Applicability of Muslim Law in India
Shariath is a complete code dealing all matter of life. But Shariath law as a whole is not applicable in India. Sharia is applicable only to the extent of personal laws and applicable to Muslims alone.
The Muslim Personal Law (Shariat) Application Act 1937 is the special statute. It provides how much of the law of Shariath is applicable to Muslims in India. It has only six sections and section 2 reads as follows.
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 property 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).
On the above matters, Shariath law is applicable to Muslims in India. Shariath law on matters of personal law applicable in India is not codified. It was the task of our court to find the provision of Shariath from various authorities of Muslim law. This humble work is to codify that portion of Shariath applicable to Muslims in India.
There was a history behind the passing of Muslim Personal Law (Shariat). Application Act It was the usual practice of British Indian courts to decide mattes of personal law according to the custom of the parties. During 1930’s a women from Punjab sued against her brother who took all properties of their father on the basis of a Hindu custom prevailed among their family whose ancestors were Hindus. As parties were Muslims, she claimed partitions of property according to the injunctions of Holy Qur-an. But the British Court uphold the custom of the parties continued in their family and denied claims of the plaintiff daughter on the property or her deceased father.
As it was the time freedom movement in India, the Muslim leaders and Ulamas turned against the British Government that they are denying their rights given under the Holy Qur-an. A great agitation was also moved and thus Britain compelled to pass this Shariath application Act upholding Shariath law over all custom. After passing of this Act the earlier rulings based on custom equity and good conscience which were the guiding principles of British courts have no application.
The Republic of India in 1956 adopted it as per Miscellaneous Personal Laws Extension Act 1956 applicable to the whole India except to Jammu and Kashmir and in some union territories.
The Shariath Application Act is thus to apply Shariath law in these matters discarding any customs and it has no over riding effect over coming the general law of the land. But in all civil and personal matters where there is no specific general law provision, and when the parties are Muslims, then Muslim law shall be applicable to them. Right of Pre-emption is an example.
It is pertinent to note here that all important books on Muslim law now available in India are written during British period before the passing of Shariath Application Act and the laws discussed there in are mingled with the precedents of British Indian Courts which were not strictly following the Shariath law but some times according to custom and English equity.
Muslim Law versus General Laws of India
Now one may think whether the Muslim Personal law can properly apply through Courts of India without losing its true spirit in the present modern judicial system of India which is applying the general laws of procedure as well as substantial law for trial and execution. The very simple answer is that all such General Laws of India are fully in conformity with Muslim law.
The Judicial systems of India both civil and criminal are following the Muslim system. Major Substantial general laws of India such as Indian Contract Act, Transfer of Property Act, Sale of Goods Act, Specific Relief Act, Limitation Act, and the important procedural laws, The Code of Civil Procedure, Indian Evidence Act etc are either mere codification of Muslim law on these subjects or made in conformity not affecting the spirit of Muslim law. If any diversions made in these laws affecting any principle of Muslim law, they were specifically excluded and Chapter VII of Transfer of Property Act with saving clause of Section 129 is an example. Some other laws which are inconsistent with Muslim law such as Indian Succession Act, Indian Trusts Act etc are not applicable to Muslims by these Acts itself.
From a comparative study of Muslim law and important enactments of general law made during British period, it can be seen that all important provisions of these enactments and Muslim law are one and the same. Even the important legal terms and words used in Indian Judicial System such as Munsiff, Sheristadar, Nazir, Ameen, Vakalath, Mahazar etc are pure Arabic words.
Indian Penal Code is also a liberalized codification of Muslim laws on crime. The fundamental principle of criminal liability Mens rea developed during the medieval period is the copy of the famous Hadis of the Prophet “Innamal a-a-malu Bi-nniyyathi”. Chapter IV of I.P.C, General exceptions are nothing but a copy of Muslim law on criminal liability. The modern accusatorial system of criminal trial is also a contribution of Muslim Law.
The Indian Evidence Act and Muslim laws on Evidence are almost the same. As the Europeans had no such system of laws on evidence, the British Jurists were adopting the Muslim law of Evidence to apply it in India and the outcome was the Indian Evidence Act. Indian Evidence Act is a secularized codification of Muslim laws on Evidence without affecting the true spirit of basic Islamic principles of evidence.
The basic principles of natural justice and important Latin legal maxims developed in the medieval era which are applied by courts of Justice in India are one and the same in Muslim Law. Thus there are no conflicts in the application of Muslim Personal Law through courts of Justice in India.