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Muslim Personal Laws In India

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 Arabia.

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.

Sunni School
There are four authorities for Islamic law according to the Sunni School of thought which are:
  • The Quran
  • Haadis or Sunnat
  • Ijma
  • Qiyas

Shia School
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 Wakaf Act.

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 15).

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:
  • 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 circumstances.
     

Divorce Under Muslim Law
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 or Mubarat.

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
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.

Hiba; 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.

The 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 child.

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.

Testamentary Guardian
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 alive.

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:
  1. Abuse of his trust
  2. Continued failure to perform duties;
  3. Incapacity to perform duties;
  4. Ill-treatment or neglect to take proper care of his ward;
  5. Contumacious disregard of any provisions of the decisions of the Court
  6. Conviction of an offence implying, in the opinion of the Court, a defect of character which unfits him to be the guardian;
  7. Having an interest adverse to the faithful performance of his duties;
  8. Ceasing to reside within the local jurisdiction of the Court;
  9. In the case of guardian of property, bankruptcy or insolvency;

Guardians Appointed by the Court
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 District Court.

The courts are empowered to appoint the guardians for a minor upon an application.

Such application may be made by any of the following persons:
  1. Any person desirous of being or claiming to be the guardian of the minor, or
  2. Any relative or friend of the minor, or
  3. The Collector of the district in which the minor generally resides.

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:
  1. Appointing a guardian of minorís person or property, or both, or
  2. 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 Dadamiya, 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.

Conclusion
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. De-facto guardian.

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 agnatic descendants.
  • 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 estate.
  • 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.

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