Muslim personal law in India

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Muslims in India are governed by the Muslim Personal Law (Shariat) Application Act, 1937.[1] This law deals with marriage, succession, inheritance and charities among Muslims. The Dissolution of Muslim Marriages Act, 1939 deals with the circumstances in which Muslim women can obtain divorce[2] and rights of Muslim women who have been divorced by their husbands and to provide for related matters.[3] These laws are not applicable in Goa state, where the 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.[4]

History[edit]

No evidence records administration of Muslim personal law until 1206 on the Indian peninsula, even Muslim invasions took place during this period.[5] During the reign of Slave dynasty (1206-1290 A.D), Khalji dynasty (1290- 1321), the Tughlaq dynasty (1321-1413), the Lodi dynasty (1451 - 1526) and the Sur dynasty (1539- 1555), the court of Shariat, assisted by the Mufti, 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.[5] During the regime of Mughal kings Babur and Humayun, the earlier laws were followed, and the ulemas (religious scholars) had considerable influence on legal decisions. During Akhbar's regime, Ulemas' powers were reduced and shattered the dominance of the orthodox Sunni school. During Jehangir's regime, cutting of noses and ears and death penalty could not be inflicted without the Emperor's permission. Aurangazeb ordered the compilation of a code of law.[5]

East India Company[edit]

Under the East India company, Muslim Law was enforced except when Muslims left the disputes to be determined according to Hindu Saastras.[5] The Regulation 11 of .1772 by Sec. 27 enacted that

in all suits regarding inheritance, succession, marriage and caste and other religious usages or institutions, the laws of the Quran with respect of Mohamedan and those of the Shastras with respect to Gentoos (Hindus) shall be invariably adhered to.

In 1822, the Privy Council recognized the right of Shia Muslims to their own law.

British India[edit]

The British India passed Shariat Act in 1937 is followed in India in matters related to marriage, divorce and succession among Muslims.[1][6]

Marriage and divorce[edit]

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), wife (khula) or mutually (mubarat). Talaq allows a Muslim man to legally divorce his wife by stating the word talaq.[7] Some Muslim groups recognize triple talaq (or talaq-i-biddat), stating three talaqs at once and proclaiming instant divorce as valid method.[8] On 22 August 2017, the Supreme Court of India deemed instant triple talaq unconstitutional.[9] On 30 July 2019, the parliament of India made triple talaq a criminal offence.

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.[7]

The husband can delegate power to pronounce talaq to his wife or a third person by agreement, called talaq-e-tafweez.[7] The Muslim man does not have to cite a reason for divorce.[10]

Section 5 of the Shariat Act of 1937 concerns Muslim women seeking d. 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; or carries out any other ground recognised as valid for the dissolution of marriages under Muslim law.[11]

Inheritance[edit]

Rules of inheritance[edit]

  • A son gets double the share of the daughter wherever they jointly inherit.[12]
  • 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.[13]
  • 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 must, in all cases, get shares, whatever may be the number or degree of the other heirs.

Mahr[edit]

Mahr is the total money or property that the husband is required to give the wife at the time of marriage (Nikah). 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.[12]

Will[edit]

A Muslim can only give one third of his/her total property through a will (wasiyat).[12]

Gift[edit]

Any type of property can be given as gift.[12]

References[edit]

  1. ^ a b Rooychowdhary, Arija (4 May 2016). "Shariat and Muslim Personal Law: All your questions answered". The Indian Express. Indian Express. Retrieved 1 December 2017.
  2. ^ "the Dissolution of Muslim Marriages Act, 1939". indiankanoon.org.
  3. ^ "The Hindu : Maintenance for Muslim women". www.thehindu.com. Retrieved 1 December 2017.
  4. ^ "Religious conversion: HC query raises more question marks - Times of India". The Times of India. The Times of India. Retrieved 1 December 2017.
  5. ^ a b c d Rahiman, Abdul, K.K. "History of the Evolution of Muslim Personal Law in India" (PDF). Journal of Dharma: Dharmaram Journal of Religions and Philosophies. Retrieved 1 December 2017.
  6. ^ Daniyal, Shoaib. "A short history of Muslim personal law in India". Scroll.in. Scroll.in. Retrieved 2 December 2017.
  7. ^ a b c "Practical Law UK Signon". uk.practicallaw.thomsonreuters.com. Thompson Reuters. Retrieved 2 December 2017.
  8. ^ "Hanafi jurisprudence sanctions triple talaq - Times of India". The Times of India. Retrieved 2 December 2017.
  9. ^ "Triple Talaq verdict: What exactly is instant divorce practice banned by court?". hindustantimes.com. Hindustan Times. 22 August 2017. Retrieved 2 December 2017.
  10. ^ "Supreme Court suspends 'triple talaq' divorce law". www.aljazeera.com. Al-Jazeera. Retrieved 2 December 2017.
  11. ^ "The Dissolution of Muslim Marriages Act, 1939". indiankanoon.org. Retrieved 2 December 2017.
  12. ^ a b c d "A Muslim Woman's Right To Property In Islamic Law". Makaan. Retrieved 2 December 2017.
  13. ^ mulla mohammaden law vol. 3