Muslim Personal Law (Shariat) Application Act, 1937

Introduction

Personal law means the law which applies only to a certain community, here is the Muslim community. India is rich with cultures, traditions, language. Thus it promises every citizen to live as per their cultural and religious belief. Shariat means Islamic canonical law based on teachings of Quran and traditions of Prophet Mohammed. It is the collection of religious and secular duties with some penalties if law is broken. Shariat is a judicial body in itself. 

Before the commencement of the act, the Muslims were governe under the broad spectrum of the Shariat (as considered by the Muslim tradionalists and scholars). And also some local customs which would pop from time to time by the maulvis. Due to political insurgence the Muslim league took upon itself to codify and make the act pass in the then British India. So that every Muslim living in India could get under the preview and Mohammed Ali Jinaah the leader of Muslim League could show the oneness in community. As well as create a pan-India identity.

Provisions

Let’s dissect the Shariat Act which congregated all the Islam followers living in India. Section 2:- Application of personal Law to Muslims

The section 2 of the act deals with matters relating to

Intestate succession (inheritance):

No person under Muslim Personal Law is entitle to the ancestral property. They only have the right to property after the ancestor die. In the lifetime of the property holder the heirs cannot claim it and only after death become he legal heir. The right does not come only by taking a birth in the family. The male and female heirs have the same right to inheritance (except agricultural land). But common practice is giving the half to the female as she receives Mehr (dower) from her husband. A widow without children and grand children will get 1/4^th of immovable property of husband while with children and grand children will get 1/8^th the immovable property.

Special Property of Female

Marriage (including all incidents of marriage):

A marriage according to rites and observance of the Muslim religion. Customary and usual among the community and sect in which the marriage took place shall be deemed to be a valid marriage from the time of celebration. A Muslim marriage is a social contract between two people who have attained puberty(15year)

Dissolution of marriage (including all kinds of divorce):

The right to dissolution of marriage (Talaq) is given to both the spouse. And proper guidelines are given in Quran and Sunnah. A husband can give Talaq by only one way i.e. Talaq-ul-sunnat (Ahsan & hassan) the second way i.e. Talaq-ul-Biddat was struck down by Supreme court in the case of Shayara Bano vs. Union of India & Others[2]. A wife can give Talaq by Talaqetafwiz (a right given by husband to wife to give divorce, is decide before marriage) or according to Dissolution of Muslim Marriage Act, 1939

Maintenance:

Includes any gross sum of money or such monthly or periodical sum for a term not exceeding life of the wife, in accordance the to the life parties have lived. A Muslim wife is entitle to maintenance during the sustenance of marriage as well as after the dissolution of marriage. However the condition of husband is i.e. in the financial position to provide it or not. This was decided in the case of Ahmed Khan vs. Shah Bano Begum. Before this the Muslim wife is not entitle to maintenance after the iddat period of Talaq. And in some Muslim sects not even for iddat period.

Dower:

It is the sum of money or any other property to be paid to the wife. It is either specified or unspecified, but the law backs it and it is mandatory right of wife. There lies a sole authority of wife to use Dower in any way possible. No person is entitled to it and it is upon the wife even if she wants to remit it. The Islamic way of marriage is contented as a contract and the female is considered as the object of contract. But the marriage does not become void if Mehr is not paid.

Mehr is non refundable even after marriage. If the husband divorces the wife before consummation then he must give the half of what Mehr was decide. If not decide then must pay Mehr as per his wealth. A wife can refuse conjugal right to the husband if the Dower is not paid in advance, but even if once they consummate the women losses the right to say no to the husband for the same.

Guardianship:

Hizanat is the Islamic word for guardianship. A father is the natural guardian of a minor until he attains the age of majority. If father is not available the natural guardian is the paternal grandfather. A mother only get the custody of the child i.e. the physical possession of the child till the majority. The wife is not consider a natural guardian and for the interval being with mother. The child is to be supervise by the father.

Gift:

There are many types of gift under Muslim Personal Law. But broadly it can be understood as transfer of property or right by one person to another in accordance with the provisions provide under Muslim Law.

• Unconditional transfer of property is known as Hiba.
• Transfer for acquiring religious merit is known as Sadqua.
• Transfer for only usufruct is known as Ariya.

A person can give away all is property as a gift during his lifetime but after his death through will can only give 1/3^rd the property etc.

Trust and Trust Properties

Wakf:

It means that dedication of property for the pious use in perpetuity, which means that the person drops all the entitlement of the property and give it to the use of helping mankind and to the organization who spread the idea of the God almighty according to Islam. It means giving the ownership to the God and his cause. With any profit coming up from the same is the property of the god and the organization.

The above mentione provision would only apply if both the parties belong to Muslim community. Hence the Muslim Personal Law is to b apply. It is also the obligation of the court to apply only Muslim Personal Law and not anything else. As to contrary in the above cause and matter.

Section 3:- Power to Make a Declaration

Any person who satisfies to a prescribed authority that he is a Muslim and that he is competent to contract within the meaning of Section 11 of the Indian Contract Act, 1872 and that he is a resident of a territory to which this Act extends. May declare in a prescribed form as mentioned in Section 3 (2) and Section 4 of this act, which he wants to be governed by the Muslim Personal Law in all matters including wills, legacies, adoption etc. as these are not mentioned in the Section 2 of the act. It is also prescribed that once this declaration is made this does not only apply to the declaring party but also to the progeny and descendants in the above mentioned areas.

If such declaration is not made then the court is under no obligation to apply Muslim Personal Law and may apply any other custom or enactment according to local area or in the territory of India. The declaration must be before a competent authority and filled in a prescribed form as to show that the declaring party desires to be governed for every aspect according to Section 2 of this act and does not choose otherwise. If a prescribed authority refuses to take the declaration then the person desiring can approach a competent authority prescribed by the State.

Section 4:- Rule making Power

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:
   • for prescribing the authority before whom and the form in which declarations under this Act shall be made;
   • 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.[7]
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.

These section only talks about the rules which must be followed by the declaring party as well as the state about the declaration mentioned in Section 3 of the Act.

Section 7:

The under mentioned provisions of the Acts and Regulations mentioned below shall be repealed in so far as they are inconsistent with the provisions of this Act, namely:

• Section 26 of the Bombay Regulation IV of 1827;
• Section 16 of the Madras Civil Courts Act, 1873 (3 of 1873);
• Also Section 3 of the Oudh Laws Act, 1876 (18 of 1876);
• Section 5 of the Punjab Laws Act, 1872 (4 of 1872);
• Also Section 5 of the Central Provinces Laws Act, 1875 (20 of 1875); and
• Section 4 of the Ajmer Laws Regulation, 1877 (Reg. 3 of 1877).

It must be kept in mind that these are the only repealed sections as they didn’t align with the idea of Freedom to Religion enshrined in the constitution and hence the acts are totally functional and prevail with some limitations.

Conclusion

The Act was the first in the line of personal laws prevailing in India and the act gives identity to the Muslim community. The act was made at such a time when no such freedom were given to any other religion in India. The Muslim League also managed to safeguard the rights of Muslim women to some extent by enacting Dissolution of Muslim Marriage Act, 1939.