LAWS DEROGATORY TO MUSLIM PERSONAL LAW

F.A. Khalid, Advocate

Islamic Law governs the Muslims who have faith in Prophet Mohamed, the founder of Islam. Islam is a religion based on the holy book Koran. The Koran is the word of Almighty God and it was revealed to the Prophet Mohammad through an angel known as Gobriel. The Koran is the main source of Islamic Law and no Muslim can go beyond Koran.

Islamic Law of Mohammadan Law is applied for adjudication between the parties if both parties belongs to Muslim (AIR 1925 All. 720, Sayed Murtaza -v- Alhan Bibi).

A Muslim has to admit the Koranic rules and those Ahadees (Traditions) which coincide with Koran and its basic principles have to be followed strictly. If no answer is found in Koran or Ahadees in any question only then one has to take advice from other source.

Mohammadan Law is applied by Courts in India, to Muslims not to all but in some matters only (Mulla -Principles of Mohammadan Law).

In fact, Muslim Law originates from divinity as the same is based on the Koran which is the divine communication and revealation to the Prophet of Islam. Islam is the name of a religion and its meaning is “Submission to the will of God and secular sense Islam means the establishment of peace”.

The first attempt to conquer India for Islamic faith was failed in 712 A.D. but in the 11th Centuries the Muslims under Mohmood Ghazanavi invaded India and became successful in establishing permanent empire in India. During his reign over India, Islam began to make a rapid progress in India.

During the Muslim rule in India Islamic Law became the law of the land and it continued till the establishment of the British India. Under the British India also in Civil, Criminal and Evidence matter Islamic Law was in force not only to the Muslims but to all the Indians.

Under the British India Customary Law took an important role. But the then Muslims repeatedly agitated that the customary should in no case take the place of Muslim Personal Law. Ultimately the Muslim Personal Law (Shariat) Application Act, 1937 came into operation on 7th October, 1937 while abrogating all the local Acts existing before its coming into force applies Mohammadan Law to Mohammadan throughout India in certain matters.

In sum up, Islamic Law came into India with Islamic invaders who established Kingdoms here and eventually became part and parcel of this country.

Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 reads.

Notwithstanding any custom or usage to the country, in all questions relation to agricultural lands regarding interstate succession; special property or females, including personal property inherited or obtained under contract of gift to any other provision of personal law, marriage, dissolution of marriage, including talak, ila, zihar, lien, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts, and trust properties and wakfs (other then charities and charitable institutions and charitable and religious endowments) the rule of decision, in case where the parties are Muslims shall be the Muslim Personal Law (Shariat).

It may be mentioned here that because of non-obstante clause contained in Section 2 of the said Act, no law can interfere with a Muslim in he matter of the above cited 8 (eight) subject matters. Thus, in connection with the aforesaid subject matters, if the parties are Muslims, Muslim Personal Law should be applied as usual which has been continued ever since before independence.

Even the Majority Act, 1875 does not affect the capacity of any Muslim to act in the matter of marriage, dower, divorce and adoption viz Section 2 of the said Act.

The Government of India Act, 1935 also empowered the Courts to apply the Personal Law of Mohammadan to them. Even after independence the provisions regarding the application of Mohammadan Law have been protected and maintained in the Constitution of India vide Article 225- Subject to the provisions of this Constitution and to the provisions of any law of the appropriate legislature made by virtue of power conferred on that legislative by this Constitution, the jurisdiction of and the law administered in any existing High Court and the respective powers of the Judges thereof in relation to the administration of the justice in the Court including any power to make rules of Court and to regulate the sitting of the Court and of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of this Constitution.

Article 372 of the Constitution of India also provides that the law in force immediately before the Constitution shall continue to be in force even after coming into force of this Constitution.

The provisions for application of Mohammadan Law in the matter of marriage and divorce, infants and minors etc. in respect of which the parties were, immediately, before the coming of the Constitution into force, subject to their personal law, has been made in schedule, List-II, Item No. 5.

Moreover, in Maharishi Advadesh-v-Union of India (1994) Supp. 1 SCC 713, the Apex Court dismissed the prayer to direct the Government, not to enact a Shariat Act so as to affect the right of Muslim women. In the same case the apex court declined to grant a declaration nullifying the Muslim Women’s Protection of Rights of Divorce Act, 1989. It shows that the Court is reluctant to interfere in the matter of personal law.

But it is very unfortunate to learn that sometimes Courts breath hot and cold at the same time. Because despite the existence of Muslim Women’s Protection of Rights on Divorce Act, 1986 in which non-obstante clause is also contained, various orders have been passed for maintenance under Section 125 Cr.P.C. against a Muslim husband. Question is, by acting so, can Court invalidate to object of enacting the Act, 1986 for enactment of which Legislatures have expended their valuable time, energy and labour in order to restore the application of Mohammadan Law to a Muslim. And another question is that can Court ignore the non-obstante clause contained in the provisions of the said Act, 1986.

In these days it seems that even the existence of Muslim Personal Law (Shariat) Application Act, 1937 is forgotten. However, the Act, 1937, though it was enacted before independence, it has been in existence till date and since the same has not yet been repealed, all matters enumerated in Section 2 of the Act, 1937 should be administered by applying Muslim Personal Law provided the parties belong to Muslims.

In continuation of this view, the provision of POCSO Act, 2012 (Protection of Children from Sexual Offence Act, 2012) is not applicable to Muslim in as much as the Muslims attain majority at the age of 15 years under their personal law. If the age of majority i.e. 15 years is rejected in view of provisions of POCSO Act, 2012 or IPC or Majority Act, 1872 in connection with a Muslim in the matter of marriage, such action would amount to interference with one’s personal law. In fact, there is no non-obstante clause in the provisions of POCSO Act, 2012 and as such, it cannot override the provisions of other enacted laws.

India is a dominion, stands for a secular State, Though, India being a secular state, having no official religion, secularism pervades its provisions which give full opportunity to all persons to profess, practice and propagate religion of their choice. In fact, our Constitution give us freedom of religion. But if interference with one’s religion occurs, the word Secular contained in our Constitution’s Preamble shall remain as a paper tiger or a blunt sword.

India being a Secular State, every citizen is bound to respect all religion without any discrimination. In order to show that every religion professed in this country is respected, the Legislatures also should be cautious in enacting laws in the country. Otherwise, the word secular contained in the Preamble of our Constitution shall be a fraud provided the legislatures continue to enact laws like POSCO Act, 2012 which interferes the capacity of a Muslim specially in respect of marriage under his personal law.



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