All the Muslims in India are governed by theMuslim Personal Law (Shariat) Application Act, 1937.[1] This law deals with marriage, succession, inheritance and charities among Muslims. TheDissolution of Muslim Marriages Act, 1939 deals with the circumstances in which Muslim women can obtain divorce[2] and rights of Muslim women who have been divorced by their husbands and to provide for related matters.[3] These laws are not applicable in the states ofGoa, whereGoa civil code is applicable for all persons irrespective of religion and state ofUttarakhand. These laws are not applicable to Indians, including Muslims, who married under theSpecial Marriage Act, 1954.
Evidence of Muslim personal code can be found since 1206 on the Indian peninsula with the establishment of Islamic rule in parts of the region.[4] During the reign ofMamluk dynasty (1206–1290 A.D),Khalji dynasty (1290–1321), theTughlaq dynasty (1321–1413), theLodi dynasty (1451–1526) and theSur dynasty (1539–1555), the court of Shariat, assisted by theMufti, dealt with cases involving personal law among Muslims. DuringSher Shah's regime, the powers of the court were restricted and Muslim law was modified to suit the requirements of the time.[4] During the regime ofMughal kingsBabar andHumayun, the earlier laws were followed, and theulemas (religious scholars) had considerable influence on legal decisions. DuringAkbar's regime,Ulemas' powers were reduced and shattered the dominance of the orthodox Sunni school. DuringJehangir's regime, cutting of noses and ears and death penalty could not be inflicted without the Emperor's permission.Aurangzeb ordered the compilation of a code of law.[4]
Under the East India company, Muslim Law was enforced except when Muslims left the disputes to be determined according to HinduSaastras.[4] The Regulation 11 of 1772 by Sec. 27 enacted that
"in all suits regarding inheritance, succession, marriage and caste and other religious usages or institutions, the laws of the Quran with respect of Mohamedan and those of the Shastras with respect to Gentoos (Hindus) shall be invariably adhered to."
In 1822, thePrivy Council recognized the right ofShia Muslims to their own law.
The British Raj passed the Shariat Application Act in 1937, which is followed in India in matters related to marriage, divorce and succession among Muslims.[1][5]
India's achievement of independence from the British was meant to show about significant change in the regular life of Indians. Previously under British rule, Indian society was defined by social collectives, caste and religious identity, with a lack of focus on citizenship and the individual.[6] An Indian's relationship with politics and the law was indeed determined by these social measures; the Fundamental Rights Constitution was passed and intended to reverse this concept that an individual could be limited based upon caste, religion, economic status, etc. However, the new standards laid out in the Constitution have not come to fruition in society, even 6 years after the passing of the act. Aspects of gender, caste and religion are still determinants of political influence and access to resources.[6]
The Shariat Application Act was enacted by the British government in India in 1937, and, after India became independent from Britain, the Shariat Act (MPL) was maintained in Indian society.[7] The law was originally introduced as a matter of policy by the British government, but upon independence MPL became significant to Muslim identity and religion. This primary aspect of religion has created controversy across both Muslim communities and Hindu political organizations. The Indian Parliament passed Hindu Code Bills, consisting ofHindu Marriage Act (1955),Hindu Succession Act (1956),Hindu Minority and Guardianship Act (1956) andHindu Adoptions and Maintenance Act (1956).Those who practised Sikhism, Jainism, and Buddhism were considered to be Hindus under the jurisdiction of the Code Bill.
Recent debates related to Muslim Personal Law (MPL) are particularly in favor of abolishing the existing legal system for several reasons. It is said that the current organization of MPL in place discriminates against women in three distinct ways; they are that 1) a Muslim man is allowed to marry up to four wives at a time,[8] 2) he can divorce his wife without entering into any legal processes, and 3) he does not need to provide financial support to his ex-wife after three months of the divorce, whereas men of other religions are likely required to support their ex-wives forever.[9]
The Shah Bano case of 1978 is related to these discriminatory provisions. A woman named Shah Bano was married to a man named Mohommed Ahmed Khan. Khan fathered several children with a second wife and Shah bano was forced out of the home; she initially sought a maintenance order for Rs. 500 per month, but was given only Rs. 200 per month upon the separation agreement.[9] No contribution was ever made to her, and she decided to seek legal counsel as a result. Khan very clearly dictated the purpose of the divorce by deciding exactly how much to award Shah Bano with, when to award her and how to do it. By finally deciding to enter into the legal system, Bano shows her pursuit of other interests and the conflict related to Muslim domestic life.
In India, Muslim marriage is a civil contract between a man and a woman. Dissolution of marriage can be done at the instance of the husband (talaq), wife (khula) or mutually (mubarat). Talaq allows a Muslim man to legally divorce his wife by stating the wordtalaq.[10] Some Muslim groups recognizetripletalaq (ortalaq-i-biddat), stating threetalaqs at once and proclaiming instant divorce as valid method.[11] On 22 August 2017, theSupreme Court of India deemed instant tripletalaq unconstitutional.[12] TheMuslim Women (Protection of Rights on Marriage) Act, 2019, which declared instanttalaq illegal, void, and cognizable offence, came into effect retroactively from 19 September 2018 after being given assent by thepresident of India on 31 July 2019 and women can file case against it in court.
Other Muslim groups followtalaq-i-hasan, where the husband pronouncestalaqs on three separate instances, each one at least 1 lunar month apart. If the husband changes his mind after the first or second talaq, or cohabits with his wife, the divorce is nullified.[10]
The husband can delegate power to pronouncetalaq to his wife or a third person by agreement, calledtalaq-e-tafweez.
Section 5 of the Shariat Act of 1937 concerns Muslim women seeking divorce. Section 5 was subsequently deleted and replaced by Dissolution of Muslim Marriages Act 1939. Muslim women can seek divorce in a court of law. A woman can ask for divorce in the following circumstances:
Mahr is the total money or property that the husband is required to give the wife at the time of marriage (Nikah). The two types ofmahr are the promptmahr which is given to the wife soon after the marriage, and the deferredmahr, which is given to the wife when the marriage has ended, either due to the death of the husband or by divorce.[14]
A Muslim can only give one third of his/her total property through a will(wasiyat).[14]
Any type of property can be given as gift.[14]
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