Author Avatar

Atul Dubey

0

Share post:

Muslim Personal Law- Origin & Development

Prior to the introduction of Islam as a religion, Arabia had a tribal social structure. What constituted law was established by the tribe as a whole, and the rules were unwritten. These rules evolved over time, as a society recognized the need for reform. By the seventh century, the Muslim community had established itself in Medina and had quickly expanded to the neighboring areas. The Muslim Personal Law, which went into effect in 1937, governs Muslims in India. With the advent of Islam, the will of God, as transmitted in the Quran as Muhammad’s revelations, came to trump all tribal customs. The Muslim Personal Law (Shariat) Application Act was enacted in 1937 with the goal of developing an Islamic legal code for Indian Muslims. When it came to differentiating between laws created for Hindus and those made for Muslims, Britishers stated that in the case of Hindus, “clear proof of usage will outweigh the written wording of the law.” The writings in the Quran, on the other hand, would be of paramount importance to Muslims. Marriage, divorce, inheritance, and family connections are all governed by this legislation.

Shariat Court as a parallel system of justice for Muslims

Sharia courts are ‘courts’ that attempt to protect and implement Sharia rules. These courts are known as “Darul Qazas” in Arabic (or house of qazi). These Sharia courts are not courts in the traditional sense, but rather counseling and arbitration centers. They are popular because they are easily accessible, informal, and volunteer institutions that deliver quick and low-cost justice, particularly to the poor. Muslims can go to these courts and seek counsel from the qazis. The All India Muslim Personal Law Board (AIMPLB) now manages and promulgates Sharia courts in India. The presence of these courts has frequently been a source of contention and discussion in the Indian Personal Law System. While they have widespread popularity among various Muslim communities and religious backing, they are not recognized under the Indian Constitution.

Legal Sanctity for such religious sanction (Muslim Law)

The presence of religious sanction does not imply the presence of legal sanction as well. While Articles 13, 14, 25 (1), and 29 (1) allow for the protection of minorities’ rights and interests, they do not require the establishment of institutions such as Sharia courts. Furthermore, it should be highlighted that religious rituals are frequently regressive when contrasted to modern culture. While the practice of notorious traditions like as Sati, dowry, and the ban of widow remarriage, which had a place in Hindu Personal Laws for millennia, has been abolished, it is also necessary to reconsider such harsh and discriminatory customs practiced in the name of personal laws. While religious institutions such as Sharia courts would support anything in the name of religion, they are also likely to violate the values established in Articles 14 and 21 of the constitution.

Cases invalidating the applicability of Shariat Law

A complete bench of the Bombay High Court ruled that a Muslim husband cannot dissolve a marriage at a whim and that the facts of the due talaq procedure must be shown in court for triple talaq to be legitimate. According to the Quran, a “mere declaration of the husband or proof in favour thereof by means of Talaqnama or deed of divorce or certificate of divorce would not suffice to show the factum of having used this authority at some point in the past.” According to the court, a legal divorce must be established under the Civil Procedure Code of 1908 and the Indian Evidence Act of 1820.

In invalidating arbitrary triple talaq, the Supreme Court ruled that the facts leading to the talaq had to be substantiated and that a simple paper specifying the date or events of the talaq would not be deemed legitimate talaq. “A plea of prior divorce taken in the written statement cannot be considered as talaq by the husband on the date of filing of the written statement in Court followed by delivery of a copy thereof to the wife.” The court issued this decision in order to disrupt the habit of arbitrarily and whimsically divorcing a Muslim woman. The court ruled that the wife was entitled to support from the husband, who was required to execute the duty.

With the prospect of reconciliation of married couples in mind, the court supported its decision to make triple talaq reversible, stating that “when a talaq is changeable, attempts at reconciliation can take place even after the declaration.” This is because, in a reversible talaq, the dissolution of marriage is automatically delayed until the conclusion of the Iddat period and does not occur at the time of pronouncement.”

Section 125(3) of the Code of Criminal Procedure also applies to Muslims without prejudice. The court went on to say that if there is a disagreement between the two, Section 125 takes precedence. It makes it plain that there is no conflict between Section 125’s provisions and those of the Muslim Personal Law on the Muslim husband’s obligation to give maintenance for a divorced wife who is unable to support herself. The payment of Mehar by the husband upon divorce does not relieve him from the need to provide maintenance to the wife.

After a lengthy court procedure, the Supreme Court eventually decided that if a divorced woman is competent to maintain herself, the husbands’ legal obligation will terminate. However, if the woman is unable to support herself after the Iddat period, the status will be reversed.

The petition seeking a prohibition on the practice of Triple Talaq was considered by a constitution bench comprised of five judges from various religions: Justice Kurian Joseph, a Catholic, Justice UU Lalit, a Hindu, and Justice RF Nariman, a Parsi, Chief Justice Khehar, a Sikh, and Justice Abdul Nazeer, a Muslim. By a 3:2 vote, this bench found Triple Talaq, also known as Talaq-e Biddat, illegal on August 22, 2017. The majority judgment was rendered by Justices Kurian, Lalit, and Nariman, but Chief Justice Khehar and Justice Nazeer dissented.

The Lacuna!!

In India, the Shariat Application Act guarantees the application of Islamic rules in personal legal relationships, although it does not define the laws. It plainly specifies that the State shall not intervene in personal conflicts, and a religious leader would issue a statement based on his readings of the Quran and Hadith. Given this context, it is difficult to see the situation alter because it raises the question of how far the State (which is meant to be secular) should intervene in the personal affairs of people. While the protection of women’s rights has been emphasized in such cases, the Bombay High Court stated in State of Bombay v Narasu Appa Mali that “the majority of those practicing Islam consider the laws of the Shariat to be completely correct and thus they cannot be subjected to legislative changes considering the fact that freedom of religion, practices, and so on, are part of fundamental rights” (1952). In this case, a Hindu man who was convicted under a Hindu bigamy prohibition statute claimed that the law infringed on his fundamental right to equality under the newly established Constitution because the rule barred Hindu males from committing bigamy but not Muslim men.

Personal laws, according to a two-judge bench of the Bombay High Court, could not be declared unconstitutional by courts even if they were found to be in violation of fundamental rights, since they were not “laws in force” as defined by Article 13 of the Constitution. As a result, personal laws were deemed constitutionally untouchable. In Sri Krishna Singh v Mathura Ahir, the Supreme Court bench has affirmed the Narasu Case decision in 1980.

The Court seems to have tacitly reversed the Narasu argument in a 1996 decision, noting that personal legislation would be unconstitutional if they infringed basic rights (C Masilamani Mudaliar and Others v The Idol of Swaminathaswaminathaswami Thirukoil 1997). The Supreme Court affirmed Narasu the following year in Ahmedabad Women’s Action Group v Union of India (1997), dismissing a petition challenging several sections of Hindu, Muslim, and Christian personal laws.

Narasu has received a wide range of reactions from the high courts. While some have stuck to its logic, others have argued that it should be reconsidered. (See Assan Rawther v Ammu Umma (1971: Para 23); Re, Smt Amina v Unknown (1992).

Conclusion

In some places, Shah Bano’s case has revived the liberal nationalist fantasy of a uniform civil code, motivated by their concern about the “religious” persecution experienced by Muslim women. This is puzzling, given that Shayara’s petition makes no such demand, and there is no clear link between changing particular practices in Muslim family law and establishing a standard family law for the whole nation. Contrary to common assumption, personal laws, especially Muslim personal law, have experienced major modifications in the last 30 years, not only via piecemeal legislative revisions but also through judicial interpretation in instances filed by persons like Shah Bano.

Instead of pursuing the great nationalistic goal of “one nation, one law,” the Supreme Court of India would do well to contribute to the continuing process of legal change by casting away the shadow of the 1951 Narasu decision and holding personal laws subject to fundamental rights. This would allow not just Muslim women like Bano, but also women of other faiths, to challenge discriminatory elements in personal laws that apply to them.

You may follow us on Instagram and Linkedin for daily legal updates.

Nancy Srivastava is working as an Intern at Jurisedge Academy and has completed her LLM in Constitutional Law at MNLU, Aurangabad

Afghanistan: Recognition Under International Law?
Decentralizing the Supreme Court: An Attempt to make Justice Accessible

Leave a Comment

Your email address will not be published. Required fields are marked *