Major Changes Made To Muslim Law By Legislative Interventions
Read the article on Major Changes Made To Muslim Law By Legislative Interventions by Gayathri S Pillai only on Legal Bites. Introduction Islamic Law is a branch of Muslim theology that gives practical expression to the faith by laying out how a Muslim should conduct himself in accordance with his religion, both toward God and other persons. Legislation… Read More »
Read the article on Major Changes Made To Muslim Law By Legislative Interventions by Gayathri S Pillai only on Legal Bites. Introduction Islamic Law is a branch of Muslim theology that gives practical expression to the faith by laying out how a Muslim should conduct himself in accordance with his religion, both toward God and other persons. Legislation is one of the secondary sources of Muslim law. In Islam, it is widely held that Allah alone is the supreme legislator and that no other...
Read the article on Major Changes Made To Muslim Law By Legislative Interventions by Gayathri S Pillai only on Legal Bites.
Introduction
Islamic Law is a branch of Muslim theology that gives practical expression to the faith by laying out how a Muslim should conduct himself in accordance with his religion, both toward God and other persons. Legislation is one of the secondary sources of Muslim law. In Islam, it is widely held that Allah alone is the supreme legislator and that no other agency or entity on the planet has the power to make laws. This idea is so ingrained that any legislative change today may be construed as violating conventional Islamic law.[1]
Although major changes in Hindu law were made in the 1950s, major policymakers argued that they were leaving changes in religious minorities’ laws to the initiative of unspecified members of these communities, who were traditionally conservative religious and political elites. Because of their conservatism, substantial improvements to these laws seemed impossible. Nonetheless, there have been some reforms in Muslim law and India’s other family laws over the last decade that gave women more rights. The judiciary was the chief agent of change, while legislatures, religious leaders, and religious institutions played secondary roles.[2]
The limited codification of Muslim law provided the judiciary substantial autonomy in interpreting Muslim law. The Dissolution of Muslim Marriages Act, the Muslim Women (Protection of Rights on Divorce) Act, and the Muslim Personal Law (Shariat) Application Act of 1937 are the three significant acts on Muslim law in India. Amendments to these acts and implementing various other acts contributed to major changes in Muslim law.
The major changes are as follows:
Muslim Personal Law (Shariat) Application Act And Its Amendments
The Shariat Act,1937 superseded customary law.[3] The Muslim Personal Law (Shariat) Application Act, 1937[4] governs all Muslims in India. This legislation governs Muslim marriage, succession, inheritance, and charities. Thus, notwithstanding any customs or use to the contrary, this Act essentially states that Muslim Personal Law, i.e., Shariat, would apply to Muslims in the above-mentioned matters of personal law. As a result, the principal goal of this Act is to extend Shariat to Muslims in place of any customs or use in the above-mentioned areas of personal law.[5]
The Muslim Personal Law (Shariat) Application Act of 1937 declared that the Sharia would extend to Muslims in family matters without specifying the rules it recognized, even though “Islamic laws” in various parts of the world differ significantly. Amendments to the Muslim Personal Law (Shariat) Application Act in certain states made Muslim law rather than local custom applicable to succession to agricultural land.
In contrast to most local customs, the Shariat Application Act amendments gave daughters half-shares in their parents’ agricultural land (along with the half-share they had in other types of parental property since 1937), in contrast to most local customs, which gave daughters no share in agricultural land at all. The legislative restriction was intended to provide Muslim leaders the lead position in deciding the future of Muslim Law, But It Ended Up Giving The Judiciary Even More Power.
The Dissolution Of Muslim Marriages Act, 1939 And Its Implications
Since its passage in 1939, the Dissolution of Muslim Marriages Act[6] has regulated the grounds on which Muslim women can obtain a judicially mediated divorce. A woman could not divorce her husband on her own before 1939. She can only divorce her husband if he has delegated the right to her or if they have reached an agreement. A wife can divorce her husband by Khula or Mubaraat if they have reached an agreement. Before the Dissolution of Muslim Marriage Act of 1939, a Muslim wife had no right to divorce unless her husband falsely accused her of adultery (lian), was insane, or was impotent.[7]
However, the Dissolution of Muslim Marriage Act of 1939 specifies other grounds on which a Muslim wife may have her marriage dissolved by a court order. Divorce by mutual consent is a modern concept in Islam. This is also recognized as the breakdown theory of divorce. The modern breakdown theory of divorce forbids the court from delving into the reasons for the breakdown of the union. Islam’s stance has been to avoid taking divorce proceedings to the courts as far as possible.
The explanation for this is that the Holy Prophet explicitly declared divorce to be the worst of all permissible things and cautioned his people to avoid it. Despite this, the Holy Prophet instituted a significant change in the pre-Islamic system of divorce in order to prevent women from being exploited and to give them a status equal to men, as well as moral, social, and economic protection from childhood to motherhood.[8]
Renouncing or abandoning one’s religion is referred to as apostasy. Apostasy (Ridda) from Islam is described as the rejection of Islam or the conversion of a Muslim to another religion. When a non-Muslim embraces Islam, that is, when he believes that there is only one God and that Prophet Mohammad is his messenger, he is said to have concerted himself into Islam, according to Muslim law. On the other hand, when a Muslim abandons his faith in Islam, this is known as apostasy.
Apostasy by any party to a marriage ipso facto dissolves the marriage, and immediate dissolution of the marriage exists prior to the passage of the Dissolution of Muslim Marriage Act, 1939. The wife ceases to be the wife on the day she renounces Islam, and if anyone takes her away during the iddat time, the offence of adultery u/S. 498 of the Indian Penal Code is not committed. If a woman marries another man after apostasy during iddat, she is not guilty of bigamy under Section 494 of the Indian Penal Code.
The situation has changed somewhat after the passage of the Dissolution of Muslim Marriage Act of 1939. According to Section 4 of the Act[9],
“The renunciation of Islam by a married Muslim woman or her conversion to a faith other than Islam shall not by itself operate to dissolve her marriage.”
The woman shall be entitled to obtain a declaration for the dissolution of her marriage on any of the grounds specified in Section 2 of the Act after such renunciation or conversion. Furthermore, the provisions of this Section do not extend to a woman who converts to Islam from another religion and then returns to it.[10]
Passage Of Muslim Women (Protection Of Rights On Divorce) Act
The Indian Parliament passed the Muslim Women (Protection of Rights on Divorce) Act in 1986 to curb conservative Muslim mobilization, but some of the Act’s provisions did not explicitly match the conservative stance that Muslim husbands’ obligations to provide for their ex-wives should be limited to a three-month span.
Although Section 3 limited the husband’s maintenance obligations to the iddat period, Sections 3(1)(a) and 4 required the husband to make “fair and equitable provision” (possibly in addition to maintenance) for an unspecified period “within the iddat period.”
In the majority of cases between 1986 and 2001, the courts addressed the resulting uncertainty regarding the time during which ex-husbands were required to pay alimony by decreeing alimony before the woman’s remarriage or death before the Supreme Court made this understanding binding on all courts in the Danial Latifi v. Union of India[11] case in 2001.
Amendment Of Muslim Women (Protection Of Rights On Divorce) Act In 2019
The Muslim Women (Protection of Rights on Marriage) Act, 2019[12], is an act of the Parliament that made triple talaq illegal. The Supreme Court of India ruled in August 2017 that triple talaq, which allows Muslim men to divorce their wives immediately, is unconstitutional. According to the minority view, the Parliament should consider suitable legislation to regulate triple talaq in the Muslim community.
Mr. Ravi Shankar Prasad, the then Minister of Law and Justice, introduced the Muslim Women (Protection of Rights on Marriage) Bill, 2019, in the Lok Sabha on June 21, 2019. It takes the place of an Ordinance passed on February 21, 2019.
Whether written or electronic, both talaq declarations are void (i.e., not enforceable in law) and illegal under the Act. Talaq is described as talaq-e-biddat or any other similar type of talaq pronounced by a Muslim man, resulting in an immediate and irrevocable divorce. Talaq e biddat refers to the tradition of a Muslim man saying the word “talaq” three times in one sitting to his wife, which results in an immediate and irreversible divorce, according to Muslim personal law. Declaring talaq is also a cognizable offence punishable by up to three years in jail with a fine.
Only if information about the offence is provided by: (i) the married woman (against whom talaq has been declared), or (ii) any person linked to her by blood or marriage will the offence be recognized.
It stipulates that the Magistrate can grant the accused bail. Only after hearing the woman (against whom talaq has been pronounced) and if the Magistrate is satisfied that there are appropriate grounds for granting bail will bail be issued. On the woman’s appeal, the offence can be compounded by the Magistrate (against whom talaq has been declared). Compounding is a procedure in which the two parties agree to end their legal battle and resolve their differences. The Magistrate will specify the terms and conditions of the offence’s compounding.
A Muslim woman who has been subjected to talaq has the right to ask her husband for a subsistence allowance for herself and her dependent children. The Magistrate may decide the sum of the allowance. A Muslim woman who has been subjected to talaq has the right to request custody of her minor children. The Magistrate will decide on the method of custody.[13]
Criminal Procedure Code And The Changes
In 1973, the legislature revised Section 125[14] of the Criminal Procedure Code to include ex-wives in a man’s duty to support a wife he abandoned or from whom he is judicially separated. The provision of permanent alimony was intended to extend to all religious classes, but section 127(3)(b) of the Criminal Procedure Code deducted from the payment due from the husband any sum the ex-husband might have paid his ex-wife in accordance with the couple’s customary or personal rule.
From 1973 to 1985, most courts ruled in favour of women, interpreting the 1973 constitutional amendment to extend to all Indians and citing a Quran verse that implies an ex-husband provides for his ex-future wives as justification. In Mohammad Ahmed Khan v. Shah Bano Begum case of 1985[15], a Constitution Bench of the Supreme Court did so, igniting fierce conservative Muslim opposition led by the All-India Muslim Personal Law Board, the key organization demanding adherence to conservative precedent in Indian Muslim law.
Juvenile Justice (Care And Protection Of Children) Act 2000
Adoption is the transplantation of a son from the family in which he is born into another family by gift made by his natural parents to his adopting parents. While Islam does not accept adoption, anybody, regardless of faith, can adopt a child under the Juvenile Justice (Care and Protection of Children) Act 2015[16], even if the personal laws of that religion prohibit it.[17]
Special Marriage Act
The Special Marriage Act[18] establishes a unique type of marriage, as well as its registration and dissolution. This Act allows for the solemnization of a marriage between two people of either religion or creed. As a secular act, it plays a vital role in freeing people from conventional marriage obligations.
The compulsory registration of marriage under the Special Marriage Act, which protects the parties’ interests and children born out of wedlock, is a specific feature of the Act. Under the Special Marriage Act, no religious rites or ceremonies are needed for the marriage to be concluded, and it is up to the parties to determine whether or not to perform marriage rituals.[19]Even Muslims can marry under the provisions of this Act, thus bringing in a change to the traditional Muslim law.
Conclusion And Recommendations
The status of Muslim women has improved since the Dissolution of Muslim Marriage Act of 1939 was passed. This is one of the legislature’s most radical pieces of legislation. She can now seek judicial relief from an unhappy marriage on various grounds accepted by Islam and legislation. As a result of these reforms, Muslim women’s status has strengthened. There are positive developments that are desirable in today’s society. The above-mentioned legislation also contributed to the significant changes in Muslim law.
Recent Muslim law reforms promoted and drew indirect support from ongoing developments in Indian Muslim matrimonial practices. Some conservative Muslim elites began efforts to reduce the incidence of triple talaq and polygamy, to provide rights for women to initiate divorce and receive a significant dower from their ex-husbands upon divorce in marriage contracts, and to get community courts to accept these rights in part as a result of these reforms.
Since community courts hear the vast majority of Muslim matrimonial cases, the future of Muslim law in India is inextricably linked to adjudication patterns in these courts, over which all branches of government have only limited control.
There are still some areas where legislative intervention can be undertaken, like polygamy, compulsory registration of marriage, and recognition of women as natural guardians. Through the legislation passed in the past years, it can be safely concluded that legislative interventions played a great role in bringing about changes in the Muslim laws.
[1] Upasana Chamkel, What every Indian should know about Muslim Law, IPLEADERS, (Feb. 9, 2017), Available Here
[2] Muslim Law and Judicial Reform, ENCYCLOPEDIA.COM, (last visited Apr. 26, 2021), Available Here
[3] GCV SUBBA RAO, FAMILY LAW IN INDIA 623 (10th ed. 2011)
[4] Muslim Personal Law (Shariat) Application Act, 1937, No. 26, Acts of Parliament, 1937(India)
[5] Ashok Dhamija, Common Civil Code and Muslim Law (Shariat) Application Act, TILAK MARG, (July 8, 2016), Available Here
[6] Dissolution of Muslim Marriages Act, 1939, No. 8, Acts of Parliament,1939(India).
[7] DR. R.K. SINHA, MUSLIM LAW, Central Law Agency, Allahabad 82 (5th edn. 2003)
[8] DR. M.A. QURESHI, MUSLIM LAW, Central Law Publications, Allahabad 68 (2nd edn. 2002)
[9] Dissolution of Muslim Marriage Act,1939, s.4, No.8, Acts of Parliament, 1939(India).
[10] The Changes in the law of divorce under muslim law, (last visited Apr. 27, 2021), Available Here
[11] Danial Latifi & Anr v. Union of India (2001) 7 SCC 740 (India).
[12] Muslim Women (Protection of Rights on Marriage) Act, 2019, No. 20, Acts of Parliament, 2019 (India)
[13] The Muslim Women (Protection of Rights on Marriage) Bill,2019, PRS LEGISLATIVE RESEARCH, (last visited Apr 28, 2021), Available Here
[14] The Code of Criminal Procedure, 1974,s.25, No.2, Acts of Parliament, 1974(India).
[15] Mohammad Ahmed Khan v. Shah Bano Begum, 1985 AIR 945.
[16] Juvenile Justice (Care and Protection of Children) Act 2015, No. 2, Acts of Parliament, 2016(India)
[17] Chamkel, supra note 1.
[18] Special Marriage Act,1954, No. 43, Acts of Parliament,1954 (India)
[19] Soibam Rocky Singh, ‘Marriages under special Marriage Act not governed by Personal Laws’, THE HINDU(Mar. 29, 2018), Available Here