The Indian Law Institute

Transcription

1 MULLA'S PRINCIPLES OF MAHOMEDAN LAW (19th ed. 1990). By M. Hidayatullah and Arshad Hidayatullah. N.M. Tripathi Pvt. Ltd., Bombay. Pp. Iii 346. Price Rs. 80. FIRST PUBLISHED in 1906, Dinshah Fardunji Mulla's book entitled "Principles of Mahomedan Law" ranks as one of the foremost leading texts on Islamic law and has a unique reputation in India. It is no exaggeration to say that this work is now a classic. The main attraction is the ease with which Islamic law as applied in India and Pakistan has been outlined. The book has retained its original scheme right from the first edition to the fifteenth edition by Sultan Ahmad in No change was, therefore, found necessary or desirable. However, George Rankin added a short introduction to the eleventh edition in A table of Imams prepared by Asaf Ali Asghar Fyzee was also included in the same edition. These were continued in the later editions. As the introduction was very brief, a detailed one giving a proper insight into the mechanics and methodology of Islamic law was added by M. Hidayatullah, former Chief Justice of India, in the sixteenth edition published in However, in this edition also it was not found necessary to touch the table of Imams, except to correct an error in a date. This edition was followed by seventeenth and eighteenth editions by the same distinguished legal luminary of India in 1972 and The scheme of the book under review, 1 which has made it the most successful book on Muslim law for over eight decades, "has not been changed although the text has been corrected or changed where necessaiy." 2 Besides the preface, introduction, list of books to be read on the subject, key to abbreviations, list of books referred to and table of cases, the book consists of nineteen chapters with a fairly large number of references. These chapters deal with introduction of Mahomedan law into India, 3 conversion to Mahomedanism, 4 Mahomedan sects and sub-sects, 5 sources and interpretation of Mahomedan law, 6 succession and administration, 7 inheritance general rules, 8 Hanafi law of inheritance,* Shia law of inheritance, 10 wills, M. Hidayatullah and Arshad Hidayatullah, Mulla's Principles of Mahomedan Law (19th ed. 1990). 2. Id., preface, v. 3. Id. at Id. at Id. at Id. at Id. at Id. at Id. at Id. at Id. at

2 1991] BOOK REVIEWS 295 death-bed gifts and acknowledgements, 12 gifts, 13 wakfs, u pre-emption, 15 marriage, 16 dower, 17 divorce, 18 parentage-legitimacy and acknowledgement, 19 guardianship of person and property 20 and maintenance of relatives. 21 The book also has ten appendices containing the provisions of various enactments like the Dissolution of Muslim Marriages Act 1939, 22 the Mussalman Wakf Act 1923, 23 the Mussalman Wakf Validating Act 1913, 24 the Mussalman Wakf Validating Act 1930,^ the Public Wakfs (Extension) of Limitation Act 1959, 26 Statement of Objects and Reasons of Wakf (Amendment) Act 1984, 27 the Kazis Act 1880, 28 the Muslim Women (Protection of Rights on Divorce) Act 1986, 29 the Muslim Personal Law (Shariat) Application Act 1937 c0 and the Wakf Act The statutory provisions contained in the appendices are given with the purpose of making available to the readers some of the material which otherwise could be inconvenient to reach. To make the book more fruitful, a comprehensive subject index has been given at the end. One of the notable features of the book is the scholastic introduction by M. Hidayatullah, where he examines the history and evolution of Islamic law in detail and rounds off with a bird's eye view of the reforms now being made and the problems attending them. By giving the broadlines on which reforms through legislations have so far proceeded in Algeria, Syria, Tunisia, Morocco, Jordan, Sudan, Egypt and Turkey relating to minimum age for marriage, polygamy, divorce, inheritance and legacies, period of gestation and abolition or modification of wakf he has placed the whole matter in proper perspective. About the reform of Muslim personal law in India, he states that ''in our country where, for various reasons, reform of Islamic personal law has been difficult at the best of times, it has become non-existent, 12. Mat Id. at Id. at , 15. Id. at Id. at Id. at Id. at Id. at Id. at Id. at Id. at Id. at Id. at Id. at Id. at Id. at Id. at Id. at Id. at Id. at 326.

3 296 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 33 : 2 although there is strong public opinion that progressive ideas, in keeping with the march of time should find place in the social life of Muslims." 32 He makes it amply clear that reform is not impossible. Accordingly, he suggests that, "if the injunctions of the Koran and Hadis are not lost sight of, it is possible to make changes by legislation in a widening area." 33 He points out that, "the lead is coming from MusUm countries and it is to be hoped that in course of time the same measures will be introduced in India also." 34 The courts 35 in the country have shown boldness in applying the existing principles to new cases. These attempts to liberalise the application of Islamic law to concrete cases are commendable. M. Hidayatullah, with regard to the methodology of the reform of Muslim personal law, states that "the only alternative is legislation and to a certain extent, liberal judicial interpretation of the root principles where possible." 36 He pinpoints some of the pure doctrines of Islamic law which have been watered down by judicial dicta. For example, he states that "inroads into pure rules of Islamic law have been made by strictly limiting the doctrine of Mushaa. One such way is to extend the meaning of 'indivisible property' to include within it the property capable of division but which is likely to lose in value by division. Similarly the doctrine of retention of property in lieu of dower available to the widow has progressed from a personal right of the widow into a heritable right." 37 By this judicial valour the validity of some gifts in the present day complicated society has been ensured 38 and the position of minor and helpless children has been made better than that of an unsecured creditor. 39 The reforms by judicial law-making may, in sensitive areas, achieve objectives difficult if not impossible of realisation by political process and without the public outcry that political debate engenders. The present edition has come out in The glaring omission in the introduction is not only its neglect to refer to the landmark decisions, 40 of the Supreme Court which tackled the problems of modernisation and reform of Muslim divorcee's right to maintenance that politicians had long shied away from and Parliament had been unable to deal with, but also the failure 32. Id. at xxiv-v. 33. Id. at xxvii. 34. Ibid. 35. See, for details, Katheesa Umma v. Narayanath Kunhamu, A.I.R S.C. 275 and Mohammad Sulaiman v. Mohammad Ismail, (1966) 1 S.C.R Supra note 1 at xxv. 37. Supra note 1 at xxvi. 38. Muhammad Mumtaz v. Zubaida Jan, 16 LA. 205 (1889). 39. Kapore Chand v. Kadar Unnisa Begum, (1950) S.C.R See, for details, Bai Tahira v. Ali Hussain, A.LR S.C. 362; Fuzulunbi v. K. Khader Vali, A.LR S.C. 1730; Zohra Khatoon v. Mohammad Ibrahim, A.I.R S.C. 1243; Mohd. Ahmad Khan v. Shah Bono Begum, A.I.R S.C. 945 and Begum Subanu alias Saira Banu v. A.M. Abdul Ghafoor, A.I.R S.C

4 [1991] BOOK REVIEWS 297 to examine the Muslim divorcee's right to maintenance under the Muslim Women (Protection of Rights on Divorce) Act 1986 which furnishes an example of reform based on the exercise of the powers by the state. The editors claim that "recent cases on the position of divorced wives and widows and the legislative changes are put in separately." 41 No doubt they have cursorily examined a large number of cases that arose particularly in the seventies and eighties. A detailed discussion on the breakthrough made by the Supreme Court in Bai Tahira, Fuzulunbi, Zohra Khatoon, Shah Bano and Saira Banu na would have added to the utility of the book. The vast majority of the decisions cited in the book are those which Mulla himself with his painstaking thoroughness had used in stating the law. In reading a book of the nineties, one expects to find the recent case law in it in detail, for it is on the strength of such case law that a lawyer or even a student will be able to show his acquaintance with the law. An even more serious complaint is not only about the omission of a discussion on the provisions of the Muslim Women (Protection of Rights on Divorce) Act in detail but also the total neglect of the judicial pronouncements relating to this legislation. Recently two important judgments of the Gujarat 42 and Kerala 43 High Courts have rounded off the controversies sparked by Shah Bano judgment of the Supreme Court and the enigmatic Act of Both these judgments emphasise the rubric of that Act proclaimed in its preamble, as "an Act to protect the rights of Muslim women who have been divorced by or obtained divorce from their husbands and to provide for matters connected therewith or incidental thereto." These judgments rightly held that the judicial interpretation of the Act must take its cue from the declared object of the legislation. The Kerala judgment states, "from the Preamble of the Act it is evident that the legislature wanted to protect the rights of divorced Muslim women. These ladies are to be well protected. They are not to be left as destitutes. Vagrancy is to be prevented." 44 The Gujarat High Court held that "a divorced Muslim woman is entitled to maintenance after contemplating her future needs is not limited only upto iddat period." 45 The wise, creative and juristically sound approach of the judges who decided 41. Supra note 1 at v. 41a. See, supra note Arab Ahmad bin Abdullah v. Arab Bail Mohmuna Saiyadbhai, A.I.R Guj Chelangadan Ali v. Suraira, (1988) 24 Reports Ibid. 45. Supra note 42 at Ibid. 47. Supra note Supra note 42 at 145.

5 298 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 33 : 2 the cases of Arab Ahmad bin Abdullah 4 * and Chelangadan Ali,^ some of the apprehensions voiced by many have happily been belied and, despite residual minor excrescences in the law, Muslim women have, overall, been greatly benefited by the forensic, agitational and legislative exertions of the years There is every reason to hope and expect that the reasons and conclusions contained in these luminous judgments and other cases 48 decided by the High Courts under the Act if discussed by the editors would have been a great contribution. Printing errors in the book are also found here and there. For example, "Sources and Interpretation on Mahomedan Law," 49 should rezd as "Sources and Interpretation of Mahomedan Law," "the Dissolution of Muslim Marriage Act, 1939",* should read as "the Dissolution of Muslim Marriages Act," "the possiblity or refoim" 51 should read as "the possibility of reform," "exercise of powers of the State" 62 should read as "exercise of powers by the State," "the Muslim Women (Protection of Rights of Divorce) Act, 1986" 53 should read as "the Muslim Women (Protection of Rights on Divorce) Act, 1986," "Begum Subranu alias Saira Bano v. A.M. Abdul Ghafoor, A.I.R " 54 should read as "Begum Subanu alias Saira Bano v. A.M. Abdul Ghafoor, A.I.R S.C. 1103" and "the MussasJman Wakf Act, 1923" 55 should read as "the Mussalman Wakf Act." This usual clutch of proof reading errors, however, does not detract from the basic quality of the book. The comments made by the reviewer about the present edition should not be taken as a negation of the merits and contribution of the book. The book, which has run to the nineteenth edition, is prescribed as a textbook by a number of universities in the country at graduate and post-graduate levels, besides being referred to by various courts in the country on important aspects of Muslim law. This fact is nothing less than the recognition of its utility and contribution in the field of Muslim law. However, a due positive consideration by the editors of these comments in the next edition would make the book more fruitful. 46. Ibid. 47. Supra note See for details, Abid All v. Raisa Begum, (1988) 1 Raj. L.R. 104; Mohd. Yunus v. Phenkani Bibi, (1987)2 Crimes 241; Alekutty v. Amino, (1988) 1 Hindu L.R. 108; Mohammad Haji v. Rukiya (1988) 1 Hindu L.R. 293 and Kedarv. Saira, (1988) 1 Hindu L.R Supra note 1 at ix. 50. Id. at ix, Id. at xxvii. 52. Ibid. 53. Id. at Id. at Id. at ix.

6 1991] BOOK REVIEWS 299 On the whole, the present edition, with its lucid commentary, is a notable contribution to the legal lore of the Muslims by one of the enlightened and illustrious members of the judiciary in India. The book has excellent format and simple language. The paper, printing and the get up are good and the price is quite reasonable. The book should find a place in every law library in this country. Nisar Ahmad Ganai* * Professor and Dean, Faculty of Law, University of Jammu, Jammu (Tawi).