Provision of Muslim Communities Under Law in India
Shariath is a complete code dealing all matter of life. But Shariath law as a whole is not applicable in India. Sharia is applicable only to the extent of personal laws and applicable to Muslims alone.
The Muslim Personal Law (Shariat) Application Act 1937 is the special statute. It provides how much of the law of Shariath is applicable to Muslims in India. It has only six sections and section 2 reads as follows.
Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) 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 mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of\’ decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).
On the above matters, Shariath law is applicable to Muslims in India. Shariath law on matters of personal law applicable in India is not codified. It was the task of our court to find the provision of Shariath from various authorities of Muslim law. This humble work is to codify that portion of Shariath applicable to Muslims in India.
The divide between Sunnis and Shia is the largest and oldest in the history of Islam. Members of the two sects have co-existed for centuries and share many fundamental beliefs and practices. But they differ in doctrine, ritual, law, theology and religious organisation. Their leaders also often seem to be in competition. From Lebanon and Syria to Iraq and Pakistan, many recent conflicts have emphasised the sectarian divide, tearing communities apart.
3.1 Sunni and Shia Sects:
Prophet Mohammad was the universally acclaimed head of the Islamic Commonwealth. He was absolute authority on law as well as the Chief administrator of the whole body of Muslims. After his death, the immediate problem was to find out his successor. A great majority of Muslims suggested that there should be an election for the successor of the Prophet. This view was advocated by Ayesha Begum, the youngest wife of the Prophet. It was argued by this group that since Prophet exercised absolute command over the Islamic community, his successor too should be a person who could control the Muslims.
This required the confidence of the people and therefore election was the only method to choose the successor. This section of the Muslim-society pleaded for election as a method of finding out the successor of the Prophet also because the Prophet himself had suggested election. The Prophet’s suggestions or sayings are called his traditions (Sunnat). They relied on this tradition of the Prophet. Accordingly, an election was held in which Abu Bakr, who was father of Ayesha Begum, was elected and became the first Caliph. This group of Muslims, with its leader Abu Bakr, formed the Sunni sect of Islam. They assumed the name Ahle-Sunnat-wal-Jamat which means people of the ‘tradition and assembly’. They are popularly known as Sunnis.
But there were Muslims (although in minority) who did not agree to the principle of election. That group emphasised upon the spiritual headship of the Prophet rather than his administrative control. This minority group was represented by Fatima, daughter of the Prophet. Their contention was that the Prophet’s successor should be a spiritual leader of the community as Prophet himself was.
They argued that this quality comes through the nobility of blood. Therefore, a person who is related to Prophet Mohammad through blood or belongs to his family should be regarded as the most competent person to succeed him. Thus, the group of Fatima rejected the election and relied upon the principle of succession.
3.2 Essential of A Valid Marriage
A marriage is a valid marriage or Sahih only if it is recognised by the courts to be lawful.
3.2.1 . Competence of The Parties
i. Age of Puberty
For marriage, dower and divorce, the age of majority under the Muslim law is the age of puberty and not 18 years of age. Though Hedaya says the minimum age of puberty for a boy is 12 years and for a girl it is 9 years; it has been fixed at 15 years of age by the Privy Council in the year 1916. Thus, a boy or a girl of 15 years of age will be presumed to have attained the age of puberty unless the contrary is proved.
In Mst. Atika Begum v. Mohd Ibrahim, the Privy Council had made it clear about the age of puberty by saying that according to Muslim law a girl becomes major on the happening of either of two events, (1) the completion of her fifteen years or (2) on her attainment of a state of puberty at an earlier period. The same rule may be applicable in respect of the age of a boy. Thus, it may be said that in the absence of any evidence to the contrary, a Muslim is presumed to have attained the puberty at the age of fifteen years. After attaining the age of fifteen years, a person becomes mature enough to give consent for his or her marriage, so no consent of the guardian is necessary to validate the marriage.
3.2.2 Option of Puberty—