§ The Shariat Act, 1937
Topic Overview
Introduction & Sections 1-2
Who is Muslim?
Section 3 - Power to make declaration
Section 4 - Rule making power
The Shariat Act, 1937
- It is not a voluminous act, only few sections. Every provision has its own importance. Earlier, there were six provisions. However, section 5 dissolution of marriage by court in certain circumstances was rippled after dissolution of Marriage Act.
- Section 1 is regarding short, title and extent - The act is called Muslim personal law. Shariah Application Act, 1937.
- Section 2 mentions personal law application to Muslim community section. Highlights, 10 subjects within its ambit, which are interstate succession, dissolution of marriage, kinds of divorce (Talaq, Illa, Zihar, Mubarat) maintenance, dower, special property belonging to female marriage, Guardianship, gift, trust, waqf if dispute arouses in this subject matter provided under the section between Muslim only applicable to Muslim.
Who is Muslim?
Muslim law applicable to person if he possesses Islam. Not necessary, that should be born as Muslim law applies to
a. Muslim by birth.
b. Muslim by conversion.
A. Muslim by birth
when both parents and Muslim child born out as Muslim. If one parent is Muslim and one is not, child will be of religion in which he is brought up, unless not shown that parties are Shia, there is a presumption that they are Sunni
B. Muslim by conversion
A person of a sound mind has attained age of 18 converted into Islam is considered Muslim Validity of conversion depends on the intention behind the conversion.
Sarla Mudgal v. UOI
A man converted just because he can marry twice. It was not held valid conversion by court.
Conversion by two methods.
i. A person may declare abandoning of own religion and adopt Islam
ii. Through ceremony prescribed in Islam by reading Kalma and accepting a Muslim name
Cases involving will adoption legacy, Muslim law cannot be applied by court
Section 3- Power to make declaration.
1) Any person who satisfies prescribed authority that
a) He is Muslim
b) Competent to contract within meaning of section 11 of Indian contract act.
c) He is resident of India once a person satisfies this condition and once a person satisfies this condition and submit declaration in prescribe format to prescribe authority. The person making declaration. Will be governed under section two of this act. Sec 2 now applies
2) If a prescribed authority refused to accept the declaration, the person has right to appeal to officer appointed by state government. If officer find person eligible to make declaration, can order authority to accept
Section 4 - Rule making power
1) State government has power to make rules to fulfil objective of this act.
2) Rules can be made on following matter:
a. Who is prescribed authority, format of declaration
b. fees for filing declaration, Charges for official visit, when and how fees are collected.
3) Rules made publish in official gazette and have effect enacted in this act
4) Rules made by state government shall be laid as soon as it is made before state Legislature.