Jus Corpus Law Journal

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Application of Muslim Law

Shreya Shuklaa

a
Galgotias University, Greater Noida, India

Received 25 June 2021; Accepted 14 July 2021; Published 17 July 2021

__________________________________

In India, each non-secular community in affairs is ruled by its laws. even as the Hindus, the Christians, the Parsis, and
therefore the Jews square measure ruled by their laws, same approach the Muslims too. India may be a country that abounds in
personal laws. each spiritual community in personal business is ruled by its laws. even as the Hindus, the Christians, the
Parsis, and also the Jews are ruled by their personal laws, therefore ar the Muslims. The Hindus and also the Muslims have,
all along, claimed that their laws are of divine origin. However, in Hindu law, it's been a longtime proposition that a sound
custom overrides the sacred law. Custom has ne'er been a crucial side of Muslim law, although, at only once, the council
commands the read that a sound custom overrode Muslim law.

Notwithstanding any custom or usage to the contrary, in all queries (save queries with reference to agricultural land) concerning
intestate succession, special property of females, as well as personal properly hereditary or obtained underneath contract or gift or
the other provision of non-public Law. marriage, dissolution of the wedding, as well as talaq, ila, zihar, lian, khula and
mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable
establishments and charitable and spiritual endowments) the rule of call in cases where the parties area unit Muslims shall be
the Muslim Personal Law (Shariat).

Keywords: muslim law, conversion, belief.

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INTRODUCTION

The Hindus and therefore the Muslims have, all along, claimed that their laws square measure
of divine origin. (However, in Hindu law it's been a long-time proposition that a sound
custom overrides the sacred law. Custom has ne'er been a crucial facet of Muslim law,
although, at just one occasion, the council controls the read that a sound custom overrode
Muslim law. During the long amount of Hindu rule, Hindu law was all-pervasive. All aspects
of the lifetime of a private were regulated by it. once the Muslims dominated the country, the
majority of areas of Hindu law, except the Hindu personal law, were outdated.)

Once the Britishers came to rule this country. each non-secular community was allowed to
retain its personal law in affairs. That continues to be the position in fashionable Asian nations.
In India, whenever affairs precede a court of law, the primary question that arises is: that
law applies to the parties to litigation? If the parties square measure Hindus, Hindu law can
apply; and then on.

Since here we have a tendency to square measure involved with the question of application of
Muslim law, we might answer that question beneath Muslim law. In fashionable Asian
nations, Muslim law means the portion of the law that governs the Indian Muslims in their
affairs.1 Since Muslim law applies to Muslims alone. however, most of the parts of Muslim
Law are uncodified. For the aim of applying Muslim law, the Muslims make up the
subsequent 3 categories:

(a) Muslims by origin; and

(b) Muslim by Birth

(c) Muslims by conversion.

(1) Muslim by Origin: No person is often a Muslim United Nations agency doesn't purchase
the essential church doctrine (doctrines/beliefs) of Islam. A person, United Nations agency
subscribes to the essential tenets of Islam, could be a Muslim.

1 Muslim Personal law [Shariat] Application Act 1937, s 2

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the essential tenets of Islam square measure the subsequent two:

Basic tenets of Islam (5 Basic) Islam, a faith that has a name that has that means "Submission of
the can to God, and a Muslim is that the one United Nations agency submits his can to God.
during this slideshow, I even have explained concisely the five Basic tenets of Islam, Hope it'll
be attention-grabbing for readers.

1. Shahada

Shahada could be a declaration of religion in Islam, it describes the strict monotheistic facet of
faith, Shahadah itself could be a basic definition of Islam that states, "There is merely one god
i.e Allah (God) and Muhammad is his messenger". There is another version of Shahadah
however it bears the same that means. A Muslim ought to have full religion on this statement
for being Muslim. it's the first Pillar of Islam. This is what folks' advice become Muslim, and
it's perennial throughout prayer, within the decision to prayer, and at different times
throughout the day. This declaration of religion, known as the shahada.

2. Salah
 Salah or Namaz could be a prayer in Islam. There is mounted manner and glued time to
perform Salah throughout the world.
 Five times worship is obligatory on a very day, however, you'll do a lot of if you want
for identical, it'll be a decent virtue.
 Muslims square measure presupposed to create 5 daily ritual prayers -- one at
dawn(beginning), one at noontide(midday), another within the afternoon, at sunset,
and before bed.
 These prayers could also be performed alone or in a very cluster. Salah desires to
associate intention through heart and devotion of soul to God.
3. Saum
 Saum or Roza square measure fast that is finished from dawn until sunset. One cannot
eat or drink throughout this era.

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 It is finished in Ramadan month, (but truth is that it may well be worn out any month
excluding days like Eid on that Saum is Haraam (unlawful).) Though in Ramadan
keeping Saum is obligatory.
 Like worship, saum additionally wants devotion of your soul. Saum isn't just not
feeding or drinking.
4. Zakat/Zakah
 Zakah means that alms-giving. It's the liability that God has placed on all Muslims. As
such, zakah is much on the far side - simply charity.
 A Muslim has to be compelled to offer a pair of.5% of his annual financial gain per
annum as charity to poverty-stricken. you'll offer even a lot of however that may not be
charity it'll be Sadaqah which can be a decent virtue however discretionary.
 A Muslim United Nations agency is in a position to earn enough to satisfy his desires
and family desires is merely eligible to provide charity, one United Nations agency isn't
guaranteed to provide rather he might receive charity.
5. Hajj
 Hajj is associate annual pilgrim's journey to Mecca, control in the last month of the
Moslem calendar. Muslims square measure needed to form a pilgrim's journey, or hajj,
to Mecca once throughout their lives. you will go the maximum amount as you'll
however it'll not be an associate obligation.
 Their square measure bound rituals in hadj like lapidation devil, etc. many rituals
square measure performed throughout hajj: circling the Kaaba; running between the
hills of Safa and Marwa (echoing Hagar's hunt for water for her son, Ishmael); 2
traveling to the plain of Arafat, outside of Mecca; and throwing stones at pillars that
symbolize the devil.

2Adrija Roychowdhary, ‘Shariat and Muslim Personal Law: All your questions answered’ (Indian express, 22
August 2017) <https://indianexpress.com/article/research/shariat-muslim-personal-law-sharia-history-
shayara-bano-shah-bano-triple-talaq-personal-laws-religious-laws-uniform-civil-code-2784081/lite/> accessed 19
April 2021
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 A Muslim United Nations agency has resources and wealth that is enough for his
desires is eligible for an obligation of hadj, one United Nations agency hasn't isn't
boned for hadj.3
 The obligation of hadj is merely once in a very lifetime, If they're financially and
physically ready, Mecca is in the Asian nation, and is that the website of the shrine, the
building Muslims believe was the primary house of worship dedicated to the one God.

There square measure 5 elementary practices that square measure typically common to
Muslims worldwide. These square measures are ordinarily called the 5 Pillars of Islam. They
include:

1. Declaration of religion - This can be what folks' advice become Muslim, and it's
perennial throughout prayer, within the decision to prayer, and at different times
throughout the day. This declaration of religion, known as the shahada, states, "There is
not any god however God and Muhammad is his traveler."
2. Prayer - Muslims square measure presupposed to create 5 daily ritual prayers -- one at
dawn, one at noon, another within the afternoon, at sunset, and before bed. These
prayers could also be performed alone or in a very cluster. Friday is that the Muslim
rest day, thus folks could furl a house of prayer for the noontide prayer. this can be
known as juma'a.
3. Giving charity - Muslims square measure needed to provide of their bounty
(abundance) to those that have less. this can be known as charity, which accurately
means "purification." it's a tax of two.5% of one's annual savings.
4. Fasting throughout the month of Ramadan- Ramadan is that the ninth month of the
Muslim calendar. Muslims quick from dawn till fall. They abstain from food, water, sex,
cigarettes, gossip, anger, backbiting, and different negative behaviors. The quick is
meant to encourage self-discipline and sympathy. Ramadan is that the month once the
primary revelation was given to the prophet.

3 ‘Sources of Islamic Law’ (Legal service India)<http://www.legalserviceindia.com/article/l302-Sources-of-

Islamic-Law.html > accessed 27 April 21
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5. Pilgrimage, or hadj - If they're financially and physically ready, Muslims square

measure needed to form a pilgrim's journey, or hajj, to Mecca once throughout their
lives. Mecca is in the Asian nation and is that the website of the shrine, the building
Muslims believe was the primary house of worship dedicated to the one God. many
rituals square measure performed throughout hajj: circling the Kaaba; running between
the hills of Safa and Marwa (echoing Hagar's hunt for water for her son, Ishmael);
traveling to the plain of Arafat, outside of Mecca; and throwing stones at pillars that
symbolize the devil.

BASIC BELIEFS OF THE ISLAMIC FAITH

Muslims share bound beliefs, including:

The identicalness of God (Allah) - For Muslims, there are no entity warrants worship
however Supreme Being. Supreme Being has no partners, no relatives, and no gender.

Belief in God's prophets - Muslims believe that Allah's message was given to varied prophets,
together with Noah, Abraham, Moses, Elijah, and Jesus, and different prophets common to
Christianity and Judaism, still as Muhammad. Muslims believe that Muhammad is that the
last prophet, partially as a result of he had the foremost success instituting God's word in his
time period.

Belief in angels - Muslims believe non-secular beings United Nations agency do the desire of
God.

Belief in sacred books - These embody the Torah, the Psalms, the Gospel, and therefore the
sacred writing.

The day of judgment and resurrection - Muslims believe that persons square measure
answerable for their behavior throughout their lifetimes. At death, that behavior is a
component of what determines, however, the person is judged.

(a) The principle of the unity of God, i.e., God is one i.e Allah, and

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(b) Muhammad is that the Prophet of God. Prophet Muhammad is that the traveler of
God.

According to Muslim theology, different essential beliefs of a Muslim square measure: the
holy book, the Koran, is that the solely disclosed book of Supreme 3Being, Hazrat Muhammad
was the last rasul (prophet), and there's daily of judgment (Keyamat) followed by life when
death (Akhirat).

1. A person, United Nations agency subscribes to the essential tenets of Islam, are a
Muslim by origin if it's not established that he's a convert to Islam.
2. Muslim by birth - If an individual is born of Muslim oldsters, he is a Muslim;
associated it's not in any respect necessary to determine that he's an orthodox believer
in Islam. Such an individual can still be a Muslim until he renounces Islam. Mere
observance of a number of rituals of Hinduism, or for that matter, of the other faith,
won't by itself create that person a non-Muslim. Conversely, an individual won't
become a Muslim simply because he calls himself a Muslim, or is taken into account by
others a Muslim.4

In Muslim law, a child born to Muslim parents is probable to be a Muslim. The Shariat lays
down that if one among the parent could be a Muslim, even then the kid is a Muslim. The
ordinary decree Asian nation is that the kid takes to the faith of his father unless the contrary
is verified. This rule is currently subject to the rule of contemporary Hindu law, viz., if one
among the fogeys could be a Hindu and therefore the kid is named as a Hindu, then the kid is
a Hindu. To this class of Muslims, Muslim personal law applies in its totality, and no rule of
Muslim law is often changed by custom.

3. Muslims by conversion - A non-Muslim could become a Muslim by profession Islam,

i.e., by acknowledging that there's only 1 God and Muhammad is his prophet, or by
undergoing the ceremonies of conversion to Islam. A convert of Islam is normally ruled
by Muslim law. Till 1937, it had been potential for a convert to be continued to be ruled

4 Ibid
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by his personal law, together with customary law. When the approaching into force of
the Shariat Act, 1937, the generality of that statement stands changed, though, it's
submitted the applying of custom to the Muslims has not been wholly abrogated.

PROFESSION OF ISLAM

A non-Muslim could become a Muslim by professing Islam. “Profession with or while not
conversion is important and enough to get rid of the incapacity of getting another religion”.
Thus, discovered Lord Macnaughten in Abdul Razak v. Agha Mahommed. during this case, a
rich Muslim, Abdul by name, had died, apparently, with none heir. But, Abdul Razak created
a claim to his estate on the plea that he was the son of the pre-deceased brother of Abdul. The
brother of Abdul had married a Burmese lady, Mah Thai, a Buddhist by faith, however, it was
not established that she had been born-again to Islam either before, or after, the wedding. It
was established that she was to recite the Muslim prayers. The court concluded that since the
wedding of Abdul’s brother with the Buddhist lady was void below Muslim law, Abdul
Razak, although a Muslim couldn't succeed to Abdul’s estate, being Associate in a Nursing
love child.

CASE LAW

The converse state of affairs arose in local time. Resham Bibi v. Khuda Baksha, wherever a
Muslim married woman, with a read to ending Associate in Nursing sad wedding, renounced
Islam and prayed to the court that Muslim law of apostasy ought to be applied to her, and her
wedding ought to be deemed to possess been mechanically dissolved from the date of her
apostasy. (Law of Apostasy-It is that the act of aware abandonment of Islam by a Muslim- It
includes the act of changing to a different faith by an individual World Health Organization
was born during a Muslim family or World Health Organization had antecedently accepted
Islam.) Curiously enough, the District court Observed a plate of pork to be brought within the
court area, and therefore the married woman was asked to eat it. On her refusal to try and do
this, the court terminated that her apostasy was fawning.

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Accepting the appeal, the tribunal observed: “One could relinquish a religion that is a
straightforward issue to try and do, however one might not acquire feeling for those things
that one has been instructed to hate throughout one’s life”. The court accepted the wife’s
statement that she did not believe in God, in Muhammed as her Prophet and within the al-
Qur'an, and so ceased to profess Islam. The court then said: “a person’s belief isn't a tangible
issue which might be seen or touched. it's the mental condition of one’s basic cognitive
process in sure articles {of faith|of faith} that constitutes one’s religion and if one ceases to
believe them, that once more could be a mere mental condition, one mechanically ceases to
profess that religion”.

In this case, Din Muhammad J. remarked that the motive of the declarer was additionally
immaterial; an individual may renounce his religion for love or avarice; one may do thus to
urge eliminate his gift commitments or really to hunt salvation elsewhere, however that may
not affect the factum of modification of religion. And, in matters like these, it was the factum
alone that matters and not the latent spring of action that resulted therefrom.

Whether the mere profession of Islam is enough to form a non-Muslim Muslim isn't entirely
free from doubt. It is true, as Lord Macnaughten had explicit, no court of law will check or
gauge the sincerity of non-secular belief. In all cases wherever, in keeping with Muslim law,
unbelief, or distinction of creed, could be a bar to the wedding with a real believer, it's enough
if the alien in faith embraces Islam. It is submitted that a non-Muslim can become a Muslim by
professing Islam, as long as it's not colourable or malar bonafide or created with a read to
perpetrating (committing) fraud upon law.

CONVERSION TO ISLAM

It seems to be a well-established proposition of law that a non-Muslim, on below going the

ceremonies of conversion prescribed under Islam, becomes a Muslim.

CEREMONY OF CONVERSION

In Islam, the ceremonies of conversion area unit simple:

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 A person seeking conversion to Islam could head to a Muslim house of worship.

 On the Muhammedan asking him, “Are you voluntarily clench Islam”, if he answers
affirmatively, he's given the Kalma to recite. On the completion of the recitation of the
Kalma, the conversion ceremony is over, and therefore the non-Muslim becomes a
Muslim.
 The Muhammedan then confers a Muslim name on the convert. In most of the mosques,
a register is unbroken during which the name of the person clench Islam is entered and
therefore the convert puts his signature to it.

Conversion of a Muslim from one sect to a different doesn't quantity to apostasy, and an
individual dynamical from- one sect to a different continues to be a Muslim. The genuineness
of belief within the new religion is immaterial, and even once a convert doesn't practise the
new religion, he can still be a Muslim. however, it's necessary that the conversion ought to be
existent, honest, and will not be colourable, put on, or dishonest.

In the leading case, Skinner v. Orde, a Christian lady was cohabiting with a married Christian
man. With a read to legalizing their inhabitation as husband and married woman, each of
them underwent a ceremony of conversion to Islam. when conversion, they married. Later on,
once the question of the validity of this wedding arose, the council control that the wedding
was null and void on the bottom that conversion wasn't existent. Moreover, it was a fraud
upon the law, since the parties underwent the ceremony of conversion with a read to elusion
their personal law.

The question of colorable, fallacious, and dishonest conversion has come back up before the
Indian High Courts during a range of cases, wherever a non-Muslim has embraced Islam,
either to assert divorce on the bottom of apostasy or to enter into a polygamous wedding.
Thus, within the matter of Ram Kumari, a Hindu spouse adopted Islam, and assumptive that
this meant the automatic dissolution of her wedding, took a second husband. She was
prosecuted and guilty of bigamy.

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In Rakeyabibi v. Anil Kumar, this facet of the matter has been terribly cogently and brightly
mentioned by Chakravarti, J. during this case, a married Hindu lady, with a read to obtaining
eliminate her impotent husband, embraced Islam, and sought-after to a declaration that on her
conversion to Islam, her Hindu wedding stood dissolved.

Observing that the question of whether or not conversion was existent or just a tool for
terminating the wedding, was vital, the learned decide said: “it could also be that a court of
law cannot check or gauge the sincerity of non-secular belief, or that, wherever there's absolute
confidence of genuineness of a person’s belief during a sure faith, a court cannot live its depth
or verify whether or not it's Associate in Nursing intelligent conversion or Associate in
Nursing ignorant superficial fancy.

But a court will and will notice verity intention of men lying behind their acts and might
ascertain from the circumstances of a case whether or not a put-on conversion was very a
method to some additional finish so, it looks to America to be elementary that if a conversion
isn't galvanized by spiritual feelings and undergone5 for its own sake, however, is resorted to
just with the thing of making ground for a few claim of right, a court of law cannot
acknowledge it as a decent basis for such claim, however, should hold that no lawful
foundation of the claim has been tried.

When conversion offers a right through a mock conversion and came upon as the basis of that
right is to commit fraud upon the law. we tend to area unit clearly of opinion that wherever a
celebration puts forward his conversion to a replacement religion as making a right in his
favor to the bias of another, it's correct and necessary for a court of law to inquire and ascertain
whether or not the conversion was an existent one”.

5 Skinner v Orde (1875) ILR 1 ALL 230

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