Muslim Personal Law And Its Constitutional Validity

The Muslim Personal Law (Shariat) Application Act XXVI of 1937 applies to Muslim Personal Law in a number of important matters, in those cases, where parties are Muslim. Shariat shall be applied in the matter of Intestate succession, Special property of females, marriage, dissolution of marriage, maintenance, dower, guardianship, gifts, trust and trust property and waqfs.

The Constitution of India empowers the legislatures to legislate with respect to family relations governed by the personal laws of the various religious groups in India and also directs the state to replace these personal laws by a common civil code. With the enactment of the Hindu code to replace significant segments of the customary Hindu law, the demand for a standard civil code on the one hand and for the reform of the Muslim personal law on the other, has gained momentum. Enactment of a common code is recommended for a wide variety of reasons, which include aversion of communal riots and acceleration of the process of national integration. The religious freedom guaranteed in article 25 and the cultural rights enshrined in article 29(1) immunize the Muslim personal law from amendment or abrogation by the state.

The state can validly enact measures of social welfare and reform in respect of the matters governed byte Muslim law. In India, the Muslim law acquired binding force not from its divine origin but from the Constitution of the country. The contours of the right to conserve culture guaranteed in article29(1) have not so far been delineated by the Supreme Court. Whether amendment or-abrogation of the Muslim personal law infringes article 29(1)depends on whether the cultural identity of the Muslims rests only or mainly on their personal law.


Marriage according to the Mahomedan law is not a sacrament but a civil contract. All the rights and obligation created arise immediately and, are not dependent on any conditional precedent such as the payment of dower by the husband to a wife.[1]

In Islam, marriage is a civil contract. ‘Although a religious duty, marriage is emphatically not a sacrament. There are no sacraments in Islam, nor is it covertures, Mohammedan marriage is purely contractual. According to Schacht, marriage is a contract of civil law, and it shows traces of having developed out of the purchase of the bride, the bridegroom concludes the contract with a legal guardian (wali) of the bride, and he undertakes to pay the nuptial gift or dower (Mehr, Sadak), not in the Wali as was customary in the pre-Islamic period, but to the wife herself.[2]

Though in the Muslim community certain social functions and ceremonies are performed at the time of marriage, such functions or rites are not legally necessary. The solemnisation of marriage requires adherence to certain forms and formulas. They are called essentials of a valid marriage. There should be a proposal made by or on behalf of one party and an acceptance of the proposal by or on behalf of another party. [3]


Indian courts have also declared Muslim marriage as a contract. Mohmood J., while defining Muslim marriage in Abdul Kadir v. Salima[4], observed:

“Marriage in Muslim law is not a sacrament but purely a civil contract- though it is solemnized generally with recitation- from the Quran, yet Muslim law does not positively prescribe any service peculiar to the occasion. That is a civil contract, it is not positively prescribed to be reduced to writing, but the validity and operation of the whole are made to depend upon the declaration or proposal of the one, and the acceptance or consent of the other, of the contracting parties, or of their natural or legal guardians before competent and sufficient witnesses, and also upon the restrictions imposed, and certain of the conditions required to be abided by according to the peculiarity of the case.”

In the case of Mst. Zainaba v. Abdul Rahman[5], it was held that there is no particular form in which the proposal and acceptance should be made. The offer and acceptance may be either oral or written document.


A boy or a girl who has not attained puberty is not competent to enter into a contract of marriage, but he or she may be contracted in marriage by his or her guardian. Age of puberty is an age at which a person is supposed to acquire the sexual competency[6]. The presumption is that a person attains majority at the age of 15 but the Hedaya lays down that the earliest period for a boy is 12 years and for a girl 9 years. The majority is presumed among the Hanafis on the completion of the fifteen years, in the case of both male and female unless there is any evidence to show that puberty was attained earlier. In the case of Shia females, the age of puberty begins with menstruation.


In the case of Mohd. Nihal v. State[7], the court held that the marriage of a Muslim minor woman, who has not attained puberty, without the consent of her wali is completely void. Thus puberty means the age when a boy or a girl becomes capable of begetting or bearing children, that period of life is called puberty. But the marriage of male under 21 years and females under 18 years are controlled by the Child Marriage Restraint Act, 1929. A marriage of male below 21 years of age and of a female below 18 years of age is child marriage. Such a marriage is not void; if the provision of the above cat is infringed, the persons violating the provision of the Act are liable to be punished.[8]


Iddat (also pronounced IDDAH) is a period of waiting that Islam has imposed upon a woman who has been divorced or whose husband has died, after which a new marriage is permissible. A man Is prohibited to marry a woman, who is undergoing Iddat of her former marriage. But if the women are observing iddat of her former marriage with the same man with whom she remarries, then such a marriage is valid only if the talaq was not given by three pronouncements.[9]

There are several reasons why the Iddat has been ordained. As regards the Iddat that is calculated according to the cycle of menstruation, the purpose is first, to establish the state of the womb, i.e., to ascertain whether there has been conception prior to divorce or not. When menstruation has been fixed as the basis for Iddat, it will be the mere formality to establish this, for when the blood haidh flows it is a sure sign that the womb is empty of a fetus.[10]


The Shia law recognizes Muta marriages, but according to Sunni law, such marriages are void. Among Shias also the IthnaAshari school only permits such marriages, but the Zaidischool or Shias law and other Ismaili Shias including the Khojas and the Bohras of Bombay, do not recognize Muta.

The literal meaning of the word ‘Muta’ is ‘enjoyment, use’. So ‘Muta’ may be defined as a temporary union of male and female for a specified duration, on payment of some consideration. The literal meaning of the Arabic word ‘Muta’ is ‘enjoyment’, therefore it may also be regarded as ‘marriage for pleasure’. In an ancient period of Islam, when the Arabs had to live away from their homes for a considerably long period either on account of wars or on trade-journeys, they used to satisfy their sex desires through prostitutes. In that society, there was a custom whereby the Arab women used to entertain men in their own tents. The man, who wanted to enter the tent, has to pay some consideration as the entrance fees. There were no mutual rights and obligations between the man and the woman. Any of them could terminate the union at any time. The children born out of this union belonged to the woman. Slowly, this union got some changes and the fixation of the term of union for some amount to be given to the woman was made compulsory, which acquired the name of Muta.[11]

In the case of S.A. Hussain v Rajamma[12], it was held that the period for which the union is to last should be fixed at the time when the muta is contracted. If no period is mentioned, the contract would be treated a permanent marriage.


TALAQ is an Arabic word which literally means “undoing or untying of a knot”. In the technical sense, it implies freedom from the bond of marriage. Before Prophet Mohammad came into this world, the power of divorce was unilateral. It was available to men only. Husband had absolute authority to divorce their wife at any time for any reason or even without any reason. Prophet Mohammad condemned this misuse of the system of talaq and brought about some major changes. [13]

Modes of talaq

-By the death of husband or wife;

-By the act of parties:-

-By the husband- (a) Talaq-as-Sunnat (b) Talaq Hasan( c) Talaq Ahsan(d) Talaq-ul-bidda (e) ila (f) Ziha

-By the wife – Talaq-e-tajwid

-By mutual consent

-By judicial process

Now we will discuss the mode of talaq which is most arbitrary and against constitutional norms.

Talaq-ul-biddat It is one of the most arbitrary and unfair methods of divorce available under Muslim law. It is also known as Talaq-ul-Baio or Bidda. Biddat means sinful. It came into being during the second century of Islam when Omayyad monarchs finding that the check imposed by the prophet on the facility of repudiation interfered with the indulgence of their caprice and endeavoured to find an escape from the strictness of law and find a loophole to effect their purpose. It must be noted that it was not Islam but Omayyad practices that gave validity to these divorces.[14] it is recognized under Hanafi School of Sunni law. A peculiar feature of this talaq is that it becomes effective as soon as the words are pronounced and there is no possibility of reconciliation between the parties. The prophet never approved a talaq in which there was no opportunity for reconciliation.


In the case of Rashid Ahmed[15], a husband pronounced triple talaq in the presence of witness though in the absence of the wife. A few days later he executed a deed of divorce which stated that the three divorces have been given in “abominable” form. Cohabitation continued, however, till he died 15 years later. After divorce five children were born. During that period i.e. the period after divorce, he treated his wife and children as legitimate. It was held that the words of the divorce being clear and addressed to the wife were effectual although she had not been present and divorce being biddat, and not in the Ahsan form, was irrevocable, irrespective of the iddat period. The husband intention of not making the divorce effective was held to be not material. Subsequent acknowledgement of wife and children were held to be ineffective.

As this form of talaq caused great agony to many women throughout India, some women reformist Muslim women started a religious movement against it. But previously judicial opinion was not in favour of reform in personal law. As in the case of Krishna Singh v. Mathura Athir[16], the Supreme Court has held that Part III of the Constitution does not touch upon the personal laws of the parties. This Court also observed that the High Court in applying the personal laws of the parties could not introduce its own concepts of modern times but should enforce the law as derived from recognized and authoritative sources. It is also submitted that since Part III of the Constitution does not touch upon the personal laws of the parties, Court cannot examine the question of the constitutional validity of the practices of marriage, divorce and maintenance in Muslim Personal Law.

Conclusion: Muslim Personal Law (Shariat) Application Act, 1937 applies to Muslim Personal Law in a number of an important matter, in those cases where parties are Muslim. Before the Shariat Act, 1937, different enactment regulating and authorizing the application of Muslim law was enforced in different parts of India. But these laws lack uniformity in nature. Certain principles were applied in the state while not in other.

Still, judicial activism is necessary in order to remove the evil customs and personal laws which greatly hampers the enjoyment of the fundamental right of an individual. The constitution is the law of land and there should not be any contradicting law prevalent in a democratic country which shades the ambit of constitutionality.

Author- Jata Shankar

[2] Dr. Rakesh Kumar Singh, Textbook on Muslim Law, 67 (Universal Law Publihing Co., Gurgaon, 2nd edn., 2015)

[3] Aqil Ahmad, Mohammedan Law, 113 (Central Law Agency, Allahabad, 26th edn., 2016)

[4] (1886) ILR 8 All 149

[5] AIR 1945 Pesh. 51

[6] Supra Note 40 at 71

[7] (2008) 17 ILR (Del) 1385

[8] Supra Note 41 at 117

[9] Supra note 40 at 87

[10] Ibid

[11] Supra note 40 at 84

[12] AIR 1977 A.P. 152

[13] Supra Note 3 at 210

[14] Supra Note 40 at 127

[15] (1932) 34 Bom LR 475 (PC)

[16] (1981) 3 SCC 689

[17] WP ( c) No. 118 of 2016

[18] visited on 22/11/2018

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