Introduction to Muslim Law: Family Law Free Notes

Introduction to Muslim Law: Family Law Notes - Prolawctor.com

Introduction to Muslim Law

WHO IS A “MUSLIM”?

‘MUSLIM’ is a term referring a person who submits himself to God. A Muslim is a person who practices Islamic Religion. According to Islam, a true Muslim is a person who has happily and willingly surrendered his whole life to one God known as ‘Allah’; and it is his prime duty to serve Allah. Muslims preach Allah and follow the footsteps of Prophet Muhammad (last successor).

‘Quran’ is considered as their holy book and acts as guiding light throughout their lives; according to Islam, Quran is the book where one can find answers to any and every question that crosses a human mind and is considered as the literal word of Allah. There are main two dimensions of Muslims Shia and Sunni.

A Muslim follows 5 pillars of Islam, ‘Shahada’ (testimony/declaration of faith); ‘Salat’ also known as ‘Namaz’ (praying 5 times in a day); ‘Sawm’ also known as ‘Roza’ (fasting in the auspicious month of Ramadan); ‘Zakat’ (almsgiving i.e. giving money to poor and needy); ‘Hajj’ (pilgrimage to Mecca once in lifetime); a true Muslim follows all these practices.

The main aim of a Muslim’s life is to practice deeds which are laid down by Allah in Quran and to be humane with every one, to not commit a derogatory act. A Muslim is advised to visit Mosques on Thursdays and Fridays which are considered to be auspicious days as per the Islamic Calendar. Muslims celebrate Eid and mourn on Muharram as it is the day of honouring the martyrs.

A Muslim also believes in almsgiving that is what we call as doing Charity, this practice is a very important practice of the Islamic Religion where less fortunate people are provided with cash or kind and it is the prime duty of a true Muslim to serve the poor and needy. Muslims are often considered to be focusing on their personality development and always want to be spiritually educated; the reason being their complete submission to Allah. Islamic religion gives a basic idea of living life peacefully; just practice good deeds.

MUSLIM LAW-ORIGIN AND SCHOOLS


APPLICATION OF MUSLIM LAW

  • Muslims in India are governed by the Muslim personal laws which consist of The Shariat Application Act, Dissolution of Muslim Marriage Act and the Muslim Women (protection of Rights on Divorce) Act. The Shariat Application Act commonly known as the Muslim personal law was enforced in the year 1937, it governs the Muslims across India and the Act extended to the whole of India except Jammu & Kashmir but now it shall extend to the state as well.
  • The Shariat Act will not be applied in State of Goa as there exist Uniform Civil Code where every resident would be governed by secular laws. Also a Muslim marrying under Special Marriage Act will not be governed by the Muslim Personal law.
  • The Shariat Application Act was passed during the British Rule where the, the Britishers were of the opinion that the people of India would be governed by their own personal laws which had their religious beliefs and backgrounds. The Hindus would be governed by the Hindu personal laws, the Parsi according to their religious laws and the Muslims as per the Shariat Law; and since then from 1937 the Shariat Act came into force which would govern the Muslims of India on the basis of the writings in Quran which are also comprised of Hadith that are the words of the Prophet and have the answers for almost each and every question.
  • The Muslim Personal Law or The Shariat Law contains the laws in relation to;
    • Marriage (all incidents of marriage)
    • Divorce (all kinds)
    • Intestate Succession (Inheritance)
    • Special properties of females
    • Maintenance
    • Dower
    • Guardianship
    • Gift
    • Trust properties
    • Wakf.
  • Any kind of matter which is in relation to the above mentioned categories will be governed by the Shariat Act.
  • In order to apply the Shariat act both the parties should be Muslims and then only they can be governed by the Act. As per Section 3 of the Act, in order to be governed under the Shariat Act, the person should make a declaration that –He is a Muslim; is competent to enter in to a contract as per section 11 of the Indian Contract Act; and that he resides in the territory where the Act is applicable.
  • It is also seen that the matters in relation to adoption, wills and legacies are not covered by the Sharait Act, and hence the parties appearing before the authority in relation to these matters should specify if they would like to be governed by the Muslim Personal law or any other law.


Muslim Women (Protection of Rights on Divorce Act)

With the passage of time, a strong need is felt to alter the personal laws as per the modernization or to uplift the status of women in society. The personal laws were framed as per their old religious beliefs which were always in support of oppression of women; and as per the fundamental right guaranteed by Article 14 of the Indian Constitution which promotes Equality is in strong contradiction with the personal laws which are framed.

The Muslim Personal Law is one such law which lacks Equality between Men and Women; and hence alterations were made by the Government after a landmark Judgement in Shah Bano’s Case, by passing of Muslim Women (Protection of Rights on Divorce Act) as a part of the Muslim Personal Law.


CASE LAWS

Following are some famous case laws where there is application of Muslim law; passing of Muslim Women (Protection of Rights on Divorce Act); and inequalities against women due to the Muslim personal law is highlighted:

MOHD. AHMAD KHAN VS SHAH BANO BEGUM & ORS.

This case is commonly known as ‘Shah Bano Case’; this is a revolutionary case which had introduced the ‘Muslim Women (Protection of Rights on Divorce Act)’ by the centre for the welfare of Muslim women.

The facts- Shah Bano had filed a petition before court under section 123 of criminal procedure code for maintenance. Ahmad khan contested the claim that as per the Shariat Law he had paid maintenance to Bano for the period of iddat. His contentions were supported by All India Muslim Personal Board.

Later the case was mentioned before Supreme Court and it ordered maintenance to Bano with increased amount; this order had disappointed the Muslim Board throughout India and it was then the congress government passed Muslim Women (Protection of Rights on Divorce Act). This case is referred a milestone and also an initiative by the Apex Court in regard to Application of Uniform Civil Code throughout India.

SHAYRA BANO VS UNION OF INDIA

This case is commonly known as the ‘Triple Talaq Case’. In this case Shayra Bano who was a victim of Triple Talaq, practice of Shariat law approached the Supreme Court and filed a petition that Triple Talaq or Talaq-i-biddat is violative of article 14 of the Indian constitution. The court in this case ruled in 3:2 majorities and considered the practice of triple Talaq as arbitrary and violative of article 14 but did not consider it unconstitutional; rather they haven’t changed the legal position of Triple Talaq but confusion has been created on the topic of legal status of the personal laws.


CONCLUSION

As mentioned above a Muslim Personal Law (Shariat Law) is applied to Muslims of India. Through case laws it is noticed that the personal laws are in contradiction to the fundamental rights guaranteed by the Indian Constitution and time and again the need for a Uniform Civil Code is been pointed out by the Supreme Court of India which would result in a Uniform set of laws and would be in accordance with the fundamental rights guaranteed by the constitution.


                                                                                                                      

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