Application of Muslim Law: Muslim by birth, Muslim by conversion
India is the largest democracy in the world, which signifies unity in diversity. In India, we have a variety of religions, such as Hinduism, Islam, Christianity, Sikhism, Buddhism, Judaism and Zoroastrianism. It is a country with diversity in personal laws. Thereby, the application of Muslim law or any other personal law for all the communities is a challenge in the context of Indian judicial framework. Where every religious community is governed by their own laws when it comes to personal matters such as marriage, divorce and inheritance etc. In the same way, the Muslims are governed by their own personal law as that of the Hindus, Christians, Parsis and Jews are governed by their own personal laws.
In India, as and when personal matters come before a court of law, specific personal law applies to the parties in litigation. If the parties are Hindu, Hindu law will apply and it goes on.
As the Muslim law applies to the Muslims only, we have to define who is a Muslim.
- Muslims by origin
- Muslims by conversion. This can be further categorised into
- Muslims who profess Islam
- Muslims who undergo formal conversion
- Muslims by origin
When a person is born to Muslim parents, he will be a Muslim. It is not necessary that he observes any Islamic rites or ceremonies to establish the fact that he or she is a Muslim. Further, it is also not necessary to establish that he is an orthodox believer in Islam. The Sharia law lays down that if one of the parents is a Muslim, even then the child will be a Muslim.
2. Muslims by conversion.
A non-Muslim may become a Muslim by professing Islam i.e. by Shahada, acknowledging that there is only one God and Muhammad is his Prophet or by undergoing the ceremonies of conversion to Islam.
In Islam, the ceremonies of conversion are quite simple. A person seeking conversion to Islam goes to a Muslim mosque. On the Imam asking him, “Are you voluntarily embracing Islam?”, if he answers affirmatively, he is given the Kalma to recite. On the completion of the recitation of the Kalma, the conversion ceremony is over and the non-Muslim becomes a Muslim.
Generally, a convert to Islam is governed by Muslim law. However, till the year 1937 i.e. before the Shariat Act came into force, it was possible for a convert to be continued to be governed by his personal law.
Application of Muslim law in India
The Muslim Personal Law (Shariat) Application Act was passed in the year 1937 with the aim to codify Islamic law for Indian Muslims. The British who were governing India were trying to ensure that Indian Muslims be ruled according to their own cultural norms. Therefore, since the year 1937, the Shariat Application Act deals with the personal matters of Muslim social life such as marriage, divorce and inheritance etc.
It is to be mentioned here that the need for personal law is not specific only to Muslims. For instance, the Hindu Succession Act of 1956 outlines property inheritance guidelines among Hindus, Buddhists, Jains and Sikhs. The Hindu Marriage Act of 1955 was codified to deal with matters relating to marriage among Hindus. The Parsi Marriage and Divorce Act of 1936 outlines the rules to be followed by the Parsis.
Controversy with the Muslim Personal Law (Shariat) Application Act, 1937
The applicability of the said Shariat Act came under controversy when the issue of protection of women’s rights came into conflict with religious rights. The most well-known among these was the Shah Bano case. In the year 1985, a 62 years old lady namely Shah Bano, filed a suit, seeking alimony from her former husband. In the case, the Supreme Court held her right to alimony, but the judgment was ruthlessly opposed by the Islamic community as they believed that to be against the rules written in the Quran.
The then Congress government in power, passed the Muslim Women (Protection of Rights on Divorce Act), which made it necessary for the husband to pay alimony to his wife, but only during the period of iddat i.e. 90 days after divorce.
Thereby, numerous instances of protests can be seen against personal laws. However, modern Islamic nations have responded to the needs of modernity by embracing the Shariat in ways suiting their social and political needs. Likewise, in India through the Muslim Women (Protection of Rights on Marriage) Act, 2019 the rights of married Muslim women are protected, whereby divorce is prohibited by pronouncing triple-talaq by their husbands.