Application of Muslim Personal Law in India (Shariat Application Act, 1937)

Indian courts apply Muslim personal law to Muslims only in some matters, not all. The legislative gateway through which they reach the Shariat is Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, which channels ten enumerated subjects to the rule of decision of the Muslim Personal Law (Shariat) and abrogates contrary custom. The Act is the architectural anchor of the entire Muslim Law notes series and the first statute every aspirant must know in detail.

The Act is short — six operative sections — but its reach is wide. Its drafting strategy is one of subject-listing rather than rule-restating: rather than codifying Muslim law, Parliament identified the matters in which the Shariat would govern and left the substantive rules of the Shariat to the classical jurisprudence and to the schools. Source-grounding and school-identification therefore continue to do the doctrinal work; the 1937 Act simply tells the court that, for these subjects, the Shariat is the rule.

The pre-1937 position

Before the 1937 Act, Muslims in India were governed by a patchwork. Different statutes applied in different provinces. The Bengal, Agra and Assam Civil Courts Act, 1887, governed succession, inheritance, marriage and religious institutions in Bengal, Bihar, Agra and Assam. The Madras Civil Courts Act, 1873, governed the Mufassal of Madras. The Bombay Regulation IV of 1827 governed the Mufassal of Bombay. The Punjab Laws Act, 1872, governed East Punjab. The Central Provinces Laws Act, 1875, governed Madhya Pradesh. The Oudh Laws Act, 1876, governed Oudh. The Ajmer Laws Regulation, 1877, governed Ajmer-Merwara.

Each of these enactments allowed a litigant to plead and prove custom in derogation of Mahomedan law. The Punjab Laws Act, for example, expressly put custom in the forefront, with Mahomedan law applying only where the custom did not. The Privy Council in Vaishno Ditto v. Rameshri recognised that the Legislature "intended to recognise the fact that in this part of India inheritance and other matters mentioned in the section are largely regulated by a variety of customs which depart from the ordinary rules of Hindu and Mahomedan law". The result was that customary agnatic succession excluded Muslim females, customary practice in Punjab departed from iddat rules, and the Khojas, Cutchi Memons, Halai Memons and Sunni Bohras of Western India followed Hindu customary inheritance rules notwithstanding their Muslim faith.

The Statement of Objects and Reasons accompanying the 1937 Bill explained the corrective purpose. "For several years it has been the cherished desire of the Muslims of British India that Customary Law should in no case take the place of Muslim Personal Law" — and "the status of Muslim women under the so-called Customary Law is simply disgraceful". The grievance was that customary agnatic succession excluded Muslim women from inheritance and that customary law was uncertain and frequently changing. The corrective was a statute that would abrogate custom in the matters of personal law and channel the courts to the Shariat instead. The detail of the underlying rules sits in the chapters on Sunni inheritance and Shia inheritance.

Section 2 — the channelling provision

Section 2 of the 1937 Act is the engine room. It opens with a non-obstante clause — "Notwithstanding any custom or usage to the contrary" — and then names ten subjects in which, where the parties are Muslims, the rule of decision shall be the Muslim Personal Law (Shariat). The ten subjects are: 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 mubarat; maintenance; dower; guardianship; gifts; trusts and trust properties; and wakfs (other than charities and charitable institutions and charitable and religious endowments).

The drafting is layered. The non-obstante clause does the work of abrogating custom. The phrase "in all questions … regarding" the listed subjects extends the Act's reach to every doctrinal sub-question within each subject. The phrase "where the parties are Muslims" sets the personal-law scope: the Act applies where all parties to the relevant question are Muslims, not where one is and the other is not. The phrase "the rule of decision … shall be the Muslim Personal Law (Shariat)" channels the court to the Shariat without identifying it further; the source-hierarchy and the school-identification are left to the case law.

The ten subjects are not exhaustive of Muslim personal law. They are exhaustive of the matters in which the 1937 Act mandates Shariat as the rule of decision. Other matters — for example, adoption, wills, legacies, pre-emption — are not in the section 2 list and are governed by separate provisions of the 1937 Act, by other statutes, or by customary or general law as the case may be.

The agricultural-land exclusion

The most important exception in section 2 is for questions relating to agricultural land. The exception is so expressed as to cut down the effect of all the subsequent words in the section. The result is that even if a question concerns gifts, dower, succession or any of the other listed subjects, if the question relates to agricultural land the 1937 Act does not channel the court to the Shariat. Customary law, where it had previously applied to such land, continues to govern.

The agricultural-land exception was constitutionally driven. At the time of the 1937 Act, agricultural land was within the legislative competence of the Provincial (now State) legislatures, while the Central Legislature could legislate only for matters within its competence. Some States have since enacted their own legislation extending the Shariat to agricultural land. Tamil Nadu, by Act 18 of 1949, made the Shariat Act applicable to agricultural land in the State; the Andhra Pradesh and Kerala State amendments to section 2 follow a similar pattern. The Tamil Nadu amendment was held in Ayisumma v. Mayomoothy Umma to entitle the widow of a member of a Tarwad to inherit under Muslim law the share of her husband in the Tarwad property, displacing the matrilineal Marumakhatayam custom that had previously applied to Moplas in southern India.

Charitable and religious endowments excluded

The second exception in section 2 is for charities, charitable institutions and charitable and religious endowments. The exclusion was expressly phrased into the wakfs entry: "wakfs (other than charities and charitable institutions and charitable and religious endowments)". The reason is the same as for agricultural land — these subjects fall under the legislative competence of the State, not the Centre. State legislation continues to govern public wakfs and religious endowments. The Wakf Act, 1995, supplies the Centre's later legislative intervention.

For private and family wakfs, however, the 1937 Act does channel the court to the Shariat. The effect is that a wakf-alal-aulad (family wakf) is governed by Mahomedan law on creation, mutawalli appointment, succession of mutawalliship and beneficiary rights — subject to the Mussalman Wakf Validating Act, 1913, the Mussalman Wakf Validating Act, 1930, and the Wakf Act, 1995. The interplay of these Central statutes with the 1937 Act and the State legislation on charitable endowments is a recurring source of litigation in the waqf field.

Section 3 — the optional extension

Section 3 of the 1937 Act adds a different mechanism. Adoption, wills and legacies are not in the section 2 list — they remain governed by custom or by general law unless the Muslim takes a positive step. Section 3(1) allows any person who satisfies the prescribed authority that he is a Muslim, that he is competent to contract within the meaning of section 11 of the Indian Contract Act, 1872, and that he is a resident of the territories to which the Act extends, to make a declaration in the prescribed form that he desires to obtain the benefit of the section. Once the declaration is made, section 2 applies to the declarant and to all his minor children and their descendants as if adoption, wills and legacies were also specified.

The classical learning is that section 2 is "coercive" — it operates by force of law on every Muslim litigant — while section 3 is "persuasive", in that it operates only on those who choose to invoke it. The persuasive mechanism is important historically because Khojas of Bombay had a customary power to dispose of the whole of their property by will, departing from the Mahomedan one-third rule on bequests. A Khoja who wishes to be subject to the Mahomedan one-third rule can make a section 3 declaration; otherwise the customary rule survives. Cutchi Memons were similarly placed until the Cutchi Memons Act, 1938, made them subject to Mahomedan law in all matters of succession and inheritance.

The Lahore High Court in Ata Mohammad v. Mohammad Shafi held that section 3 declarations are retrospective in their operation. In Sardar Bibi v. Haq Nawaz Khan, however, an attempt to give up custom in favour of Mahomedan law without a section 3 declaration was held to fail — the abrogation of custom in favour of Mahomedan law may be inferred from a continuous course of conduct, but an individual cannot by a mere declaration abolish a long-established custom outside the statutory route.

Section 5 (repealed) and the Dissolution of Muslim Marriages Act, 1939

Section 5 of the 1937 Act, as originally enacted, gave the District Judge a special jurisdiction to dissolve a Muslim marriage on any ground recognised by Muslim Personal Law. It overruled the Calcutta High Court's view in Burhan Mirda v. Mt. Khodeja Bibi that a suit for dissolution should be filed before the lowest competent court, and confirmed that such suits should be filed in the District Court. Section 5 was repealed by section 6 of the Dissolution of Muslim Marriages Act, 1939. After the repeal, suits for dissolution of marriage at the wife's instance are governed exclusively by the 1939 Act, and the procedural and jurisdictional questions revert to the Civil Procedure Code, 1908. For the substantive grounds, see the chapter on divorce by wife under the 1939 Act.

Section 6 — the repeals

Section 6 of the 1937 Act repeals — only sub modo, that is, only in so far as they are inconsistent with the 1937 Act — the relevant provisions of the older provincial statutes. Specifically: section 26 of the Bombay Regulation IV of 1827; section 16 of the Madras Civil Courts Act, 1873; section 3 of the Oudh Laws Act, 1876; section 5 of the Punjab Laws Act, 1872; section 5 of the Central Provinces Laws Act, 1875; and section 4 of the Ajmer Laws Regulation, 1877.

The sub modo phrasing matters. The older statutes are not repealed in their entirety; they continue to operate where the 1937 Act does not. So in agricultural land, charities and religious endowments — the matters excluded from the 1937 Act — the older provincial statutes continue to govern. In the matters covered by section 2 of the 1937 Act, the older statutes are repealed only to the extent of inconsistency with the 1937 Act; they continue to govern non-Muslim litigants and continue to govern those subjects in section 2 only where the conflict with the 1937 Act has been worked out.

What is not covered — limits of the Act

The 1937 Act does not cover several important areas. It does not cover Muslim criminal law — Indian Muslims are governed by the Indian Penal Code, the Code of Criminal Procedure, the Indian Evidence Act and now their successor codes. It does not cover commercial transactions outside its enumerated subjects — Muslim contract law was largely superseded by the Indian Contract Act, 1872, exercised under the legislative power conferred by the India Councils Act, 1861. It does not cover pre-emption — the Mahomedan law of pre-emption, where applied, is applied not under the 1937 Act but as a rule of justice, equity and good conscience or under special State legislation (such as the Punjab Pre-emption Act, 1913, or its successors).

The 1937 Act also does not cover questions of legitimacy of children. Section 112 of the Indian Evidence Act, 1872, supplies a general presumption of legitimacy for a child born during marriage; that presumption operates regardless of personal law. The Madras case law has held that the question whether a child is legitimate cannot be taken to be a part of the law of inheritance or succession, so the section 2 channelling does not extend to legitimacy questions. The presumption under section 112 of the Evidence Act, in this view, supersedes the Mahomedan law on legitimacy to the extent of inconsistency.

The Act in operation — practical sequence

When an Indian court is confronted with a Muslim personal-law question, the 1937 Act structures its analytical sequence. First, identify the subject. Is it a section 2 subject (succession, marriage, dissolution of marriage, dower, maintenance, guardianship, gifts, trusts, wakfs, special property of females)? If not, the 1937 Act does not channel the court to the Shariat directly — though section 3 may apply if the parties have made a declaration extending the Act to adoption, wills or legacies.

Second, identify the parties. Are they all Muslims? The Act applies only "where the parties are Muslims". A Muslim-non-Muslim transaction is not channelled to the Shariat by section 2; it falls back on the older statutes and on the principles of justice, equity and good conscience.

Third, identify the subject-matter limits. Is the question about agricultural land? If so, customary law continues to govern unless the State has extended the Shariat by State amendment. Is it about charities or religious endowments? If so, State legislation governs.

Fourth, channel to the Shariat. Once the Act applies, the court turns to the school of the parties — Sunni Hanafi (the default), Sunni Shafi'i (Kerala and Malabar), Sunni Maliki (rare in India), Sunni Hanbali (rare in India), or one of the Shia sub-schools (Ithna Ashari, Ismaili or Zaidi). For a fuller treatment, see the chapter on schools of Muslim law.

Presidency-town application — sections 112 and 223

The Presidency Towns of Calcutta, Madras and Bombay had their own historical regime. Section 223 of the Government of India Act, 1935, retained the law as it stood under section 112 of the Government of India Act, 1915, which directed the High Courts at Calcutta, Madras and Bombay, in their original jurisdiction, to decide questions of inheritance, succession, contracts and dealings between party and party according to the parties' personal law where both belonged to the same personal law, and according to the defendant's personal law where they belonged to different personal laws. The Presidency Small Causes Courts followed the same rule under the Presidency Small Cause Courts Act, 1882. Earlier provisions were contained in the East India Company Act, 1780, and the East India Act, 1797.

Within this Presidency-town regime, the Mahomedan law was applied to Muslims for inheritance, succession and contracts. The famous decision in Sarkies v. Prosonomyee illustrates the limits of the defendant-law rule — a Hindu purchaser of land subject to a Muslim widow's claim for dower could not resist that claim by pointing to the Hindu law, because his position was no better than a European purchaser would have been. The Mahomedan law of contract has been almost entirely superseded by the Indian Contract Act, 1872, but the personal-law parts of the Presidency-town regime survived to be subsumed under the 1937 Act for the matters covered by section 2.

Statutory overlays after 1937

The 1937 Act has not stood alone since 1937. Several Indian statutes layer on top of it and sometimes override the classical Shariat for the matters they cover. The Dissolution of Muslim Marriages Act, 1939, supplies the statutory grounds on which a Muslim wife may obtain a decree dissolving her marriage. The Muslim Women (Protection of Rights on Divorce) Act, 1986, regulates maintenance and other rights of Muslim women after divorce, and was constitutionally read down in Daniel Latifi v. Union of India. The Muslim Women (Protection of Rights on Marriage) Act, 2019, criminalises pronouncement of instant triple talaq following Shayara Bano v. Union of India. The Wakf Act, 1995, regulates wakfs and Wakf Boards.

The Muslim Women (Protection of Rights on Divorce) Act, 1986, regulates maintenance after divorce and was constitutionally read down in Daniel Latifi v. Union of India — see the chapter on the 1986 Act. Sect-specific community statutes also operate. The Cutchi Memons Act, 1938, subjects the Cutchi Memons to Mahomedan law in all matters of succession and inheritance, displacing the Hindu customary law that historically applied to them. The Bombay Prevention of Excommunication Act, 1949, curtails the power of community heads (such as the Aga Khan or the Daoodi Bohra Head Priest) to excommunicate dissenting members. The Kazis Act, 1880, regulates the appointment and functions of Kazis (registrars of marriages) and is a useful procedural statute when registration of nikah arises.

Constitutional framing

The Indian Supreme Court has read constitutional limits into the 1937 Act and the Shariat it channels. In Mohd. Ahmed Khan v. Shah Bano Begum the Court held that section 125 of the Code of Criminal Procedure supplies a maintenance remedy to a divorced Muslim woman, regardless of personal law. In Shayara Bano v. Union of India the Court held that talaq-e-biddat (instant triple talaq), though regarded as effective under classical Hanafi doctrine, was unconstitutional. The 2019 Act criminalised the practice. The constitutional layer therefore sits above the 1937 Act and above the Shariat it channels — a Shariat rule that is manifestly arbitrary or that violates Articles 14, 15, 21 or 25 may be set aside.

The chapter map of the rest of the syllabus, including the substantive rules on nikah essentials, on mahr, on talaq, on iddat, and on the sharer-residuary scheme, sits inside the architecture set up by the 1937 Act. Source identifies the rule. School identifies the variant. The 1937 Act tells the court when it must apply the rule.

One closing point on draftsmanship is worth registering. The 1937 Act was drafted at a time when uniformity within Indian Muslim personal law was the immediate political objective and the abrogation of agnatic customary inheritance was the immediate doctrinal objective. The drafting choice — to enumerate subjects rather than to codify rules — left intact the school structure of classical Muslim jurisprudence. Eight decades later, the architecture continues to work because its abstraction is high and its delegation of substantive rules to the schools is principled. Future legislative interventions, including the 2019 Act on triple talaq, layer on top of this architecture without disturbing its core: the Shariat is the rule of decision in the section 2 subjects, subject to the Constitution and to the statutes that overlay it.

The student who masters this Act has the skeleton of the entire subject. Every later chapter clothes that skeleton with the substantive doctrine that the schools and the case law supply.

Frequently asked questions

Which subjects does Section 2 of the Shariat Application Act, 1937, cover?

Section 2 covers ten subjects: intestate succession; special property of females (including personal property inherited or obtained under contract, gift or other provision of personal law); marriage; dissolution of marriage including talaq, ila, zihar, lian, khula and mubarat; maintenance; dower; guardianship; gifts; trusts and trust properties; and wakfs (other than charities and charitable institutions and charitable and religious endowments). For each of these, where the parties are Muslims, the rule of decision is the Muslim Personal Law (Shariat). The non-obstante clause abrogates contrary custom or usage. Adoption, wills and legacies are not in the section 2 list — section 3 allows a Muslim to extend the Act to them by declaration.

Why is agricultural land excluded from the 1937 Act?

Agricultural land is excluded because, at the time the 1937 Act was passed, legislation on agricultural land fell within the competence of the Provincial (now State) legislatures, while the Central Legislature could legislate only for matters within its own competence. The exception is so phrased as to cut down all the subsequent words of section 2 — even if the subject is gifts, dower, or succession, if the question relates to agricultural land the 1937 Act does not channel the court to the Shariat. Some States have since extended the Shariat to agricultural land by State amendment; Tamil Nadu did so by Act 18 of 1949, and Andhra Pradesh and Kerala have followed with similar amendments.

What does Section 3 of the 1937 Act do?

Section 3 allows a Muslim to make a declaration before the prescribed authority that he wishes to obtain the benefit of the section. The declarant must satisfy the authority that he is a Muslim, that he is competent to contract within the meaning of section 11 of the Indian Contract Act, 1872, and that he is a resident of the territories to which the Act extends. Once the declaration is made, section 2 applies to the declarant and to all his minor children and their descendants as if adoption, wills and legacies were also specified. The mechanism allows individuals from communities such as the Khojas — who had customary powers to dispose of all property by will — to opt into the Mahomedan one-third rule on bequests.

What is the difference between Section 2 and Section 3 of the Shariat Act?

Section 2 is described in the classical learning as "coercive". It operates by force of law on every Muslim litigant in the ten enumerated subjects, irrespective of consent. The non-obstante clause abrogates custom in those subjects. Section 3 is described as "persuasive". It operates only on those Muslims who positively elect into the section by making the prescribed declaration, and its effect is to extend section 2 to adoption, wills and legacies for the declarant and his minor children and descendants. Section 2 therefore governs the basic personal-law architecture; section 3 supplies an opt-in for additional matters where customary law might otherwise survive.

Does the 1937 Act apply to Muslim criminal law or to questions of legitimacy?

No. The 1937 Act does not extend to Muslim criminal law — Indian Muslims are governed by the Indian Penal Code, the Code of Criminal Procedure, the Indian Evidence Act and now their successor codes. The Mahomedan criminal law and the Mahomedan law of evidence have been wholly displaced. As to legitimacy, the Madras case law holds that legitimacy is not part of the law of inheritance or succession, so the section 2 channelling does not extend to it; section 112 of the Indian Evidence Act, 1872, supplies a general presumption of legitimacy that supersedes the Mahomedan law on legitimacy to the extent of any inconsistency. Pre-emption is also outside the 1937 Act and is governed by special State statutes or by justice, equity and good conscience.