Constitutional laws in India

The Muslim Personal Law (Shariat) Application Act, 1937

A look into Shariat law - Muslim personal law
Muslim Law Lawyers in India
Legal Service India.com
  • 1. Short title and extent
    (1) This Act may be called the Muslim Personal Law (Shariat) Application Act, 1937.
    (2) It extends 1 to the whole of India 2 except the State of Jammu and Kashmir

    2. Application of Personal law to Muslims

    Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).

    Explanation of Section 2:
    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),
    (2) Special property of the females,
    (3) Marriage (including all incidents of marriage),
    (4) Dissolution of marriage (including all kinds of divorce),
    (5) Maintenance,
    (6) Dower,
    (7) Guardianship,
    (8) Gift,
    (9) Trust and trust properties, and
    (10) Wakf.

    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:

    3. Power to make a declaration.

    (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 (9 of 1872); and
    (c) that he is a resident of 4 the territories 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 5 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.

    (2) Where the prescribed authority refuses to accept a declaration under sub- section (1), the person desiring to make the same may appeal to such officer as the State Government may, by general or special order, appoint in this behalf, and such office may, if he is satisfied that the appellant is entitled to make the declaration, order the prescribed authority to accept the same.

    Explanation of 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.

    4. Rule-making power

    (1) The State Government may make rules to carry into effect the purposes of this Act.
    (2) In particular and without prejudice to the generality of the foregoing powers, such rules may provide for all or any of the following matters, namely:—
    (a) for prescribing the authority before whom and the form in which declarations under this Act shall be made;
    (b) for prescribing the fees to be paid for the filing of declarations and for the attendance at private residences of any person in the discharge of his duties under this Act; and for prescribing the times at which such fees shall be payable and the manner in which they shall be levied.
    (3) Rules made under the provisions of this section shall be published, in the Official Gazette and shall thereupon have effect as if enacted in this Act.
    6 (4) Every rule made by the State Government under this Act shall be laid, as soon as it is made, before the State Legislature.
    5. Dissolution of marriage by Court in certain circumstances.—Rep. by the Dissolution of Muslim Marriages Act, 1939 (8 of 1939), sec. 6 (17-3-1939).
    6. Repeals.—

    7 The under mentioned provisions of the Acts and Regulations mentioned below shall be repealed in so far as they are inconsistent with the provisions of this Act, namely:

    (1) Section 26 of the Bombay Regulation IV of 1827;
    (2) Section 16 of the Madras Civil Courts Act, 1873 (3 of 1873); 8 ***
    (4) Section 3 of the Oudh Laws Act, 1876 (18 of 1876);
    (5) Section 5 of the Punjab Laws Act, 1872 (4 of 1872);
    (6) Section 5 of the Central Provinces Laws Act, 1875 (20 of 1875); and
    (7) Section 4 of the Ajmer Laws Regulation, 1877 (Reg. 3 of 1877).

    1. Extended to the Pondicherry by Act 26 of 1968, sec. 3 and Part I, subject to the following modifications:—
    2. Subs. by the Act (48 of 1959), sec. 3 and Sch I, for certain words (w.e.f. 1-2-1960).
    3. The words excluding the North-West Frontier Province omitted by the Indian Independence (Adaptation of Central Acts and Ordinances) Order, 1948.
    4. Subs. by the Adaptation of Laws (No. 3) Order, 1956 for a Part A State or a Part C State. tc" 6. Subs. by the Adaptation of Laws (No. 3) Order, 1956 for a Part A State or a Part C State."
    5. Subs. by Act 16 of 1943, sec. 2, for this Act.
    6. Ins. by Act 20 of 1983, sec. 2 and Sch. (w.e.f. 15-3-1984). tc" 1. Ins. by Act 20 of 1983, sec. 2 and Sch. (w.e.f. 15-3-1984)."
    7. Subs. by Act 16 of 1943, sec. 3, for Provisions.
    8. The brackets, figures and words (3) Section 37 of the Bengal, Agra and Assam Civil Courts Act, 1887 omitted by Act 16 of 1943 sec. 3. This omission has the effect of reviving the operation of section 37 of that Act.

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