The Muslim Personal Law (Shariat) Application Act, 1937

What it does

The Act directs that, in cases where the parties are Muslims, the rule of decision on certain subjects is Muslim personal law, notwithstanding any custom or usage to the contrary. Before it, some Muslim communities were governed by customary law, particularly on inheritance, and the Act removed the custom in favour of the personal law.

The subjects are listed in the Act. They are intestate succession, the special property of females, marriage, dissolution of marriage (including talaq, ila, zihar, lian, khula and mubaraat), maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs other than charities and charitable institutions. For these subjects, a court applies the personal law and not the custom of the family or the locality.

The Act does not codify the personal law. It points to it. The content of the rules is drawn from the sources of Muslim law and from the decisions of the courts, and the Act is the statutory reason why those sources apply.

Who it binds

Muslims, in the matters listed. The Act also contains a provision under which a person who satisfies the conditions of the Act may declare that he is a Muslim and wishes to be governed by the personal law in matters such as adoption, wills and legacies, which are not otherwise within its list. The declaration has the effect the Act gives it for that person and his minor children and their descendants.

The Act's list does not include every area of law that affects a Muslim family. Questions of contract, criminal law, and the property law that is not in the list are decided under the general law, and the Act does not alter that.

What has changed, and when

Other statutes have worked beside the Act on the subject of marriage and divorce. The Dissolution of Muslim Marriages Act, 1939 gave a Muslim wife statutory grounds to seek dissolution of her marriage, and the Muslim Women (Protection of Rights on Divorce) Act, 1986 dealt with the rights of a divorced Muslim woman. In Shayara Bano v. Union of India (2017), the Supreme Court held that instantaneous triple talaq is not valid, and the Muslim Women (Protection of Rights on Marriage) Act, 2019 followed. These laws apply with the 1937 Act and not in place of it.

What turns on it in practice

The Act decides which law a court applies, and the first question in a family dispute between Muslims is therefore whether the subject falls within its list. If it does, the rule of decision is the personal law. If it does not, the general law applies, and the party who says otherwise has to show why.

The second point is the combination of the personal law and the statutes that have grown up beside it. A claim for maintenance or dower, a question about the dissolution of a marriage and a dispute over a gift or a wakf each meets the personal law, a particular statute and the decisions of the courts, and the practitioner has to work through all three. The firm's matrimonial and child custody note names the Act with the other personal laws for that reason.

The third is succession. A Muslim's inheritance is governed by the personal law and is fixed in shares, and the freedom to dispose of property by will is limited in the way that law provides. A family that holds property from before the Act should check whether custom had been followed in earlier transfers.