Justice CK Abdul Rehim

    Lack of legislative codification of personal law applicable to Muslims in the country and extensive reliance by the judiciary on the case law evolved, both during the pre independence and post-independence scenario, had always contributed controversies to the jurisprudence on the subject.

    Enactment of the Muslim Personal Law (Shariat) Application Act 1937 is a landmark in the legislative history in the field of muslim personal law. When ‘Sharia’ as contained in holy ‘Qur-an’ and ‘Sunna’ is to be adhered and adopted, whether the case law on the subject, especially that of pre- 1937 period, which were mainly guided on principles of custom, equity and good conscience, can be binding precedents, was always a point of debate. Need for a legislative codification on the subject was always felt for proper dispensation of justice.

    The codification endowed by Sir. Dinshaw Fardunji Mulla (D.F.Mulla) was of great use in the judicial field. The first edition of Mulla’s ‘Principles of Mahomedan Law’ was in the year 1906, prior to enactment of the Shariat Application Act in 1937. In the preface to the first edition Sir. D. F. Mulla observes that, “The language of judgments to be found in the recognised reports has, so far as practicable, beenfaithfully reproduced in the statement of each proposition, in order to impart to it the imprimatur of authoritative law”. He concedes that he had relied upon Hamilton’s Translation of ‘The Hedaya’ (Translated in AD 1774) and ‘FATWA ALUMGIRI’, with such modifications as were necessary or proper for the requirements of modern law.Courts in the country..