JAMIA MILLIA ISLAMIA, NEW DELHI

FACULTY OF LAW

ASSIGNMENT FOR ISLAMIC JURISPRUDENCE

TOPIC : MUSLIM LAW AS APPLIED AND INTERPRETED IN INDIA

PRESENTED BY:

NAME : ASHAY KAUSHIK

ROLL NO. : 15

SEMESTER: III rd SEMESTER

COURSE: B.A.LL.B (Hons.)

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 TABLE OF CONTENTS

Sr. No. TOPIC Pg. No.

1. ACKNOWLEDGEMENT 3

2. MUSLIM LAW AS APPLIED AND INTERPRETED IN INDIA: 4-17

 INTRODUCTION

 ORIGIN AND EVOLUTION OF MUSLIM LAW

 APPLICATION OF ISLAMIC LAW IN INDIA

 INTERPRETATION OF MUSLIM LAW IN INDIA

 RULES OF INTERPRETATION OF MUHAMMADAN LAW

IN INDIA

3. CONCLUSION 18

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 ACKNOWLEDGEMENT

Firstly, I would like to thank the most respected Dean, Mam Nuzhat Parveen Khan to provide
this opportunity to me. Further I would like to thank my subject teacher for the subject
Islamic Jurisprudence Sir Gulam Ali Yazdani who gave me this golden opportunity to
research on the topic – “Muslim law as applied and interpreted in India”. This assignment
work assigned to me has proved to be very fruitful in acquiring a deep understanding and
knowledge regarding the topic. I have come across many subtleties regarding the topic and
got to learn many new horizons of Muslim law.

Finally, I would like to thank my Parents, who always supported and promoted my interest
without whose constant support and blessings this assignment would not have been
completed.

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 MUSLIM LAW AS APPLIED AND INTERPRETED IN INDIA

INTRODUCTION :

Law of India refers to the system of law in modern India. India maintains a hybrid legal
system with a mixture of civil, common law and customary or religious law within the legal
framework inherited from the colonial era and various legislation first introduced by the
British are still in effect in modified forms today. Indian personal law is fairly complex, with
each religion adhering to its own specific laws. Separate laws govern Sikhs, Hindus,
Muslims, Christians, and followers of other religions. In the first major reformist judgment
for the last decade, the Supreme Court of India banned the Islamic practice of "Triple Talaq"
(divorce by uttering of the "Talaq" word thrice by the husband).

In India, the personal law of the parties is applied even in the Courts in the matters relating to
‘personal matters’ of an individual like marriage, divorce, guardianship, etc. Family matters
and property are also included in the personal laws. Thus, where the parties are Muslims, the
Court will apply their personal law. Muslim Law in India refers to that portion of Islamic
Civil Law that is applied to Muslims as a personal law. It consists of injunctions of Quran and
has been further supplemented by Legislation and judicial precedents of the Courts. Personal
laws are not general in their application and wherever a person may be in India, his personal
law will follow him.

India is a country which abounds in personal laws. Every religious community in personal
matters is governed by its own laws. Just as the Hindus, the Christians, the Parsis and the
Jews are governed by their own personal laws, so are the Muslims. The Hindus and the
Muslims have, all along, claimed that their laws are of divine origin. However, in Hindu law
it has been an established proposition that a valid custom overrides the sacred law. Custom
has never been an important aspect of Muslim law, although, at one time, the Privy Council
held the view that a valid custom overrode Muslim law.

Indian Muslims' personal laws are based upon the Sharia, which is thus partially applied in
India, and laws and legal judgements adapting and adjusting Sharia for Indian society. The
portion of the fiqh applicable to Indian Muslims as personal law is termed Mohammedan law.
Despite being largely uncodified, Mohammedan law has the same legal status as other
codified statutes. The development of the law is largely on the basis of judicial precedent,
which in recent times has been subject to review by the courts. The concept of the judicial

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 precedent and of 'review by the courts' is a key component of the British common law upon
which Indian law is based. The contribution of Justice V.R. Krishna Iyer in the matter of
interpretation of the statutory as well as personal law is significant.

Roughly, the Shariat can be explained as the provisions in the Quran as well as the teachings
and practices of Prophet Mohammad. However, the origin, evolution and the applicability of
the Shariat is far more twisted than that. Article 14 of the Indian Constitution grants “equal
protection of law” to all its citizens. But when it comes to personal issues(marriage, divorce,
inheritance, custody of children,etc), Muslims in India are governed by the Muslim Personal
Law which came into force in 1937. What exactly is the Muslim Personal Law, how did it
originate and why has the Indian government faced difficulties in granting equality of marital
status to Indian Muslim women, these are questions that this assignment addresses.

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 ORIGIN AND EVOLUTON OF MUSLIM LAW

Before Islam was introduced as a religion to Arabia, a tribal social structure prevailed there.
The tribe as a whole determined what was law and the rules were unwritten. These laws
modified with time, as and when society felt the need for change. By the seventh century, the
Muslim community got established in Medina and soon started spreading to the surrounding
regions. With the establishment of Islam, the will of God, as transmitted in the Quran as the
revelations of Muhammad, came to supersede every tribal custom. These writings in the
Quran along with unwritten customs, also known as the Shariat are what govern Islamic
society. Additionally, the Shariat is also based on the Hadith (actions and words of the
Prophet as recorded by his companions). Originally, they were very broad and general
solutions to practical problems in society.

Various sources of Islamic law are used by Islamic jurisprudence to elucidate the Sharia, the
body of Islamic law. The primary sources, accepted universally by all Muslims, are the
Qur'an and Sunnah. The Qur'an is the holy scripture of Islam, believed by Muslims to be the
direct and unaltered word of Allah. The Sunnah consists of the religious actions and
quotations of the Islamic Prophet Muhammad and narrated through his Companions and Shia
Imams. However, some schools of jurisprudence use different methods to judge the source's
level of authenticity.

As Islamic regulations stated in the primary sources do not explicitly deal with every
conceivable eventuality, jurisprudence must refer to resources and authentic documents to
find the correct course of action. According to Sunni schools of law, secondary sources of
Islamic law are consensus among Muslims jurists, analogical deduction, al-Ra'y; independent
reasoning, benefit for the Community and Custom. Hanafi school frequently relies on
analogical deduction and independent reasoning, and Maliki and Hanbali generally use the
Hadith instead. Shafi'i school uses Sunnah more than Hanafi and analogy more than two
others. Among Shia, Usuli school of Ja'fari jurisprudence uses four sources, which are Qur'an,
Sunnah, consensus and aql. They use ijma under special conditions and rely on aql (intellect)
to find general principles based on the Qur'an and Sunnah, and use usul al-fiqh as
methodology to interpret the Qur'an and Sunnah in different circumstances, and Akhbari
Jafaris rely more on Hadith and reject ijtihad. According to Momen, despite considerable
differences in the principles of jurisprudence between Shia and the four Sunni schools of law,

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 there are fewer differences in the practical application of jurisprudence to ritual observances
and social transactions.

It would be a huge mistake to argue that the Shariat has remained static over centuries, as the
immutable word of God as established in the seventh century. During the period when the
Prophet was alive, the legislation mentioned in the Quran kept developing in response to
practical problems faced by the Prophet and his community. After his death too, the presence
of different schools of Sharia and the way different modern Islamic countries have applied it
to their legal domain, is evidence of the capacity in the Islamic law to be interpreted and
developed in ways meeting the needs of society.

There are four different schools of Islamic law, each of which interprets the writings in the
Quran in different ways and consists of varying rules and regulations for the Islamic
community world over. The four schools (Hanafiyya, Malikiyya, Shafiyya and Hanabaliyya)
developed in four different centuries. Countries with Muslim population have each adopted
their Islamic laws based upon one of these schools depending upon their specific situation.

Accordingly, modern Islamic nation states have responded to the needs of modernity by
embracing the Shariat in ways suiting their social and political needs. For instance, Egypt
responded to the calls of modernity in the late nineteenth century by extending secular laws
based upon theories drawn from the West. In Saudi Arabia on the other hand, the Islamic law,
as interpreted by the Hanabali Shafiyya school of thought, is strictly followed.

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 APPLICATION OF MUSLIM LAW IN INDIA

The Muslim Personal Law (Shariat) Application Act was passed in 1937 with the aim to
formulate an Islamic law code for Indian Muslims. The British who were at this point in time
governing India, were trying to ensure that Indians be ruled according to their own cultural
norms. When it came to distinguishing between laws made for the Hindus and those for the
Muslims, they laid out the statement that “clear proof of usage will outweigh the written text
of the law” in the case of Hindus. For the Muslims on the other hand, the writings in the
Quran would be of foremost importance. Since 1937 therefore, the Shariat Application Act
mandates aspects of Muslim social life such as marriage, divorce, inheritance and family
relations. The Act lays out that in matters of personal dispute the State shall not interfere.

Such legislations have been made over the years for other religious groups in India as well,
thereby framing separate civil codes for different religions in the country. For instance, the
Hindu Succession Act of 1956 which lays out guidelines for property inheritance among
Hindus, Buddhists, Jains and Sikhs.

The applicability of the Shariat Act has come under controversy in the past as well. There
have been previous instances when the issue of protection of women’s rights as part of the
broader fundamental rights came into conflict with religious rights. Most well known among
these is the Shah Bano case. In 1985, 62-year-old Shah Bano, filed a lawsuit, seeking alimony
from her former husband. The Supreme Court, in this case, had held up her right to alimony,
but the judgment was vehemently opposed by the Islamic community who considered it to be
going against the written rules in the Quran. The case triggered a controversy regarding the
extent to which courts can interfere into personal/religious laws. The Congress government
which was then in power, passed the Muslim Women (Protection of Rights on Divorce Act),
which made it necessary for the husband to pay alimony to his wife, but only during the
period of iddat, that is 90 days after divorce.

There have been plenty of instances of protests against personal laws. One of the prime
agendas of the women’s movement in India since the 1930s has been the discrimination faced
by women in personal laws, across all religions. Earlier in March this year, Justice B. Kemal
Pasha, a sitting Judge of the Kerala High Court had made a strong protest against Muslim
women being denied equal rights under the Muslim Personal Law. However, voices of protest
against reforms in the personal laws have made it extremely difficult to make amends.

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 The Shariat Application Act in India protects the application of Islamic laws in personal legal
relationships, but the Act does not define the laws. It clearly states that in matters of personal
disputes, the State shall not interfere and a religious authority would pass a declaration based
on his interpretations of the Quran and the Hadith. Given this background of the matter it is
difficult to have it undergo changes since it raises the question, to what extent should the
State (which is supposed to be secular) interfere with the personal affairs of the civilians.
While the protection of the rights of women has been called into time and again in such cases,
“majority of those practising Islam consider the laws of the Shariat to be completely correct
and so they cannot be subjected to legislative changes considering the fact that freedom of
religion, practices and so on, are part of fundamental rights,” says practising lawyer M.R.
Shamshad.

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 INTERPRETATION OF MUSLIM LAW IN INDIA

In India, whenever personal matters come before a court of law, the first question that arises
is: Which law applies to the parties to litigation? If the parties are Hindus, Hindu law will
apply; and so on. Since here we are concerned with the question of application of Muslim
law, we would answer that question under Muslim law. In modern India, Muslim law means
that portion of Islamic law which governs the Indian Muslims in their personal matters.

Since Muslim law applies to the Muslims alone, we have to define who is a Muslim.

In modern Hindu law, the term “Hindu” has not been defined strictly in terms of religion,
whereas the term “Muslim” in Muslim law has always been defined in terms of religion, even
though the orthodoxy or heterodoxy of belief is no concern of the court.

For the purpose of the application of Muslim law, the Muslims fall under the following two
categories:

 Muslims by origin; and

 Muslims by conversion. Muslims by conversion may be further subdivided into the

following categories:

i. Muslims who profess Islam, and

ii. Muslims who undergo formal conversion.

Muslim by Origin:

No person can be a Muslim who does not subscribe to the basic tenet of the Islam. A person,
who subscribes the basic tenets of Islam, is a Muslim. The basic tenets of Islam are the
following two:

(a) The principle of the unity of God, i.e., God is one, and

(b) Muhammad is the Prophet of God.

According to Islamic theology, other essential beliefs of a Muslim are : the holy book, the
Koran, is the only revealed book of Allah, Hazrat Muhammad was the last rasul (prophet),
and there is a day of judgment (Keyamat) followed by life after death (Akhirat).

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 A person, who subscribes to the basic tenets of Islam, will be a Muslim by origin if it is not
established that he is a convert to Islam. If a person is born of Muslim parents, he will be a
Muslim; and it is not necessary to establish that he observes any Islamic rites or ceremonies,
such as performance of five prayers, observance of the Ramazan fast.

It is not at all necessary to establish that he is an orthodox believer in Islam. Such a person
will continue to be a Muslim till he renounces Islam. Mere observance of some of rituals of
Hinduism, or for that matter, of any other religion, will not by itself make that person a non-
Muslim. Conversely, a person will not become a Muslim just because he calls himself a
Muslim, or is considered by others a Muslim.

In Muslim law, a child born to Muslim parents is presumed to be a Muslim. The Shariat lays
down that if one of the parents is a Muslim, even then the child will be a Muslim. The
ordinary rule in India is that the child takes to the religion of his father, unless the contrary is
proved. This rule is now subject to the rule of modern Hindu law, viz., if one of the parents is
a Hindu and the child is brought up as a Hindu, then the child will be a Hindu.

To this category of Muslims, Muslim personal law applies in its totality and no rule of
Muslim law can be modified by custom.

Muslims by Conversion:

A non-Muslim may become a Muslim by professing Islam, i.e., by acknowledging that there
is only one God and Muhammad is his prophet, or by undergoing the ceremonies of
conversion to Islam.

A convert of Islam is ordinarily governed by Muslim law. Till 1937, it was possible for a
convert to be continued to be governed by his personal law, including customary law. After
the coming into force of the Shariat Act, 1937, the generality of that statement stands
modified, though, it is submitted the application of custom to the Muslims has not been
totally abrogated.

Profession of Islam:

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 “Profession with or without conversion is necessary and sufficient to remove the disability of
having another religion”. Thus, observed Lord Macnaughten in Abdul Razak v. Aga
Mahommed. In this case, a wealthy Muslim, Abdul by name, had died, apparently, without
any heir.

But, one Abdul Razak made a claim to his estate on the plea that he was the son of the pre-
deceased brother of Abdul. The brother of Abdul had married a Burmese woman, Mah Thai, a
Buddhist by religion, but it was not established that she had been converted to Islam either
before, or after, the marriage.

It was established that she was to recite the Muslim prayers. The court came to the conclusion
that, since the marriage of Abdul’s brother with the Buddhist woman was void under Muslim
law, Abdul Razak, though a Muslim could not succeed to Abdul’s estate, being an illegitimate
child.

The converse situation arose in Mst. Resham Bibi v. Khuda Baksha, where a Muslim wife,
with a view to ending an unhappy marriage, renounced Islam, and prayed to the court that
Muslim law of apostasy should be applied to her, and her marriage should be deemed to have
been automatically dissolved from the date of her apostasy.

Curiously enough, the District Judge Ordered a plate of pork to be brought in the court room,
and the wife was asked to eat it. On her refusal to do so, the court concluded that her apostasy
was insincere.

Accepting the appeal, the appellate court observed: “One may relinquish a faith which is an
easy thing to do, but one may not acquire liking for those things which one has been taught to
detest throughout one’s life”. The court accepted the wife’s statement that she no longer
believed in Allah, in Muhammed as her Prophet and in the Koran, and thus ceased to profess
Islam.

The court then said: “a person’s religious belief is not a tangible thing which can be seen or
touched. It is the mental condition of one’s believing in certain articles of faith that
constitutes one’s religion and if one ceases to believe in them, which again is a mere mental
condition, one automatically ceases to profess that religion”.

In this case, Din Mohammad J. remarked that the motive of the declarer was also immaterial;
a person might renounce his faith for love or avarice; one might do so to get rid of his present
commitments or truly to seek salvation elsewhere, but that would not affect the factum of

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 change of faith. And, in matters like these, it was the factum alone that matters and not the
latent spring of action which resulted there from.

Whether mere profession of Islam is sufficient to make a non-Muslim a Muslim is not

entirely free from doubt. It is true, as Lord Macnaughten had stated, no court of law can test
or gauge the sincerity of religious belief.

In all cases where, according to Muslim law, unbelief, or difference of creed, is a bar to
marriage with a true believer, it is enough if the alien in religion embraces Islam. It is
submitted that a non-Muslim will become a Muslim by professing Islam, provided that it is
not colourable or mala fide or made with a view to perpetrating fraud upon law.

Conversion to Islam:

It appears to be a well established proposition of law that a non-Muslim, on undergoing the

ceremonies of conversion prescribed under Islam, becomes a Muslim. In Islam, the
ceremonies of conversion are very simple. A person seeking conversion to Islam may go to a
Muslim mosque. On the Imam asking him, “Are you voluntarily embracing Islam”, if he
answers affirmatively, he is given the Kalma to recite. On the completion of the recitation of
the Kalma, the conversion ceremony is over, and the non-Muslim becomes a Muslim.

The Imam then confers a Muslim name on the convert. In most of the mosques, a register is
kept in which the name of the person embracing Islam is entered and the convert puts his
signature thereto.

Conversion of a Muslim from one sect to another does not amount to apostasy, and a person
changing from- one sect to another continues to be a Muslim.

The genuineness of belief in the new faith is immaterial, and even when a convert does not
practise the new faith, he will continue to be a Muslim. But it is necessary that the conversion
should be bona fide, honest, and should not be colourable, pretended or dishonest.

In the leading case, Skinner v. Orde, a Christian woman was cohabiting with a married
Christian man. With a view to legalizing their living together as husband and wife, both of
them underwent a ceremony of conversion to Islam. After conversion, they married.

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 Later on, when the question of validity of this marriage arose, the Privy Council held that the
marriage was null and void on the ground that conversion was not bona fide. Moreover, it
was a fraud upon the law, since the parties underwent the ceremony of conversion with a
view to eluding their personal law.

The question of colourable, fraudulent and dishonest conversion has come up before the
Indian High Courts in a number of cases, where a non-Muslim has embraced Islam, either to
claim divorce on the ground of apostasy, or to enter into a polygamous marriage.

Thus, in the matter of Ram Kumari, a Hindu married woman adopted Islam, and assuming
that this meant automatic dissolution of her marriage, took a second husband. She was
prosecuted and convicted for bigamy.

In Rakeyabibi v. Anil Kumar, this aspect of the matter has been very cogently and brilliantly
discussed by Chakravarti, J. In this case, a married Hindu woman, with a view to getting rid
of her impotent husband, embraced Islam, and sought to a declaration that on her conversion
to Islam, her Hindu marriage stood dissolved.

Observing that the question whether conversion was bona fide or merely a device for
terminating the marriage, was very important, the learned judge said: “it may be that a court
of law cannot test or gauge the sincerity of religious belief, or that, where there is no question
of genuineness of a person’s belief in a certain religion, a court cannot measure its depth or
determine whether it is an intelligent conversion or an ignorant superficial fancy.

But a court can and does find the true intention of men lying behind their acts and can
certainly find out from the circumstances of a case whether a pretended conversion was really
a means to some further end Indeed, it seems to us to be elementary that if a conversion is not
inspired by religious feelings and undergone for its own sake, but is resorted to merely with
the object of creating a ground for some claim of right, a court of law cannot recognize it as a
good basis for such claim, but must hold that no lawful foundation of the claim has been
proved.

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 RULES OF INTERPRETATION OF MUHAMMADAN LAW IN INDIA:

The following are the principal rules of interpretation of Muhammadan Law:

Rule I:

In administering Muhammadan law, the Court should not, as a rule, attempt to put its own
construction on the Koran, in opposition to the express ruling of commentators on Islamic
law of great antiquity and high authority.

As seen earlier, it has been held by the Privy Council that where a passage of the Koran was
interpreted in the same way both in the Hedaya (Sunni law) and in the Imamia (Shia law), it
is not open to a Judge to put his own construction on the Koranic text. (Aga Mohamed Jaffer
v. Koolsom Bibi, (1897) 25 Cal. 9)

Likewise, no Court should examine the conformity of any traditionally settled legal principle
with the relevant text of the Koran. (Aga Mohammed Jaffer v. Koolsom Bibi, above).

Rule II:

Neither the ancient texts nor the precepts of the Prophet should be taken literally, so as to
deduce from them any new rule of law, especially, when such a rule is not conducive to
substantial justice. (Baqar Ali v. Anjuman, (1902) 25 All. 236)

It is interesting to note that in one case (Abdul Fata v. Russomoy, (1894) 22 Cal. 619), the
Privy Council, misapplying a rule of English law to a Muhammdan wakf, held that family
wakfs were void. In doing so, the Court had departed from a long line of Muslim Jurists who
had taken a contrary opinion. However, as Fyzee rightly remarks, poetic justice was done
when the Privy Council itself was overruled by the Mussalman Waif (Validating) Act, 1913.

Rule III:

However, the Courts should not also follow the Islamic texts slavishly. As Chagla J. warned
in Asharafalli v. Mahomedalli (48 B.L.R. 642):

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 “Now, there is no doubt that these ancient Muslim texts must be considered with the utmost
respect. But it must also be remembered at the same time that Muslim jurisprudence is not a
static jurisprudence.

It is a jurisprudence which has grown and developed with the times, and the quotations from
Muslim texts should be so applied as to suit modern circumstances and conditions. It is also
dangerous to pick out illustrations wrenched from their context, and apply them literally.”

Rule IV:

No Court should, in any way, circumvent or deviate from the law as settled by the jurists of
the past, even If it does not sound “modern” or “just” or “logical”. As observed by the
Madras High Court (in Veerankutty v. Kutty Umma (1956) Mad. 1004):

“We have, therefore, to administer, without in any way circumventing or deviating from the
original texts, the law, as promulgated by the Islamic law-givers, to suit the present-day
conditions, and in doing so, it has to be remembered that Courts are not at liberty to refuse to
administer any portion of those tenets, even though in certain respects, they may not sound
quite modern.”

Rule V:

As regards interpretation of Hanafi law, the following rules of interpretation are to be applied:

(a) If there is any difference of opinion between Abu Hanifa, the founder of the Hanafi
School, and his two disciples, Abu Yusuf and Imam Muhammad, the opinion of the disciples,
prevail. (Ebrahim Alibhai v. Bal Asi, (1934) I.L.R. 58 Bom. 254)

(b) If there is any difference of opinion between Abu Hanifa and Imam Muhammad, that
opinion which coincides with the opinion of Abu Yusuf is to be accepted.

(c) If there is a difference of opinion between the disciples, the view of Abu Yusuf will
prevail. (Abdul Kadir v. Salima, (1886) I. L.R. 8 All. 149)

(d) When there is a conflict of opinion, and there is no specific rule to guide the Court, the
Court will follow that opinion which is in accordance with justice, equity and good
conscience. (Aziz Bano v. Muhammad (1925) I.L.R. 47 All. 823)

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 CONCLUSION

Interpretation of Islamic law in the English sense yet retaining Islamic appearance be it by the
state or through judicial pronouncement, one might say, form the discourse of Mohammedan
law in British India. It is an interpretative exercise which illuminates the exercise of power of
the British colonizer in India. The administrative set up especially the administrative structure
of the courts and legal rhetoric of the post-Mughal period facilitated British colonizer in India
to disguise the Islamic jurisprudence into a system of ‘AngloMohammedan law’. It appears
that the discourse of Muhammedan law was developed as well as nurtured by the oriental
scholarships and their allies in India even in the post-colonial era.

In addition, it is also pertinent to mention that in the post-colonial states the judges of the
highest judiciary assume the responsibility to carry on the legacy of their masters. As a result
the voice of the post-colonial judges sounds like the colonial judges on the question of
interpretation of Islamic family law.

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