Muslim personal law

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All the 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 the states of Goa, where Goa civil code is applicable for all persons irrespective of religion and state of Uttarakhand. These laws are not applicable to Indians, including Muslims, who married under the Special Marriage Act, 1954.

Contents

History

Evidence of Muslim personal code can be found since 1206 on the Indian peninsula with the establishment of Islamic rule in parts of the region. [4] During the reign of Mamluk 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. [4] 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 Akbar'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. Aurangzeb ordered the compilation of a code of law. [4]

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. [4] 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 Raj

The British Raj passed Shariat Act in 1937 is followed in India in matters related to marriage, divorce and succession among Muslims. [1] [5]

Independent India

India's achievement of independence from the British was meant to show 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. [6] 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. [6]

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. [7] 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. The Indian Parliament passed Hindu Code Bills, consisting of Hindu Marriage Act (1955), Hindu Succession Act (1956), Hindu Minority and Guardianship Act (1956) and Hindu Adoptions and Maintenance Act (1956). Those who practised Sikhism, Jainism, and Buddhism were considered to be Hindus under the jurisdiction of the Code Bill.

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, [8] 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. [9]

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. [9] 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 ), wife ( khula ) or mutually (mubarat). Talaq allows a Muslim man to legally divorce his wife by stating the word talaq. [10] Some Muslim groups recognize triple talaq (or talaq-i-biddat), stating three talaqs at once and proclaiming instant divorce as valid method. [11] On 22 August 2017, the Supreme Court of India deemed instant triple talaq unconstitutional. [12] The Muslim Women (Protection of Rights on Marriage) Act, 2019, which declared instant talaq illegal, void, and cognizable offence, came into effect retroactively from 19 September 2018 after being given assent by the president of India 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. [10]

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:

Inheritance

Rules of inheritance

Mahr

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. [14]

Will

A Muslim can only give one third of his/her total property through a will (wasiyat). [14]

Gift

Any type of property can be given as gift. [14]

See also

Related Research Articles

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<i>Mohd. Ahmed Khan v. Shah Bano Begum</i> Maintenance lawsuit in India

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<span class="mw-page-title-main">Triple talaq in India</span> Form of Islamic divorce

Triple talaq and talaq-e-mughallazah are now-banned means of Islamic divorce previously available to Muslims in India, especially adherents of Hanafi Sunni Islamic schools of jurisprudence. A Muslim man could legally divorce his wife by proclaiming three times consecutively the word talaq.

<span class="mw-page-title-main">Muslim Women (Protection of Rights on Marriage) Act, 2019</span>

The Muslim Women 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 their wives, to be unconstitutional. The minority opinion suggested the Parliament to consider appropriate legislation governing triple talaq in the Muslim community.

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, succession and inheritance among Muslims. The 1939 act is an act to consolidate and clarify the provisions of Muslim Law relating to suits for dissolution of marriage by women married under Muslim Law. The act received assent of the Governor-General on 17 March 1939. In Muslim law, the wife can claim divorce under extrajudicial or judicial modes. The extrajudicial modes are Talaaq-i-tafweez and Lian. The judicial mode is by Dissolution of Muslim Marriages Act 1939. The act defines the grounds for divorce and the procedure for the purpose. Important aspect of this law is section 4 that states "The renunciation of Islam by a married Muslim woman or her conversion to faith other than Islam shall not by itself operate to dissolve her marriage".

References

  1. 1 2 Rooychowdhary, Arija (4 May 2016). "Shariat and Muslim Personal Law: All your questions answered". The Indian Express. Indian Express. Archived from the original on 11 December 2017. Retrieved 1 December 2017.
  2. ↑ "the Dissolution of Muslim Marriages Act, 1939". indiankanoon.org. Archived from the original on 2019-09-26. Retrieved 2017-12-01.
  3. ↑ "Maintenance for Muslim women". The Hindu . 2000-08-07. Archived from the original on 26 November 2016. Retrieved 1 December 2017.
  4. 1 2 3 4 Rahiman, Abdul, K.K. "History of the Evolution of Muslim Personal Law in India" (PDF). Journal of Dharma: Dharmaram Journal of Religions and Philosophies. Archived from the original (PDF) on 23 November 2018. Retrieved 1 December 2017.{{cite web}}: CS1 maint: multiple names: authors list (link)
  5. ↑ Daniyal, Shoaib (4 September 2017). "A short history of Muslim personal law in India". Scroll.in. Archived from the original on 4 November 2017. Retrieved 2 December 2017.
  6. 1 2 Newbigin, Eleanor. Personal Law and Citizenship in India's Transition to Independence.
  7. ↑ Patel, Razia (2009). "Indian Muslim Women, Politics of Muslim Personal Law and Struggle for Life with Dignity and Justice". Economic and Political Weekly. 44 (44): 44–49. JSTOR   25663732.
  8. ↑ "Polygamy: Muslim women in India fight 'abhorrent' practice". BBC News. 2022-05-09. Retrieved 2022-10-10.
  9. 1 2 Vatuk, Sylvia. A Rallying Cry for Muslim Personal Law: The Shah Bano Case and Its Aftermath.
  10. 1 2 "Practical Law UK Signon". uk.practicallaw.thomsonreuters.com. Thomson Reuters. Archived from the original on 12 December 2019. Retrieved 2 December 2017.
  11. ↑ "Hanafi jurisprudence sanctions triple talaq - Times of India". The Times of India. 23 August 2017. Archived from the original on 26 August 2018. Retrieved 2 December 2017.
  12. ↑ "Triple Talaq verdict: What exactly is instant divorce practice banned by court?". hindustantimes.com. Hindustan Times. 22 August 2017. Archived from the original on 14 August 2019. Retrieved 2 December 2017.
  13. ↑ "The Dissolution of Muslim Marriages Act, 1939". indiankanoon.org. Archived from the original on 26 September 2019. Retrieved 2 December 2017.
  14. 1 2 3 4 "A Muslim Woman's Right To Property In Islamic Law". Makaan. Archived from the original on 31 October 2019. Retrieved 2 December 2017.
  15. ↑ mulla mohammaden law vol. 3
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