There were certain doubts in the minds of Indian Muslims regarding the application of Muslim personal law to Muslims. To confirm the policy of the British Government and to remove their doubts, the Shariat Act had to be enacted by the Central Legislature in 1937. At present the application of Muslim Personal Law is generally regulated by this enactment. Provisions of this Act regarding the application of Muslim Personal Law are summarised as under:
(a) Section 2 of the Shariat Act provides that in a case where both the parties are Muslims the rule for decision shall be Muslim Law, if the case involves any of the following matters:
(1) Intestate succession (i.e. inheritance),
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(2) Special property of the females,
(3) Marriage (including all incidents of marriage),
(4) Dissolution of marriage (including all kinds of divorce),
(5) Maintenance,
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(6) Dower,
(7) Guardianship,
(8) Gift,
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(9) Trust and trust properties, and
(10) Wakf.
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It is; therefore, clear that in respect of the above-mentioned matters, if both the parties to a case are Muslims, the courts shall apply only the Muslim personal law and nothing else. A custom or usage contrary to Muslim law cannot be applied now.
It is significant to note that the words, “rule for decision shall be Muslim law” in Section 2 of the Act, are mandatory, meaning thereby that the courts are not only empowered but also bound to administer only Muslim personal law in the situations mentioned therein.
(b) In the cases involving adoption, wills and legacies, the courts have no authority to apply Muslim law under Section 2 of the Act, because these subjects are not included in the said section. But Section 3 of the Shariat Act provides that courts may apply the rules of Muslim law in cases of adoption, will and legacies provided a Muslim expressly declares that he wants to be governed by Muslim law also in respect of these matters in addition to the aforesaid ten matters. On this point the relevant provisions of Section 3 of the Shariat Act, are given below:
“Section 3”:
(1) Any person who satisfies the prescribed authority:
(a) That he is a Muslim, and
(b) That he is competent to contract within the meaning of Section 11 of the Indian Contract Act, 1872, and;
(c) That he is a resident of a territory to which this Act extends.
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.”
It is, therefore, clear that since adoption wills and legacies are not mentioned in Section 2, the courts will not apply Muslim law to all the Muslims in these three matters unless they desire to be governed by Muslim law also in these matters.
This desire must be expressed through a declaration to that effect. Procedure for such a declaration has been laid down in Section 3(2) and Section 4 of this Act. It may be noted that the effect of such a declaration is that not only the declarant but also his children and all the descendants shall be governed by Muslim law in these three additional subjects.
On the other hand, if there is no such declaration by a Muslim, the courts are not bound to apply Muslim personal law on these matters and they may freely apply customs and usages or the local enactments, if any.
(c) The Shariat Act, 1937, was enacted by the Central Legislature and it was beyond its legislative competence to make laws for provincial (State) subjects. Agricultural lands, charities and charitable endowments, being provincial (State) subjects, had to be expressly excluded from Section 2 of the Act.
The result is that the courts cannot apply Muslim law on these questions under the authority of the Shariat Act. But State legislatures are competent to enact laws on these subjects. In most of the States of India, therefore, succession to agricultural lands is regulated by local tenancy laws and not according to the Muslim law of inheritance.
However, in the States of Andhra Pradesh and Tamil Nadu, in the matters of agricultural lands, charities and charitable institutions, Muslims are governed by Muslim personal law.
The reason is that in these States an amendment in Section 2 of the Shariat Act has been made under which these matters have not been exempted from the application of Muslim personal law.
(d) Section 6 of the Shariat Act repeals certain provisions of those earlier enactments which gave authority to the courts to apply Muslim law before the commencement of the Shariat Act. For example, Section 26 of Bombay Regulation Act, 1827, Section 16 of the Madras Civil Courts Act, 1873, Section 3 of Oudh Law Act, 1876, Section 5 of Punjab Laws Act, 1872 and the Central Provinces Laws Act, 1875, have been repealed and are now not in force. But two points must be noted regarding the repeal of these provisions:
(1) The whole of the above mentioned Acts have not been repealed by Section 6 of the Shariat Act. Therefore, except the repealed sections, other provisions of these Acts are still enforceable within their own limitations.
(2) The provisions which have been repealed were such provisions which authorised the courts to apply customs or usages to the Muslims. At present, therefore, all customs and usages, contrary to Muslim personal law, have been abolished and cannot be applied on matters enumerated in the Shariat Act.
The Cutchi Memon and Mapilla Muslims:
The Cutchi Memons and the Mapillas are converted Muslims and are generally found in the southern part of India. Formerly, in the matters of successions they were governed by their own customary laws which were against the rules of Muslim personal law.
This was provided under special enactments made for these communities. But the Cutchi Memons Act X of 1938, which is now in force, provides that all Cutchi Memons shall, in matters of succession and inheritance be governed by Muslim personal law and not by their customary laws.
Similarly the Mapillas were also allowed to be governed by their own customary laws in respect of testamentary or intestate successions. But the Mapilla Succession Act of 1918 and the Mapilla Wills Act of 1928 now provides that in matters of inheritance and wills, Muslim law shall be applied to them like other Muslims.
It is, however, interesting to note that like other Muslims, it is not necessary for a Mapilla to make a declaration for being governed by Muslim law also in the matters of wills and legacies. They are compulsorily governed by the Muslim personal law on these matters.
But the customary law of Mapilla Muslims regarding the succession of joint family property (Tarvad and Tavazhi) continues to apply to this community; this has neither been abolished by special enactments for this community nor by the Shariat Act, 1937.