Muslim Law
No part of this publication can be reproduced or transmitted in any
form or by any means, without prior permission of the Publisher.
YOU ENSURE YOUR HARD WORK, WE ENSURE YOUR SUCCESS
, Rahul’s a blue pri nt of succe ss
Muslim Law
Contents
CHAPTER TOPIC
1. Introductory Chapter
2. Sources and Schools of Muslim Law
3. Muslim Marriage
4. Dower (Mahr)
5. Divorce/Dissolution of Marriage
6. Maintenance
7. Gift (Hiba)
8. Will
9. Wakf
10. Paternity, Legitimacy, Acknowledgment and Adoption
11. Succession and Administration
12. Inheritance
89
, MUSLIM LAW
Chapter – 1
Introduction
In religious sense Islam means ‘Submission to the will of God’ and in secular sense Islam means the
‘establishment of peace’.
Muslim law in India means “that portion of Islamic civil law which is applied to Muslims as a
personal law” (Fyzee). Muslim law is founded upon ‘Al-Quran’ which is believed by the Musalmans to
have existed from eternity, subsisting in the very essence of god.
There are mainly two different conceptions of Muslim Law, one of divine origin as in the case with
the Hindu law and another man made. Muslim law is founded upon revelation and is blend with religion.
There is in Islam, a doctrine of ‘certitude’ (ilm-ul-yaqin in the matter of Good and Evil. What is morally
beautiful that must be done, and what is morally ugly must not be done. This is law of shariat which
means the totality of Allah’s commandment. It is a doctrine of duties.
The Muslim legal system differs from other modern systems, in the sense that it purports to have
its sole source of Divine will communicated, on its final form, through a single human channel. God
alone is the legislator in Islam and has Supreme legislative power in the Islamic system. But as laws are
needed for the benefit of the community the Divine Legislator has delegated to it power to lay down laws
by the resolution of those men in the community who are competent in that behalf, i.e., the Mujtahids (or
jurists). In this system the legal rules are so deeply connected with the moral and religious rules that it is
difficult to separate them.In the words of Mr.Justice Mohmood “Hindu and Mohammedan law are so
intimatelty conncected with religion that they cannot readily be dissevered from it.”
Who is Muslim : Muslims, for the purpose of the application of Muslim Law falls into the two
categories
a. Muslims by birth or origin and
b. Muslims by religion or conversion
(Persons who profess Islam or persons who undergo the formal ceremony of conversion)
a. By birth or origin: when both parents are Muslims the child will be Muslims according to
Shariat Act even if one of the parents is a Muslim, the child will be Muslim. It has been seen
that under Hindu Law if one of the parents is Hindu and other is Muslim and if the child is
brought up as a Hindu the child will be Hindu. The rule of Muslim law, it is submitted will be
subject to this rule of Hindu Law.
b. By religion or conversion : A convert is a person who renounces his faith and adopts another.
When a person declares that he is a follower of Muslim faith and undergoes a formal
ceremony of conversion prescribed by the caste or community to which he converts. If such a
conversion is bonafide and not made with any ulterior motive or intention it amounts to his
having accepted the Muslim approach of God.
In Sarla Mudgal v. Union of India (Air 1995 SC 1531). The
husband already married. Under Hinu law embraced Islam and solemnized a second
marriage under Muslim Law. The court held that the second marriage of a Hidnu husband
after conversion to Islam without having his first marriage dissolved under law would be
invalid.
In Lily Thomas v. Union of India (Air 2000 SC 1650) one personal
law can not be used to defeat the spirit or purpose of another personal law. Supreme Court
held that the husband is guilty of the offence of Supreme Court held that bigamy u/s 494 IPC.
Effect of conversion to Islam: The rights and the status of the convert become subject to the
Mohammendan Law. In the absence of a custom to the contrary in case of a Hindu converts
to Islam succession and inheritance are governed by Mohammedan Law and not by Hindu
Law.
90
, Effect of Apostasy (renunciation) of Islam on marriage: Marriage of a Muslim husband with a
Muslim wife is dissolved ispo facto on the renunciation of the husband of Islamic religion. The
renunciation of Islam by a married Muslim woman does not by itself dissolve her marriage.
But where a woman converted to Islam from some other faith re-embraces her former faith
her marriage with the Muslim husband stands dissolved.
Important Questions
1. Discuss the nature of second Muslim marriage of a convert Hindu while he has an
existing Hindu wife.
91
No part of this publication can be reproduced or transmitted in any
form or by any means, without prior permission of the Publisher.
YOU ENSURE YOUR HARD WORK, WE ENSURE YOUR SUCCESS
, Rahul’s a blue pri nt of succe ss
Muslim Law
Contents
CHAPTER TOPIC
1. Introductory Chapter
2. Sources and Schools of Muslim Law
3. Muslim Marriage
4. Dower (Mahr)
5. Divorce/Dissolution of Marriage
6. Maintenance
7. Gift (Hiba)
8. Will
9. Wakf
10. Paternity, Legitimacy, Acknowledgment and Adoption
11. Succession and Administration
12. Inheritance
89
, MUSLIM LAW
Chapter – 1
Introduction
In religious sense Islam means ‘Submission to the will of God’ and in secular sense Islam means the
‘establishment of peace’.
Muslim law in India means “that portion of Islamic civil law which is applied to Muslims as a
personal law” (Fyzee). Muslim law is founded upon ‘Al-Quran’ which is believed by the Musalmans to
have existed from eternity, subsisting in the very essence of god.
There are mainly two different conceptions of Muslim Law, one of divine origin as in the case with
the Hindu law and another man made. Muslim law is founded upon revelation and is blend with religion.
There is in Islam, a doctrine of ‘certitude’ (ilm-ul-yaqin in the matter of Good and Evil. What is morally
beautiful that must be done, and what is morally ugly must not be done. This is law of shariat which
means the totality of Allah’s commandment. It is a doctrine of duties.
The Muslim legal system differs from other modern systems, in the sense that it purports to have
its sole source of Divine will communicated, on its final form, through a single human channel. God
alone is the legislator in Islam and has Supreme legislative power in the Islamic system. But as laws are
needed for the benefit of the community the Divine Legislator has delegated to it power to lay down laws
by the resolution of those men in the community who are competent in that behalf, i.e., the Mujtahids (or
jurists). In this system the legal rules are so deeply connected with the moral and religious rules that it is
difficult to separate them.In the words of Mr.Justice Mohmood “Hindu and Mohammedan law are so
intimatelty conncected with religion that they cannot readily be dissevered from it.”
Who is Muslim : Muslims, for the purpose of the application of Muslim Law falls into the two
categories
a. Muslims by birth or origin and
b. Muslims by religion or conversion
(Persons who profess Islam or persons who undergo the formal ceremony of conversion)
a. By birth or origin: when both parents are Muslims the child will be Muslims according to
Shariat Act even if one of the parents is a Muslim, the child will be Muslim. It has been seen
that under Hindu Law if one of the parents is Hindu and other is Muslim and if the child is
brought up as a Hindu the child will be Hindu. The rule of Muslim law, it is submitted will be
subject to this rule of Hindu Law.
b. By religion or conversion : A convert is a person who renounces his faith and adopts another.
When a person declares that he is a follower of Muslim faith and undergoes a formal
ceremony of conversion prescribed by the caste or community to which he converts. If such a
conversion is bonafide and not made with any ulterior motive or intention it amounts to his
having accepted the Muslim approach of God.
In Sarla Mudgal v. Union of India (Air 1995 SC 1531). The
husband already married. Under Hinu law embraced Islam and solemnized a second
marriage under Muslim Law. The court held that the second marriage of a Hidnu husband
after conversion to Islam without having his first marriage dissolved under law would be
invalid.
In Lily Thomas v. Union of India (Air 2000 SC 1650) one personal
law can not be used to defeat the spirit or purpose of another personal law. Supreme Court
held that the husband is guilty of the offence of Supreme Court held that bigamy u/s 494 IPC.
Effect of conversion to Islam: The rights and the status of the convert become subject to the
Mohammendan Law. In the absence of a custom to the contrary in case of a Hindu converts
to Islam succession and inheritance are governed by Mohammedan Law and not by Hindu
Law.
90
, Effect of Apostasy (renunciation) of Islam on marriage: Marriage of a Muslim husband with a
Muslim wife is dissolved ispo facto on the renunciation of the husband of Islamic religion. The
renunciation of Islam by a married Muslim woman does not by itself dissolve her marriage.
But where a woman converted to Islam from some other faith re-embraces her former faith
her marriage with the Muslim husband stands dissolved.
Important Questions
1. Discuss the nature of second Muslim marriage of a convert Hindu while he has an
existing Hindu wife.
91
