Historical Development of Muslim Law

This article aims at looking into the historical development of Muslim Law in India. It is commonly known that Shariat law was followed by Muslims in ancient India. Shariat law is applicable to those persons who enjoin the faith of Islamic law. However, persons who do not follow the Islamic religion in an Islamic State are not subject to Shariat law.

The Muslim law was followed from one of the very early dynasties of Sabuktigin which existed during 991 AD. This was still the reign of Muhammad Ghori. The historical development of Muslim Law can be traced to the following events that occurred in history:

Slave Dynasty or Sher Shah Dynasty

During this era which included several dynasties like the Tughlak Dynasty and the Khalji dynasty, there were two types of courts and the pleaders at that time were the Kaji and Mufti in the entire territory of India. The two types of courts were the Shariat and the common law court.

The Shariat court dealt with the Muslims and their religious customs and traditions and their breach thereof meaning, all the disputes that arose with respect to religious matters were dealt with this court according to Shariat law. On the other hand, the court of common law, as the name suggests dealt with common matters. This court was not restricted to Muslims and these matters were dealt with by the Muftis of this court.

Mughal Dynasty

This dynasty was very much similar in terms of administration to the Sher Shah dynasty. During the later Mughal period under the reign of Akbar, the use of religious scholars reduced comparatively and the orthodox Sunni school was somewhat introduced during his reign.

The dominance of Chief Kazi and Kazis was seen as pleaders for the Muslim law according to the will of the emperor. Following which, during Jehangir’s reign several prohibitions were made by the emperor. There was a prohibition on odes of punishment like nose and ear cutting and the death penalty. These could only be sentenced with the confirmation of the emperor himself.

Later in the year 1659, Aurangzeb was ascended, one who believed in the rule of law. He was a very well-read educated emperor well versed with the Hadis and books on theology. He, in fact, also ordered the compilation of fatwas and rules of the Hanafi School of Muslim law.

In his reign, we see a more secular emperor who was not biased towards Hindus. All extra taxes levied upon the Hindus were abolished and those who were proved to be criminals or convicted for some kind of offence were sentenced to imprisonment and no form of the death penalty was executed.

British Era

On perusal of Indian history, we can determine that one of the reasons why British people laid down their authority was due to their common understanding and truce with the Muslim rulers of the Mughal dynasty in the areas of Delhi, Bengal and Bihar.

According to the Royal Charter of 1765 of the East India Company, the administration of the country was in the hands of a Nawab in Bengal at Murshidabad. The charter also vested powers to the empire to administer and to make rules with regard to Muslim law. However, an exception for the Hindus were made and their laws were governed by their vedas and shashtras.

The Muslim law did not evaporate till the enactment of the Indian Penal Code and the procedural laws as well as the Evidence act. However, disputes with respect to natives of Calcutta (now, Kolkata) lay with the Mohammedan practices. Issues with respect to the marriage were envisaged in the Holy Quran itself (for Hindus, in Shahstras). However, with respect to trade and businesses, there was a rule of law.

Introduction of Shia Law

Muslims are divided into classes on the basis of their beliefs, viz. Shia Muslims and Sunni Muslims. During the 1930s the distinction between the beliefs of two classes of Muslim sects emerged and there appeared a social distinction between the two Secs, Sunnis and Shias. In 1822, the privy council of the East India Company acknowledged that the Shia sect of the Muslims had a right to be governed by their own personal laws and not follow the uniform Muslim personal law.

In 632 A.D. Prophet Mohammed died and the next most essential question before the Muslims was whom to elect as his successor. There were two options available before them. Firstly, the son-in-law of the Prophet, Ali and secondly, his most sincere disciple, Abu Bakar. During the death of the prophet the Kuarish tribe, was divided into the Omayad and the Hashmits.

The Omayads wanted Ali to become the successor and show their allegiance to him while the Hashmits wanted Abu Bakar to be the successor. However, Abu Bakar was elected as the successor of the prophet and even Ali owed his allegiance to Abu Bakar.

The status quo was maintained for more than three decades and there was no huge disturbance between the Omyads and Harshmits that enraged any kind of violence. However, in the Mid-seventh century the second son of Ali revolted against the second of Abu Bakar which led to turmoil between the two dynasties thereby causing two different sects known as the Shia Muslims and the Sunni Muslims.

Sunni sect were the followers of Abu Bakar who swore their allegiance to anyone who was the successor to the prophet. Whereas, the Schiates, became the followers of Ali and his successors.

Laws of Shia and Sunni Muslims

The Shia sect expounded the principle of Imamat. According to this principle the Imam that is Ali and all his successors, shall be the theological ruler and the leader of the Sect. the Imam is believed to be the final interpreter of all the legal principles like a Supreme Court of the country and his decisions cannot be challenged.

The Shias believed that by the virtue of being related with blood, Ali had a divine right to succeed the prophet and all of Ali’s successors are a pedigree of the prophet himself.

On the other hand, the Sunnis believed in the caliphate or khilafat, wherein the caliph is believed to be a temporal ruler. It means that he governs and regulates the cats of the people of the sect for a specific period of time and is then followed by a competent successor.

The caliph is not a religious chief but more of a political leader and ruler. The Caliphate of the Sunni Muslims had its headquarter with the caliph in Turkey. In 1924, after the emergence of the Turkish revolution, the people of Turkey overthrew the caliph and ended the Caliphate rule forever.

Shariat Act, 1937 and its significance

The partition of India in 1947 not only divided India into two independent domains but also changed the laws applicable to the nation entirely. Before the 1947 partition, the subject matters of inheritance, succession, marriage, divorce, family relationship, and dower were regulated under the able guidance of the religious laws whose roots existed in the age-old customs. Such laws were often subjected to alteration by various legislations due to the underlying ideologies framing such kinds of laws. The reason behind the promulgation of the Muslim Personal Law (Shariat) Act, 1937 was to erase the customary exercises existing with regard to the Muslims.

On October 7, 1937 the British enacted the most essential and only statute to regulate the personal laws of the Muslims in India. The Act had only six sections with which it regulated all of their activities.

Section 2 of the Act enlists the matters to which the provisions of the Act shall apply. These are:

1. Law relating to the succession of a Muslim person dying intestate. i.e. without a will or a testament.
2. Law relating to vesting of properties and gifts on females of the Sect.
3. Law relating to marriage, divorce, grounds of divorce, Mehr, guardianship and maintenance.
4. Law relating to wakfs i.e. any trust created for the Muslim religion.

According to section 2, certain aspects which are not covered under the Act are matters relating to

1. Any matters or issues relating to agricultural land owned by a person of the Sect.
2. Any matters involving the establishment of charitable institutions and their regulations and religious endowments.

According to section 3 of the Act matters of adoption of children and wills and testaments shall be deemed to be a part of the matters included in the Act under section 2.

Hence the Shariat Act was the first act to deal with all the personal matters of Muslims. The Law was enacted to govern the Muslim community by a unified “Shari-at Law” and not by the several prevailing laws that were then in practice by the heterogeneous Muslim communities in India.

Dissolution of Muslim Marriage Act, 1939

The Muslim personal law failed to recognize the right of Muslim women to dissolve their marriage under any circumstance. The right of dissolution of marriage was only with the men which resulted in abuse of power and misuse of this legal vacuum. The British believed that Muslim women had the right to seek divorce and therefore, the dissolution of the Muslim marriage act 1939 was enacted.

The Act aimed to make provisions for married Muslim women to move the appropriate judicial authority (usually the Kazi or Maulvi) for obtaining a decree of divorce to cause a dissolution of her marriage. The Act recognized the following grounds that may give a cause of action for dissolution of marriage:

1. If the husband refuses to maintain the wife and her needs, emotional and financial.
2. If the husband desserts his wife or continuously maltreats her causing her life to be miserable and pitiful
3. If the husband absconds from the matrimonial home and does not make any provision for the maintenance of his wife.

The Wakfs Act, 1954

Wakf is a fiduciary arraignment between a person called the Wakif (the donor) and the Wakf board (the trustee) to utilize the property called a usufruct of the wakf for the benefit of the Islam religion. The entire process of Wakf works like trust and the most important regulation to regulate this enacted after independence called the Wakf Act 1954.

Objects of Wakf

There are various objectives of wakf under Muslim Law, that are given below:

• Mosque and provisions for Imamas to conduct worship.
• Celebrating the birth of Ali Murtaza.
• Repairs of Imambaras.
• Maintenance of Khankahs.
• payment of money to fakirs.
• Grant to an Idgah.
• Grant to the College and provisions for professors to teach in colleges.

Conclusion

The historical development of Muslim law did not end in 1954. It can be seen that Muslim law is based on the customs and usages of the prophet and his successors and is extremely traditional in nature. After independence, several changes were made to the Muslim law to modernize it and uphold the Muslims.

In 1976, Article 44 was inserted in the constitution that provided for a uniform civil code that is one personal law for people of all the religions. Further, in 1983, the Muslim women were granted the right to maintenance under section 125 of CrPC by the Apex court in the landmark case of Shah Bano begum vs. Ahmed Khan (AIR 1985 SC 945). Lastly, the most recent development in Muslim law is the proposal of triple talaq Bill introduced in the Indian Parliament in 2018.

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Bibliography

• Paras Diwan, Muslim law in modern India, 2016.
• Saif Mehmood, Introduction to Muslim Law, 2^nd edition, 2016.
• K. Abdul Rahiman, History of the evolution of Muslim personal law in India, Journal of Dharma, Volume 11, (p.249-263).

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