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TOPIC: SHARIAT ACT OF 1937: CRITICISM

SUBMITTED BY: Garima Raj , law student

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INTRODUCTION

Like Hindu Law, Muslim Law is a personal law. The word, personal law, is used in
contradiction to territorial law. By personal law is meant a law which is applicable to those only
who answer a given description and not all persons who reside, in a given territory. The Law of the
Sunnis and Shias differ but the followers of the same sect whether in Algeria or in India are
governed by the same law. The second point which must be noted is that all the rules of Muslim
Law are not applicable in India. The powers of courts to apply Muslim Law to Muslims is derived
from and regulated partly by statutes of the British Parliament read with Article 225 of the
Constitution of India which reads as that subject to the provisions of this Constitution and to the
provisions of any law of the appropriate legislature made by virtue of powers conferred on that
Legislature by this Constitution, the jurisdiction, of and the law administered in, any existing High
Court, and the respective powers of the judges........ shall be the same as immediately before the
commencement of this Constitution. Thus the whole body of Muslim Law may be classified under
the following three heads:1. Those that have been expressly directed by the Legislature to be applied to Muslim, such
as, rules of succession and inheritance;
2. Those that are applied to Muslims as matter of justice, equity and good conscience, such as,
the rules of Muslim law of pre-emption subject of course, now to Article 19(1) (f), which
has been omitted by the Constitution( forty fourth Amendment) Act, 1978. Before
amendment right to property was a fundamental right. Now under Article 300-A, right to
property is only a Constitutional right. This Article provides that no person shall be
deprived of his property save by authority of law.
3. Those that are not applied at all, though the parties are Muslims, such as, Muslim Criminal
Law and Muslim Law of Evidence.
The Muslim Personal Law (Shariat) Application Act XXVI of 1937.- Section 2 of the aforesaid Act
provides that Notwithstanding any custom or usage to the contrary, in all questions 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, Lian, Khula, and Mubarat, maintenance, dower, guardianship,
gifts, trust and trust properties and Waqfs the rule of decision in cases where the parties are
Muslims shall be the Muslim Personal Law.
Section 3 of the Act provides that any person who satisfies the prescribed authority:
That he is a Muslim
That he is competent to contract within the meaning of Section 11of Indian Contract Act,
1872.
That he is a resident of India.
On grounds of practical necessity Muslim states and societies have recognised and applied laws
whose terms are contrary to the religious doctrine expounded in the medieval legal manuals.
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The first amendment should be in case of Maintenance of divorced women after the Act was
passed:
The Arabic equivalent of maintenance is Nafqah, which literally means, what a person spends
over his family. In its legal sense, maintenance signifies and includes three things: (i) food, (ii)
clothing, and (iii) lodging. Hedaya defines maintenance as all those things which are necessary
to the support of life, such as food, clothes and lodging many confines it solely to food. Fatawa-iAlamgiri says Maintenance comprehends food, raiment and lodging, though in common parlance
it is limited to the first.
Right of a Muslim divorced woman to maintenance:- In Shah Bano Begum v. Mohammad
Ahmed khan1 the five Judges bench of the Supreme Court held that a Muslim husband having
sufficient means must provide maintenance to his divorced wife who is unable to maintain herself.
Such a wife is entitled to the maintenance even if she refuses to live with the Muslim husband
because he has contracted another marriage within the limit of four wives allowed to him by
Quran. The Supreme Court rejected this contention of the husband that Section 125 of the Criminal
Procedure Code providing for the maintenance of divorced woman who is unable to maintain
herself is inapplicable to Muslims. It was held that a Muslim divorced woman who cannot
maintain herself is entitled to maintenance from her former husband till the time she gets
remarried. They rejected the plea that maintenance is payable only till the period prescribed under
Muslim Personal Law, during which she could abstain from sexual intercourse and other luxuries.
The learned Judges held that the ability of the husband to maintain his divorced wife till the
expiration of the Iddat period extends only in case the wife is able to maintain herself. It was said
that under Section 127 (3) (b) Cr.P.C. mahr is an amount which the wife is entitled to receive from
the husband in consideration of the marriage.
Position after passing the Muslim Women( Protection of Rights on Divorce) Act, 1986:- The
decision in Shah Bano case led to some controversy as for the maintenance to the divorced wife so
the Parliament decided to pass Muslim Women (Protection of Rights on Divorce) Act, 1986. The
aim of passing this Act was to protect the rights of the divorced women. The Act provides that a
Muslim divorced woman shall be entitled for a reasonable and fair provision and maintenance
within the period of Iddat and in case she maintains the children born to her such reasonable
provision and maintenance would be extended to a period of two years from the dates of birth of
the children.
After the passing of the Act of 1986, there arose a controversy whether Section 125, Cr.P.C. would
be applicable to the case of a divorced Muslim wife claiming maintenance from her former
husband. There are conflicting decisions of various High Courts on the question of applicability of
Section 125 of the Code to the claim of maintenance made by a divorced Muslim wife. In Md.
Yunus v. Bibi Phenkani alias Tasrun Nisa2, the Court was required to decide whether the right
under Section 125 of the Cr.P.C. to claim maintenance subsists even after the passing of the Act of
1
2

AIR 1985 SC 945

(1987) 2 Crimes 241

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1986. It was held that Section 3(1) (a) of the Act of 1986 curtailed the right of a divorced Muslim
woman to get maintenance from the period of iddat only. It was further said that the right to get
maintenance for her husband to her wife under Section 125 of the Code until she remarries has
been impliedly repealed in case of a divorced Muslim wife.
There were some cases which had taken a contrary view and which may be considered in the light
of the provisions of Act of 1986. In A.A Abdullah v. A.B. Mohmuna Saiyad bhai3, it was held
that a divorced Muslim woman is entitled to maintenance after contemplating her future needs and
the maintenance is not limited to the iddat period. The phrase used in Section 3(1) (a) of the Act of
1986 is reasonable and fair provision and maintenance to be made and paid to her indicates
that the Parliament intended to see that the divorced woman gets sufficient means of
livelihood after the divorce and that she does not become destitute or is not thrown on the
streets without a roof over her head and without any means of sustaining herself and her
children. It was also held that the word within under Section 3(1) (a) cannot be read as for
or during. Therefore the husband is liable for making reasonable and fair provision and
maintenance.
Danial Latifi v. Union of India4, the judgment and the observations made by the Apex Court in
Danial Latifis case has not created any furore or perplexity among the Muslim community though
the Court has upheld the findings made by it in Shah Banos case. The reasons are, firstly, the
judgment was in accordance with the real spirit of Islam; secondly this is demand of justice
keeping in view the social welfare nature of the concerned statute( Muslim Women( Protection of
Rights on Divorce) Act, 1986). The judgment ignored the Islamic law and thus violated the
freedom of religion of that community.
In the present case, the constitutional validity of the Muslim Women (Protection of Rights on
Divorce) Act,1986, under which Section 125 of Cr.P.C was made inapplicable to divorced Muslim
women, was challenged. While upholding the validity of the Act, the Supreme Court sum up the
conclusions:
1. A Muslim husband is liable to make reasonable and fair provision for the future of the
divorced wife which obviously includes her maintenance as well. Such a reasonable and
fair provision extending beyond the iddat period must be made by the husband within the
iddat period in terms of Section 3(1) (a) of the Act.
2. Liability of a Muslim husband to his divorced wife arising under Section 3(1) (a) of the Act
to pay maintenance is not confined to the iddat period.
3. A divorced Muslim woman who has not remarried and who is not able to maintain herself
after the iddat period can proceed as provided under Section 4 of the Act against her
relatives who are liable to maintain her in proportion to the properties which they inherit on
her death according to Muslim law from such divorced woman including her children and
parents. If any of the relatives being unable to pay maintenance, the Magistrate may direct
the State Wakf Board established under the Act to pay such maintenance.
3
4

AIR 1988 Guj. 141

(2001) 7SCC 740

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4. The provisions of the Act do not offered Articles 14, 15 and 21 of the Constitution of India.

RELEVANCY OF THE JUDGMENT IN THE PRESENT

ONGOING DEBATES OF EQUALITY OF WOMEN
You can tell the condition of the nation by looking at the status of its women.
The progress of a country can be judged by seeing the status of its women.
Mr. Jawaharlal Nehru
On November 26, 1949 the Constituent Assembly adopted, enacted and gave to ourselves the
Constitution of India. Under its Preamble the people of India have solemnly resolved to secure to
all its citizens? Justice, social, economic and political equality of status, and equal opportunity,
assuring the dignity of the individual and unity and integrity of the nation. Under Part III?
Fundamental Rights? Article 14 guarantees equality before the law or equal protection of the
laws. Article 15 states that the State shall not discriminate any citizen on the grounds of caste, sex
and religion still many cases illustrate that there is discrimination for Muslim women in their
rights as compared to men.
As far as equality is concerned an issue can be cited which happened recently. On March 25,
2010 the Andhra Pradesh government received a major boost with the Supreme Court in an
interim order upholding the validity of the four percent reservations provided to backward
women of Muslim community in the state. A seven judge constitution bench of the High Court
held by a majority of judgment of 5:2 held the Andhra Pradesh Reservation for Socially and
Backward Classes of Muslims Act, 2007 unsustainable and violative of Article 14 and other
provisions pertaining to prohibition of discrimination by state on grounds of religion, sex, caste
or place of birth. The state had moved a Bill in the Assembly on the basis of a report submitted to
it by Andhra Pradesh Commission for Backward Classes ( APBC). The Bill was later passed by
the Assembly.
Talking about equality of Muslim women in todays world there is an example that can be cited
that is the wearing of Burqa and keeping purdah in public and banning the western dress codes
for them. Extending it further, Sarkozi has not only recently banned the wearing of burqa but has
come out in open and has condemned the system of purdah as being an unwarranted and
unwanted burden imposed on the Muslim women, which is acting as a hindrance in their path of
equality. This also imposes the problem of employment with the women because they cannot
work with having purdah all the time. In my opinion I think that if a woman wants or not wants
to wear burqa it is totally her discretion the state should not come in its way to interfere in the
matter which is totally religious. The interesting thing is that these restrictions are imposed on the
women folk only whereas, the men are hardly are being touched by this. Is it proper? The

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controversy on this gender discrimination is still going on and is ever going. Isnt a clear cut sign
of gender bias and the hiatus between the positions occupied by a man and a woman in our
society?
Another issue if talking about the gender equality of Muslim women is that why cant they lead
the community as their male counterparts? Leading a community means getting politically
involved. An example can be cited here that is a woman called Zakia Nizami Soman is one of the
founder members of the Bhartiya Muslim Mahila Andolan, a movement across Muslim in the
world struggling for their citenzenship rights. She worked in Gujarat providing aid to the people
in 2002 genocide and encountered problems with the Muslim women facing discrimination and
being treated as second class citizens. There many women and children were slaughtered in cold
blood. The data goes as, three hundred Muslim women were brutally raped and then burnt alive,
some in front of their children. Other reason why we need equality for Muslim women is that free
exposure should be allowed to them and these women should not be restricted in any activity
which they undertake as part of their life.
The other field where women need equal rights are where property and inheritance rights are
concerned. It was in the Pre- Islamic law that daughters had no share in the property and
inheritance but when talking about equality stated under Article 14 women should have equal
right as compared to men. Thus now also some amendments are required in Islamic law which
will help to uplift the Muslim community. These are some of the areas where equality is needed
for Muslim women and these need to be enhanced and carried on for that no one can suppress
these women as they have an equal right in all the fields. Why then discrimination?

RELEVANCE AS TO WHICH IS IMPORTANT

MAINTENANCE FROM HUSBAND OR WAQF?

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This question is as such very difficult to resolve because considering both the matters, both the
issues are very relevant in the Islamic Law. Both can be compared as two sides of the coin. Both
the issues cannot be ignored and it cannot be said that one is more significant than the other.
Defining both as like Maintenance is given under the Section 3(1) (B) of the Muslim Woman
(Protection of Rights on Divorce) Act. Now talking about Waqf as defined in the Waqf Act,
1954 in the following words Waqf means the permanent dedication, by a person professing
Islam, of any movable or immovable property for any purpose recognised by the Muslim Law
as pious, religious or charitable.
If talking about maintenance which has already been discussed above is that under Section 3(1)
(b) of the 1986 Act contemplates the divorcee wifes right to claim maintenance in respect of her
children and this has nothing to do with the independent right of the children to be maintained by
the father under the Muslim Law. Thus Maintenance issue is itself significant because that
maintenance is required by the divorced wife to maintain her livelihood after the dissolution of
marriage and maintenance of her children, that cannot be forgone away with. Maintenance is not
something that is being asked by the wife additionally but it has come with the package in Sharia
Law. It is the wifes sole right to be fulfilled with the maintenance. In a significant judgment of
Noor Saba Khatoon v. Mohd. Quasim5 the Supreme Court ruled that a divorced Muslim Woman
is entitled to claim maintenance for her children till they become major. The Court held that both
under the Muslim Personal Law and under Section 125 of the Cr.P.C. the obligation of the father
was absolute when the children were living with the divorced wife. The court further observed
that this right was not restricted, affected or controlled by divorced wifes right to claim
maintenance for two years from the date of birth of the children under Section 3(1) (b) of 1986
Act.
Next if we talk about the relevance of Waqf in Sharia Law, it is as important as any other matter
in this law so this also cannot be ignored. It was not recognised before Islam, encouraged as a
sustainable giving or sadaqa jariya that benefits the poor and the needy in a sustainable way.
Waqf is of three kinds- first the Khairy or the charitable Waqf, second the Ahli or the family
Waqf and thirdly there is the Moshtarak Waqf or the joint Waqf. Waqf is itself important for
the social development and it is relevant in present scenario which can be cited through a recent
case. In Smt. Mahmudunnissa and others v. U.P Sunni Central Waqf Board and others6, the
application has been filed under Article 227 of the Constitution for quashing the order dated
19.4.2007 passed by the U.P Central Waqf Board, Lucknow as also the order dated 10.10.2007
passed by the learned civil Judge.

5
6

(1997) 6.S.C. 523

(2007) RD-AH 18173

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The Waqf petition under Section 83 of the U.P Waqf Act, 1995 has been filed for setting aside
the order dated 19.4.2007 passed by the Waqf board under Section 54 of the Act for removal of
encroachment from the Waqf property. Along with the petition the applicants filed an application
for the grant of temporary injunction. On the said application the Tribunal on 10.10.2007 passed
an order that it would not be possible to pass an Ex Parte injunction without inviting objections
and the date was postponed.
Learned Counsel for the applicants submitted that pursuant to the order passed by the Waqf
Board the Sub- Divisional magistrate, Budaun has issued a notice for vacating the property and
necessary steps are being taken. He, therefore , emphasized that the matter was urgent and some
interim protection should be granted. Thus it is seen that now also the value of Waqf has not lost
its value. Muslims still are in favour of it.
Thus in my opinion both the issues are significant in present scenario. Both cannot be forgone.
On the one hand where maintenance issue is individual related issue and for the benefit of the
divorced wife whereas maintenance of Waqf is a social issue which is beneficial for the
development of the society and keeps the Muslims in connection with God.

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CONCLUSION
In the end, all I can say is that though some problems have been curbed when talking about the
protection of Muslim women and their human rights but still lot has to be done in other fields of
this Personal Laws of Muslims. Muslim countries like Egypt, Turkey and even Pakistan have
reformed their laws. There is no reason why should India should continue with discriminatory
personal laws. Many Islamic countries have codified and reformed Muslim Personal laws to
check its misuse. Polygamy has been banned in Syria, Egypt, Turkey, Iran and even Pakistan.
Besides Muslims who live in USA, UK and other parts of Europe have readily accepted the civil
laws applicable uniformly to all citizens in respective countries, but do not feel insecure on that
account. So, then why in India should there be such a feeling.
Religious fundamentalism must go, social and economic justice must be made available to the
Muslim women and other women, and their dignity and equality must be ensured. Supreme Court
has afforded an opportunity to the Prime Minister to undo the default of several decades and
initiate the process for evolving a uniform civil code.
It is high time that in the larger interest of assuring the dignity of the Muslim women and
assuring their basic human rights which in turn would help unity and integrity of the nation as
well as equality before the laws and equal protection of the laws and thus give a good bye to
those provisions of the Pre- constitution Muslim Personal laws, insofar as those provisions are
inconsistent with the provisions of Part III of the constitution and hence void under Article 13, as
have been done in the case of certain provisions of Hindu Law through new legislations. It is
most unfortunate that in the garb of vote bank politics the nation has waited for last about six
decades for enacting a Common Civil Code. God alone knows how long it has to wait for the
same?
The above mentioned suggestions, compelling in their logic as they are, have been stated in order
to throw up a national debate so that knowledgeable opinion may express itself and enlighten on
the desirability or otherwise of the proposals for amendment and change.

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BIBLIOGRAPHY

BOOKS1. MOHAMMEDAN

LAW-

AQIL

AHMAD
2.

MUSLIM LAW IN MODERN INDIA-

PARAS DIWAN
3.

OUTLINES

OF

MOHAMMEDAN

LAW- ASAF A.A FYZEE

SITESWWW.GOOGLE.COM
WWW.WIKIPEDIA.COM
WWW.ORGANISER.ORG/DYNAMIC/
MODULES.PHP.

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