October 4, 2022

Why shariat act was passed?

Muslim Personal Law (Shariat) Application Act, 1937

Before the Shariat Act, personal law dealing with the affairs of those professing the Muslim religion, was regulated by custom or usage. It was also regulated by Shariat the Muslim personal law. The status of Muslim women under customs and usages adopted by Muslims, were considered to be oppressive towards women. Prior to the independence of India, Muslim women organisations condemned customary law, as it adversely affected their rights, under the Shariat.

Muslim women claimed, that the Muslim personal law be made applicable to them. It is therefore, that the Muslim Personal Law (Shariat) Application Act, 1937 (hereinafter referred to, as the Shariat Act), was passed.

Background Which resulted in the enactment of Shariat Act

It is essential to understand, the background which resulted in the enactment of the Shariat Act. The same is recorded in the statement of objects and reasons, which is reproduced below:

“For several years past it has been the cherished desire of the Muslims of British India that Customary Law should in no case take the place of Muslim Personal Law. The matter has been repeatedly agitated in the press as well as on the platform. The Jamiat-ul-Ulema-i-Hind, the greatest Moslem religious body has supported the demand and invited the attention of all concerned to the urgent necessity of introducing a measure to this effect.

Customary Law is a misnomer inasmuch as it has not any sound basis to stand upon and is very much liable to frequent changes and cannot be expected to attain at any time in the future that certainty and definiteness which must be the characteristic of all laws. The status of Muslim women under the so-called Customary Law is simply disgraceful. All the Muslim Women Organisations have therefore condemned the Customary Law as it adversely affects their rights. They demand that the Muslim Personal Law (Shariat) should be made applicable to them.

The introduction of Muslim Personal Law will automatically raise them to the position to which they are naturally entitled. In addition to this present measure, if enacted, would have very salutary effect on society because it would ensure certainty and definiteness in the mutual rights and obligations of the public.

Muslim Personal Law (Shariat) exists in the form of a veritable code and is too well known to admit of any doubt or to entail any great labour in the shape of research, which is the chief feature of Customary Law.”

Explanation of Muslim Personal Law (Shariat) Application Act, 1937

Shariat Act is a short act, having a major section of section 2 that provides,

“Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal properly inherited or obtained under contract or gift or any other provision of Personal Law. marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).”

Basically, Section 2 applies the shariat law in the personal matters of muslims despite any custom in existence related to that matter.

Section 3

In this Act, other relevant section is section 3 that provides,

(1) Any person who satisfies the prescribed authority—

(a) that he is a Muslim, and

(b) that he is competent to contract, and

(c) that he is a resident of India,

may by declaration in the prescribed form and filed before the prescribed authority declare that he desires to obtain the benefit of the provisions of this section, and thereafter the provisions of section 2 shall apply to the declarant and all his minor children and their descendants as if in addition to the matters enumerated therein adoption, wills and legacies were also specified.

(2) Where the prescribed authority refuses to accept a declaration under sub-section (1), the person desiring to make the same may appeal to such office as the State Government may, by general or special order, appoint in this behalf, and such officer may, if he is satisfied that the appellant is entitled to make the declaration, order the prescribed authority to accept the same.

An explanation of both sections

A close examination of Section 2, extracted above, leaves no room for any doubt, that custom and usage, as it existed amongst Muslims, were sought to be expressly done away with, to the extent the same were contrary to Muslim personal law.

Section 2 also mandated, that Muslim personal law (Shariat) would be exclusively adopted as the rule of decision in matters of intestate succession, special property of females, including all questions pertaining to personal property inherited or obtained under contract or gift or any other provision of personal law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, gifts, trusts and trust properties, and wakfs .

Section 3 added to the above list, adoption, wills and legacies, subject to the declaration expressed in Section.

It is relevant to highlight herein, that under Section 5 of the Shariat Act provided, that a Muslim woman could seek dissolution of her marriage, on the grounds recognized under the Muslim personal law. It would also be relevant to highlight, that Section 5 of the Shariat Act was deleted, and replaced by the Dissolution of Muslim Marriages Act, 1939.

Reference

Muslim Personal Law (Shariat) Application Act, 1937