehangir's regime, cutting of noses and ears and death penalty could not be inflicted without the permission of the Emperor. Aurangazeb ordered for the complication of code of law.[5]

Under East India Company

Under the East India company, Muslim Law was enforced except when Muslims left the disputes to be determined according to Hindu Saastras.[5] The Regulation 11 of .1772 by Sec. 27 enacted that

"in all suits regarding inheritance, succession, marriage and caste and other religious usages or institutions, the laws of the Quran with respect of Mohamedan and those of the Shastras with respect to Gentoos (Hindus) shall be invariably adhered to."

In 1822, the Privy Council recognized the right of Shia Muslims to their own law.

Under British India

The Muslim Personal Law (Shariat) Application Act was passed on 7 October 1937 in British India to ensure that Indians following Islamic faith shall be ruled according to their cultural norms.[1] This Act gave strength to the pre-existing customary laws, although it was in conflict with Islamic jurisprudence in several aspects.[5] This Act is still being followed in India in matters related to marriage, divorce and succession among Muslims.[1][6] The Dissolution of Muslim Marriage Act was passed in 1939, in order to give Muslim women the right to seek divorce.

Marriage and Divorce

In India, Muslim marriage is a civil contract between a man and a woman. Dissolution of marriage can be done at the instance of the husband (talaq), wife (khula) or mutually (mubarat). Talaq allows Muslim men to legally divorce his wife by stating the word talaq (Arabic word for divorce) three times with 3 months period between all three, in oral. written and electronic form of talaq is not allowed in Islamic law.[7] Some Muslim groups recognize triple talaq (or talaq-i-biddat), stating three talaqs at once and proclaiming instant divorce as valid method of divorce.[8] On 22 August 2017, the Supreme Court of India deemed instant triple talaq unconstitutional.[9]

Other Muslim groups follow talaq-i-hasan, where the husband pronounces three talaqs on three separate instances, each one at least 3 lunar month apart. If the husband changes mind after the first or the second talaq, or cohabits with the wife, the divorce is revoked.[7] In Islam, only husband can pronounce the talaq on his wife, and not vice versa. However, he can delegate this power to his wife or a third person by agreement, called talaq-e-tafweez.[7] The Muslim man does not have to cite a reason for divorce.[10]

Section 5 of Shariat Act of 1937 concerns with Muslim women seeking dissolution of her marriage. Section 5 was subsequently deleted and replaced by Dissolution of Muslim Marriages Act 1939. Muslim women can seek divorce at the court of law. A woman can ask for divorce in the following circumstances:

  • if whereabouts of the husband has not been known for a period of four years
  • if the husband has neglected or failed to provide for her maintenance for a period of two years
  • if the husband has been sentenced to imprisonment for a period of seven years or upwards
  • if the husband has failed to perform his marital obligations for a period of three years
  • if the husband was impotent at the time of marriage and continues to do so
  • if the husband has been insane for a period of two years or is suffering from leprosy or virulent venereal disease
  • if the husband treats the wife with cruelty, even if such conduct does not amount to physical violence
  • if the wife has been given in marriage by her father or guardian before she attained 15 years of age
  • if the husband associates with women of evil repute or leads an infamous life or attempts to force her to lead an immoral life
  • if the husband disposes of her property or prevents her exercising her legal rights over it
  • if the husband obstructs her in the observance of her religious profession or practice
  • if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran; or

carries out any other ground recognised as valid for the dissolution of marriages under Muslim law.[11]

Inheritance

Rules of inheritance

  • A son gets double the share of the daughter wherever they inherit together.[12]
  • The wife gets one-eighth of the share if there are children and one-fourth of the share if there are no children. In case the husband has more than one wife, the one-eighth share will be divided equally among all wives. The husband gets one fourth of the share of his dead wife's property,If there are children and one-half if there are no children [13].
  • If the parent has more than one daughter, only two-third of the property shall be divided equally among daughters. If the parent has only one daughter, half of the parent's property is inherited by her.
  • The mother gets one-sixth of her dead child's property if there are grandchildren, and one-third of the property if there are no grandchildren.
  • Parents, children, husband and wife must, in all cases, get shares, whatever may be the number or degree of the other heirs.
  • Slavery, homicide, difference of religion and difference of allegiance, exclude from inheritance.

Mahr

Mahr is the total money or property that the husband is required to give the wife at the time of marriage (Nikah). There are two types of mahr, the prompt mahr which is given to the wife soon after the marriage, and the deferred mahr which is given to the wife when the marriage has ended, either due to the death of the husband or by divorce.[12]

Will

A Muslim can only give one third of his/her total property through a will (Wasiyat).[12]

Gift

Any type of property can be given as gift by a Muslim.[12]

References

  1. 1 2 3 Rooychowdhary, Arija (4 May 2016). "Shariat and Muslim Personal Law: All your questions answered". The Indian Express. Indian Express. Retrieved 1 December 2017.
  2. ↑ "the Dissolution of Muslim Marriages Act, 1939". indiankanoon.org. Retrieved 1 December 2017.
  3. ↑ "The Hindu : Maintenance for Muslim women". www.thehindu.com. Retrieved 1 December 2017.
  4. ↑ "Religious conversion: HC query raises more question marks - Times of India". The Times of India. The Times of India. Retrieved 1 December 2017.
  5. 1 2 3 4 5 Rahiman, Abdul, K.K. "History of the Evolution of Muslim Personal Law in India" (PDF). Journal of Dharma: Dharmaram Journal of Religions and Philosophies. Retrieved 1 December 2017.
  6. ↑ Daniyal, Shoaib. "A short history of Muslim personal law in India". Scroll.in. Scroll.in. Retrieved 2 December 2017.
  7. 1 2 3 "Practical Law UK Signon". uk.practicallaw.thomsonreuters.com. Thompson Reuters. Retrieved 2 December 2017.
  8. ↑ "Hanafi jurisprudence sanctions triple talaq - Times of India". The Times of India. Retrieved 2 December 2017.
  9. ↑ "Triple Talaq verdict: What exactly is instant divorce practice banned by court?". hindustantimes.com. Hindustan Times. 22 August 2017. Retrieved 2 December 2017.
  10. ↑ "Supreme Court suspends 'triple talaq' divorce law". www.aljazeera.com. Al-Jazeera. Retrieved 2 December 2017.
  11. ↑ "The Dissolution of Muslim Marriages Act, 1939". indiankanoon.org. Retrieved 2 December 2017.
  12. 1 2 3 4 "A Muslim Woman's Right To Property In Islamic Law". Makaan. Retrieved 2 December 2017.
  13. ↑ mulla mohammaden law vol. 3
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