The place of the different enactments authorising and regulating the application of Muslim law to Muslims in the different States of India is now taken by the Muslim Personal Law (Shariat) Application Act, 1937. The object of the Act is, as its Preamble states, “to make provision for the application of the Muslim Personal Law (Shariat) to Muslims in India.” The Act came into force on 7th October, 1937.
Under this Act, it is provided that, 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, Han, khula and mubara’at, maintenance, dower, guardianship, gifts, trust and trust properties and wakfs (other than charities and religious endowments), Muslim personal law (Shariat) is to apply to all cases where the parties are Muslims. (S. 2)
It will be seen that the matters enumerated above together constitute practically the whole branch of personal law, and hence, the Act is called the Muslim Personal Law Application Act. The scope and purpose of S. 2 of the Act (above) is to abrogate custom and usage in so far as they have displaced the rules of Muhammadan law.
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Wills and legacies are dealt with in Section 3. As regards questions relating to pre-emption, the old law is left untouched by the Act. By mentioning ila and Zihar amongst the modes of dissolution of marriage, the Act apparently seeks revive these modes of divorce. Another important point to note is that charitable and religious institutions are excluded from the scope of the Act.
The Calcutta High Court has held that, as regards marriage and divorce, the Shariat Act requires the Courts to apply Muslim law, only if both the parties are Muslims. If, therefore, only one of them is a Muslim, the Act will not apply. (Noor Jahan v. E. Tiscenko, A.I.R. 1941 Cal. 582)
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The Bombay High Court has held that testamentary trusts and testamentary wakfs are covered by S. 2 of the Act, and therefore in matters involving such trusts or wakfs, S. 3 of the Act (below) is not applicable. (Ashrafalli v. Mohamedalli, A.I.R. 1947 Bom., 122)
Under S. 3 of the Act, 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
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(c) That he is a Resident of India:
Can, by declaration in the prescribed form filed before the prescribed authority, declare that he desires to obtain the benefit of this Act, and thereafter, the provisions of S. 2 apply to the declarant and all his minor children and their descendants, as if, in addition to the matters enumerated above, adoption wills and legacies were also specified.
Provision is also made for an appeal if the prescribed authority refuses to accept such a declaration.
It will be seen that S. 3 refers to adoption, wills and legacies. The provisions of this section may be called persuasive, unlike the provisions of S. 2, which are obviously coercive. Whereas the purpose of S. 2 is to abrogate customs and usages, insofar as these have displaced the rules of Muhammadan law, Section 3 does not invalidate the customs relating to adoptions, wills and legacies. It only provides an option to any person affected by these customs to abandon them and adopt Muhammadan law.
S. 4 of the Act then empowers the State Governments to make rules to carry out the purpose of the Act, and S. 6 repeals certain Acts, to the extent that they permit inconsistent customs. (S. 5 of the Act was repealed in 1939.)
