CHAPTER 3. Schools of Muslim Law (Sunni and Shia Sects)

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1 CHAPTER 3 This chapter discusses in detail the Muslim Women s rights in Legal and Personal laws in India and in Jammu and Kashmir (J&K) State. The chapter also throws light on the Schools of Muslim Law, the sources of Muslim law, concept of law in Islam and The Muslim Personal Law i.e. The Shariat Act, Muslim law in India is a personal law. Personal law is that law which regulates the personal matters of a being such as marriage, divorce, guardianship, inheritance etc. they relate to those relationships which usually have an effect on their own personality. An individual personality is affected by the family in which such individual is born and is brought up. The personal matters are also called as family matters. The matters related to family status and the family properties are commonly based on religion. The personal laws of individuals are known by the name of their respective religion e.g., the Hindu law or the Muslim law in India (Sinha 2010:1). Schools of Muslim Law (Sunni and Shia Sects) The universally acclaimed head of the Islamic Common wealth was the Prophet Mohammad. He was supreme authority on law as well as the Chief Administrator of the whole body of Muslims. After his death, the urgent problem was to discover out his successor. The majority of Muslims recommended that there should be an election for the successor of the Prophet and the vision was given by Ayesha Begum, the youngest wife of the Prophet. This view was argued by the group that while Prophet exercised complete control over the Islamic Community, so the successor should be a person who could control the Muslims. This opinion required the assurance of the people and thus voting was the only technique to choose the successor. The Prophet himself had recommended voting, so the Muslim society pleaded for the voting to find out the successor of the Prophet. The suggestions of the Prophets are called his tradition (Sunnat). The Muslim people relied on this tradition of the Prophet. Thus the voting was assumed in which Abu Bakr, was elected and became the first Caliph, who was father of Ayesha Begum. This group of Muslims,, formed the Sunni Sect of Islam with its leader Abu Bakr. They alleged the name Ahle-Sunnat-Wal-Jammat which means the people of the tradition and assembly and are universally known as Sunnis.

2 Although Muslims in minority did not agree to the law of voting. That group gives preference to the divine headship of the Prophet rather than his organizational control and the group was headed by the daughter of the Prophet, Fatima. Their argument was that the Prophet s heir should be a divine leader of the society as was the Prophet. They said that this superiority comes through the dignity which comes through blood. Therefore, a person belongs to the family of Prophet Mohammad should be regarded as the most capable person to succeed him. Thus, the group of Fatima discarded the voting and relied upon the belief of succession. Subsequently Ali, was nominated as the first Imam by this group of Muslims who was the son-in-law of the Prophet (Fatima s Husband) and was also his cousin. They constituted a separate sect called Shia by separating themselves from the majority group (Sinha 2010:19). These two sects formed two major schools of the Muslim law. Later on, the Sunni s further splitted into several sub-sects in themselves, each sect representing a distinct School of Sunni-law. There was a similar split among the Shia s. The chart below gives a clear picture of the different schools of Muslim law: - Sinha 2010:20. Source:- These two Sects have sub-sects:-

3 The Sunnis are divided into four sub-sects, namely, the Hanafis, the Malikis, the Shafii and the Hanbalis. The Sunni Mahomedans of India belong principally to the Hanafi School. In the State of Jammu and Kashmir, majority of Muslims belong to the Sunni Sect. The Hanafis School: - Abu Hanifa was the founder of the school. The school was named after its founder and is the most popular School of law. Abu Hanifa s main contribution was that instead of accepting each and every tradition as law, he tried to find out the law in the texts of Quran itself through analogical deductions. He favoured systematically concluded personal judgements based on Quran over a unsighted dependence on the customs. According to him the changing needs of the society must be incorporated in the law (Sinha 2010:20). He extended the doctrine of Ijma and developed Istehsan or juristic preference that bears a resemblance to equity. This School has been admired by a large number of Muslims followers. The home of the school was the Iraq and from where it spread over to other countries occupied by Muslims such as, Egypt, Israel, Jordan, Afghanistan, China and India etc. Muslims in India and Pakistan are also belonging to this school (Tandon 1994). The Maliki School: - Malik Ibn Anas was the founder of the School. According to this school, the new rules should be obtained entirely from the traditions and if it is not achievable then only Qiyas and Ijma may be occupied into thought. A noticeable feature of this School is that it is the only School in which a married woman and her properties are always supposed to be under the control of her husband. According to this school a woman cannot deal with her personal properties without the approval of her husband. This School has no followers in India, but is prevalent in Northern Africa and Spain. The Shaefi School: The founder of the school was Muhammad ash-shaefi. He analysed the customs in the brightness of authorized way of thinking and judgment in order to get a very impartial and efficient rule of law. According to Ash Shaefi, the Quran can solve the all problems of the human life. And the solutions may be derived either directly from the texts or from analogical deductions. He made the greatest use of He established Qiyas as a full source of law. According to him Qiyas is to be considered only after considering Quran, traditions and Ijma. The important feature of the Shaefi School is that a woman is by no means regarded as a free instrument in her marriage. The permission of her guardian is necessary to legalize the

4 wedding even if she is adult (Tandon 1994). The Hanbali School: - The latest School of the Sunni sect was founded by Ibn Hanbal. His main characteristic was that he strictly adhered to the customs of the Prophet. Thus it is said that Hanbal was traditionist. He depends so much upon the customs that other sources of law namely Ijma and Qiyas were ignored by him. He accepted Ijma only of the companions of the Prophet. Under this school, there is no possibility for personal judgements and human calculation. The followers of this school are very few. In general the Hanbalis are in Saudi Arabia and Qatar (Sinha 2010:22). The Shia sub-sects are:- The Imamiyah School or (Ithna Ashriyah), the Ismailiya School and the Zaidiyah School (Hidayatullah 1996:20). The Imamiyah School:- This School is also named as Ithna Ashriyah School. This is the only school which recognizes Muta or a temporary marriage. The School is further separated into two sub-sects (1) Akhbari and the (2) Usuli. Akhbaris strictly follows the traditions of Imams. On the other hand, the Usulis, understand the texts of Quran with reference to the realistic struggle of everyday life. The followers of this are found in Iran, Iraq, Lebnon, Pakistan and India (Sinha 2010:23). The Ismailiya School:- The Shias did not recognize him as their Imam because Jafar Sadiq disinherited his eldest son. But there were some Shias, who recognized Ismail as the seventh Imam. They comprised of two main groups, (1) Khojas and (2) Bohras. Khojas were originally Hindus. Bohras are also Ismailias and they were detached from the other group throughout the Fatimid regime. Ismailias are established in Central Asia, Syria, India and Pakistan. Ismailias of Bombay are either Khojas or Bohra (Fyzee 2005:41). The Zaidiyah School:- Zyad, one of the sons of the fourth Imam founded the school.one of the strange characteristics of this School is that its theory include some of the Sunni doctrine also. The followers of this School are in Yemen and not found in India. (Sinha 2010:23-24). The Motazila Sect:- Around 9 th Century A.D., the school was emerged as a separate sect. This school was founded by Ata-al-Ghazzal. They do not correlate themselves from any of the two active sects. They were regarded as the defectors from the Shia society (Ali 1992:416). The

5 supporters of this School consider that Quran is the only base for their doctrines. Now the followers of Motazila sect are very less in number comparatively. Sources of Muslim Law Sources of Muslim law may be classified into two categories and are clearly shown in the following chart:- Sources Of Muslim Law Primary Sources Secondary Sources Quran Custom Sunna Ijma Qiyas Judicial Decisons Legislation The two sources of Muslim law are:- (a) The primary sources, and (b) Secondary sources.

6 These are those sources which the Prophet himself concentrating to be the sources of Muslim law. The entire Muslim personal law is based on the primary sources. They primary sources are also called as the formal sources of Muslim law. According to the varying requirements of the Islamic society, Secondary sources modify the primary sources of Muslim Personal Law. The secondary sources of Muslim law are Local customs, legislation and judicial decisions. These sources are also called as extraneous sources (Sinha 2010:26). The Primary Sources (1) Quran:- The first source of law is the Quran. Its significance is spiritual and sacred, no less than official, as it is, in Muslim principle, the word of God. The Quran gave the idea that law is the direct commandment of Allah, since he is one. His law must be a single whole (Rashid 1999). Containing about 6,000 verses, the Quran is the fundamental source of Muslim law. Out of a total of 6,000 verses of the Quran, not more than 200 verses deal with rules and principles of law. Of these 200 verses, only 80 verses relate to family law and the rest deal with State and polity. These 200 verses lie scattered throughout the text of the Quran: they do not constitute a separate code. The rules and the principles of law are laid down only in that portion of the Quran which was revealed to the Prophet at Medina. The revelations made at Macca pertain to theology, Islam and philosophy of life. The Quran was compiled from the version given by Osman, the third Caliph, from his memory. The work of compilation was undertaken during the Caliphate of Abu Bakr and Omar, under the supervision of Hazrat Bin Sabit with whom other Kureishites collaborated (Diwan 2007:31). (2) Sunna:- For an ancient and continuous practice, the word Sunna was used. Afterwards, the term was functional to the exercise of the Prophet. The literal meaning of the Sunna is a path, a procedure, a way of action. In Islamic law, the term Sunna must originally had a political and administrative connotation. It referred to the policy and administration of the Caliphs. The word Sunna must be distinguished from the term hadith, from a promiscuous use of the two terms leads sometimes to confusion of thought. Hadith is a story of a particular

7 occurrence; Sunna, the rule of law deduced from it is the Practice of the Prophet. The two sources, Quran and Sunna, are often called nass (binding ordinance) (Fyzee 2005). (3) Ijma:- For a new problem, if the Quran and traditions could not provide any decree of regulation, the law-knowing persons agreed collectively and gave their common judgment over that problem. When a new principal of law was essential, the jurists offer their judgment and a new rule was laid down. Every Muslim was not capable to contribute in the making of Ijma. Only a Muslim person, who is capable for being a jurists (Mujtahids), having satisfactory knowledge of law and was also experienced to give self-sufficient judgements. The procedure of making a law through the consent of the jurists (Mujtahids) was termed as Ijtihad, which strictly means implement personal interpretation to infer a new decree of law. But, the jurists (Mujtahids) were not free to offer the decisions without any source. They had to give explanation for their opinions in the radiance of some well settled ideology already agreed in Quran or the traditions (Sinha 2010:31). (4) Qiyas (Analogical Deduction):- The fourth source of Muslim law is the Qiyas. The term is imitative from the Herbraic term hiqqish and from an Aramic root, which means to beat together. It also signifies analogical deductions. In Arabic, it means measurement. Qiyas should be distinguished from ray, istihasan had istihbab. The term ray (opinion) signifies individual opinion or reasoning, i.e., sound, considered opinion. When it is directed towards achieving systematic consistency and guided by the parallel of an existing institution or decision, it is called Qiyas, analogy, part of reasoning. When it reflects the personal choice and discretionary opinion of a lawyer, guided by his idea of appropriateness, it is called istihsan or istihad, approval or preference. The Qiyas is utilized for extending the law of the text to matters not strictly falling within its scope, though the jurists do not admit that by that process they are establishing a new rule of law, the theory being that analogy merely helps to discover the law. An analogical deduction may be based on a text of the Quran or on a Sunna or on Ijma. This view is accepted by all the Schools which accept the Qiyas as a source of law. An analogical deduction has to be in the nature of a corollary to the existing rule of law. Some hold the view that it may be based on another Qiyas. Ahmad IbnHanbal, the great traditionalist, was, however, opposed to the Qiyas. The Shaffis also donot accept the Qiyas. The Shias reject the Qiays outright, since they

8 subscribed to the dogma that a rule of law must be formulated by the Imam and none else. The Qiyas as a source of law is ascribed the lowest position: it is considered to be subsidiary and subordinate to the Quran, the Sunna, and the Ijmas (Diwan 2007:36-37). Secondary Sources: 1) Custom (Urf or Taamul) : The Arabs were governed by customary laws, before Islam. Most of the traditions were found by the Prophet to be evil and bad, after the existence of Islam. Such bad traditions were entirely abolished by him and he confirmed them to be un-islamic. But some were pre-islamic traditions (e.g. dower, talaq etc.) which were fine and satisfactory. The Prophet did not eradicate them, and they sustained in the society because the Prophet legitimate them by his silent agreement. Thus some of the fine traditions became a part of the Islam. Furthermore, there were traditions on the source of which jurists gave their undivided decisions on a certain point of law and they form component of Ijma. Therefore the custom is not any self-sufficient source of Muslim law. A customary law exists in the Islam because it has got the sanction of the Prophet. 2) Judicial Decisions: Judgment or superior court becomes an authority for the courts subordinate to it. The subsidiary courts are bound to follow the decision that are laid down by the law and is called as the Principal of precedents and is approved in India. Thus, In India, the decision of the Supreme Court is binding on all the High Courts. Likewise the verdict of the High Court is obligatory on the subordinate courts. Muslim law is not excluded to this legal practice and thus, a point of law determined by the Supreme Court or a High Court of India became a source of law for the courts subsidiary to them. 3) Legislation: It is usually believed in Islam that God alone is the ultimate Legislator and no other organization or body on earth has power to make laws. Even today, the belief is so deeprooted that any governmental alteration treated as an violation upon the traditional Islamic law. The result is that as self-governing source of Muslim law, the legislative implementations are irrelevant. However, there are definite Acts which adapted or laid down Principles of Muslim law, and for the modern courts in India these implementations are the only source of law. Some important enactments on Muslim personal law are given below: - i) The Muslim Personal Law (Shariat) Application act, 1937.

9 ii) Dissolution of Muslim Marriages Act, iii) Muslim Women (Protection of Rights on Divorce) Act, 1986 (Sinha 2010:35-36). Statutory Authority of the Courts to apply Muslim Law in India The policy of the British Government was to enact general laws for all the affairs of Indians (whether Muslim or non-muslim) except their family-matters. Accordingly, the Indian Penal Code, Indian Contract Act, Civil Procedure Code, The Transfer of Property Act, etc., were passed which applied (as they still are) to the Muslims as well as to Hindus etc. But the domestic affairs or the family-matters were left to be regulated by the religion based personal laws of the respective communities. This policy was specifically laid down in a number of enactments such as, the Punjab Laws Act, 1872, the Madras Civil Courts Act, 1873, Oudh Laws Act, 1876 and the Bengal, Agra and Assam Civil Courts Act, 1887, etc. It was given in these enactments that in definite specified problems the civil courts will pertain Hindu law where the parties are Hindus and Muslim law where the parties are Muslims. Thus, we find that these Acts empowered the Indian courts to apply Muslim law to the Muslims of India in respect of their family matters. The enactment which authorises the Indian Courts to apply Muslim personal law is the Muslim Personal (Shariat) Application Act, 1937, popularly known as the Shariat Act (Ibid:5). Muslim Personal Law (Shariat) Application Act, 1937 From the 7 th October 1937 Section 2 of the Shariat Act, in cases where the parties are Muslims, applies the Muslim Personal Law in a number of important matters. The Act operates throughout India except in the State of Jammu & Kashmir till In all matters regarding intestate succession, individual possessions of females, counting personal property inherited or obtained under agreement or present or any other condition of Personal Law, wedding, termination of marriage, as well as protection, dower, custody, offerings, trust and trust properties, and wakfs, the rule of judgment in cases where the parties are Muslims shall be the Muslim Personal Law (Mulla 2004). It is applicable to every Muslim, regardless of the School to which he or she belongs. It is applicable to all kinds of property, but there are three main exceptions: Agricultural land, Testamentary succession in certain communities; and Charities, other than Wakfs (Fyzee 2005).

10 Shariat: In Islam, law is of divine origin. God is the extreme Legislator and only he can make rules for regulating all human activities. In Islam, the law is that which is recognized by a statement from God with reference to men s acts, expressive either of demand or indifferences on his part or merely being declaratory (Mahmood 1972:30). In Islam, therefore, law means the direction of God for regulating all the human conducts, spiritual, moral or secular. A few of the instructions are mandatory, few are only pleasing, while in other cases one may or may not go behind them. God has laid down the pathway to be accepted by the creatures. These instructions of God to men comprise the Shariat. By the human beings the meaning of Shariat is the path to be followed. It is believed in Islam that a law of Shariat is that which said that thing or an act may be either excellent (husn) i.e., ethically attractive or Evil (kubh) i.e., ethically unattractive. The acts which are ethically attractive must be done, and what is ethically not attractive must not be done (Fyzee 1974:15). However the question arises, how to know what is ethically attractive and what is ethically unattractive? The answer is that which is done with the help of the expression of God and the customs of the Prophet Muhammad who was the messenger of God are ethically attractive and left are not. Thus, in the Islamic symbols of behaviour for all the aspects it may be said that the Shariat is of heavenly origin (Sinha 2010:9). Fiqh:- In the present sense Fiqh means law. According to this, in the lack of any course for human activities in the expression of God or customs of the Prophet, the implement of human understanding in deciding a point of law is necessary. Theoretically Fiqh is the human brainpower or the awareness of law. It means the awareness of one s privileges and obligations deduced from the expression of God and His envoy. Thus Fiqh is a part of the worldly law or the law which the the system enforce for regulating human behaviour. On the other hand, the Shariat, is the sacred or ethical system of behaviour. The code of behaviour recognized by human reasoning is the Fiqh or positive law and the code of behaviour established by God is Shariat (Ibid). The Muslim law of inheritance is a superstructure constructed on the foundations of pre- Islamic customary law of succession. It is based on the male dominant establishment of the

11 family, in which are buttressed some closed cognates along with agnates. In Islamic law difference between the ancestors possessions and the detach possessions has by no means existed, and in India Muslim law did not identify the joint family property. Among Muslim the law of inheritance has always been accepted for its entirety as well as the accomplishment with which it has acquired the aim of providing not just for the assortment of a single person or a same group of persons, on whom the property of the departed should devolve by complete succession, but for adjusting the competitive allege of all the adjoining relatives (Diwan &Diwan 2007:212). Succession to the properties of a deceased person may either be testamentary or intestate. The testamentary succession is called a legacy and takes place under a Will. Intestate succession is called inheritance under which the legal heirs of the deceased succeed to his properties in welldefined shares fixed under the law. Upon the death of a Muslim, his properties are, in the first instance, utilised for payment of his funeral expenses, government dues, and his unpaid debts. In the second instance, the remaining property is succeeded by the legatees, if any, under the law of Wills. After making these payments, the residue or the remaining property, is called the heritable property. In the last instance, this heritable property is given to the legal heirs of the deceased so that they may inherit it in their respective shares. The quantum of the property to be inherited by each legal heir and also the terms and conditions under which they get their respective shares, is governed by the Muslim law of inheritance (Sinha 2010:280). The legal heirs of a Sunni Muslim are:- (1)Sharers or Quranic Heirs The persons who are permitted to get an approved split from the heritable property are called as sharers. It is given in the Quran who are the heirs and what are their shares in the property of a deceased person. Thus, the sharers are also known as Quranic heirs. The sharers get preference in excess of the other class of heirs, in the allotment of property. Thus the relevant share is allotted to each sharer. It is renowned that sharers are persons whose relevant shares are specified in Quran. Their shares cannot be changed by any human attempt. (2)Residuaries or Agnatic Heirs

12 These are those heirs who succeed only the remains of the property after allocation of relevant shares to the Sharers. The Residuaries have no exact allocation of share of their own. After dividing and allocating the property to the Sharers in their predetermined shares, if there left some property that is available to the Residuaries. The residue may change from case to case. The entire property is inherited by the Residuaries only if there are no Sharers. Residuaries inherit only through male relations and are also known as agnatic heirs. Koran allots specified shares to the sharers. In the case of some sharers, their shares vary under certain circumstances. Some sharers under certain circumstances do not inherit as sharers, but as residuaries. Both these situations are explained in tabular form in the following two tables: Table 3.1 The Koranic heirs and their specified shares Shares One When entirely Excluded When share may be affected Two or more 1. Wife 1/8 1/8 Never When no child or child of a son h.l.s. 2. Husband ¼ - Never When no c hild or child of a son h.l.s 3. Daughter ½ 2/3 Never Where there is a son How the share is affected Share increased to ¼ Share increased 1/2 is is to She becomes a residuary 4. Son s daughter ½ 2/3 In the presence of (i) a son, (ii) more than one daughter, (iii) higher son s son and (iv) more than (a) when only one daughter (b) one higher son s daughter (c) equal son s son (a) share is reduce to 1/8 (b) share is reduced to 1/8 (c) she

13 one higher son s daughter becomes residuary. a 5. Full sister ½ 2/3 In the presence of (i) son, (ii) son s son how low soever, (iii) father, and (iv) true grandfather. 6. Consanguine ½ 2/3 In the presence of (i) sister son, (ii) son s son how low soever, (iii) father, (iv) true grandfather, (v) full brother, and (vi) more than one full sister 7. Uterine brother 1/6 1/3 In the presence of (i) of child (ii) child of a son, how low so ever, (iii) father, and (iv) true grand father 8. Uterine sister 1/6 1/3 In the presence of (i) child (ii) child of a son, how low so ever, (iii) father, and (iv) true grand father When there is a full brother She becomes a residuary (a) When there is (a) share is a full brother (b) reduce to 1/6 when there is a (b) she consanguine becomes a brother residuary

14 9. Mother 1/8 - Never (a) where there is no child or son s child how low soever (b) one brother or sister (c) when husband or wife coexisting with father (a) share is increased to 1/3 (b) share I increased to 1/3 (c) 1/3 of the residue after deducting the share of husband or wife 10. The grandmother 1/6 1/6 In the presence of (i) - - h.h.s mother and (ii) maternal nearer maternal or Paternal paternal grandmother. In the presence of (i) mother, (ii) nearer maternal grandmother, (iii) father, and (iv) never true grandfather. 11. Father 1/6 Never Where there is no child or child of a he becomes a residuary son how low so ever 12. The Grandfather 1/6 In the presence of (i) Where there is no he becomes a father, and (ii) child or child of a residuary nearer true son how low so grandfather ever

15 Table 3.2 The Koranic Residuaries Heirs When portion of estate they take Descendants 1 2 Son Son s son how low soever (a) When there is a daughter, he takes double portion. (b) When there is no daughter, he takes the entire residue. (a) when there is son s daughter, he takes double portion. (When there is equal son s son, but there is a lower son s daughter, if she does not inherit as a sharer, inherit as residuary with lower son s son). (b) nearer son s son excludes remoter. (c). two or more son s take the estate in equal shares. Ascendants 3 4 Father True Grandfather As a residuary he takes the entire estate. (a) As a residuary he takes the entire estate. (b) The near true grandfather excludes the remote. Collaterals Descendants of the father 5 Full brother (a) where there co-exists a full sister, he takes double portion. (b) In the absence of the sister, he takes the entire residue. 6 Full sister In the absence of the full brother and aforesaid residuaries, she takes the residue, if any, if there is/are daughter/daughters or son s daughter/daughters how low soever or one daughter and son s daughters, how low soever 7 Consanguine brother When there is consanguine sister, he takes double portion. 8 Consanguine sister In default of a consanguine brother and above mentioned residuaries she takes the residue, if any, if there be daughter/daughters how low so ever or one daughter and a son s daughter/daughters how low soever. 9 Full brother s son In the default of above reiduaries he takes the entire residue. 10 Consanguine brother s son In the default of above reiduaries he takes the entire residue.

16 11 Full brother s son s In the default of above residuaries he takes the entire residue. son 12 Consanguine brother s son s son In the default of above residuaries he takes the entire residue. Then come the male descendants of brother s son s son, and then the male descendants of consanguine brother s son s son alternatively. 13 Full Paternal uncles. He takes the entire residue 14 Consanguine paternal He takes the entire residue uncle 15 Full paternal uncle s He takes the entire residue son 16 Consanguine paternal He takes the entire residue uncle s son 17 Full paternal uncle s He takes the entire residue son s son 18 Consanguine paternal uncles son s son He takes the entire residue After then come the remote male descendants of full paternal uncle s son s son s son and consanguine paternal uncle s son s son s son alternatively. Then come the descendants of the remote true grandfather, in like order and manner as the deceased paternal uncles and their sons and son s sons (Diwan & Diwan 2007: ). The Jammu & Kashmir Muslim Personal Law (Shariat) Application Act, 2007 A Bill was passed on 9 February 2007 to bring the country s only Muslim-majority State in the influence of Shariat laws. In the Assembly, the House approved the Bill by voice vote without any dispute. The Congress- PDP government supports the Bill. Taj Mohiuddin, the Minister for Consumer Affairs and Public Distribution said that the administration does not in opposition to it and the law Department has not proposed any disagreement to it.

17 In the state of Jammu and Kashmir (J&K), Muslims have so far been governed by the customary laws. While in some parts of Kashmir some weddings were covered under Shariat Act, but the state had no legal structure for Shariat. So far as Criminal legislation is concerned Shariat laws will not be applicable and the Criminal laws will be governed by Indian Penal Code. The then, Deputy Chief Minister and MLA Muzaffer Hussain Baig assumed that the function of Shariat laws must be under conversation to re-evaluate by a select team as it could produce great effort for those who have married non-muslims. This would also led problem for judiciary about the outcome of thousands of awaiting cases in the Courts. According to him, this would become a certificate to Muslims to get married four to five times in breaking to other laws. The Bill was discussed by a select agency before its passage in the House. The Muslim Personal Law (Shariat) Bill deals with all matters concerning inter-succession, individual possessions of female, including personal property inherited or obtained under contract or gift or any other provision of Personal law, marriage, dissolution of marriage including divorce, trust and trust properties. The Bill which was introduced by Rather in the House on 30 th of September 2005, was then sent to select committee on March 29, 2006 on a wave stimulated by Mangat Ram Sharma of the Congress. Speaker Tara Chand framed a 9- member select committee headed by the then Deputy Chief Minister Muzaffer Hussain Baigh on May 23, The committee prepared firm amendments by reducing words maintenance and wakaf in the Bill as these are ruled by the Code of CrPc and Jammu and Kashmir specified Wakafs and specified Wakafs properties (management and regulation) Act 2004 respectively. The Act received the assent of the Governer and was passed by the Jammu and Kashmir State legislature on 21 st Feb and called as The Jammu & Kashmir Muslim Personal Law (Shariat) Application Act 2007 ( 9 Feb. 2007). An Act to make requirements for the relevance of the Muslim Personal Law (Shariat) to Muslims of the State of Jammu and Kashmir. The act was enacted by the Jammu and Kashmir State Legislature in the Fifty-eighth year of the republic of India as follows :-

18 Short Tittle and Commencement This Act may be called the Jammu and Kashmir Muslim Personal Law (Shariat) Application Act, It shall come into power from the date of its publication in the Government Gazette. Application of Personal Law to Muslims In spite of any customs or usages in contradictory to all queries concerning intestate sequence, individual assets of females, counting Personal property hereditary or obtained under agreement or present or any other supplies of Personal law, marriage, dissolution of marriage, including talaq, ila zihar, khula and mubarat, dower, guardianship, gifts, trusts and trust properties, the decree of verdict in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat). Adopted son inheritance The personal law would apply to the parties in the matters of inheritance and there can be no assumption in support of any custom- No civil court can suppose the subsistence of customs except specially pleaded and proved, and no hold of Section 50 of the Evidence Act can be taken to have recognized such a custom. Applicability Mortgage executed in 1948 Act has come into force in the year 2007 whereas finance deed has been executed in the year 1943; therefore, advantage is not accessible to the client under the Act. In India, Muslims are usually against the formation of any Act because according to them they follow only one law which is Shariat. But despite many contradictions the following Act has been passed in the country i.e. The Dissolution of Muslim Marriages Act, 1939, Muslim Women (Protection of Rights on Divorce Act)1986. The same Act was passed in the State of Jammu and Kashmir with the title The Jammu and Kashmir Dissolution of Muslim Marriage Act, 1999, The Jammu and Kashmir Muslim Marriages Registration Act, 1981which is given below. The Jammu and Kashmir Muslim Marriages Registration Act, 1981

19 An Act to provide for the Registration of Muslim Marriages and for the matters connected therewith. Be it enacted by the Jammu and Kashmir State Legislature in the Thirty-second Year of the Republic of India as follows:- 1. Short title, extent and commencement.- (1) The Act is called as the Jammu and Kashmir Muslim Marriages Registration Act, 1981, it extend to the entire of the State and it come into power on such date as the Government may, by notification in the Government Gazette sign up and different dates may be chosen for different areas of the State. 2. Definitions. - In this Act, unless the circumstance requires - (a) Schedule means a agenda to this Act;(b) Sub-Registrar means a Sub-Registrar allotted under the Registration Act, Samvat 1977.(c) Sub-district means a Sub-district shaped in the Registration Act, Samvat Registration of Marriages.- (1) After the enactment of the Act, every marriage contracted among Muslims shall be registered within thirty days from the winding up of the Nikah ritual. (2) The responsibility of making it to be registered is hereby forced upon the following persons worried in the marriage:- (a) the bridegroom or the someone who consented to the wedding on his behalf; (b) the bride or the someone who consented to the wedding on her behalf; and(c) the individual who conducted the Nikah ritual. (3) It shall be the responsibility of the individual specified in sub-section (2) to send personally or by registered post a copy of Nikah-Nama or where No Nikah-Nama is written, a copy of letter in the structure controlled in the agenda duly filled in by the person specified in clause (c) of subsection (2) to the Sub-Registrar of the Sub-district in which the wedding is constricted. (4) Every copy of Nikah-Nama shall be recorded. The amount of dower prompts and deferred separately as also the method of payment thereof.

20 4. Maintenance and Preservation of Register and Nikah-Nama etc. Every Sub-Register shall- (1) All Nikah-Nama inward under Section 3 and shall sustain a Register called as Register of Muslim Marriages; and (2) The details of all Nikah-Nama inward should be recorded under his signature in the Register of Muslim Marriage during each calendar year. 5. Person conducting the Nikah Ceremony to record his particulars.- Every person who conducts the Nikah ritual shall witness on the Nikah-Nama his full name, fathers name, age and place of habitation. 6. Inspection- The Sub-Registrar shall maintain the Register of Muslim Marriages and at all sensible times be unwrap for examination and shall be acceptable as support as a public paper as defined in Evidence Act, Non-delivery of Nikah-Nama or memorandum not to invalidate Nikah.- Nikah shall not be considered as void by a cause of the fact that a copy of the Nikah-Nama, was not delivered to the Sub-Registrar or that the copy of the Nikah-Nama sent to the Sub-Registrar was imperfect. 8. Penalty for neglecting to comply with the provision of section 3.- Any person who neglect to send the copy of the Nikah-Nama to the Sub-District, as necessary by section 3, shall on confidence by a Judicial Magistrate be punished with fine which may widen to three hundred rupees. 9. Power to make rules.- (1) The Government may formulate policy for carrying out the purposes of this Act. (2) In particular and without discrimination to the generalization of the previous power such regulations may grant for any or all the following concerned, namely:- (a) the structure and way in which Nikah-Nama shall be maintained under this Act;(b) the structure and way in which the registers shall be maintained by the Sub-Registrar in this Act;(c) the protection in which the registers and files and other records are to be retained and the way in which registers, files and records are to be retained; and(d) the structure and method in which the

21 acceptance of Nikah-namas delivered under section 3 shall be recognized by the Sub-Registrar. (Jammu & Kashmir laws Vol. VI fourth edition 1989: ). The Muslim Women (Protection of Rights on Divorce) Act, 1986 The Parliament enacted the Act on the Thirty Seventh year of Republic of India to protect the rights of divorced Muslim women. The Muslim Women (Protection of Rights on Divorce) Act, 1986 is followed by the entire of India apart from the Jammu and Kashmir State. The following issues are involved in the Act to give protection of rights in case of divorce among Muslims:- (1) A Muslim Woman who was married as per the rules of Muslim Law, and has received divorced in reference with Muslim Law; is known as divorced woman. (2) The time period between three menstrual courses in the case of a divorced woman means iddat period. (3) The three menstrual courses are taken into consideration from the date of dissolution of marriage. (4) If she is pregnant at the time of dissolution of her marriage, the time connecting the dissolution of marriage and the delivery of her child or the cessation of her pregnancy, whichever is in advance. (c) Magistrate means a Magistrate of the First Class commanding authority according to the Code of Criminal Procedure, 1973 in the place where the divorced woman lives; (d) prescribed means arranged by the system under this Act. 3. Mehr or other properties of Muslim Woman to be given to her at the time of divorce.- (1) In spite of whatever things enclosed in any other law for the time being in power, a divorced woman shall be permitted to- (a) a sound and fair stipulation and protection to be prepared and compensated to her within the iddat period by her previous husband;

22 (b) where she herself able to maintain the children born to her before or after the dissolution of marriage, a reasonable stipulation and maintenance to be prepared and remunerated by her previous husband for a time of two years from the dates of delivery of such children; (c) an quantity equivalent to the amount of mehr or dower approved to be paid to her at the time of her wedding or at any time subsequently in accordance to Muslim law; and (d) all the properties specified to her prior to or at the time of wedding or after her wedding by her family member or associates or the husband or any relatives of the husband or his friends. (2) Where a logical and reasonable stipulation and safeguarding or the amount of mehr or dower outstanding has not been given or the properties referred to in clause (d) of sub-section (1) have not been given to a divorced woman on her dissolution of marriage, she or any one properly authorised by her may, on her behalf, create an claim to a Magistrate for compensation of such stipulation and safeguarding, mehr or the release of properties. (3) Where an request has been completed under sub-section (2) by divorced woman, the Magistrate may, if he is contented that- (a) her husband having adequate resources, has ignored to give her within the iddat period a rational and fair stipulation and upholding for her and the children; or (b) the sum equal to the amount of mehr or dower has not been remunerated or that the properties referred to in clause (d) of sub-section (1) have not been given to her, Make an decree, within a month of the time of the filing of the request, directing her previous husband to give such logical and reasonable stipulation and protection to the divorced woman as he may determine as healthy and suitable with regard to the requirements of the divorced woman, the pattern of life enjoyed by her throughout her marriage and the income of her previous husband or, as the case may be, for the compensation of such mehr or dower or the relief of such properties referred to in clause (d) of sub-section (1) to the divorced woman: if the Magistrate finds it impossible to dispose of the claim within the said time, he may, for reasons to be given by him, dispose of the request after the said period.

23 (4) If any individual in opposition to whom an blame has been organized under sub-section (3) fails with no suitable cause to conform the order, the Magistrate may give a permit for levying the sum of protection or mehr or dower outstanding in the way provided for levying fines in the Code of Criminal Procedure, 1973 and may verdict such individual, for the entire or part of any sum outstanding not paid after the implementation of the warrant, to incarceration for a period which may expand to one year or until compensation if sooner made, subject to such person being heard in protection and the said sentence being forced according to the condition of the said code. 4. Order of payment of maintenance.- (1)Under this Act, if a Magistrate is content that a divorced woman has not married again and is not competent to sustain herself after the iddat period, he may make an charge directing such of her relatives as would be permitted to take over her belongings on her death according to Muslim law to give such rational and reasonable preservation to her as he may determine healthy and correct, having regard to the requirements of the divorced woman, the pattern of life enjoyed by her during her wedding and the earnings of such relatives and such preservation shall be owed by such relatives in the proportions in which they would take over her possessions and at such periods as he may stipulate in his order: If such separated woman has children, the Magistrate shall command only such children to pay protection to her, and in the incident of any such children being incapable to pay such safeguarding the Magistrate shall command the parents of such divorced woman to pay maintenance to her: Further it is found that if the parents are not capable to pay his or her share of the maintenance disciplined by the Magistrate on the ground of his or her not having the resources to give the same, the Magistrate may, on verification of such incapability being furnished to him, order that the share of such relatives in the protection ordered by him be compensated by such of the other relatives as may appear to the Magistrate to have the means of paying the same in such extent as the Magistrate may reflect in the order. (2) If a divorced woman is incompetent to prolong herself and she has no family relatives as given in sub-section (1) or such relatives or any of them have not sufficient earnings to provide the protection prepared by the Magistrate or the other relatives have not the property to give the

24 shares of those relatives whose shares have been disciplined by the Magistrate to be remunerated by such other relatives under the condition to sub-section (1), the Magistrate may order to the State Waqf Board directly under Section 9 of the Waqf Act, 1954, to give such protection as ordered by him under sub-section (1) or, as the case may be, to pay the shares of such of the relations who are not capable to give, at such time periods as he may identify in his order. 5. Option to be governed by the provisions of Section 125 to 128 of Act 2 of From the date of the initial investigation of the submission under sub-section (2) of Section 3, a divorced woman and her previous husband establish, by affirmation or any other announcement in writing in such type as may be approved either mutually or independently, that they would favour to be ruled by the rules of Section 125 to 128 of the Code of Criminal Procedure, 1973 (2 of 1974) and organize such affirmation or declaration in the trial court then the Magistrate shall arrange of such request accordingly. 6. Power to make rules.- (1) The Central Government may by announcement in the official Gazette compose set of laws for the sake of this Act.(2) In particular and devoid of discrimination to the preceding rule, such rules may provide for:- (a) the structure of the affirmation or other statement in symbols to be given in Section 5; (b) under this act the method to be followed by the Magistrate in disposing of petition with the allocation of notices to the parties to such petitions, dates of hearing of such petitions and other issues; (c) any other matter which is needed to be or may be approved. (3) Under this Act the rule prepared by each House of Parliament shall be given almost immediately as after its preparation even as it is in sessions, for a entire period of thirty days which may be in one session or in two or more consecutive sessions and if previous to the termination of the session instantly following the session or the consecutive sessions above mentioned. There should be an agreement between the both houses in building any alteration in the rule or the rule should not be altered, the rule shall subsequently have effect only in such customized form or be of no consequence, as the case may be; though, that any such change of

25 withdrawal shall be without discrimination to the legality of whatever thing formerly done under that rule (Sinha 2010: ). The Jammu and Kashmir Dissolution of Muslim Marriages Act, An Act to secure and elucidate the necessities of Muslim law relating to suits for termination of marriage by women wedded under Muslim law and to eradicate worries as to the effect of the repudiation of Islam by a married Muslim woman on her wedded life. It is convenient to strengthen and elucidate the provisions of Muslim law relating to suits for termination of marriage by woman married under Muslim law and to eliminate worries as to effect of the repudiation of Islam by a married Muslim woman on her marriage tie; 1. Short title and extent.- (1) The Act may be known as the Jammu and Kashmir Dissolution of Muslim Marriages Act, 1999.(2) Apart from the Jammu and Kashmir State, the Act extends to the whole of India. 2. Grounds for decree for dissolution of marriage.- A woman who is the spouse of a person in accordance to the Muslim law shall be permitted to get divorce on any one or more of the following reason, namely :- I. That the location of the husband has not been identified for a period of four years; II. That after she asked her husband to give her maintenance he badly ignored for a time of not less than two years to do so; III. That the husband has been sentenced to incarceration for a period of seven years or upwards; IV. That the husband has unable to carry out, without rational reason, his married responsibilities for a period of three years; V. That the husband was incapable at the time of the wedding and continues to be so; VI. That the husband has been suffering from leprosy and is insane for a constant period of four years;

26 VII. VIII. That she, having been specified in marriage before she attain the age of eighteen years: That the husband treats her with brutality, that is to say,- (ix) On any other argument which is acknowledged as legal for the dissolution of marriage under Muslim law. 3. Notice to heirs of husband when his whereabouts unknown.- In a suit to which Clause (i) of Section 2 applies- (a)the person who would have been the heirs of the spouse under Muslim law if he had died on the date of the filling of the petition, shall be assured in the petition,(b) Notice of the suit shall be given to such persons, and(c) Such persons shall have the right to be heard in the suit. 4. Wife s conversion to another faith-effect.- The rejection of Islam by a married Muslim woman or her adaptation to a devotion other than Islam shall not by itself function to suspend her marriage (Jammu &Kashmir Laws Vol. iv: ). Thus, this chapter has discussed the Muslim Personal law i.e. Shariat and different Acts which are passed in India as well as in the State of Jammu and Kashmir for the protection and empowerment of Muslim women and giving themproperty rights.