During the Muslim rule in India the rulers were Hanafis and so Hanafi Law became the law of the land. This continued till the establishment of the British Empire. To the close of the 16th century the British traders came India for trading purposes during the reign of Mughal dynasty 1600 A.D. the East India Company was established. The foundations of the British Empire were laid by treaties with Mughal rulers representing the authority of the Delhi Sultanate. The North West provinces were governed by the East India Company down to 1857 in the name of titular sovereign who had been a British pensioner.
In 1765 A.D. the Company was vested with the power of collecting land revenue, but criminal jurisdiction remained in the hands of Muslim law-officers, so the criminal law was Muslim. In civil matters the Islamic Law was applied to Muslims and the Hindu law to Hindus. Hence the influence of Islamic Law was felt everywhere during the earlier days of British Empire. It was only in 1772 A.D. when the Muslim Law got recognition in British India. Warren Hastings, the first Governor General of British India for the first time framed the famous Regulation II of 1772 which was reconnected as the Regulation of 1780. According to section 27 of this regulation:
"In all suits regarding inheritance, succession, marriage , caste and other religions usages or institutions, the laws of the Quran with respect to Mohammedans and those of the Shastras with respect to the Gentoas ( Hindu) shall be invariably adhered to."
"In all suits regarding inheritance, succession, marriage , caste and other religions usages or institutions, the laws of the Quran with respect to Mohammedans and those of the Shastras with respect to the Gentoas ( Hindu) shall be invariably adhered to."
Further by regulation VII of 1832, it was provided that ," Whenever in any civil suit, the parties shall be of different persuasions, when one party shall be of the Hindu and the other of the Mohammedan persuasion or where one or more of the parties to such suit shall not be either of the Mohammedan or of the Hindu persuasion, the laws of those religions shall not be permitted to operative to deprive such party or parties of any property in all such cases, the decision shall be governed by the principles of Justice, equity and good conscience it be in clearly understood, however that this provision shall not be considered as justifying the introduction of the English or any foreign law, or the application to such cases of any rules not sanctioned by those principles.
where in the personal laws, there were differences between the parties, the law of the defendant was applicable. Similarly, the Regulating Act of 1773, the East India Company Act, 1780 the charter of 1781 the East India Government which shows, that Islamic Law founded recognition in British Courts in India. The original rules of Islamic Law on wakf were also retained with the passing of the Musalman Wakf validating Act, 1937 was passed by the British Government in 1937. This Act abrogated the custom and restored to Muslims their own personal law in almost all matters.
In criminal matters also, the Islamic Law governed the Indian population irrespective of religion of the offender. It was decided that Islamic criminal law would remain in force until the Company's Government thought fit to order otherwise for a longer time till the year 1962 when the Indian Penal Code and the Code of Criminal Procedure were passed.
As far as the laws of evidence was concerned Islamic Law of evidence was in vogue till the passing of the Evidence Act 1872.
Hence, Islamic Law ( specially criminal law) as modified from time to time by the regulations of the East India Company governed not jonly Muslims but all the Indians, Consequently today in Independent India, the Islamic Law of Marriage, Divorce, Dower, Legitimacy, Guardianship Gifts, Wakfs,Wills and inheritance is applied to Muslims everywhere din India. In the words of schacht.
"It has had, during the two centuries of British rule, the effect of keeping the law stationary and static except for two broadening influences legislation and the healthy introduction of the principles of English equity. Thus the Mohammadan Law, as received in India, is the Shariat, modified by the principles of English common law and equity, in the varying social and cultural conditions of India and during the centuries it has tended to become a distinct system somewhat at variance with its original sources."
In all those spheres, where the rule of law is the Islamic Law, it has been found in the recognised legal i.e., the Hedaya and the Fatawa-i-Alamgiri which have acquired authority in India. In Zohoraddeen Sirdar v Baharoollah Sirdar those learned Judges expressed themselves in the following terms:-
"It is contended by the pleaders for the plaintiff, special respondent that the Mohammedan Law is not applicable to contract of the nature before the Court, that according to Section 15, Regulation IV of 1793 it is only on questions of inheritance, marriage and caste that the court is called upon to decide in conformity to the Mohammedan Law, and that the present matter before the court, not being of the nature above expressed is to be decided by the ordinary rules of equity and good conscience. In answer to thsi it may be remarked that the courts of this country have invariably applied in practice, the Mohammedan Law to a variety of cases other than those coming under the denomination of inheritance marriage, caste and even if immemorial and recognized practice did not legalize the action of the Courts, it cannot be said that when this court administers to Mohammedans their own law, they do otherwise than administer justice according to equity and good conscience."
The provisions of 21 Gio. II, cap 71 section 17, have been re-enunciated in later statutes and are now substantially embodied in Act XII of 1887 and "Constitute one of the most important guarantees given to the people of India by the British rule." The tendency of the Courts has been to restrict eh operation of the personal laws, in the main to Hindus and Mahommedans.
where in the personal laws, there were differences between the parties, the law of the defendant was applicable. Similarly, the Regulating Act of 1773, the East India Company Act, 1780 the charter of 1781 the East India Government which shows, that Islamic Law founded recognition in British Courts in India. The original rules of Islamic Law on wakf were also retained with the passing of the Musalman Wakf validating Act, 1937 was passed by the British Government in 1937. This Act abrogated the custom and restored to Muslims their own personal law in almost all matters.
In criminal matters also, the Islamic Law governed the Indian population irrespective of religion of the offender. It was decided that Islamic criminal law would remain in force until the Company's Government thought fit to order otherwise for a longer time till the year 1962 when the Indian Penal Code and the Code of Criminal Procedure were passed.
As far as the laws of evidence was concerned Islamic Law of evidence was in vogue till the passing of the Evidence Act 1872.
Hence, Islamic Law ( specially criminal law) as modified from time to time by the regulations of the East India Company governed not jonly Muslims but all the Indians, Consequently today in Independent India, the Islamic Law of Marriage, Divorce, Dower, Legitimacy, Guardianship Gifts, Wakfs,Wills and inheritance is applied to Muslims everywhere din India. In the words of schacht.
"It has had, during the two centuries of British rule, the effect of keeping the law stationary and static except for two broadening influences legislation and the healthy introduction of the principles of English equity. Thus the Mohammadan Law, as received in India, is the Shariat, modified by the principles of English common law and equity, in the varying social and cultural conditions of India and during the centuries it has tended to become a distinct system somewhat at variance with its original sources."
In all those spheres, where the rule of law is the Islamic Law, it has been found in the recognised legal i.e., the Hedaya and the Fatawa-i-Alamgiri which have acquired authority in India. In Zohoraddeen Sirdar v Baharoollah Sirdar those learned Judges expressed themselves in the following terms:-
"It is contended by the pleaders for the plaintiff, special respondent that the Mohammedan Law is not applicable to contract of the nature before the Court, that according to Section 15, Regulation IV of 1793 it is only on questions of inheritance, marriage and caste that the court is called upon to decide in conformity to the Mohammedan Law, and that the present matter before the court, not being of the nature above expressed is to be decided by the ordinary rules of equity and good conscience. In answer to thsi it may be remarked that the courts of this country have invariably applied in practice, the Mohammedan Law to a variety of cases other than those coming under the denomination of inheritance marriage, caste and even if immemorial and recognized practice did not legalize the action of the Courts, it cannot be said that when this court administers to Mohammedans their own law, they do otherwise than administer justice according to equity and good conscience."
The provisions of 21 Gio. II, cap 71 section 17, have been re-enunciated in later statutes and are now substantially embodied in Act XII of 1887 and "Constitute one of the most important guarantees given to the people of India by the British rule." The tendency of the Courts has been to restrict eh operation of the personal laws, in the main to Hindus and Mahommedans.
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