Shariat Application Act, 1937 – Muslim Personal Law

Shariat Application Act, 1937 – Muslim Personal Law

Introduction

India is a place of diversity with different religion is living their life with their own customs or religion and are free to choose. It requires strenuous effort to bring the whole community under the ambit of same law. Each community has been given opportunity to govern themselves under personal law for issues like marriage, inheritance, divorce , succession etc. 

Based on old customs of the religion, personal law often gets criticised for being gender bias, orthodox, discrimination etc. Muslim Personal laws based on Shariat is most of the time in the limelight either it is regarding Fatwa, Triple Talaq or as like. Muslim Personal law based on Shariat used to be condemned frequently for being orthodox, limiting women’s rights and for acting oppressive. But the scholars of Muslim law have different opinion regarding this. They argue it is the most liberal, fair and the law without bias towards any gender. Let’s have a look what Shariat is to have a clear thought process on basis of this.

SHARIAT

It is a religious law forming part of the Islamic tradition is derived from the percept of the Quran and Hadith. Sariah  particularly means ‘way’ or ‘path’. History of Sharia law could be traced back to the history of Arabia and the teachings of Prophet Muhhamad.

The traditional theory of Islamic jurisprudence recognises four sources of Shariah i.e. the Quran, Sunnah, Qiyas and Ijma. Different legal schools developed methodologies for  the Sariah rulings using a process known as ‘itihad’  from scriptural sources. These interpretations are called ‘fiqh’. It is to note that the interpretation was deprived from human efforts over centuries, therefore, can be contested and error-prone. The most prominent legal schools of Islamic law are Hanafi, Maliki, Shafi’I school and Hanbali.

The role Sharia is being contested worldwide on ground of not being compatible with democracy, human rights, women’s right, freedom of thought and LGBTQI+. Some jurisdiction in North America has banned the use of Sharia law. Introducing Sharia in Nigeria sparked intercommunal violence. Muslim nations are but now giving away with a strict interpretation of Sariah law and are following a more modern approach with a little of Sharia In their statue. Saudi Arabia is witnessing a sudden and major change in this regard under Saudi prince’s Vision 2030 agenda that is ended flogging as a form of punishment, women under the age of 21 can now travel freely without any male guardian. The country has opened the door of driving foe women and allowed cinemas after a decades-long ban.

THE SHARIA COURT AND ITS STATUS IN INDIA

Sharia courts were formed to enforce and safeguard Sariah laws, these courts are traditionally known as “Dar-ul-Qazas”or house of qazis. It’s verdict or directions can’t be be legally enforced. It is a court that seeks to resolve disputes on the law  of marriage, divorce, property, family, maintenance and custody of the child. Parties are free to move regular courts if not satisfied with the decision of Dar-ul-Qazas. 

The Indian sharia courts have a history of the pre-independence era. The privy council (the highest court of appeal in British India) had allowed the usage of Sharia law back then. The post-independence status of the Sharia court can be derived from a judgement of SC which held that “Dar-ul-Qazas” have no legal sanction but is not illegal either and there is no compulsion on people to abide by the decision of “Dar-plaza”. It traditionally deals with the matters under Muslim Personal Law (Shariat) Application Act, 1937. The All India Muslim Personal Law Board (AIMPLB) is a non-government organisation constituted in 1973 to protect the continued application ability of Muslim Personal Law in India and for the application of the Islamic law code of Shariat to Muslims in India in Muslim women by forming suitable strategies. Muslim on Law (Shariat) Application Act, 1937, this act applies to every personal law except succession but the succession clause also can be dealt with under the Cutchi Memons Act,1920 and the Mohamedan Inheritance Act (II of 1897).

FATWA

It is a religious communication, issued by the Muslim clerics which is neither a religious diktats binding on all Muslims nor having any legal sanctity. An incident of issuing three Fatwas by Muslim clerics one involving a case of Imrana, a Muslim woman in Uttar Pro, who was raped by her father-in-law. When the FIR was lodged by her against her father-in-law, the village council declared to treat her husband as her son. Subsequently, Darul-uloom of Deoband issued a Fatwa supporting the decision. This incident led to a PIL by Mr. Vishwa Lochan Madan contending the Sharia courts “threaten the fun topiaries and sovereignty of India’s secular judicial system” Mr Lochan wanted to declare Dar-ul-Qaza to be declared illegal and unconstitutional in this writ petition. The Supreme Court in the case of Vishwa lochan Madan vs. Union of India and others (2014) ruled that Fatwas are non-enforceable by the law unless an individual has given consent for it voluntarily. Adding to that, any Fatwa violating a citizen’s Fundamental Rights would be illegal and any person or cleric who tries to force it will be the consequence of the law.

The Supreme Court rejected Lochan’s courts and other bodies, the court held that “Not all Fatwas were bad and they posed no threat to the sanctity of Indian constitution and legal system. The Supreme Court also had not found it appropriate to rule on the matters of religion or Mohamedan

Are Personal law specific to Muslims only?

Over the years, legislations were made for the different religion of the country with specific civil codes as well for different religion. The Hindu Succession Act, 1956 lays out guidelines for different religion I.e. Hindus, Jains, Sikhs, Buddhists in matter of property inheritance. Rules or guidelines to be followed by Parsis as per their religious traditions are dictated in The Parsi Marriage and Divorce Act of 1936. The Hindu Marriage Act,1955 lays out rules for marraige in Hindus initially but included laws on divorce and separation in 1955.

Apart from this, Special Marriage Act,1954 deals with the marriage of a couple of different religion and can call it a secular law on marriage in true sense. 

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