Rethinking Muslim Personal Law

Issues, Debates and Reforms

Hilal Ahmed, R. K. Mishra, K. N. Jehangir, Hilal Ahmed, R. K. Mishra, K. N. Jehangir

• Publisher: Routledge India
• Year: 2022
• Print ISBN: 9780367721121
• eBook ISBN: 9781000573190
• Edition: 1
• Topic: Law
• Subtopic: Politics
• Index: Law

This volume critically analyses Muslim Personal Law (MPL) in India and offers an alternative perspective to look at MPL and the Uniform Civil Code (UCC) debate. Tracing the historical origins of this legal mechanism and its subsequent political manifestations, it highlights the complex nature of MPL as a sociological phenomenon, driven by context-specific social norms and cultural values. With expert contributions, it discusses wide-ranging themes and issues including MPL reforms and human rights; decoding of UCC in India; the contentious Triple Talaq bill and MPL; the Shah Bano case; Sharia (Islamic jurisprudence) in postcolonial India; women's equality and family laws; and MPL in the media discourse in India. The volume highlights that although MPL is inextricably linked to Sharia, it does not necessarily determine the everyday customs and local practices of Muslim communities in India

This topical book will greatly interest scholars and researchers of law and jurisprudence, political studies, Islamic studies, Muslim Personal Law, history, multiculturalism, South Asian studies, sociology of religion, sociology of law and family law. It will also be useful to practitioners, policymakers, law professionals and journalists.

Part I History and Law

1 Of Statutes and Scriptures Diversity, Democracy, Personal Laws and Courts

M. R. Shamshad¹

DOI: 10.4324/9781003211884-3

I. Introduction: What Is Personal Law?

Before the colonial rule in the subcontinent, both Hindu and Muslim local rulers had adopted a community-specific and religion-based system of law to be applied in the matter of religious rites, personal status, family relations and succession – in the Muslim-ruled areas Hindus were governed by Hindu law and vice versa.

Early British rule, in accordance with Warren Hasting’s Judicial Plan of 1772, termed Hindus as ‘Gentoos’ and Muslims as ‘Muhammadans’ with their laws being ‘Laws of the Saster’ and ‘Laws of the Koran’ respectively.² The Regulating Act of 1773, rectified by the Act of Settlement of 1781, directed the Supreme Court at Calcutta to decide ‘matters arising out of inheritance and succession to land and goods’ and matters of ‘contract and dealing between party and party’, ‘by the laws and usages of Muhammadans’ in the case of Muhammadans and ‘by the laws and usages of the Gentoos’ in the case of Gentoos. Beyond the presidencies, the Adalat system introduced by Warren Hastings in 1772 in Bengal, Bihar and Orissa was directed to decide all cases of inheritance, marriage, caste and other religious usages and institutions according to the laws of the Koran with respect to the Muhammadans and the laws of the Shaster with respect to the Hindus. However, in 1781, this provision was supplemented by a provision to the effect that in all cases for which no specific directions were given, the adalats were to act in accordance to justice, equity and good conscience.³

These very religion-based and community-specific laws governing the inter-personal relations of religions and communities came to be known as “personal laws”.⁴ However, given the dual family law regime in force, people who are governed by these personal laws can avail parallel “general laws” too for these respective interpersonal issues.⁵ Moreover, besides these communities’ specific personal laws, general laws attracting criminality in human behavior and procedure governing the court system are applicable across communities.⁶ Under these legislations there are no exemptions on the ground of religion⁷ as these legislations are stated to be general or uniform in nature. However, I will refute this understanding later in this chapter.

The British laid the foundation of the present-day criminal law jurisprudence in India. By and large it is uniform for all, be it substantive law or procedural. British onwards, the conviction and sentencing have been non-negotiable except for the petty offences. However, post 2005, India has adopted a situationist approach for certain classes of cases by introducing the concept of ‘plea bargain’ ⁸ at the stage pendency of a criminal trial.⁹ In a plea bargain, the accused and the victim can work out mutually satisfactory terms of disposition, and then the judge exercises his or her power to dispose of the case as the court deems appropriate. Resultantly, even in rape cases, with consent, sometimes parties resolve the issues and proceed in their life¹⁰ or decide to live together.¹¹ The issue here is that world over, nations have sought to introduce measures of reform and this goes in consonance with the pre-British era, when Islamic criminal law and customary laws permitted such resolutions. Between 1790 and 1807, the British transformed Islamic criminal law totally and beyond recognition ¹² and replaced all customary methods of punishment.

Likewise in matrimonial matters, there is a plea pending¹³ before a constitution bench of the Supreme Court for declaring the Nikah-Muta ¹⁴ and Nikah-Misyar ¹⁵ as ‘unconstitutional’. These practices have almost disappeared in Islam but the concepts are very well practiced by non-religious persons and well accepted by the legal system under the term ‘live-in relationship’. Urban society of India has almost accepted it. However, the fact remains that be it ‘live-in relationship’ or Nikah-Muta and Nikah-Misyar, all are based on the consent of the couple. The Supreme Court accepts the ‘live-in relationship’ as part of the fundamental freedom of an individual. Today, there is no justifiable reason to question these practices. Nonetheless, these petitions challenging Nikah-Muta and Misyar have created the desired Islamophobic contents for consumption of vocal electronic and print media and fodder for a set of political parties. In public debates, nobody pointed out the positive aspect of it by saying that a 1400-year-old concept is accepted worldwide as a part of basic fundamental freedom. To ensure this right, our courts have made lots of efforts and invested precious judicial time in an overburdened judiciary. Now the same right (though under challenge) is available as a constitutional right, drawing its legitimacy through the route of ‘constitutional morality’ of the present times. While giving this judgment, a five-judge bench of the Supreme Court has gone to the extent of saying that ‘procreation is not the only reason for which people choose to come together, have live-in relationships, perform coitus or even marry. They do so for a whole lot of reasons including emotional companionship’¹⁶ and the ‘Society cannot dictate the expression of sexuality between consenting adults. That is a private affair. Constitutional morality will supersede any culture or tradition’.¹⁷ This view of the Supreme Court has come during the pendency of the cases relating to Muta and Misyar. We need to wait and see how these two concepts are decided by the Supreme Court. Interestingly, the same judges referred the issue of Nikah-Muta and Nikah-Misyar to a larger bench of five judges prior to deciding the case of Navtej Singh Johar.¹⁸

II. Customary Law and Personal Law

On the intersections of identities, Amartya Sen lucidly puts it, “The crucial need to take note of the plural identities of people and their choice of priorities survives the replacement of civilizational classifications with a directly religious categorization”.¹⁹ Thus, identities can never be seen in vacuums.

India has a vast socio-religious and geopolitical diversity owing to India’s rich heritage of multiculturalism and being home to major religions – in fact four major religions, viz. Hinduism, Buddhism, Sikhism and Jainism, emerged from India. These diversities, of various natures and degrees, inevitably have impressions over the history of law in India.

A well-recognized principle of jurisprudence is that the State is not the only source of law. In both Hindu and Muslim jurisprudence, the importance of custom has been well acknowledged. If we go back to the early history of the subcontinent, besides religious groups following their different religious laws, the presence of customs and usages acquiring the status of law in different parts of the country is historically prevalent.

After initial ignorance towards the customary law, owing primarily to the imperialistic approach, the colonial administrators acknowledged the importance of customs and usages statutorily.²⁰

The Bombay Presidency, Regulation IV of 1827 assigned precedence to custom over the personal law. The object of Sec. 37 of the Bengal Civil Courts Act (XII of 1887), and the old regulations was to make it clear that the Muhammadans were not to be governed by the English law, and the personal law of the Muhammadans was left intact. Sec. 37 did not preclude a party from proving a custom at variance with the Muhammadan law. Such custom could be proved in the Punjab and in Oudh. The colonial state, after the annexation in Punjab (1849), had to make a declaration that “native institutions and practices shall be upheld as far as they are consistent with the distribution of justice to all classes” considering the region of Punjab, particularly the rural areas, were inhabited by various tribes following various customary laws.²¹ Consequently Section 5 of the Punjab Laws Act, 1872, laid down the precedence of native law over Hindu and Muhammadan law regarding succession, special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, partitions, or any religious usage or institution. Similarly, in Oudh Laws Acts, 1876 (Section 3), N.W.F.P. Reg. VII of 1901 (Section 27), Central Provinces Laws Act, 1875, customs were given precedence over the personal laws. Large tribes like Baluchis had their special customs while adhering to Islamic faith. The Hindus were governed by their special customs, and so were the Khojas and Memons in Bombay to the matrilineal laws in Malabar and Travancore.

In the year 1868,²² while deciding a Hindu religious endowment right of succession, the Privy Council stated that “the duty, therefore, of an European Judge, who is under the obligation to administer the Hindoo Law, is not so much to enquire whether a disputed doctrine is fairly deducible from the earliest authorities, as to ascertain whether it has been received by the particular School which governs the district with which he has to deal, and has there been sanctioned by usage. Under the Hindoo system of law, clear proof of usage will outweigh the written text of law.” In 1869,²³ in relation to Hindoo laws, again the Privy Council stated that “where a custom is proved to exist, it supersedes the general law…”.

In the year 1847,²⁴ the Bombay Supreme Court upheld the practice of Hindu customs of inheritance and succession for Khojas²⁵ and Cutchi Memons²⁶ over Muslim law. Much later in 1913,²⁷ in a suit by a Muhammadan lady against her brothers for recovery of her share in their father’s property, the defendants having set up the plea that according to family custom female descendants could not inherit in the presence of male descendants, the courts in India refused to admit evidence in support of the alleged custom on the ground that evidence of custom at variance with the ordinary rules of Muhammadan law was inadmissible in regard to matters, mentioned in Section 37 of the Bengal, N.W.P and Assam Civil Courts Act. Reversing the lower courts, the Privy Council held that evidence with respect to the issue as to family custom should be admitted. Thereafter, in 1917,²⁸ a Shiite Muslim of Sind died intestate and an administration suit was filed. It was alleged by the appellant that contrary to the general rule of Muhammadan law, by a custom of the family the sister of the intestate was excluded as a female in favour of male collaterals. The Court emphasized on the burden of proof that lies heavily upon the Plaintiff alleging custom in order to succeed in altering the devolution of property according to Muhammadan law to a devolution determined by a family custom.²⁹

In a case in 1922,³⁰ the parties to the litigation were Lubbai Muhammadans of the Sunni sect residing in the district of Coimbatore in the Madras Presidency; the question was whether succession to the estate of a deceased member of the sect was governed by Muhammadan law or by a rule of descent excluding females. The Privy Council stated that “The litigants are Muhammadans to whom this Act applies so that primâ facie all questions as to succession among them must be decided according to Muhammadan Law”. It clarified that in India, however, custom plays a large part in modifying the ordinary law, and it is now established that there may be a custom at variance even with the rules of Muhammadan law, governing the succession in a particular community of Muhammadans. But the custom must be proved.

The history of customs taking precedence over personal laws in the subcontinent thus have often been misused in depriving property rights to women. With the Muslim Personal Law (Shariat) Application Act, 1937, specific legislation directing courts to apply Muslim law in matters of intestate succession, special property of females, etc. (see Section II) was brought into existence. Any custom that merely excludes women from inheritance has been done away with.³¹ It is interesting to read the statement of objects and reasons of the Shariat Act of 1937 which records³² that the reason of bringing this legislation was that all Muslim women organizations condemned customary laws and demanded that Muslim Personal Law should be made applicable to them.

The importance attached to customs, particularly in the subcontinent, given the intersections of various identities, can neither be denied nor be reduced. The Madras High Court³³ upheld a custom allowing succession rights to an adopted child in view of the fact that Section 2 of the Shariat Act did not specifically mention ‘adoption’ and secondly it found that there was no prohibition from applying customs in view of the reading of Section 3 of the Shariat Act.³⁴

The Calcutta High Court³⁵ has stated that the personal laws of the parties to the marriage would mean ‘customary law of the class to which such person belongs’. This is a generalised observation and at least, to the extent of Islamic Personal Law, this observation is incorrect. Various practices of conducting and terminating marriages can be a matter of custom prevailing amongst a common class of persons belonging to a religion or a ...

Table of contents

• Cover Page
• Half Title page
• Title Page
• Copyright Page
• Contents
• List of Tables
• Acknowledgements
• Editors
• List of Contributors
• Introduction
• Part I History and Law
• Part II Politics and Law
• Part III Gender and Law
• Bibliography
• Index