Before the partition of India all the religions lived together and the subject matter related to the inheritance, succession, marriage, divorce, family disputes and relationships are managed by the religious laws of that particular religion. Those laws were rooted from the existing old age customs.
After the time passed these laws were subjected to the alteration by the many legislations that's why in a series of alterations the “Muslim personal law act, 1937” was enacted. It comes with the objective of removing all the unnecessary customary exercises of muslims which were existing for decades.
Earlier it was not applicable in the region of North West frontier province (it was British colonial), and now this province is part of Pakistan. According to the section 1(2) of the act it is extended to the whole of India and it is applicable to the whole Muslim community in India.
Why this Act?
This act is also known as the “Shariat Act” but the official name of this act is Muslim personal law application act, 1937. It was enacted during the British ruled Government and its primary objective was to make sure that application of Islamic law was uniformly practiced among the Muslims. Before the enactment of this act the various matters like inheritance, divorce, and marriage among the Muslims received injustice because of the inconsistency with other laws. This act would protect the religious rights of Muslims and provide a legal Framework for personal matters.
Key Aspects of the Act:
Application:
All Muslims in India are governed by this Act, which states that Muslim law shall apply to their personal affairs and overrides any opposing customs.
Scope:
Its scope includes guardianship, gifts, trusts, wakf (endowments), maintenance, divorce, marriage and dower.
Inheritance and Succession:
The Act particularly covers women's special property rights and intestate succession, which is the process by which a person passes away without leaving a will.
Marriage and Divorce:
It covers a number of topics related to marriage, such as the many forms of divorce that are permitted under Islamic law (talaq, khula, and mubarat, for example).
No Application to Criminal Law:
The Act does not look after the criminal matters of that community because criminal matters are governed by the Indian Penal Code. But now the IPC has been changed and now all criminal matters will be governed by - Bharatya Nyay Sanhita (BNS).
A Historical Overview
The origination and the development of the Muslim personal law are connected with the fundamental text of Islam which has been evolved through centuries. Many scholars or muslim jurists interpret the text (quran or hadith) accordingly and make it culturally adaptive. By this it is regarded as a living body of law.
The advent of Islam in India was begun in the 7th century by the Arab traders that made their establishment by the conquest. In India the most important Muslim dynasty was Delhi sultanate (1206-1526) and the Mughal Empire (1526-1857).
When it comes to the British colonial period, it codified the Muslim personal law through enacted the shariat application act of 1937. This act has a main objective to ensure that in India Muslims follow the Islamic laws in personal matters rather than the local customs.
After the Independence Indian constitution guaranteed the right to religious freedom under the fundamental rights. It also allows different communities to be covered by their personal laws. Article 44 of the Indian Constitution of India but was composed within the constitution as a directive principle which is not enforceable and nowadays it is a debatable topic.
Uniform Civil Code (UCC) and Shariat Law
It is a topic of debate from many years which is oftenly circulated in the news that Uniform Civil Code should be applied in India. The UCC is given under part IV, Article 44 of the Indian constitution which talks about the directive principle of the state policy.
It is a point of dispute which says that the country will rule by one law - all the matters related to divorce, marriage, maintenance, inheritance and adoption are governed through the same law. Irrespective of the religion that you follow you will be told by these laws only and that is the main point of the debate.
In India we have many religions with thousands of cultures which makes it difficult to implement the Uniform Civil Code in India. It will be hectic to govern all the citizens with one law because we have diversity in nature.
The first state to implement the UCC was Uttarakhand. Recently the Chief Minister of uttarakhand Pushkar singh dhami made UCC applicable to his state. And also it is in the manifesto of Bharatiya Janata Party in the lok sabha election of 2019.
On the other hand, Sharait law governs the minority communities on all matters related to - marriage, divorce, succession, adoption will be looked after by these personal laws only. If UCC will apply it will affect sharait law along with another personal laws such as :-
UCC would likely abolish all these customs and practices followed by personal law. It will be difficult for tribals to live with their faith and beliefs. It argues that it will gives the woman’s priority and equal protection of rights to every citizen.
Conclusion
The Shariat (Application) Act, 1937 provides a legal Framework for the Muslims to live and practice according to their religion. This act was a crucial legislation of the Indian parliament which made sure muslim upheld their religious practices and beliefs. It is applied universally to the whole muslim community.
However, in recent years this shariat law was facing some objections from the public that it will discriminate between men and women. Women get less rights than men, in terms of divorce and inheritance of property.
Though it is something to think about that this act was passed in the year of 1937. From that time to the past few years, there is no question about it. But in recent years, suddenly it has become dangerous to equality even though there are no muslim women and men given actual complaints about it, that this law infringements our rights.
