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)

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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. 

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DISTINGUISHED FEATURES OF MUSLIM LAW

The concept of Islamic Law or Muslim Law has been embedded with the following distinguished features:-

(1) Law based on religion- The Divine Law.

Like, Hindus, Islamic Law is also of divine origin. In Govind  Doyal v. Inayatulla, Justice Mahmood remarked:

"It is to be remembered that Hindu and Mohammedan Law are so intimately connected with religion that they cannot readily be dissevered from it"

Hindu Law is based on Vedas i.e., Sruti which denotes ' that which is heard' and Smriti which means' that which is remembered by the sages' Similarly, Muslim Law is based on Islam, religion taught by the Prophet Mohammad that is why the law related to Muslim has 'been denominated with reference to the religion as well as its founder e.g. Islamic Law, Muslim Law or Mohammadan Law.

The Basic principles of Islam are as under:-

1. Belief in the existence of God- The dogma of 'Imam'
2. Belief in the Unity of God-The dogma of 'Tawhid'
3. Belief in Mohammad as the Prophet-The dogma of 'result'
4. Belief in Akhirat-The dogma of  'Qayamat'
5. Belief in Brotherhood- The dogma of 'equality'

From these fundamental tenets of Islam, flows the Islamic notion of law. According to Islam, God ahs the primary authority to enact laws. He promulgates his laws through  Prophets. Messengers or Rasuls, such Rasul was the Prophet Mohammad. There are direct and indirect revelations of God (contained in the Quran and the Sunna respectively ) through the Prophet in matters of religion and laws. So, in Islam nobody other than the God, can have legislative power, God is the sovereign and next to God, the sovereign powers aside in the people. 

Joseph Schacht remarsk:

" The sacred law of Islam is an all embracing body of religious duties, the totality of Allah's Commands that regulate the life of every Muslim in all its aspects; it comprises on an equal footing, ordinance regarding worship and ritual, as well as political and (in the narrow sense) legal rules."

(2) Law based on shariat

Shariah or Shariat as is pronounced in India, means commands ( Ahkam) of God, a code governing all human actions and beliefs. For all effects of individual and collective actions of humans, causes are found in Shariat. All moral, legal ethical, theological philosophical and political problems are dealt in Shariat and as such solutions of any problem are religious in nature. 

The basic  source of Shariat is Quran which is supplemented by Sunna and Ahadees. The followers must believe these to be of divine origin. Quran and Islam, though, don not claim these guiding principles to have been revealed for the first time. Quran itself recognises previous Shariats right from Adam to Prophet of Islam. Quran says:

" The same religion we have  established for you as that which we had enjoined to Adam, Noah, Abraham, Ismail, Issac, Jacob. The  Tribes, Moses, Job, Jonah, Aaran, Solomon, David etc. Ye should remain steadfast in religion and make no divisions therein".

(Quran : Sura 4-A 163;S 23-A23; S42-A13 )

"....................To each among you have We prescribed a law and open way."

(Quran-Surra 41-a 43)

"None of our revelations do we abrogate or cause to be forgotten but we substitue something better or similar"

( Quran-Sura 2-A106.)

Some of the descriptions in Quran differ from that of Torah and Bible. These differences are due to man-made alterations in Torah which were incorporated in Bible as it's part ( Old Testament) by "Reformers"  between 1st and 3rd century B.C. In Bible:- "Particulars books as Esther, or Daniel or Ecclesiastes were only added in the collection subsequently ". (Ryles cannon of Old Testament). Moses had instructed his people to follow laws and laws relating to marriage etc. etc. ( Shariat-e-Moosa). Torah was revealed around 1300 B.C. and the text of Old Testament in present form was completed in 2nd  century A.D. "According to Jewish tradition there are eighteen passages in which the older scribes deliberately altered the text on the ground that the language employed was either irrelevant or liable to misconception."

Thomas  Hobbes started critical studies of Bible and observed, "who were the original writers of the several books of Holy Scripture has not been made evident by any sufficient testimony or other history".

Jesus knew about all these alterations in Sharia-e-Moosa and had to observe in New Testament:

"...Pharisees sit in Moses seat: all, therefore, whatsoever they did you observe, that observe and do; but don not ye alter their works; for they say and do not."

(New Testament-(Mathew) Chap 23-lines 2 and 3) 

Above discussion would show two important points-firstly  Quran and Islam has prescribed a Shariat which was also prescribed by previous Prophets but with some 'reforms', and secondly that previous Shariats could not be fully understood from their Scriptures because they had been subjected to corruptions and man-made alterations. On the contrary there is not an iota of evidence that Quran was subjected to such a process, therefore Quranic text is pure and uncorrupted.

Thus Pre-Isamic customs and usages in Arabia could not be attributed strictly and necessarily to be derived from those previous original shariats but may have independent origin. It is also certain that principles of old Shriats have been incorporated in Islamic Shariat.

It is powerfully argued that Roman, Greek jor pre Islamic customs and usages ave been 'adopted' Islam or Prophet, thus rules of Muslim Law must be understood in this light."None of our revelations...."(Sura 2-A106 Supra) is idnication of Divine intention to incorporate those principles in every subsequent Shariat. As Quran is the last of them all, the principles enshrined therein should be taken to be a standard.

Islamic Shariat devised two sets of basic principles. First set is called Usul-e-Deen and the second Furu-e-Deen. The first is related to belief and the second set governs general actions and obligations.The literal meaning of the term 'Shariat' is 'a read to the watering place, the path to be followed. In technical terms, it denotes the conon law of Islam, the totality of Allah's commandments ( Hukm). It is a divine revelation. The 'Shariat' is a code of duties and obligations of men, giving secondary place to the rights of men. According to the 'Shariat' religious commandment ( Hukm) of Allah are of five types:

1. Faraz- Five daily prayers ( Namaz) - One must do strictly.
2. Haram- Drinking wine- One must forbade strictly
3. Mandub/Additional Prayers on the id- One may do.
4. Makrum- Eating certain kinds of fist prohibited-One may refrain from.
5. Jaiz or Mubah-Thousands of Jaiz things, such as travelling by air-Shariat is indifferent towards it. 

The Islamic Law is based on above given five morals or Akham of Allah. Sunni Muslims profess three principles as Usul-e-Deen namely (i) Wahdat ( Singular entity of God) (ii) Risalat ( Prophethood-God sent Prphets numbering one lakh and twenty four thousand, last being Prophet of Islam) (iii)  Qayamat ( Doomsday)-A day of judgment when every individual would be rewarded or punished for waht he had done in this world. 

Shia Muslims consider two more principles in addition to above three. At number two ( after Wahdat) they place Adalat i.e., that God is just; and before the last ( Qayamat)), they place Imamat-they believe that after Prophet, God had appointed Imams. For this reason sometimes they are called "twelve".

The next step is action ( Amal) the paralled word used in Hindu religion is Karma. These actions are defined under Furu-e-Deen and  they are-(1) Namaz ( Prayers), (2) Roza ( fasting) , (3) haj ( Pilgrimage) (4) Zakat ( departing a certain amount from individual's income) and (5) Jihad ( holy war for the cause of God), Shias include Khums also in the list ( another portion of income and savings, besideds Zakat which is trictly to be given to Imams). As in present itmes there is no one to receive this amount, hence jurists have deferred this item.

These two sets of principles are foundation of Islamic Shariat. Unless one believes ( Eeman) in first set of principles, he cannot come in Islamic fold. Besides these jprinciples, all actions of human are included in Islamic Shariat, whether religious, civil or criminal. Different rules are framed for ascertaining Halal and Haram or good and evil. These may be actions concerning material things. Marriage with a foster sister is Haram as is pork or wine. In between these two extremes there is a middle position called Mustahab and Makruh. Mustahab is related generally to actions and Makruh to a material thing, it is advisable to do things which are Mustahab because they are not Farz or Wajib ( compulsory as daily prayer)  but if one fails to do such acts he commits no sin or wrong. Again, it was advisable to refrain from taking Makruhs things in normal circumstances such as horse meat or certain kinds of fist. ALl acts and things which are not Haram or Makruh are Jaiz. Then there is concept of Pak and Najis. The Islamic Shariat in this way controls moral, ethical, social, individual, religious, legal and even political life of a believer and this control is total. Rules of Islamic jurisprudence are part of Shariat, which are divided in civil and criminal departments like any other law. 

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CONCEPT OF MUSLIM LAW

Mohammedan Law in India means " that portion of Islamic Civil Law ehich is applied to Muslims as a personal Law" ( Fyzee). It consists of the injunctions of Quran  of the legislation introduced by the 'practice' of the Prophet ( Sunna) of the common opinion of the jurists (Ijma), of the analogical deductions of these three ( Qiyas)  and of the Pre-Islamic customs not abrogated by the Prophet Mohammad. Further, it has been supplemented by the juristic preference ( Istihasan), public policy (Istislah), precedents ( Taqlid) and independent interpretation ( Ijtihad). It has been further supplemented and modified by State Legislation and modern judicial precedents of the High Courts and the Supreme Court of India and also of the Privy council.

Muslim conception of Law

There are mainly two different conceptions of law, one of divine origin as is the case with the Hindu Law and Islamic Law and another man-made, Muslim Law  is founded upon revelation and is blended with religion. There is in Islam, a doctrine of 'Certitude'(ilm al-Yaqin)  in the matter of good and evil. Human beings due to their weakness cannot understand what is good and evil, unless in the matter they are guided by the inspired Prophet. What is morally beautiful, that must be done, and what is morally ugly must not be done. That is law of Shariat and nothing else can be law. This is the view of Muslim jurists. In the words of Abdul Rahim-Law ( Hukum) is this which is established by communication from God with reference to man's act expressive either of demand or indifference on his part or being merely declaratory.  Shariat is law in the wider sense. Law proper , in Islam is Fiqh and it differs from Shariat. Fiqh literally means intelligence and covers the whole science of jurisprudence. It implies the independent exercise off intelligence as regards points of law in the absence of their solution by the Quran or Hadis. Fiqh has been defined by the Muslim jurists as the knowledge of on's right and obligation derived from Quran or Hadis or deduced therefrom or about which the learned have agreed. 

Islamic conception of Law, Shriat and Fiqh is connected with religion. Thus, the postulates of Muslim jurisprudence are  as follows:

1. The first postulate is Iman or faith in God and acknowledgment of  His authority over our actions.
2. The second is the belief in the Prophethood of Mohammad.

God alone is the legislator in Islam and Quran is the Holy law book. Next to God, sovereign power is in people. It is therefore, not possible to draw an sharp line of demarcation between law and religion. In the words of Mr. Justice Mahmood, " Hindu and Mohammedan Law are so intimately connected with religion that they cannot readily by dissevered from it."

Who is Mulsim ?

According to Aghnides a Muslim is (i) one who believes in the mission of Mohammad as Prophet, or (ii)  one, who says that there is one God and that Mohammad is "His Prophet" or (iii) open who believes in number of other essential beliefs in God and Mohammed. Amir Ali says ," Any person who professes the religion of Islam in other words, accepts the unity of God and the prophetic character of Mohammad is a Muslim." This view has been followed in Narautakath v Parakhal, God and Mohammad is the Prophet and any belief in excess of this is at least for law Courts a redundancy.

It is not necessary that a Mohammedan be so by birth. In fact Islam depends on belief. A man can be Mohammedan even by profession or by conversion. According to Shariat if one of the parents is Mohammedan, the child will be Mohammedan. However in India it was held in Skinner v. Orde, that the child is presumed to belong to the religion of the father. A person born a Mohammedan continues to be Mohammedan until be renounces Islam.

Five Duties of Muslim

There are also five duties laid down for the Muslims by the Prophet. They are ordered to follow them:

• Kalma:- It is the duty of every Muslim to recite Kalma. Kalma implies certain Hymns proclaiming the unity of God accepting Mohammad as Prophet.
• Namaz:- Every Muslim must say prayers ( Namaz) five times a day and on every Friday he must offer his afternoon prayer at the Mosque.
• Zakat:- It is the duty of every Muslim to offer Zakat or charity to the poor and needy.
• Ramzan:- The most pious duty of every Muslim is to observe fasts in the holy month of 'Ramzan'.
• Haj:- Every Muslim should go for Haj or pilgrimage to Mecca at least once in his/her lifetime.

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QURAN THE FOUNDATION OF MOHAMMEDAN LAW

 Mohammedan Law is founded upon " Al-QURAN"  which is believed by the orthodox Musalmans to have existed form eternity, subsisting in the very essence of God. The Prophet Mohammad himself declared that it was revealed to him by the angel "Gabriel" in various portions and at different times. Its texts are held by Mohammedans to be decisive as being the words of God ( Kalam-Ullah) transmitted to man through the Prophet. Besides inculcating religion and theology, the ' Quran' contains passages which are applicable to jurisprudence, which from the principal basis of the 'Sharaa'

The Quran is Al-furqan, i.e., one showing truth from falsehood and right from wrong. It is in the form of a series of communications addressed by God to the Prophet. The communications were declared to the people on a great number of different occasion in the last twenty-three years of the Prophet's life, and dealt with a great variety of problems, one after another, as they arose. But whenever the Quran was silent on any particular matter, guidance was taken form the Sunnat i.e., to whatever the Prophet had done, said or tacitly allowed; and also to Hadis i.e., to the Prophet's sayings or the narration of what was said or done by him or was in silence upheld by him. All these are considered by the Mohammedans to be supplement to the Quran and are of the same rank.

Ayaamn-il-Jahilyya - This law had no existence before Mohammad became a Prophet and there was no general law of the races inhibiting the Arabian Peninsula, each tribe was governed by its own laws, and matters in dispute were either referred to the chief, or society in which reforms were introduced by Islam to bring about a complete transformation of the society. The Arabs themselves were so much conscious of this change that they began to refer to the period before Mohammed as the Ayyam-il-Jahilyya, i.e., the period of ignorance or rather wildness or savagery in contrast to the moral reasonableness of a civilized man. It was the days of superstition and idolatry; the position of women was not much better than that of animals; they had no legal rites; in youth they were the goods and chattels of the father; after marriage the husband became their lord and master. Polygamy was universal, divorce was easy and female infanticide was common. 

After the Death of Prophet Mohammad, various competitors came forward claiming to succeed to the Caliphate and divided the people into rival and discordant fractions. But notwithstanding this, the Sunnat as well as Hadis was preserved from hand to hand by authorised persons, and applied to many questions relating to things, both temporal and spiritual touched upon in Quran. After Mohammad's death the Sunnat and Hadis though not recorded were cited by his surviving companions in order to decide occasional disputes and to restrain actions which the Prophet prohibited and thus in the process of time they became the standard of judicial determination. 

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ISLAMIC LAW IN INDIA UNDER BRITISH RULE

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."

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.

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ISLAMIC LAW IN INDIA UNDER MUSLIM RULE

In 712 A.D.  the Arabs of Mesopotamia conquered Sind. They belonged to the Hanafi School, Mahmood Ghaznavi a Turk was also a  sunni of teh Hanafi School, so the Kazis appointed by all the Muslim rulers administered the Hanafi law by the time of Muslim conquest of India. Hanbalism and Shafeism had ceased to be important. The Shia School was also struggling for its existence in India. The contact of the Emperors of Mughal dynasty ( Babar) with the Persian rulers who were Shias and the existence of some kingdoms in the Deccan with Shia rulers, helped to established Shia Law which was recognised by the Nawabs of Oudh, through Akbar the Mughal Emperor re-established the orthodox ( Sunni) Islam as the state religion. Hence the real struggle was between the Hanafis and the Shias.

Along with the penetration of Islam into India, the Islamic Law was also transplanted. The rulers laid down for the treatment of Zimmis ( non- Muslim subjects or Hindu could not be applied in their entirely ) The Zakat  ( contribution of a portion of property or alms was due from a Muslim and to the capitation tax (Jizya) was inseparable from the status of a non Muslim ( Zimmi or Hindu) Tax on pilgrimages was the furthest stretch of systematic, interference with Hindu worship. The non-Muslims were  continued to be regulated by their own sacred laws in matters of marriage, adoption and inheritance. But the Muslim rulers kept in their own hands the administration of the Criminal Law. The law of contract was also not uniform. The land system was also regulated on the principles based on Islamic Law, and the laws relating to lands were applied to all land-holders equally irrespective of religion.
Hence, wherever there was a conflict between the Islamic Law and the sacred laws of the Hindus the former prevailed. But it was only during the British rule, that the Islamic Law got recognition in the real sense. 

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