Kara Sears
Muslim Personal Law (Shariat) Application Act, 1937, governs personal matters concerning the Indian Muslim community, including marriage, divorce, succession, inheritance, and charities. The law has undergone several amendments and landmark reforms, including the Muslim Women (Protection of Rights on Marriage) Act, 2019, which banned the practice of instant triple talaq, and the Dissolution of Muslim Marriages Act, 1939, which provides grounds for divorce for Muslim women. The law also addresses guardianship, with the Guardians and Wards Act, 1890, applicable to all Indian citizens, allowing courts to appoint legal guardians for minor children in the absence of natural or testamentary guardians.
| Characteristics | Values |
|---|---|
| Date of enactment | 1937 |
| Governing body | Muslim Personal Law (Shariat) Application Act |
| Applicability | All Muslims in India except Jammu and Kashmir |
| Areas covered | Marriage, divorce, succession, inheritance, charities, adoption |
| Landmark rulings | Shayara Bano v. Union of India (2019), Muslim Women (Protection of Rights on Marriage) Act |
| Rights of Muslim women | Maintenance, custody, inheritance, mahr |
| Rights of Muslim men | Allowed up to four wives, can divorce without legal process, not required to provide long-term financial support to ex-wife |
| Guardianship | Guardians and Wards Act, 1890 |
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What You'll Learn
Marriage as a civil contract
In India, Muslim marriage is considered a civil contract between a man and a woman. The Muslim Personal Law (Shariat) Application Act, 1937, deals with marriage, succession, inheritance, and charities among Muslims. The law allows polygamy, with a man being permitted to marry up to four wives at a time.
The Dissolution of Muslim Marriages Act, 1939, addresses the circumstances under which Muslim women can obtain a divorce and outlines the rights of Muslim women who have been divorced by their husbands. This Act replaced Section 5 of the Shariat Act of 1937, which also concerned Muslim women seeking divorce.
Muslim marriages are considered a 'nikah', a religious and social institution that aims to foster love, respect, and understanding between spouses. The marriage is a sacred social practice that aligns with the values of their faith, bearing a syncretic character as both a contract and a sacral act.
For a valid Muslim marriage, the parties should be above the age of puberty, considered to be 15 years. Various ceremonies are followed, including the offer (ijab), acceptance (qubul), and dower (mehr). Consent and capacity are regarded as free, voluntary, and reciprocal, similar to any contract. Prenuptial agreements are also common, determining the division of property and liabilities in the event of a divorce.
The dissolution of marriage can occur at the instance of the husband (talaq), wife (khula), or mutually (mubarat). Talaq allows a Muslim man to legally divorce his wife by stating the word 'talaq'. Instant triple talaq, where three talaqs are stated at once, was deemed unconstitutional by the Supreme Court of India in 2017. The Muslim Women (Protection of Rights on Marriage) Act, 2019, further criminalised this practice, making it punishable by up to three years of imprisonment.
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Divorce and women's rights
Muslim personal law in India is derived from Sharia (Islamic law) and plays a significant role in guiding the lives of millions of Indian Muslims. It covers various aspects of personal life, including marriage, divorce, inheritance, and charities.
Divorce, or Talaq, is a recognised means of dissolving a Muslim marriage in India, but it must adhere to specific guidelines. Instant triple talaq, where a husband could divorce his wife by saying "talaq" three times, was declared unconstitutional by the Supreme Court of India in 2017 and subsequently banned by the Muslim Women (Protection of Rights on Marriage) Act of 2019. This Act made the practice of talaq-e-biddat a criminal act, punishable by up to three years in prison.
Muslim women have certain rights regarding divorce under Muslim personal law. They can seek divorce in a court of law under specific conditions, as outlined in the Dissolution of Muslim Marriages Act of 1939. This Act deals with the circumstances in which Muslim women can obtain a divorce and the rights of Muslim women who have been divorced by their husbands.
The Muslim Women (Protection of Rights on Divorce) Act of 1986, which was passed after the famous Shah Bano case, ensures that divorced women are entitled to financial support from their husbands beyond the iddat period (three months after divorce). This Act was deemed constitutional by the Supreme Court of India, which ruled that it does not violate the fundamental rights of women.
Other rights of Muslim women in the context of divorce include the right to Mahr, a mandatory financial gift from the husband, symbolizing her independence and security. Additionally, women can include specific conditions in their marriage contracts, such as the prohibition of polygamy or the right to seek divorce under certain circumstances. Child custody decisions also prioritise the welfare of the child, often granting custody to the mother during early childhood.
The All-India Muslim Personal Law Board has taken steps to reform divorce practices by introducing a new talaqnama, which disapproves of the triple talaq system and replaces it with a 'phased-talaq' approach. This new system gives separating couples a minimum of three months to reconcile before finalising the divorce.
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Inheritance and succession
In India, the Muslim law of succession is regulated according to the Muslim Personal Law (Shariat) Application Act, 1937. It is a legal framework that governs the inheritance and distribution of property among Muslims. The right to inherit property arises only after the death of the ancestor, meaning that children born into Muslim families do not automatically gain inheritance rights at birth.
The Muslim law of succession is rooted in four primary sources of Islamic law: the Holy Quran, the Sunna (the practice of the Prophet), the Ijma (consensus of learned community members), and the Qiya (analogical deduction based on divine principles). The Quran amended customary tribal laws of succession to align them with Islamic philosophy, introducing the class of 'sharers' or 'Quranic heirs', which led to the inclusion of heirs who were previously excluded under customary succession laws.
Under Muslim law, the distribution of property can be made in two ways: per capita or per strip distribution. The per capita distribution method is mainly used in Sunni law, where the estate left over by the ancestors is equally distributed among the heirs. The per strip distribution method is recognised in Shia law, where the property is distributed among the heirs according to the strip they belong to.
A child in the womb of its mother is competent to inherit provided it is born alive. If such a child in the womb is not born alive, the share already vested in it is divested, and it is presumed as if there was no such heir.
The administration of the estate of a deceased person is governed by the Indian Succession Act, 1925. An executor or administrator of a deceased Muslim is appointed as their legal representative, and this executor cannot be a non-Muslim. For the purpose of realising debts, a probate has to be obtained where the deceased died testate (with a will). In the case of a person dying intestate (without a will), a letter of administration is obtained and produced before the court of law.
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Adoption and guardianship
Muslim Personal Law (Shariat) Application Act, 1937, governs all Muslims in India. It deals with marriage, succession, inheritance, and charities. However, it does not recognise complete adoption. Muslim law considers the father to be the natural guardian of the child, followed by the mother.
In India, adoption is defined as the social, emotional, and legal process of permanently placing a child with another family when they cannot be raised by their birth parents. The child becomes a full and permanent member of the adoptive family while maintaining connections with their birth family.
Adoption laws in India vary for different religious communities. The Hindu Adoption and Maintenance Act (HAMA) of 1956 allows Hindus, Buddhists, Jains, and Sikhs to adopt children, but it does not apply to Muslims, Christians, Jews, or Parsis. HAMA recognises both male and female children as eligible for adoption and confers equal rights to them as biological children.
Muslims in India can take guardianship of a child under the Guardians and Wards Act of 1890. This Act does not recognise the child as an adopted child but rather as a ward, and the child does not have the same status or rights as a biological child. This guardianship lasts until the child turns 21.
The JJ (Care and Protection of Children) Amendment Act of 2006 allows Muslims to adopt and provide all legal rights to the children. It focuses on the rehabilitation and social integration of the child through foster care, adoption, sponsorship, and after-care organisations.
There have been calls for reform in the adoption process for Muslims in India, with some arguing that adoption should be allowed as a fundamental right. The law does not prohibit LGBTQ individuals from adopting, but they can only adopt as single parents and not as a couple.
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Charities and charitable institutions
Muslim Personal Law (MPL) in India deals with matters of marriage, divorce, succession, inheritance, and charities among Muslims. The law was originally introduced by the British government in 1937 and has been maintained in Indian society since its independence.
It is important to note that agricultural lands, charities, and charitable endowments are considered provincial or state subjects and are therefore expressly excluded from Section 2 of the Shariat Act. This means that courts cannot apply Muslim law when dealing with questions related to these subjects under the authority of the Shariat Act. However, state legislatures have the competence to enact laws regarding these matters. For example, in the states of Andhra Pradesh and Tamil Nadu, succession to agricultural lands, charities, and charitable institutions are regulated by local laws rather than Muslim law.
One notable organisation is the Indian Muslim Relief Charities (IMRC), founded in 1981 by Manzoor Ghori. IMRC is an American Muslim non-profit that provides support to underserved communities in India through education, relief, and sustainable development. The organisation is known for its focus on transparency and dignity, and it has initiated various projects, including the establishment of a hospital and a university in India.
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Frequently asked questions
Muslim personal law in India is a separate legal framework that governs the personal matters of Muslims in India, including marriage, divorce, succession, inheritance, and charities.
The Muslim Personal Law (Shariat) Application Act was passed in 1937 by the British Raj. It established Islamic principles as the governing law for marriage, divorce, maintenance, and inheritance among Muslims in India. After India gained independence, this law was retained to preserve religious autonomy.
Key laws include the Muslim Personal Law (Shariat) Application Act 1937, the Dissolution of Muslim Marriages Act 1939, the Muslim Women (Protection of Rights on Divorce) Act 1986, and the Muslim Women (Protection of Rights on Marriage) Act 2019.
This Act was passed in 2019 and made instant triple talaq illegal, void, and a punishable offence. It also banned the practice of talaq-e-biddat, making it a criminal act with a potential sentence of up to three years imprisonment.
Talaq refers to the dissolution of marriage at the instance of the husband. Khula is when the wife initiates divorce, forfeiting her mahr (a mandatory financial gift from the husband). Mubarat is a mutual agreement to separate.
