By Mumtaz Alam Falahi, TwoCircles.net,
Do you think there is a Muslim family law act in India that covers all familial issues and that is applicable on all Muslims living in any part of the country, be it Gujarat, Goa or Jammu & Kashmir? If you think so, you are, sorry to say, absolutely wrong.
The Muslim Personal Law (Shariat) Application Act 1937, popularly known as the Shariat Act, is incomplete in that it does not cover all familial issues; it is not applicable for Muslims of all sects and groups; moreover, it cannot be executed in the entire territory of India.
Here lies the issue for which noted legal expert Prof. Tahir Mahmood has been working for some time. He wanted enactment of a law that streamline the Shariat Act, make it more comprehensive and make it applicable for all Muslims irrespective of their sects and place of residence.
He had in fact prepared a proposal to the effect and forwarded it to the Law Commission of India, of which he is also a member. The Commission was to consider the proposal in its 16th July meeting last week but he withdrew the proposal on 12th July. Why?
Some Ulama and Muslim scholars were trying to read too much into the proposal. Some said it was interference in Shariat; some went to the extent of saying that the proposal was a step towards uniform civil code.
Prof. Mahmood in an article in Urdu daily Rashtriya Sahara dated 21st July expresses deep sorrow though indirectly over misunderstandings about his proposal. His purpose was to request the government to enact a law that could implement Islamic law in every familial matter of all Muslims wherever they reside in the country.
Talking about discrepancies in the present Shariat Act, Prof. Mahmood gives some examples which can test our knowledge about Shariat law that is in practice in India today.
The present Muslim family law is not applicable in Goa, Daman or Diu and Jammu & Kashmir, and applicable in other places but with some exceptions.
For one to bequeath his/her property according to Shariat it will be necessary that their father/grandfather after 1937must have filed affidavit with government officials announcing to follow Islamic law of inheritance.
Can a childless Muslim adopt? Yes only if their father/grandfather had not filed affidavit announcing that they and their coming generation will follow Islamic law of adoption. Agricultural property of a Muslim is distributed among his heirs according to Islamic law only in Tamil Nadu, Andhra Pradesh and Kerala, not in other states or territory.
Similarly, the present Shariat Act differentiates between Muslim sects and groups as far as its implementation is concerned. For instance, a Khwaja Ismaili Muslim in Gujarat is considered Muslim in his life; after death, his properties are distributed according to Hindu law. The Shariat Act treats Memon Muslims not as one but treats Cutchi Memons differently from Halai Memons.
These discrepancies in the Shariat Act are definitely not because of any shortcoming in Islamic law but because Islamic laws have not been taken in totality. Moreover, many sections of the Shariat Act are based on judicial precedents.
Doesn’t the situation call for a campaign from Muslims in India to demand the government to reform the Shariat Act, make it comprehensive and uniform for all Muslims in the entire territory of India?