AMENDMENTS IN MUSLIM LAW

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INTRODUCTION:

Muslim law also known as Islamic law, law of Islam, Sharia or Sharia law. According to Duhaime’s Law Dictionary Muslim Law is defined as :     

“The body of law derived from the Koran and other recorded sayings of the Muslim prophet Muhammad (570-632).”

Muslims in India are administered by The Muslim Personal Law (Shariat) Application Act, 1937. This law manages marriage, succession, inheritance, and charities among Muslims. The Dissolution of Muslim Marriages Act, 1939 deals with the conditions in which Muslim women can get the divorce and privileges of Muslim women who have been separated by their spouses and to accommodate matters associated therewith.

Sharia, Islamic law or Sharia law is a religious law framing some portion of the Islamic custom. It is gotten from the religious statutes of Islam, especially the Quran and the Hadith. The traditional hypothesis of Islamic law perceives four sources of sharia: the Quran, sunnah (real hadith), qiyas (analogical reasoning),[note 1] and ijma (juridical accord). 

In the advanced period, conventional laws in the Muslim world have been generally supplanted by statutes inspired by European models. Judicial methodology and legitimate instruction were likewise brought in line with European practice. While the constitutions of most Muslim-greater part states contain references to sharia, its old-style principles were to a great extent held uniquely in close to personal status (family) laws. Legislators who arranged these laws looked to modernize them without deserting their establishments in the customary statute. 

WHO IS A MUSLIM PERSON?

According to Duhaime’s Law Dictionary Muslim person is defined as:

“Any person who professes as a religion, that there is but one God and that Mohammad is the prophet of that God.”

APPLICABILTY OF PERSONAL LAW TO MUSLIMS:

Section 2 of the Shariat Act gives that for a situation where both the gatherings are Muslims the standard for choice will be Muslim Law if the case includes any of the accompanying issues:

(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 in this manner, clear that regarding the previously mentioned issues if both the gatherings to a case are Muslims, the courts will apply just the Muslim personal law and that’s it. A custom or usage in opposition to Muslim law can’t be connected at this point. 

It is significant to take note that the words, rule for choice will be Muslim law in Section 2 of the Act, are compulsory, which means in this way that the courts are enabled as well as bound to direct just Muslim individual law in the circumstances referenced in that. 

(b) In the cases including adoption, wills, and legacies, the courts have no authority to apply Muslim law under Section 2 of the Act, because these subjects are excluded in the said segment. In any case, Section 3 of the Shariat Act gives that courts may apply the guidelines of Muslim law in instances of adoption, wills and legacies gave a Muslim explicitly proclaim that he needs to be administered by Muslim law additionally in regard to these issues notwithstanding the previously mentioned ten issues.

RECOMMENDATION OF LAW COMMISSION REGARDING AMENMENT OF MUSLIM PERSONAL LAW:

  • Codify Inheritance Law: A complete code, i.e., the Muslim Code of Inheritance and Succession, relevant to both the Sunnis and the Shias might be figured for clearness. This would involve the annulment of the Muslim Personal Law (Shariat) Application Act, 1937. In reasonable terms, this might be a precarious issue both at the political and societal levels. It might be reviewed that attempts to systematize Muslim Personal Law (Shariat) Application Act, 1937 just as the Dissolution of Muslim Marriages Act, 1939 were made during Nehruvian time with a thought regarding making a Muslim Law Committee. Be that as it may, this was later dropped attributable to the opposition inside the community. It was then left to the legal executive to offer a dynamic translation of Quranic writings.
  • Adultery ought to be presented as a ground for divorce through an amendment to the Dissolution of Muslim Marriage Act, 1939. At present according to the Muslim law, a spouse can get khula or divorce on grounds of husband’s impotency, being missing for the delayed period, inability to give upkeep, inability to perform conjugal commitment, detainment of more than seven years, and so forth., yet not on grounds of adultery. Significantly, people both men and women approach similar rights and justification for separation. The Act, 1939, ought to likewise contain ‘adultery’ as a ground for divorce and ought to be accessible to both male and female.
  • The Nikahnama (marriage contract) itself should clarify that polygamy is a criminal offense and section 494 of the Indian Penal Code (IPC) will apply to all networks. This is not recommended with the purpose to glorify bigamy or for any kind of moral values but to remove this biasedness that men can have more than one wife, which is unfair. Since the matter is subjudice before the Supreme Court, the Commission has reserved its recommendation.

Muslim Women (Protection of Rights on Marriage) Bill, 2017:

The law forces a prison term of as long as three years for Muslim men who articulate immediate and permanent separation by expressing “talaq” three times in any form. The law depends on the Muslim Women (Protection of Rights on Marriage) Bill, which was passed by the Lok Sabha in December 2017.

SUPREME COURT CASE:

In Shayara Bano v. Union of India & Others , Supreme Court with five judges from different communities held instant triple talaq (talaq-e-biddat) unconstitutional.

The Muslim Women (Protection of Rights on Marriage) Ordinance, 2018:

The practice of Triple Talaq was continued in spite of the SC striking it; the government provided a law to make the practice illicit and void. 

The arrangements of the statute are as per the following: 

  • Instant triple talaq stays cognizable with a limit of three years of detainment and a fine. 
  • The only complaint to the police by the spouse or her blood relative will be perceived. 
  • The offense is non-bailable, only a Magistrate and not the police can allow bail. Bail can be conceded simply only after hearing the spouse. 
  • Care of the minor children from the marriage will go to mother. 
  • The maintenance of the spouse is chosen by the officer. 

The statute was cleared by the President on nineteenth September 2018.

PERSONAL LAWS (AMENDMENT) BILL, 2018:

  • The Personal Laws (Amendment) Bill, 2018 was presented in Lok Sabha by the Minister for Law and Justice, Mr. Ravi Shankar Prasad, on August 10, 2018. It tries to correct five Acts. These are (I) the Divorce Act, 1869, (ii) the Dissolution of Muslim Marriage Act, 1939, (iii) the Special marriage Act, 1954, (iv) the Hindu marriage Act, 1955, and (v)the Hindu Adoptions and Maintenance Act, 1956.
  • These Acts contain provisions relating with marriage, separation, and separation of Hindu and Muslim couples. Every one of these Acts endorse leprosy as a ground for looking for separation or divorce from the partner.
  • This bill suggests that, in the Dissolution of Muslim Marriages Act, 1939, in section 2, in ground (VI), the words “leprosy or” shall be omitted.

CONCLUSION:

There have been many amendments made from time to time in various Muslim Laws. A recent amendment under Muslim law has been suggested by the legislation by presenting Personal Laws (Amendment) Bill, 2018. Muslims are governed in India by The Muslim Personal Law (Shariat) Application Act, 1937. Amendments are necessary in Muslims laws because laws should be changed according to the needs and aspirations of the people and to be fair to all section of the society

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