Schools of Muslim Law, Who is a Muslim & the Shariat Act 1937 — Muslim Law (Family Law II) Notes

Advent of Islam & Development of Muslim Law

Before Islam, the tribes of Arabia had no single law — only harsh customs where women could be inherited like property and the newborn girl was sometimes buried alive. The reforms the Prophet introduced from 610 A.D. onwards — a wife’s right to dower, a share for women in inheritance, limits on polygamy — were, for that society, revolutionary.

How did Muslim law develop?

The story runs in stages, and the exam wants the milestones in order:

Pre-Islamic Arabia (the age of ignorance, jahiliyya) — customary tribal law, no fixed rules of marriage or succession.
The Prophet’s period (610–632 A.D.) — revelation of the Quran and the Prophet’s Sunna reformed and codified the personal law.
The period of the Companions (Caliphs) — the first four Caliphs decided new questions by ijma and qiyas, building a body of interpretation.
The period of the jurists — the great imams (Abu Hanifa, Malik, Shafi’i, Ahmad ibn Hanbal, and the Shia Ja’far al-Sadiq) founded the schools (see Topic 3), each with its method of interpretation.
The Indian period — under the Mughals, then the British (who applied Muslim law to Muslims through the courts), and finally by legislation in independent India: the Shariat Act 1937, the Dissolution of Muslim Marriage Act 1939, and recent statutes.

Who, when, where. The law governs Muslims; it grew from 610 A.D. in Arabia and was carried into India, where today it is applied by the ordinary civil courts under the Shariat Act 1937.

On the reforming character of the law: the Quranic verses on inheritance (Surah An-Nisa, 4:11–12) fixed shares for daughters, wives and mothers — rights unknown to pre-Islamic custom.

In Simple Terms: Muslim law began as the Prophet’s reform of rough tribal custom, was developed by the Caliphs and the founding jurists into schools of interpretation, and reached India where it is now applied by the courts and shaped by a handful of statutes.

flowchart LR
    A["Pre-Islamic custom"]:::leaf --> B["Prophet: Quran & Sunna"]:::leaf
    B --> C["Caliphs: Ijma & Qiyas"]:::leaf
    C --> D["Jurists: the Schools"]:::leaf
    D --> E["India: courts + legislation"]:::leaf
    classDef leaf fill:#E6F3FF,stroke:#1E3A8A,color:#000;
    linkStyle default stroke:#888,stroke-width:1px;

Case Laws

Aga Mahomed Jaffer v Koolsom Beebee (1897) — the courts apply Muslim law as it has historically developed, not a judge’s notion of what it ought to be.

Schools of Muslim Law

When the Prophet died in 632 A.D., he left no successor and no complete code. Within two centuries, jurists disagreeing on how to interpret the sources had crystallised into distinct schools — a split that still decides, for example, whether your marriage needs two witnesses or none.

What are the schools?

A “school” (mazhab) is a body of doctrine founded by a great jurist and his followers on how to interpret the sources. The first great division is between Sunni and Shia, which arose over who should succeed the Prophet as leader (Sunnis accepted the elected Caliphs; Shias held that leadership belonged to Ali and his descendants).

Sunni sub-schools (the majority in India), named after their founders:

Hanafi — founded by Imam Abu Hanifa; the most liberal and widely followed, and the school of most Indian Muslims. It gives weight to qiyas and juristic preference (istihsan).
Maliki — founded by Imam Malik; relies heavily on the practice of Medina.
Shafi’i — founded by Imam Shafi’i; systematised the four sources.
Hanbali — founded by Imam Ahmad ibn Hanbal; the strictest, adhering closely to text.

Shia sub-schools:

Ithna Ashari (Twelvers) — the largest Shia group in India; recognises muta (temporary) marriage.
Ismaili — includes the Khojas and Bohras.
Zaidi — closest to the Sunnis; rare in India.

There is also a small Motazila group. The practical point for the exam: a person is presumed to belong to the school of his parents, and the applicable rule (on witnesses, muta, inheritance) turns on the school.

Why the school matters: under Hanafi (Sunni) law a marriage requires two witnesses; under Ithna Ashari (Shia) law it does not — the same act can be validly married in one school and defectively married in another.

In Simple Terms: All Muslims fall into two great families — Sunni and Shia — and each family has sub-schools founded by famous jurists. Which school a person belongs to decides which detailed rules apply to his marriage, divorce and inheritance.

flowchart TD
    ROOT["Schools of Muslim Law"]:::root
    ROOT --> SUN["Sunni"]:::leaf
    ROOT --> SHI["Shia"]:::leaf
    SUN --> H1["Hanafi"]:::leaf
    SUN --> H2["Maliki"]:::leaf
    SUN --> H3["Shafi'i"]:::leaf
    SUN --> H4["Hanbali"]:::leaf
    SHI --> S1["Ithna Ashari"]:::leaf
    SHI --> S2["Ismaili"]:::leaf
    SHI --> S3["Zaidi"]:::leaf
    classDef root fill:#FFF8DC,stroke:#000,stroke-width:1px,color:#000;
    classDef leaf fill:#E6F3FF,stroke:#1E3A8A,color:#000;
    linkStyle default stroke:#888,stroke-width:1px;

Case Laws

Bai Baiji v Bai Santok (1894) — a person may renounce his sect/school and adopt another, and is then governed by the rules of the adopted school; a Muslim is otherwise presumed to belong to the school of his parents.

Who is a Muslim (Mohammedan)

In Resham Bibi’s case, a court had to decide a hard question: had a woman really become a Muslim, or was her “conversion” a device to escape her existing marriage? The answer decided whether Muslim law or her old personal law governed her.

Who is a Muslim?

Muslim law applies to Muslims — so the threshold question is who qualifies. A person is a Muslim in one of two ways:

By birth — a child both of whose parents are Muslims is a Muslim; where one parent is Muslim, the child is generally brought up in and treated as belonging to that faith.
By conversion — any person of sound mind who has attained majority may become a Muslim by (i) professing Islam, i.e. acknowledging that there is but one God and that Muhammad is His prophet, or (ii) undergoing the formal ceremony of conversion before a competent authority.

The law looks for a bona fide (genuine) profession of faith. A conversion made only to gain a legal advantage — for example, to contract a second marriage or to escape the first — is a colourable conversion and the courts will see through it.

What — a person who professes Islam.
Who/how — acquired by birth or by a genuine conversion.
Why it matters — it decides whether Muslim personal law (marriage, divorce, succession) applies at all.

On the test of conversion: a mere formal declaration is not enough where the surrounding facts show the profession of faith was not honest but a manoeuvre.

In Simple Terms: You are a Muslim if you are born to Muslim parents or if you honestly adopt Islam. A “conversion” done only to dodge a law does not count.

flowchart TD
    ROOT["Who is a Muslim?"]:::root
    ROOT --> A["By birth (Muslim parents)"]:::leaf
    ROOT --> B["By conversion"]:::leaf
    B --> B1["Profession of faith"]:::leaf
    B --> B2["Must be bona fide, not colourable"]:::leaf
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Case Laws

Narantakath v Parakkal (1922) — a genuine profession of the Islamic faith is enough to make a person a Muslim.
Skinner v Orde (1871) — the courts examine whether a conversion is bona fide or a device to achieve a collateral purpose.

Conversion & Its Consequences on the Family

In Sarla Mudgal v Union of India (1995), Hindu husbands converted to Islam only so they could take a second wife without divorcing the first. The Supreme Court refused to reward the trick: the second marriage was bigamous and punishable. Conversion, the Court held, is not a shortcut around one’s existing obligations.

What happens to the family when someone converts?

Conversion changes the personal law that governs a person, and the syllabus focuses on three effects — on marriage, guardianship and succession.

Effect on marriage. Historically, apostasy (renouncing Islam) by either spouse dissolved a Muslim marriage at once. Today the position is split: apostasy by the husband still operates to dissolve the marriage immediately; apostasy by the wife does not automatically dissolve it — section 4 of the Dissolution of Muslim Marriage Act, 1939 provides that a wife’s renunciation of Islam does not by itself dissolve her marriage (though she keeps her right to sue for divorce on the Act’s grounds).
Where a non-Muslim converts to Islam while already married under another law, the earlier marriage is governed by that other law; the convert cannot use the conversion to escape it or to marry again (Sarla Mudgal).
Effect on guardianship. A parent’s change of religion can affect custody and guardianship, always subject to the welfare of the child.
Effect on succession. Under classical Muslim law a convert out of Islam (apostate) was excluded from inheriting. In India, the Caste Disabilities Removal Act, 1850 protects a convert’s already-vested property rights, so a person does not automatically lose property already inherited merely by changing religion; but he cannot claim as a Muslim heir in a succession governed by Muslim law after leaving the faith.

Section 4, Dissolution of Muslim Marriage Act, 1939: “The renunciation of Islam by a married Muslim woman or her conversion to a faith other than Islam shall not by itself operate to dissolve her marriage…”

In Simple Terms: If a Muslim husband leaves Islam, the marriage ends at once — so his wife is free and remarrying is not bigamy. If a Muslim wife leaves Islam, the marriage does not automatically end. And you cannot convert just to grab a second marriage or dodge your old one; the 1850 Act protects property already inherited, but an apostate cannot claim as a Muslim heir.

🧩 WORKED EXAMPLE — the husband who converts, then the wife remarries

Facts. H, a Muslim, converts to Hinduism. His wife W then marries another man. Is W guilty of bigamy?

Rule. Apostasy by the husband dissolves the Muslim marriage instantly; bigamy requires a subsisting prior marriage.

Apply. The moment H apostatised, the marriage stood dissolved. When W remarried there was no subsisting marriage.

Decoy. H’s conversion looks like his problem; the real effect is that it frees W.

Conclusion. W is not guilty of bigamy — she was a free woman when she remarried.

flowchart TD
    ROOT["Conversion — effects on family"]:::root
    ROOT --> M["Marriage"]:::leaf
    ROOT --> G["Guardianship"]:::leaf
    ROOT --> S["Succession"]:::leaf
    M --> M1["Husband's apostasy: dissolves at once"]:::leaf
    M --> M2["Wife's apostasy: does NOT auto-dissolve (s.4 DMMA 1939)"]:::leaf
    S --> S1["Apostate cannot claim as Muslim heir"]:::leaf
    S --> S2["Caste Disabilities Removal Act 1850 protects vested property"]:::leaf
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    classDef leaf fill:#E6F3FF,stroke:#1E3A8A,color:#000;
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Case Laws

Sarla Mudgal v Union of India (1995) — a Hindu husband’s conversion to Islam does not dissolve his first marriage; a second marriage is bigamy punishable under s.494 IPC.
Lily Thomas v Union of India (2000) — reaffirmed Sarla Mudgal: conversion to escape monogamy is a fraud on the law.

The Shariat Act, 1937

Before 1937, many Indian Muslim communities were governed on inheritance and family matters not by the Quran but by their old local custom — customs that often gave women less than the Quran did. The Muslim Personal Law (Shariat) Application Act, 1937 reversed that: it restored the Shariat over custom.

What does the Shariat Act, 1937 do?

The full name is the Muslim Personal Law (Shariat) Application Act, 1937. Its single object was to displace custom and make Muslim personal law (the Shariat) the rule of decision for Muslims in the matters it lists.

Section 2 is the heart of the Act. It provides that, notwithstanding any custom or usage to the contrary, where the parties are Muslims the rule of decision in the following matters shall be Muslim personal law:

intestate succession,
special property of females,
marriage (including all incidents of marriage), dissolution of marriage (talaq, ila, zihar, lian, khula, mubarat),
maintenance, dower, guardianship,
gifts, trusts and trust properties, and wakfs.

Two limits are worth noting for the exam: the Act (as originally enacted) did not cover agricultural land, and it did not make Muslim law apply to wills and legacies or to adoption/charities unless a Muslim expressly opted in under section 3.

Section 2, Shariat Act 1937: “Notwithstanding any custom or usage to the contrary, in all questions… regarding intestate succession, special property of females, marriage, dissolution of marriage,… dower, guardianship, gifts, trusts… and wakfs… the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).”

In Simple Terms: The 1937 Act says: for Muslims, in family matters like marriage, divorce, dower, gifts and inheritance, apply the Shariat — not local custom. It was a reform that took away customs which had been short-changing Muslim women.

flowchart TD
    ROOT["Shariat Act 1937 (s.2)"]:::root
    ROOT --> A["Displaces custom → applies Shariat"]:::leaf
    ROOT --> B["Covers: marriage, divorce, dower"]:::leaf
    ROOT --> C["Covers: guardianship, gifts, wakf"]:::leaf
    ROOT --> D["Covers: intestate succession"]:::leaf
    ROOT --> E["Excludes: agricultural land; wills (unless opted in, s.3)"]:::leaf
    classDef root fill:#FFF8DC,stroke:#000,stroke-width:1px,color:#000;
    classDef leaf fill:#E6F3FF,stroke:#1E3A8A,color:#000;
    linkStyle default stroke:#888,stroke-width:1px;

Case Laws

Jiauddin Ahmed v Anwara Begum (1981) — Muslim personal law (as applied under the Act) requires a reasonable cause and attempts at reconciliation before talaq.

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