PERSONAL LAW OF INDIAN MUSLIMS

The personal law of Muslims is based on Islam. Islam had its origin in Arabia and from whence it was transplanted into India. In Arabia, the Prophet Hajrat Mohammad, himself an Arab, Promulgated Islam and laid down the foundation of Islamic Law. The main ground work of Islamic legal system was nourished and developed by Arab-jurists and the real fountain head of Islamic jurisprudence is to be found in pre-Islamic Arabian Customs and usages of 7th century of the Christianera. The impress of social history of Arabia on Islamic Law can be clearly found. The Islamic jurisprudence in fact, includes many rules and clearly found. The Islamic jurisprudence in fact, includes many rules and usages of pre-Islamic customary law of Arabia, so before going to analyse the origin and development of Islamic Jurisprudence, it is very important to study pre-Islamic Arabian Society. Its customs and usages. In  Moonshee Buzloor Ruheem v Shumsoon-niss Begum, the Judicial committee of the Privy Council dealing with certain remarks of the Judges of the Sudder Court of Calcutta, refusing to follow the Mahommadan Law in that case, made the following observations-

" There Lordships most emphatically dissent from that conclusion. It is  in their opinion, opposed to the whole policy of the law in British India and particularly to the enactment already referred to ( Regulation IV of 1793, Section 15) which directs, that in suits regarding marriage and caste and all religious usages and institutions, the Mohammadan Laws with respect to Mohammedans and the Hindu Laws with regard to Hindus are to be considered as the general rules by which Judges are to form their decision and they can conceive nothing more likely to give just alarm to the Mohammadan community than to learn by a Judicial decision that their law, the application of which has been justly secured to them is to be overridden upon a question which so materially concerns their domestic relations "

In India, the law is in the main personal. This is not only adds to the difficulty of legislation but considerably enhances the risk of failure in the administration of justice. In the case of the Mohammedan Law especially clothed as it is for the most part in the garb of an unfamiliar language, it is often extremely difficult to ascertain and apply its principles. And it is apparently on this account that often a certain reluctance is evinced to give effect to the rules of the Mussalman Law and English Law and sometimes  even Hindu Law are invoked either to cut down or to explain away the meaning of the Mohammadan Law. 

Codification of Personal Law and Uniform Civil Code

In Ahemdabad Women Action Group(AWAG) v Union of India Hon'ble Supreme Court expressed that question regarding the desirability of enacting a uniform Civil Code did not directly arise in that case. But, in his separate judgment, R.M. Sahai J. observed that desirability of Uniform Civil Code can hardly be doubted. But, it can concretize only when social climate is properly built up by elite of the society, Statesmen, amongst the Leaders who instead of gaining personal mileage rise above and awaken the masses to accept the change. In Maharish Avdesh v Union of India the Supreme Court had declined to issue a writ, directing the Union of India to consider the question of enacting a common Civil Code for all citizens of India holding that issue raised being matter of police it was for the Legislature to take effective steps as the Court cannot legislate.

In Saria Mudgal (Smt.) President, Kalyani v. Union of India, Kuldeep Sen J. requested the Government of India through Prime Minister of the Country to have a fesh look of Article 44 of the Constitution of India and endeavour toe secure for the citizens of Uniform Civil Code throughout territory of India. On the question of the Uniform Civil Code R.M. Sahai J. Constituting the Bench suggested some measures which could be undertaken by the Government to check the abuse of religion by unscrupulous persons who under the cloak of conversion were found to be otherwise guilty of polygamy. The Government was advised to entrust the responsibility to the Law Commission which may consult the Minority Commission to examine the matter and bring out a comprehensive legislation in keeping with the modern day concept of human rights for woman.