Historical Development of Muslim

Law
By Aakriti Vikas | January 15, 2020
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This article aims at looking into the historical development of Muslim

Law in India. It is commonly known that Shariat law was followed by
Muslims in ancient India. Shariat law is applicable to those persons
who enjoin the faith of Islamic law. However, persons who do not
follow the Islamic religion in an Islamic State are not subject to
Shariat law.

The Muslim law was followed from one of the very early dynasties of
Sabuktigin which existed during 991 AD. This was still the reign of
Muhammad Ghori.

Slave Dynasty or Sher Shah Dynasty

During this era which included several dynasties like the Tughlak
Dynasty and the Khalji dynasty, there were two types of courts and
the pleaders at that time were the Kaji and Mufti in the entire territory
of India. The two types of courts were the Shariat and the common
law court.

The Shariat court dealt with the Muslims and their religious customs
and traditions and their breach thereof meaning, all the disputes that
arose with respect to religious matters were dealt with this court
according to Shariat law. On the other hand, the court of common
law, as the name suggests dealt with common matters. This court
was not restricted to Muslims and these matters were dealt with by
the Muftis of this court.

Mughal Dynasty

This dynasty was very much similar in terms of administration like the
Sher Shah dynasty. During the later Mughal period under the reign of
Akbar, the use of religious scholars reduced comparatively and the
orthodox Sunni school was somewhat introduced during his reign.

The dominance of Chief Kazi and Kazis was seen as pleaders for the
Muslim law according to the will of the emperor. Following which,
during Jehangir’s reign several prohibitions were made by the
emperor. There was a prohibition on odes of punishment like nose and
ear cutting and the death penalty. These could only be sentenced
with the confirmation of the emperor himself.

Later in the year 1659, Aurangzeb was ascended, one who believed in
the rule of law. He was a very well-read educated emperor well versed
with the Hadis and books on theology. He, in fact, also ordered for the
compilation of fatwas and rules of the Hanafi School of Muslim law.

In his reign, we see a more secular emperor who was not biased
towards Hindus. All extra taxes levied upon the Hindus were
abolished and ones who were proved to be criminals or convicted for
some kind of offence were sentenced to imprisonment and no form of
the death penalty was executed.

British Era

On perusal of Indian history, we can determine that one of the

reasons why British people laid down their authority was due to their
common understanding and truce with the Muslim rulers of the
Mughal dynasty in the areas of Delhi, Bengal and Bihar.

According to the Royal Charter of 1765 of the East India Company, the
administration of the country was in the hands of a Nawab in Bengal
at Murshidabad. The charter also vested powers to the empire to
administer and to make rules with regard to Muslim law. However, an
exception for the Hindus were made and their laws were governed by
their vedas and shashtras.

The Muslim law did not evaporate till the enactment of the Indian
Penal Code and the procedural laws as well as the Evidence act.
However, disputes with respect to natives of Calcutta (now, Kolkata)
lay with the Mohammedan practices. Issues with respect to the
marriage were envisaged in the Holy Quran itself (for Hindus, in
Shahstras). However, with respect to trade and businesses, there was
rule of law.

Introduction of Shia Law

Muslims are divided into classes on the basis of their beliefs, viz. Shia
Muslims and Sunni Muslims. During 1930s the distinction between the
beliefs of two classes of Muslim sects emerged and there appeared a
social distinction between the two Secs, Sunnis and Shias. In 1822,
the privy council of the East India Company acknowledged that the
Shia sect of the Muslims had a right to be governed by their own
personal laws and not follow the uniform Muslim personal law.

In 632 A.D. Prophet Mohammed died and the next most essential
question before the Muslims was whom to elect as his successor.
There were two options available before them. Firstly, the son-in-law
of the Prophet, Ali and secondly, his most sincere disciple, Abu Bakar.
During the death of the prophet the Kuarish tribe, was divided into the
Omayad and the Hashmits.

The Omayads wanted Ali to become the successor and show their
allegiance to him while the Hashmits wanted Abu Bakar to be the
successor. However, Abu Bakar was elected as the successor of the
prophet and even Ali owed his allegiance to Abu Bakar.

The status quo was maintained for more than three decades and there
was no huge disturbance between the Omyads and Harshmits that
enraged any 8kind of violence. However, in the Mid-seventh century
the second son of Ali revolted against the second of Abu Bakar which
led to a turmoil between t8he two dynasties thereby causing two
different sects knows as the Shia Muslims and the Sunni Muslims.

S8unni sect were the followers of Abu Bakar who swore their
allegiance to anyone who was the successor to the prophet. Whereas,
the Schiates, be8came the followers of Ali and his successors.

Law8s of Shia and Sunni Muslims

The 8Shia sect expounded the principle of Imamat. According to this

principle the Imam that is Ali and all his successors, shall be the
theological ruler and the leader of the Sect. the Imam is believed to
be the final interpreter of all the legal principle like a Supreme Court
of the country and his decisions cannot be challenged.

The Shias believed that by the virtue of being related with blood, Ali
had a divine right to succeed the prophet and all of Ali’s successors
are a pedigree of the prophet himself.

On the other hand, the Sunnis believed in caliphate or khilafat,

wherein the caliph is believed to be a temporal ruler. It means that he
governs and regulates the cats of the people of the sect for a specific
period of time and is then followed by a competent successor.

The caliph is not a religious chief but more of a political leader and
ruler. The Caliphate of the Sunni Muslims had its headquarter with the
caliph in Turkey. In 1924, after the emergence of the Turkish
revolution, the people of Turkey overthrew the caliph and ended the
Caliphate rule forever.

Shariat Act, 1937

On October 7, 1937 the British enacted the most essential and only
statute to regulate the personal laws of the Muslims in India. The Act
had only six sections with which it regulated all of their activities.

Section 2 of the Act enlists the matters to which the provisions of the
Act shall apply. These are:

1. Law relating to the succession of a Muslim person dying

intestate. i.e. without a will or a testament.
2. Law relating to vesting of properties and gifts on females of
the Sect.
 3. Law relating to marriage, divorce, grounds of divorce, Mehr,
guardianship and maintenance.
4. Law relating to wakfs i.e. any trust created for the Muslim
religion.
According to section 2, certain aspects which are not covered under
the Act are matters relating to

1. Any matters or issues relating to agricultural land owned by a

person of the Sect.
2. Any matters involving the establishment of charitable
institutions and their regulations and religious endowments.
According to section 3 of the Act matters of adoption of children and
wills and testaments shall be deemed to be a part of the matters
included in the Act under section 2.

Dissolution of Muslim Marriage Act, 1939

The Muslim personal law failed to recognize the right of the Muslim
women to dissolve their marriage under any circumstance. The right
of dissolution of marriage was only with the men which resulted in
abuse of power and misuse of this legal vacuum. The British believed
that Muslim women had the right to seek divorce and therefore, the
dissolution of Muslim marriage act 1939 was enacted.

The Act aimed to make provisions for married Muslim women to move
the appropriate judicial authority (usually the Kazi or Maulvi) for
obtaining a decree of divorce to cause a dissolution of her marriage.
The Act recognized the following grounds that may give a cause of
action for dissolution of marriage:

1. If the husband refuses to maintain the wife and her needs,

emotional and financial.
2. If the husband desserts his wife or continuously maltreats her
causing her life to be miserable and pitiful
3. If the husband absconds from the matrimonial home and does
not make any provision for the maintenance of his wife.

The Wakfs Act, 1954

Wakf is a fiduciary arraignment between a person called the Wakif

(the donor) and the Wakf board (the trustee) to utilize the property
called a usufruct of the wakf for the benefit of the Islam religion. The
entire process of Wakf works like trust and the most important
regulation to regulate this enacted after independence called the
Wakf Act 1954.

Conclusion

The historical development of Muslim law did not end in 1954. It can
be seen that Muslim law is based on the customs and usages of the
prophet and his successors and is extremely traditional in nature.
After independence, several changes were made to the Muslim law to
modernise it and uphold the Muslims.

In 1976, Article 44 was inserted in the constitution that provided for a

uniform civil code that is one personal law for people of all the
religions. Further, in 1983, the Muslim women were granted the right
to maintenance under section 125 of CrPC by the Apex court in the
landmark case of Shah Bano begum vs. Ahmed Khan (AIR 1985 SC
945). Lastly, the most recent development in Muslim law is the
proposal of triple talaq Bill introduced in the Indian Parliament in
2018.

Bibliography

 Paras Diwan, Muslim law in modern India, 2016.

 Saif Mehmood, Introduction to Muslim Law, 2nd edition, 2016.
 K. Abdul Rahiman, History of the evolution of Muslim personal law in
India, Journal of Dharma, Volume 11, (p.249-263).