In India, the term Muslim law applies to the personal matters concerning that
section of the Indian society composed of people following Islam. Hence the
Muslim personal law governs the institutions of marriage and divorce, adoption,
succession and charity in the Indian Islamic community. The Muslim personal law
governs the institutions of marriage and divorce, adoption, succession and
charity in the Indian Islamic community.
Uniform Civil Code as the term itself
suggests aims to codify the currently existing diverse communal laws into single
overriding legislation in accordance with the fundamental principles enshrined
in the Indian Constitution. However, the introduction of the code is fraught
with several difficulties as these different that we currently in vogue
originates in the religious statutes and several sections of the society
especially the minority communities feel that it will eventually turn out to be
a guise under which they will be subjected to the majority communityís norms.
This probability for the development of potential friction between one community
and the mainstream society is especially pronounced in the Muslim world, where a
unique codified judicial system which evolved out of the special Social-cultural
norms and religious beliefs of the community, unlike their compatriots belonging
to other religious groups. This endemic judicial system is popularly known as
the Sharia law which is the governing legislation in most of those countries who
has made Islam their state religion such as Afghanistan Pakistan and Saudi
Though Islam is considered monolithic religion divisions exist on the basis of
several sub sectarian practices. The most widely known of such a division Is
between the Schools of Shia and Sunni. Correspondingly, the Islamic law as
practised in these communities exhibits subtle variations.
There are four authorities for Islamic law according to the Sunni School of
thought which are:
- The Quran
- Haadis or Sunnat
In the Shia school, the authorities of law are Quran, Hadith and the dictums of
Imams. They did not accept the Sunni view of considering Quiyas as an acceptable
source of law. Besides the Shias does not support those Haadis compilations
which emanate from households not related by blood to the prophet himself. Thus,
they follow only compilations such as AL-Kafi, and Tahdhib -UL-Abham as most
authentic of all collections.
Muslim Personal Laws
Wakaf Acts; Concerning Property
The corpus of laws which can be labelled as Muslim laws has antiquity which
begins during the time of British rule. Important legislation which was thus
passed was the ĎMussalman Wakaf Actí enforcing a large number of rules and
regulations relating to the management of Wakaf properties which mandated that
the proper accounts and audits should be maintained to track the transactions
concerning the properties. Several complimentary Provincial Acts were passed
subsequently. Currently, the local Acts is applicable along with the Central
Shari-at Act 1937
It is the Shariat Act that consists of only six sections that regulate the
application of Muslim personal law in India. Section 2 lists those matters which
among Indian Muslims shall be invariably governed by the Muslim Personal Law.
These include interstate succession, special property females, gift, marriage,
various forms of dissolution of marriage, dower, guardianship, maintenance,
trusts, trysts properties and Wakafs.
However, matters concerning agriculture land, charities charitable institutions
and charitable organization and religious endowments are excluded from its
purview. They were excluded as they overlap with the existing state legislation.
According to section 3 of the Act, the following is also covered in its purview;
adoption, wills, and legacies provided the concerned individual consent to be
governed by the statutes of the Act.
The Wakf Act, 1954
Wakf Act was one of the important legislations that was passed by the parliament
of independent India in the year 1954 concerning the Muslims. The Act was aimed
at improving the administrative practices with regard to Wakf boards.
Accordingly, the law provides for constitution of a Wakf board in every state.
Muslim Marriage Dissolution Act
Section 2 of the Act provides woman married under the Muslim law to obtain a
decree of dissolution on various grounds on the side of husband such as cruelty,
lack of correspondence, neglect, imprisonment for a period of 7 years or more,
failure to perform marital obligations for more than 3 years, insanity for a
period exceeding 2 years or in case marriage solemnized when she was minor (below
Marriage under Islamic law
Marriage is not an optional life vacation in Islam but is the only choice as it
strictly prohibits celibacy. Unlike in most other religion marriage is not
accorded the status of the sacrament but simply a contract; an Ibadat or
Muamalat, however as per some experts the nature of the marital contract is
different from that of a civil contract as it cannot be concluded on the basis
of future happenings. Neither can it be done for a fixed period. Muta marriage
is an exception to this case.
According to Islamic law the essentials of marriage are:
Divorce Under Muslim Law
- There should be a proposal made by or behalf of one party to the
marriage and acceptance of the proposal by on or behalf of the other party
- The proposal and acceptance must both be expressed at once meeting.
- The parties must be competent
- There must be two male or one male and two female witnesses, who must be sane
and be present there at the time of marriage proposal and acceptance.
- Neither writing nor any religious ceremony is necessary.
- Polyandry is strictly prohibited but polygyny is allowed under special
Under Muslim law, divorce may take place by the Act of the parties themselves or
by a decree of the court of law. Accordingly, the valid reason for which parties
may opt for divorce is the inability to live together. A divorce can be
initiated either by the man or woman. Thus, pronouncement of such word implying
the husbandís intent is enough in this case. The Wife cannot divorce her husband
on her own but can do so if the husband delegates her the right to do so. Such
woman-initiated divorces are called Khula
Prior to the enactment of the Dissolution of Muslim marriages Act the woman had
no right to seek divorce except on grounds of false accusations of adultery,
insanity or impotency of husband. The Act resulted in making divorce possible
for several other causes through a court order.
Inheritance under Muslim law
The wife is eligible to receive one-eighth of the share where there are children
and one-fourth in case of no-children. In case of more than one-wife the
one-eighth is divided equally among them. The husband succeeds in one-fourth of
the wifeís property in case of children and half the property if there are no
children on the death of his wife.
In the case of a daughter, the only household all the daughters are to get equal
shares of two-third of the property. If the household has only a single girl
child, she inherits half of the property. One-sixth of the dead childís property
goes to the mother if there are grandchildren one -third of the property in the
absence of any grandchildren.
Special property: Mahr
is the total money or property that is to be given to the wife by
the husband at the time of Nikah
. It can be given on the very date of the marriage
or after a pre-fixed period.
; Gift under Muslim Law;
Any property can be transferred as a gift. For this purpose, the giver has to
make declaration expressing his wish to make one such and it should be accepted
by the receiver.
Natural Guardians Under Muslim Law
In all schools of both the Sunnis and the Shias, the father of the minor child
is recognized as guardian which is equivalent to the natural guardian. The
mother is not recognized as guardian of the child even after the death of the
father. The fatherís right to guardianship exists if the custody of the child
has been given to mother or any other female associated with the child.
father has full control over the education and religion of the minor child and
he can take all the steps for the betterment of the child. Therefore, as long as
father of the child is alive, he is sole and supreme guardian of his minor
The fatherís right to guardianship extends only over his minor legitimate child
or child below 18 years. He is not entitled to guardian or to custody of his
illegitimate minor child. However, mother is entitled to custody of her
illegitimate child regardless of the fact that she has not been accorded
guardianship of her illegitimate child. The mother Right to Hizanat i.e. custody
of her minor child is in no sense is absolute right and father is still the
legal guardian of his children.
Father is also entitled to get custody of his
minor child in two cases. Firstly, on completion of the age of the child up to
which mother or other females are entitled to its custody. Secondly, in absence
of mother or any female who have right to hizanat. The father right to custody
of his children extends till their puberty.
Among the Sunnis, the father is the only natural guardian of the minor children
and after the death of father, the status of guardianship passes on to the
executor. Among the shias, after the death of father, guardianships belong to
the grand-father even though executor has been appointed by the father. No other
person can be natural guardian not even the brother. In the absence of
grandfather, the guardianship ultimately goes to grandfatherís executor if any.
Under Muslim law, father is natural guardian i.e. de jure guardianship of the
minor or lunatic or its property. He has the legal authority to control and
supervise the activities of the child.
The guardianship of a minorís property belongs primarily to the father who is
the natural guardian. After his death it belongs to executor appointed by the
father under a will and act as a guardian of minor child. If father dies without
appointing any executor, the paternal grandfather is entitled to guardianship of
minorís property as a legal guardian. After the death of paternal grandfather
his executor if any acts as guardian of minorís property. In the absence of
executor appointed by grandfather, it is the duty of court to appoint a guardian
by supervising minorís property under The Guardian and Wards Act, 1890.
A guardian appointed by the will of a father or mother, who are the natural
guardians of a minor, is a testamentary guardian. No one else has the power to
appoint a guardian by his will. In the early law, it was only the father who had
the power to appoint a guardian and not a mother.
Among the Sunnis, the father has full power of making a testamentary appointment
of guardian. In the absence of the father and his executor, the grandfather has
the power of appointing a testamentary guardian. Among the Shias, the fatherís
appointment of testamentary guardian is valid only if the grandfather is not
The grandfather too has the power of appointing a testamentary guardian.
No other person has any such power. Among both the Shias and Sunnis, the mother
has no such power of appointing a testamentary guardian for her children. It is
only in two cases in which the mother can appoint a testamentary guardian of her
property of minor children, first, when she has appointed a general executrix by
the will of the childís father. Second, she can appoint an executor in respect
of her own property, which will devolve after her death on her children.
Acceptance of the appointment of a testamentary guardian is necessary, though
acceptance may be express or implied. But once the guardianship is accepted, it
cannot be renounced with the permission of the Court.
Muslim law does not lay down any specific formalities for the appointment of
testamentary guardians. Appointment may be made in writing or orally. In every
case the intention to appoint a testamentary guardian must be clear and
unequivocal. A testamentary deposition made by testator must be invalid, but
appointment of the executor may be general or particular. The testator should be
major and must be of sound mind, i.e., at the time of execution of the will, he
should be in full possession of his senses.
A testamentary guardian can be removed by the Court on the following grounds:
Guardians Appointed by the Court
- Abuse of his trust
- Continued failure to perform duties;
- Incapacity to perform duties;
- Ill-treatment or neglect to take proper care of his ward;
- Contumacious disregard of any provisions of the decisions of the Court
- Conviction of an offence implying, in the opinion of the Court, a defect
of character which unfits him to be the guardian;
- Having an interest adverse to the faithful performance of his duties;
- Ceasing to reside within the local jurisdiction of the Court;
- In the case of guardian of property, bankruptcy or insolvency;
The Qazi was entrusted with the power of appointment of the guardian of a Muslim
minor on the absence of natural and testamentary guardians. Now, Guardianship
and Wards Act, 1890 comes into play at the time of appointment of a guardian of
a minor child by the court. The rules and procedures are mentioned in this act.
This Act not only applies to Muslims but it also applies to every Indian citizen
in India. Hence, this act applies to every citizen irrespective of their
religion and this is a special Legislation specifically dealing with the policy
of guardianship and ward. Guardians are appointed by the court for minorís
person or property under this Statute.
Under Muslim law, when the father of the child is not there and there is an
absence of legal documents specifically absence of a will then the court shall
have the authority to appoint the legal guardian of the minor child. Since the
guardians are being appointed on the basis of the Guardianship and wards Act,
1890 they are also called as ďStatutory GuardiansĒ.
When there is a conflict between the Muslim Personal Law and the Guardians and
Wards act the latter shall prevail. Whenever the term court is used it means a
The courts are empowered to appoint the guardians for a minor upon an
Such application may be made by any of the following persons:
If the court is satisfied that it is for the welfare of the minor that an order
should be made, then it may make an order:
- Any person desirous of being or claiming to be the guardian of the
- Any relative or friend of the minor, or
- The Collector of the district in which the minor generally resides.
- Appointing a guardian of minorís person or property, or both, or
- Declaring a person to be such a guardian.
Section 17(2) of the Act provides that in considering the welfare of a minor,
the court shall have regard to the age, sex and religion of the minor; the
character and capacity of the proposed guardian and his nearness of kin to the
minor; the wishes, if any, of a deceased parent and any existing or previous
relations of the proposed guardian with the minor or his property.
Moreover, if the minor is old enough to form an intelligent preference the court
may consider that preference too. It may be noted that although the Act lays
down a uniform rule for the guardianship of all the persons in India
irrespective of religion, yet the religion and the personal law of the minor may
be taken into account while appointing a guardian.
In Smt. Farzanabai v. Ayub
, the Bombay High Court observed that under Guardians and Wards Act, the
personal law of the parties is a factor which is to be kept in mind by courts
subject to the interest of the child. However, as the central idea should be the
welfare of the minor; therefore, the rules of Muslim personal law may be
considered by the court only where they are conducive to his welfare.
Islam reformed the early customary rules of inheritance; however, it did not
abandon all customary practices. the minor child is incapable to maintain
himself there is need for resorting to the appointment of a guardian who shall
be an adult and shall be capable to make decisions on behalf and in the interest
of the minor child be it a girl or a boy Guardianship under Muslim Law
recognizes the following kind of guardianship: 1. A natural or legal guardian 2.
Testamentary guardian 3. Guardian appointed by courts or statutory guardian 4.
The Court shall have the power the remove the guardian under
certain circumstances which are:
- If the husband has abused the trust of the woman
- He has not performed any duties as the husband
- The husband does not have any capacity to perform the duties
- That the husband has not treated the woman well
- That there is no regard to the orders of the court by the husband and he
is also not regarding the provisions of the Guardianship Act
- When the husband has been found guilty for moral turpitude
- Have different interests as a guardian
- That the wife ceases to be a minor.
The Islamic law of inheritance rests basically upon the recognition of
two distinct categories of legal heirs-the male agnates or as the heirs of the
tribal customary law and the new uranic heirs. This system of inheritance
eliminated traditionally eligible categories and included new classes of heirs.
A good number of heirs were accorded certain rights, which sometimes resulted
in the division of the property into smaller shares.
The Islamic law of
inheritance may be summarized as under:
- The widower and widow were made an heir
- Females and cognates were recognized as competent to inherit.
- Parents and ascendants were given a right to inherit in presence of male
- No will can be made in favour of any of heirs.
- Bequest to a stranger is allowed only to the extent of one-third of the
- An exception to the limit of one-third and in favour of would-be heir
operates if they would be heirs approve
- Adoption was excluded from the ambit of inheritance.
- Rights of inheritance arise only on the death of a certain person.