THE MUSLIM PERSONAL LAW ( SHARIAT) APPLICATION ACT, 1937

( Act No. 26 of 1937)

An act to make provision for the application of the Muslim Personal Law (Shariat) to Muslims

Whereas it is expedient to make provision for the application of the Muslim Personal Law (Shariat) to Muslims; It is hereby enacted as follows:

1. Short title and extent- 

(1) This Act may be called the Muslim Personal Law (Shariat) Application Act, 1937.

(2) It extends to the whole of India except [the territories which immediately before the 1st November 1956 were comprised in Part B States].

2. Application of Personal Law to Muslims-

Notwithstanding any customs or usage to the contrary in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including peronal 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 mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat) 

Effect of provisions-

What the Shariat Act however prohibits or repeals is the custom in respect of the matters enumerated in Section 2 of the said Act and not anything beyond it. It only excludes a custom contrary to the Muslim Law of succession etc., but there is nothing in it to indicated that it also has the effect of overriding any law to the contrary. The rule of impartiality and primogeniture are law with in the meaning of Section 292 on the Government of India Act, 1935 and Article 372 of the Constitution of India. Consequently this can be negated only by a specific legislation repealing the same Section 292 applied not only to statutory enactments then in force but to all laws including personal laws, customary laws and common laws. The rule of primogeniture would continue to be in force until common laws. The rule of primogeniture would continue to be in force until abrogated by an Act of Parliament. The said section thus abrogates such customs relating to succession which are inconsistent with the Muslim Personal Law. 

Welfare of the child-

It is not correct to say that there is hard and fast rule under the Mohammedan Law that the mother becomes disqualified for custody of her minor child the moment she remarried a stranger regardless of the wishes and welfare of the minor child. It is also to be borne in mind that a growing girl child has her own natural problems which she will not be able to freely take with the father. She will always confide with the mother to be guided. 

validity of the gift-

The gift is perfectly valid and the view taken by the Trial Court was perfectly justified and that of eh Lower Appellate Court seems to be erroneous and contrary to the real intention of the donor.

The rule of impartibility and primogeniture-

What the Shariat Act, however prohibits or repeals is the custom in respect of the matters enumerated in Section 2 of the said Act and not anything beyond it. it only excludes a custom contrary to the Muslim Law of succession etc,. but there is nothing in it to indicate that it also has the effect of overriding any law to the contrary. In this context the rule of impartibility and primogeniture ae law within the meaning of Section 292 of the Government of India Act, 1935 and Article 372 of the Constitution of India. Consequently this can be negated only by a specific legislation repealing the same.

Suit-Maintainability of-

The defendant does not dispute the fact that in the village there is a practice prevalent for several years to have the marriage registered by the Jamath and that a marriage Register is being kept, maintained and marriages are registered. Therefore, the allegation that the defendant failed to respond to the demand for registration and thereby violated the customary right, was a sufficient cause of action. Therefore, the suit was maintainable. 

Valid marriage-Requirement of-

To constitue a valid marriage in Mohammedan Law it doe not require to in gist on any type of writing or any religious ceremony. Even Mullah is not needed. The presence of Kazi at the time of contract between the parties can be dispensed with. 

Wakf of public nature-

The offerings of prayers are not confined to prayers at the tombs of the guarantor or his family member. The grant was by the head of the order and related to prayers as a number of tombs in the graveyard, it is, therefore, clear that a Wakf of a public nature was created.

Wakf property-

Will become an accretion to wakf property and bear same character as others properties in the same compound.

Dismissal of the suit-

The plaintiff had failed to prove any right to the relief of partition accounting and mesne profits in the suit and the same was dismissed.

3. Power to make a declaration-

(1) Any person who satisfies the prescribed authority-

• that he is a Muslim, and
• that he is competent to contract withing the meaning of Section 11 of the Indian Contract Act, 1872,(9 of 1872), and
• that he is a resident of [the territories to which this Act extends]

may by declaration in the prescribed form and filed before the prescribed authority declare that he desires to obtain the benefit of [the provision of this section ] and thereafter the provisions of Section 2 shall apply to the declarant and all his minor children and their descendants as if in addition to the matters enumerated therein adoption, wills and legacies were also specified.

(2) Where the prescribed authority refuses to accept a declaration under sub-section (1) the person desiring to make the same may appeal to such officer as the State Government may, by general or special order, appoint in this behalf, and such officer may, if he is satisfied that appellant is entitled to make the declaration order, the prescribed authority to accept the same.

4. Rule making power-

(1) The State Government may make rules to carry into effect the purposes of this Act.

(2) In particular and without prejudice for all or any of the following matters, namely:

(a) for prescribing the authority before whom and the form in which declarations under this Act shall be made.

(b) for prescribing the fees to be paid for the filing of declaration and for the attendance at private residences of any person in the discharge of hi duties under this Act; and for prescribing the times at which such fees shall be payable and the manner in which they shall be levied.  

(3) Rules made under the provisions of this section shall be published in the Official Gazette and shall thereupon have effect as if enacted in this Act.
5. Dissolution of marriages by Court in certain circumstance-
Rep by the Dissolution of Muslim Marriage Act, 1939+ (8 of 1939) Section 6
6. Repeals-
[The undermentioned provisions] of the Acts and Regulation mentioned below shall be repealed insofar as they are inconsistent with the provisions of this Act, namely:

(1) Section 22 of the Bombay Regualation, IV of 1827

(2) Section 16 of the Madras Civil Courts Act, 1873 (3 of 1873)

(3) Section 3 of the Oudh Laws Act, 1876 (18 fo 1876)

(4) Section 5 of the Punjab Laws Act. 1872(5 of 1872)
(5) Section 5 of the Central Provinces Laws Act 1875 (20 of 1875)
(6) Section 4 of the Ajmer Laws Regulation 1877 (Reg 3 of 1877)