Muslim Personal Law in India
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All the Muslims in India are governed by the Muslim Personal Law (Shariat) Application Act, 1937. This law deals with marriage, succession, inheritance and charities among Muslims. The
Dissolution of Muslim Marriages Act, 1939 The Dissolution of Muslim Marriages Act, 1939 deals with the situations in which Muslim women in India can obtain divorce. Its title and content refer to The Muslim Personal Law (Shariat) Application Act, 1937, which deals with marriage, successio ...
deals with the circumstances in which Muslim women can obtain divorce and rights of Muslim women who have been divorced by their husbands and to provide for related matters. These laws are not applicable in the state of
Goa Goa () is a state on the southwestern coast of India within the Konkan region, geographically separated from the Deccan highlands by the Western Ghats. It is located between the Indian states of Maharashtra to the north and Karnataka to the ...
, where Goa civil code is applicable for all persons irrespective of religion. These laws are not applicable to Muslims who married under the
Special Marriage Act, 1954 The Special Marriage Act, 1954 is an Act of the Parliament of India with provision for civil marriage (or "registered marriage") for people of India and all Indian nationals in foreign countries, irrelevant of the religion or faith followed ...
.


History

No evidence records administration of Muslim personal law until 1206 on the Indian peninsula, even Muslim invasions took place during this period. During the reign of Mamluk dynasty (1206-1290 A.D), Khalji dynasty (1290- 1321), the
Tughlaq dynasty The Tughlaq dynasty ( fa, ), also referred to as Tughluq or Tughluk dynasty, was a Muslim dynasty of Indo- Turkic origin which ruled over the Delhi sultanate in medieval India. Its reign started in 1320 in Delhi when Ghazi Malik assumed the ...
(1321-1413), the
Lodi dynasty The Lodi dynasty ( ps, لودي سلسله; fa, سلسله لودی) was an Afghan dynasty that ruled the Delhi Sultanate from 1451 to 1526. It was the fifth and final dynasty of the Delhi Sultanate, and was founded by Bahlul Khan Lodi when he ...
(1451 - 1526) and the
Sur dynasty The Sur Empire ( ps, د سرو امپراتورۍ, dë sru amparāturəi; fa, امپراطوری سور, emperâturi sur) was an Afghan dynasty which ruled a large territory in the northern part of the Indian subcontinent for nearly 16 year ...
(1539- 1555), the court of Shariat, assisted by the
Mufti A Mufti (; ar, مفتي) is an Islamic jurist qualified to issue a nonbinding opinion ('' fatwa'') on a point of Islamic law (''sharia''). The act of issuing fatwas is called ''iftāʾ''. Muftis and their ''fatwas'' played an important rol ...
, dealt with cases involving personal law among Muslims. During Sher Shah's regime, the powers of the court were restricted and Muslim law was modified to suit the requirements of the times. During the regime of Mughal kings Babur and
Humayun Nasir-ud-Din Muhammad ( fa, ) (; 6 March 1508 – 27 January 1556), better known by his regnal name, Humāyūn; (), was the second emperor of the Mughal Empire, who ruled over territory in what is now Eastern Afghanistan, Pakistan, Northern ...
, the earlier laws were followed, and the ''ulemas'' (religious scholars) had considerable influence on legal decisions. During
Akbar Abu'l-Fath Jalal-ud-din Muhammad Akbar (25 October 1542 – 27 October 1605), popularly known as Akbar the Great ( fa, ), and also as Akbar I (), was the third Mughal emperor, who reigned from 1556 to 1605. Akbar succeeded his father, Hum ...
's regime,
Ulemas In Islam, the ''ulama'' (; ar, علماء ', singular ', "scholar", literally "the learned ones", also spelled ''ulema''; feminine: ''alimah'' ingularand ''aalimath'' lural are the guardians, transmitters, and interpreters of religious ...
' powers were reduced and shattered the dominance of the orthodox Sunni school. During
Jehangir Nur-ud-Din Muhammad Salim (30 August 1569 – 28 October 1627), known by his imperial name Jahangir (; ), was the fourth Mughal Emperor, who ruled from 1605 until he died in 1627. He was named after the Indian Sufi saint, Salim Chishti. Ear ...
's regime, cutting of noses and ears and death penalty could not be inflicted without the Emperor's permission.
Aurangzeb Muhi al-Din Muhammad (; – 3 March 1707), commonly known as ( fa, , lit=Ornament of the Throne) and by his regnal title Alamgir ( fa, , translit=ʿĀlamgīr, lit=Conqueror of the World), was the sixth emperor of the Mughal Empire, ruling ...
ordered the compilation of a code of law.


East India Company

Under the East India company, Muslim Law was enforced except when Muslims left the disputes to be determined according to Hindu ''Saastras''. The Regulation 11 of .1772 by Sec. 27 enacted that In 1822, the
Privy Council A privy council is a body that advises the head of state of a state, typically, but not always, in the context of a monarchic government. The word "privy" means "private" or "secret"; thus, a privy council was originally a committee of the mon ...
recognized the right of
Shia Shīʿa Islam or Shīʿīsm is the second-largest branch of Islam. It holds that the Islamic prophet Muhammad designated ʿAlī ibn Abī Ṭālib as his successor (''khalīfa'') and the Imam (spiritual and political leader) after him, mo ...
Muslims to their own law.


British Raj

The British Raj passed Shariat Act in 1937 is followed in India in matters related to marriage, divorce and succession among Muslims.


Independent India

India's achievement of independence from the British was meant to bring about significant change in the regular life of Indians. Previously under British rule, Indian society was defined by social collectives, caste and religious identity, with a lack of focus on citizenship and the individual. An Indian's relationship with politics and the law was indeed determined by these social measures; the Fundamental Rights Constitution was passed and intended to reverse this concept that an individual could be limited based upon caste, religion, economic status, etc. However, the new standards laid out in the Constitution have not come to fruition in society, even 6 years after the passing of the act. Aspects of gender, caste and religion are still determinants of political influence and access to resources. The Shariat Application Act was enacted by the British government in India in 1937, and, after India became independent from Britain, the Shariat Act (MPL) was maintained in Indian society. The law was originally introduced as a matter of policy by the British government, but upon independence MPL became significant to Muslim identity and religion. This primary aspect of religion has created controversy across both Muslim communities and Hindu political organizations.


Current Debates

Recent debates related to Muslim Personal Law (MPL) are particularly in favor of abolishing the existing legal system for several reasons. It is said that the current organization of MPL in place discriminates against women in three distinct ways; they are that 1) a Muslim man is allowed to marry up to four wives at a time, 2) he can divorce his wife without entering into any legal processes, and 3) he does not need to provide financial support to his ex-wife after three months of the divorce, whereas men of other religions are likely required to support their ex-wives forever. The Shah Bano case of 1978 is related to these discriminatory provisions. A woman named Shah Bano was married to a man named Mohommed Ahmed Khan. Khan fathered several children with a second wife and Shah bano was forced out of the home; she initially sought a maintenance order for Rs. 500 per month, but was given only Rs. 200 per month upon the separation agreement. No contribution was ever made to her, and she decided to seek legal counsel as a result. Khan very clearly dictated the purpose of the divorce by deciding exactly how much to award Shah Bano with, when to award her and how to do it. By finally deciding to enter into the legal system, Bano shows her pursuit of other interests and the conflict related to muslim domestic life.


Marriage and divorce

In India, Muslim marriage is a civil contract between a man and a woman. Dissolution of marriage can be done at the instance of the husband (''
talaq Divorce in Islam can take a variety of forms, some initiated by the husband and some initiated by the wife. The main traditional legal categories are ''talaq'' ( repudiation), ''khulʿ'' (mutual divorce or ransom divorce) Historically, the rules ...
''), wife (''
khula Khulʿ ( ar, خلع), also called khula, is a procedure through which a woman can give a divorce to her husband in Islam, by returning the dower (''mahr'') or something else that she received from her husband or without returning anything, as a ...
'') or mutually (''mubarat''). Talaq allows a Muslim man to legally divorce his wife by stating the word ''talaq''. Some Muslim groups recognize triple ''talaq'' (or ''talaq-i-biddat''), stating three ''talaqs'' at once and proclaiming instant divorce as valid method. On 22 August 2017, the Supreme Court of India deemed instant triple ''talaq'' unconstitutional. The
Muslim Women (Protection of Rights on Marriage) Act, 2019 The Muslim Women (Protection of Rights on Marriage) Act, 2019 is an Act of the Parliament of India criminalising triple talaq. In August 2017, the Supreme Court of India declared triple talaq, which enables Muslim men to instantly divorce thei ...
, which declared instant ''talaq'' illegal and void, came into effect retroactively from 19 September 2018 after being given assent by the
president of India The president of India ( IAST: ) is the head of state of the Republic of India. The president is the nominal head of the executive, the first citizen of the country, as well as the commander-in-chief of the Indian Armed Forces. Droupadi Murmu ...
on 31 July 2019 and women can filed case against it in court Other Muslim groups follow ''talaq-i-hasan'', where the husband pronounces ''talaqs'' on three separate instances, each one at least 1 lunar month apart. If the husband changes his mind after the first or second talaq, or cohabits with his wife, the divorce is nullified. The husband can delegate power to pronounce ''talaq'' to his wife or a third person by agreement, called ''talaq-e-tafweez''. Section 5 of the Shariat Act of 1937 concerns Muslim women seeking divorce. Section 5 was subsequently deleted and replaced by Dissolution of Muslim Marriages Act 1939. Muslim women can seek divorce in a court of law. A woman can ask for divorce in the following circumstances: * if whereabouts of the husband has not been known for four years * if the husband has not provided for her maintenance for two years * if the husband has been sentenced to imprisonment for seven years or more * if the husband has failed to perform his marital obligations for three years * if the husband was impotent at the time of marriage and remains impotent * if the husband has been insane for two years or is suffering from leprosy or virulent venereal disease * if the husband treats the wife with cruelty, even if absent physical violence * if the wife has been given in marriage by her father or guardian before she reached age 15 * if the husband associates with women of evil repute or leads an infamous life or attempts to force her to lead an immoral life * if the husband disposes of her property or prevents her exercising her legal rights over it * if the husband obstructs her in the observance of her religious profession or practice * if he has more than one wife, or does not treat her equitably in accordance with the
Quran The Quran (, ; Standard Arabic: , Classical Arabic, Quranic Arabic: , , 'the recitation'), also romanized Qur'an or Koran, is the central religious text of Islam, believed by Muslims to be a revelation in Islam, revelation from God in Islam, ...
; or carries out any other ground recognised as valid for the dissolution of marriages under Muslim law.


Inheritance


Rules of inheritance

* A son gets double the share of the daughter wherever they jointly inherit. * The wife gets one-eighth of the share if there are children and one-fourth of the share if there are no children. In case the husband has more than one wife, the one-eighth share is divided equally among them. The husband gets one fourth of the share of his dead wife's property, if there are children and one-half if there are no children.mulla mohammaden law vol. 3 * If the parent has more than one daughter, only two-thirds of the property is divided equally among daughters. If the parent has only one daughter, half of the parent's property is inherited by her. * The mother gets one-sixth of her dead child's property if there are grandchildren, and one-third of the property if there are no grandchildren. * Parents, children, husband and wife all cases, get shares, whatever may be the number or degree of the other heirs.


''Mahr''

''
Mahr In Islam, a mahr (in ar, مهر; fa, مهريه; tr, mehir; sw, mahari; also transliterated ''mehr'', ''meher'', ''mehrieh'', or ''mahriyeh'') is the obligation, in the form of money or possessions paid by the groom, to the bride at the time ...
'' is the total money or property that the husband is required to give the wife at the time of marriage (''
Nikah In Islam, nikah is a contract between two people. Both the groom and the bride are to consent to the marriage of their own free wills. A formal, binding contract – verbal or on paper – is considered integral to a religiously valid Islami ...
''). The two types of ''mahr are'' the prompt ''mahr'' which is given to the wife soon after the marriage, and the deferred ''mahr,'' which is given to the wife when the marriage has ended, either due to the death of the husband or by divorce.


Will

A Muslim can only give one third of his/her total property through a will (w''asiyat'').


Gift

Any type of property can be given as gift.


See also

*
Christian personal law Christian Personal Law or family law regulates Adoption, Divorce, Guardianship, Marriage and Succession in India. The provisions of canon law concerning marriage are recognised as the personal law of Catholics in India (except in the state o ...
*
Hindu personal law Hindu personal laws are the laws of the Hindus as they applied during the colonial period (British Raj) of India beginning from the Anglo-Hindu Law to the post-independent Modern Hindu Law. The British found neither a uniform canon administering ...
*
Special Marriage Act, 1954 The Special Marriage Act, 1954 is an Act of the Parliament of India with provision for civil marriage (or "registered marriage") for people of India and all Indian nationals in foreign countries, irrelevant of the religion or faith followed ...


References

{{reflist Law about religion in India Islamic jurisprudence