Monday, December 12, 2022

Shariat law vs Customary law

 Shariat law vs Customary law


The "Muslim Personal Law (Sheriath) Application Act 1937. (Act 26 of 1937)


The book titled "Muslim Law of Marriages and Succession in India" by Justice S.A.Khader.


The Author has stated various custom and usage prevalent in certain sections of the Muslims living in different parts of this country.


The Indian legislature untouched the personal or family laws relating to succession intestate and testamentary, marriage, dissolution of marriage and the like of the Mohammadden.


Various customary practice

So far as the Muslims were concerned, various customary practices followed by some sects of the Muslim.


They are:

(i) Mappillas of North Malabar, 

(ii) Cutchi Memons, 

(iii) Khojas, 

(iv) Sunni Boharas of Gujarat, 

(v) Molesalam Giarasias of Breach, and 

(vi) Halai Memon of Probandar (Gujarat).


Mappillas of North Malabar:


Mappillas of North Malabar were governed in the matters of inheritance by the Marumakkathayam system of matriarchal succession unknown to Muslim Law.


The Mapilla Succession Act, 1918 (Act 1 of 1980) passed by the Legislature of the then Madras Presidency which prescribed that notwithstanding any custom to the contrary, the separate property of such a Mappilla shall devolve upon his heirs in the order and according to the rules of Muslim Law.


The Malabar Wills Act, 1898 found that those Mappillas were entitled to dispose of their separate property in entirety by will, while under the Shariat, a Muslim can dispose of by will only one-third of his estate.


The Mappilla Wills Act 1928 extended to the Mappilla Muslims.


The Shariat Law has come into effect from 1.1.1929.


Neither the Mappilla Succession Act, 1918 nor Mappilla Wills Act, 1928 affects the Tarward property, unless the Mappilla concerned was exclusively entitled to it.


The Muslim Personal Law (Shariat) Application Act, 1937 (Act 26 of 1937) also does not touch or affect the rights and incidents of the Mappilla Marumakkathayam tarward, where property devolved by survivorship, a concept quite foreign to the Shariat.


Based on rulings reported in Abdul Rahim v. Avooma, AIR 1956 Mad. 1441, in Mohammed Sandhu Khan v. Rathnam, AIR 1956 Mad. 144 apart from Full Bench judgment of Kerala High Court reported in Laxman v. Kamal, that the Mappilla Marumakkathayam Act (Madras Act 17 of 1939) only dealt with the management of the Tarward, the duties of the Karnavan and the rights of the junior members and does not abolish the system which still continues.


Cutchi Memons, Khojas, Sunni Bohras etc

The Act concerning certain other sects such as Cutchi Memons, Khojas, Sunni Bohras of Gujarat, Molesalam Giarasias of Broach, and Halai Memon of Probandar (Gujarat), is the Shariat Act 26 of 1937.


Customary law should in no case take the place of Muslim Personal Law.


Customary Law is a misnomer inasmuch as it has not any sound basis to stand upon and is very much liable to frequent changes.

Customary law cannot be expected to attain at any time in the future that certainty and definiteness which must be the characteristic of all laws.


Tamilnadu Act on Shariat law:

So far as the State of Tamil Nadu was concerned, by Tamil Nadu Act, Section 2 of the Parent Act (Shariat law 1937) was substituted and the substituted Section 2 reads as under:


"Notwithstanding any custom or usage to the contrary in all questions 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 mubarrat, maintenance dower, guardianship, gifts, trusts and trust properties, and wakfs, the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)"


Purpose of Shariat law

The whole purpose of the enactment of parent Shariat law and Tamilnadu Amendment, was to rule out any possibility of customary law taking the place of Muslim Personal Law.


The purport of the enactment is that the application of Muslim Personal Law was the rule and anybody's attempt to go by any custom or usage was considered as an exception.


Only under certain stated circumstances where the enforcement of any customary usage or practice was attempted to be tinkered with in certain sects such as in the case of Mappillas, Kozas, etc.


Unless a declaration (for a custom or usage) is made under section 3, of Shariat law, there is no scope for application of the Muslim Personal Law. 




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