On conversion of a person to Islam, ordinarily, the Muslim law of succession applies to him.
On the question whether the entire personal law applies to a convert, the Privy Council in Abraham v. Abraham, observed that a convert who renounced his old religion may also renounce his old law, or, if he thinks fit, may abide by the old law, even though he had renounced his old religion.
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This view was reiterated by the Privy Council in Muhammad Ismail v. Lai Sheomukh. Several statutes passed during the British rule lay down that in certain matters, a person may continue to be governed by custom after his conversion. The generality of the observation of the Privy Council in Abraham v. Abraham is true only theoretically.
In reality, even at the time when decision in Abraham’s case was rendered, there were very few matters in which a convert to Islam continued to be governed by his old personal law. Even the limited application of old personal law or custom to Muslim converts, was resented by a section of the Muslim community on the specious plea that it amounted to interference in their religious matters. The result was that the Shariat Act was passed in 1937, with a view to giving effect to “the cherished desire of Muslims of India that customary law should, in no case, take the place of Muslim persona law”.
Shariat Act:
The substantive provisions of the Shariat Act, 1937, are contained in Ss. 2 and 3. Section 2 enumerates ten matters (see below) in which every Muslim will be governed by Muslim law, but the section expressly excludes three matters, viz., agricultural land, charities, other than waqfs and charitable and religious endowments.
Section 3 enumerates three matters (see below) on which a Muslim will be governed by Muslim law if he files a declaration, to that effect. In matters other than these thirteen (i.e., those enumerated in ss. 2 and 3), a Muslim still continues to be governed by custom or any other law already applicable to him.
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Section 5 of the Act repeals certain enactments. If there is an enactment which is not repealed by this section, and which provides for the application of custom, then, in that case, Muslims may still be governed by custom. Thus, converts to Islam, from the point of view of application of Muslim law, fall into the following categories:
A. All converts to Islam are governed by Muslim law in matters relating to marriage, dissolution of marriage, maintenance, dower, guardianship, gifts, trust and trust properties and wakfs, other than charities and charitable institutions and religious and charitable endowments. (These are the matters enumerated in S. 2 of the Shariat Act).
B. In certain cases, a convert may still be governed by custom. These are:
(i) A convert may be governed by custom in respect of adoptions, wills and legacies unless he files a declaration on a prescribed form that he desires to be governed by Muslim law. In that event, he and his descendants will be governed by Muslim law.
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The most common examples of converts who were in most matters, governed by Hindu law or custom, before the Shariat Act, 1937, and who are still in some matters governed by custom, are the Khojas, the Boharas, the Kuchhi, and Halai Memons, and the Girasias of Broach. The will briefly review their position.
The Khojas:
The Khojas were originally a trading class of Hindus which lived in Sind and Cutch. Soon after the conquest of Sind by the Muslims, a wholesale conversion of his community to Islam took place. His Highness, the Aga Khan, is the head of the Khojas, who call him Hazar Imam.
The Khojas believe that the Hazar Imam, being the descendant of the Prophet, is the final interpreter of religion and deserves absolute reverence. Their religious book is called the Desaavatar, which has “strong combination of Hindu articles of faith and tenets of Islam”. It has been held that the Ismaili Khojas are neither Sunnis nor shias of Ithana Ashari School.
At present, the Khojas are divided into three sects. The majority of them belong to the Ismaili sect. The others follow either the Ithana Ashari faith, or the Hanafi school of Sunnis the latter are in a very small minority. In the Khojas and Memon’s case, Perry C.J. held that Hindu law ought to be administered to the Khojas and Memons, who, by their custom and usage, have been following that law, though they professed Islam.
Before the coming into force of the Shariat Act, the only areas, in which the Khojas were governed by custom, were inheritance and succession. Now, they are governed by Muslim law in regard to intestate succession, and by custom in respect of testamentary succession.
This means that a Khoja can will away his entire property but if he dies intestate, his property will devolve in accordance with Muslim law.
The Boharas:
Like the Khojas, the Boharas were also originally Hindus. At present, they are mostly Ismailis. There are also some Sunni Boharas who belong to Gujarat. The Ismailis Boharas are an affluent class of traders and businessmen and mostly live in Western India.
They are divided into the Daudis and the Sulaymanis. The head of the Bohora community is known by the name of Dail-Mutlaq, who is the authoritative interpreter of their religion and the leader of the community.
Their holy book is known as Da’imu’I-Illam. The Daudi and the Sulayamani Boharas are governed by Muslim law. Before 1937, they were governed by the customary law of inheritance which was akin to Hindu law. Now, their intestate succession is governed by Muslim law, while testamentary succession is still governed by customary law.
There are also Sunni Boharas. They are domiciled in Gujarat. It appears that as to testamentary succession, they are governed by custom and as to other matters by Muslim law.
The position of the Girasia of Broach is similar to that of the Sunni Boharas.
The Memons:
Like the Khojas and the Boharas the Memons, too, were, originally, Hindus. At present, they are divided into the Halai Memons of Bombay, the Halai memons of Porbandar and Kathiawar, and the Cutchi Memons.
Prior to 1920, the Cutchi Memons were governed by Hindu law of succession and inheritance, though, practically, in all other matters, they were governed by Muslim law. The Cutchi Memon Act, 1920 laid down that a Cutchi Memon could choose to be governed by Muslim law in all matters by filing a declaration to that effect.
The Shariat Act, 1937 brought them on par with the Khojas. Now, the Cutchi Memon Act, 1938-40 lays down that the Cutchi Memons are governed by the Hanafi school of Muslim law in all matters, including intestate and testamentary succession.
The Halai Memons have been governed wholly by Muslim law from the very beginning. However, the Halai Memons of Porbundar and Kathiawar were governed by Hindu law of inheritance before the Shariat Act, 1937. Now their position is like that of the Sunni Boharas.
The Mapillas:
Before 1918, the Mapillas of South India were governed by custom and usages at variance with Muslim Law. The Mapilla Succession Act, 1918 and the Mapilla Wills Act, 1928 made Muslim law applicable to the Mapillas in respect of intestate and testamentary succession, excluding the tarwad properties.
Muslim law does not apply to the Mapilla tarwads The Mapilla tarwads are governed by the Mapilla Marumakkattayam Act, 1939. But once a tarwad is partitioned, the partitioned shares are governed by the Muslim law of succession, both intestate and testamentary.
In Kerala, the Hindu Joint family system, including Hindu tarwads have been done away with by the Kerala Hindu Joint Family System (Abolition) Act, 1975, but the Mapilla tarwads are outside the purview of the Act, with the result that the Mapilla tarwads are still recognized though the Hindu tarwads have been abolished.
It seems that the Mapillas are now governed in all matters by Muslim law, except the tarwads, to which customary law continues to apply.
The Kashmiri Muslims:
The Shariat Act does not apply to Muslims in the State of Jammu and Kashmir: nor has the State its own Shariat Act. In the State of Jammu and Kashmir, a custom at variance with Muslim law may be pleaded. In Md. Akbar v. Md. Akhnoon,’ a full Bench of the Jammu and Kashmir High Court held that several customs at variance with Muslim law are recognized in the State.
These customs include the right of the widow of a Kashmir Muslim to inherit the estate of her husband during her life time to the exclusion of all other heirs, the right of the Khana Nashim daughter to inherit the property of her deceased father to the exclusion of other daughters, and the right of the adopted son (pisar parwards) to inherit the properties of the deceased adoptive father. The Shri Pratap Jammu and Kashmir Law (Consolidation) Act, 1977 has now stamped these customs with the character of law.
The Muslim Tribes of Punjab and Haryana:
By virtue of S. 5, Punjab Laws Act, 1872, the Muslim tribes of Punjab were governed by customary law in regard to succession, special property of females, betrothal, marriage, divorce, adoption, guardianship, minority, bastardy, family relations, Wills and legacies, gifts, partitions or any religious usages or institutions. The Punjab Law Act has been repealed by the Shariat Act, 1937.
This means, it is submitted, that in the 10 matters enumerated in S. 2 of the Shariat Act, the Muslim tribes will be governed by Muslim law; as in 3 matters enumerated in S. 3, the tribes will continue to be governed by customary law till they file a declaration as stipulated there under.
It is submitted that the contrary view taken by Mulla is not correct, as S. 6 of the Shariat Act lays down that the provisions of S. 5, Punjab Law Act, are repealed “in so far as they are inconsistent with the provisions of this Act.” Thus, retention of customary law in all matters except those mentioned in S. 2 of the Act, will not be inconsistent with the provisions of the Act.
The Meo tribes of Haryana are still, in many matters, particularly appointment of heirs and adoption, governed by customary law, which is akin to Hindu law. The Meo tribes were originally Hindus.
(ii) A convert may still be governed by customary law in matters not covered by S. 2 and S. 3 (even when he has filed a declaration) of the Shariat Act. There are several institutions, such as joint Hindu family, which are not recognized by Muslim law.
The concept of ancestral property, as it exists in Punjab customary law, is also not recognized in Muslim law. While there are authorities which hold that the concept of joint family is not applicable to Muslims, the concept of ancestral property is still recognized among the Muslim tribes of Punjab and Haryana.
The modern law of pre-emption, in many States, is not the same as it was originally conceived in Muslim law. In some areas, it applies to both the Muslims as well as the non-Muslims, while in other areas; it does not apply even to the Muslims.
In Oudh and Punjab, the Muslim law of pre-emption has been expressly excluded by statutes. In Tamil Nadu, the law of pre-emption does not apply even to the Muslims. In Bihar, Sylhet and certain parts of Gujarat (such as Surat, Broach and Godhara), it applies to the Hindus also.
(iii) Section 2 of the Shariat Act, 1937 specifically excludes the following three matters, agricultural land, charities, and charitable and religious institutions. In Andhra Pradesh, Kerala and Madras, the Shariat Act has been made applicable to agricultural land also. In other States, Muslim law does not apply to agricultural land. In Andhra Pradesh, the Muslim law has been made applicable to religious institutions.
(iv) There were several statutes passed during the British rule which provided for the application of custom in certain matters even to Muslims. These statutes have been repealed by the Shariat Act. But the repeal is sub-mode, and, therefore, it is possible that custom may still apply in certain matters. Where Muslim law has been expressly modified by a statute, it will not, obviously, apply.
From the above, it is evident that after the coming into force of the Shariat Act, 1937, the customary modifications in Muslim law are only marginal. All the Muslims, whether by origin or by conversion, are governed by Muslim law, except in those areas, where customary law is still specifically or by necessary implication retained.
When a person ceases to be a Muslim:
A Muslim may convert to another religion or he may renounce Islam. In such cases he will cease to be a Muslim. But no one has a right to condemn a person with Muslim name as non-Muslim until he or she renounces Islam or converts to another religion.