Origination of Muslim Law:
In India, every religious community in personal business is governed by its own laws. Even as the Hindus, the Christians, the Parsis and therefore the Jews are governed by their own personal laws, so are the Muslims. The Hindus and therefore 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 legitimate custom overrides the sacred law. Custom has never been a crucial aspect of Muslim law, although, at just one occasion , the council held in the view that a legitimate custom overrode Muslim law. All aspects of the lifetime of a private law were regulated by it. When the Muslims ruled the country, most areas of Hindu law, except the Hindu personal law, were superseded.
Every religious community was allowed to retain its personal law in personal business. In India, whenever personal business precede a court of law, the primary question that arises is: Which law applies to the parties to litigation? If the parties are Hindus, Hindu law will apply; then on.
Since here we are concerned with the question of application of Muslim law, we might answer that question under Muslim law. In modern India, Muslim law means portion of shariah which governs the Indian Muslims in their personal business . Since Muslim law applies to the Muslims alone, we’ve to define who may be a Muslim. In modern Hindu law, the term “Hindu” has not been defined strictly in terms of faith , whereas the term “Muslim” in Muslim law has always been defined in terms of faith , albeit the orthodoxy or heterodoxy of belief is not any concern of the courts.
For Prevailing Muslim Law, The Muslims fall under the following two categories:
Muslims by origin.
Muslims by conversion.
Muslims by conversion could also be further divided into the subsequent categories:
Muslims who profess Islam.
Muslims who undergo formal conversion.
Muslim by Origin:
No person can be a Muslim who does not subscribe to the basic tenet of the Islam. A person, who subscribes the basic tenets of Islam, is a Muslim. The basic tenets of Islam are the following two:
a) The principle of the unity of God, i.e., God is one i.e. Allah.
b) Muhammad is the Prophet of God. Prophet Mohammed is the messenger of God.
According to Islamic theology, other essential beliefs of a Muslim are : the holy book, the Quran, is the only revealed book of Allah, Hazrat Muhammad was the last rasul (prophet), and there is a day of judgment (Keyamat) followed by life after death (Akhirat).
A person, who subscribes to the basic tenets of Islam, will be a Muslim by origin if it is not established that he is a convert to Islam. Conversely, a person will not become a Muslim just because he calls himself a Muslim, or is considered by others a Muslim. To this category of Muslims, Muslim personal law applies in its totality and no rule of Muslim law can be modified by custom
Muslim by Conversion:
A non-Muslim may become a Muslim by professing Islam, i.e., by acknowledging that there’s just one God and Muhammad is his prophet, or by undergoing the ceremonies of conversion to Islam.
Till 1937, it had been possible for a convert to be continued to be governed by his personal law, including customary law. After the approaching into force of the Shariat Act, 1937[1], the generality of that statement stands modified, though, it’s submitted the appliance of custom to the Muslims has not been totally repudiated.
a)Muslim who Profess Islam:
A non-Muslim may become a Muslim by professing Islam.
“Profession with or without conversion is important and sufficient to get rid of the incapacity of getting another religion”. Thus, observed Lord McNaughton in Abdul Razak v. Aga Mahommed Jaffer Bindanim[2] during this case, a wealthy Muslim, Abdul by name, had died, apparently, with none heir.
But, one Abdul Razak made 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 woman, a Buddhist by religion, but it had been not established that she had been converted to Islam either before, or after, the wedding .
It was established that she was to recite the Muslim prayers. The court came to the conclusion that, since the wedding of Abdul’s brother with the Buddhist woman was void under Muslim law, Abdul Razak, though a Muslim couldn’t succeed to Abdul’s estate, being a bastard .
The converse situation arose in Reshma Bibi v. Khuda Baksha[3], where a Muslim wife, with a view to ending an unhappy marriage, renounced Islam, and prayed to the court that Muslim law of apostasy should be applied to her, and her marriage should be deemed to possess been automatically dissolved from the date of her recantation.
Curiously enough, the District Judge Ordered a plate of pork to be brought within the court room, and therefore the wife was asked to eat it. On her refusal, the court concluded that her apostasy was insincere.
Accepting the appeal, the appeals court observed: “One may relinquish a faith which is a simple thing try to do , but one might not acquire liking for those things which one has been taught to detest throughout one’s living”. The court accepted the wife’s statement that she not believed in Allah, in Muhammed as her Prophet and within the Quran, and thus ceased to profess Islam.
The court then said: “a person’s religion isn’t a tangible thing which may be seen or touched. it’s the mental condition of one’s believing in certain articles of religion that constitutes one’s religion and if one ceases to believe them, which again may be a mere mental condition, one automatically ceases to profess that religion”.
In this case, D. Mohammad. remarked that the motive of the declarer was also immaterial; an individual might renounce his faith for love or avarice; one might do so to urge obviate his present commitments or truly to hunt salvation elsewhere, but that might not affect the factum of change of religion . And, in matters like these, it had been the factum alone that matters and not the latent spring of action which resulted there from.
Whether mere profession of Islam is sufficient to form a non-Muslim a Muslim isn’t entirely free from doubt. it’s true, as Lord McNaughton had stated, no court of law can test or gauge the sincerity of spiritual belief.
In all cases where, consistent with Muslim law, unbelief, or difference of creed, may be a bar to marriage with a real believer, it’s enough if the alien in religion embraces Islam prophecy. It’s submitted that a non-Muslim will become a Muslim by professing Islam, as long as it’s not Colorable or mala fide or made with a view to perpetrating fraud upon law.
b)Muslims who undergo Formal Conversion:
It appears to be a well-established proposition of law that a non-Muslim. An individual seeking conversion to Islam may attend a Muslim mosque. On the completion of the recitation of the Kalma, the conversion ceremony is over, and therefore the non-Muslim becomes a Muslim.
In most of the mosques, a register is kept during which the name of the person embracing Islam is entered and therefore the convert puts his signature thereto.
Conversion of a Muslim from one sect to a different doesn’t amount to apostasy, and an individual changing from- one sect to a different continues to be a Muslim.
The genuineness of belief within the new faith is immaterial, and even when a convert doesn’t practice the new faith, he will still be a Muslim. But it’s necessary that the conversion should be real , honest, and will not be colorable, pretended or dishonest.
In the case, Skinner v. Orde[4], a Christian woman was living with a married Christian man. With a view to legalizing their cohabitation as husband and wife, both of them underwent a ceremony of conversion to Islam. After the conversion, they got married.
Later on, when the question of validity of this marriage arose, the council held that the wedding was null and void on the bottom that conversion wasn’t real . Moreover, it had been a fraud upon the law, since the parties underwent the ceremony of conversion with a view to eluding their personal law.
The question of Colorable, fraudulent and dishonest conversion has come up before the Indian High Courts during a number of cases, where a non-Muslim has embraced Islam, either to say divorce on the bottom of apostasy, or to enter into a polygamous marriage.
Thus, within the matter of Ram Kumari v. Unknown[5], a Hindu wife adopted Islam, and assuming that this meant automatic dissolution of her marriage, took a second husband. She was prosecuted and convicted for bigamy.
In Rakeya Bibi v. Anil Kumar Mukherjee[6], this aspect of the matter has been very cogently and brilliantly discussed by Chakravarti, J. during this case, a married Hindu woman, with a view to getting obviate her impotent husband, embraced Islam, and sought to a declaration that on her conversion to Islam, her Hindu marriage stood disintegrated.
Observing that the question whether conversion was real or merely a tool for terminating the wedding , was vital , the learned judge said: “it could also be that a court of law cannot test or gauge the sincerity of spiritual belief, or that, where there’s no doubt of genuineness of a person’s belief during a certain religion, a court cannot measure its depth or determine whether it’s an intelligent conversion or an ignorant desire.
But a court can and does find truth intention of men lying behind their acts and may certainly determine from the circumstances of a case whether a pretended conversion was really a way to some further end Indeed, it seems to us to be elementary that if a conversion isn’t inspired by religious feelings and undergone for its own sake, but is resorted to merely with the thing of making a ground for a few claim of right, a court of law cannot recognize it as an honest basis for such claim, but must hold that no lawful foundation of the claim has been proved legitimate.
When conversion gives a right through a mock conversion and found out as basis of that right is to commit fraud upon the law. We are clearly of opinion that where a celebration puts forward his conversion to a replacement faith as creating a right in his prefer to the unfairness of another, it’s proper and necessary for a court of law to inquire and determine whether the conversion was a real one”.
The court found that conversion is not real , since the mind of the convert, the unhappiness caused by her husband’s impotence and conversion to Islam as a way to flee from that unhappiness were associated.
References:
1. Muslim Personal Law (Shariat) Act, 1937 India Code https://www.indiacode.nic.in/bitstream/123456789/2303/1/A1937-26.pdf
2. Abdul Razak v. Aga Mahomed Jaffer Bindanim (1893) I.L.R. 21 Cal. 666 (India)
3. Reshma Bibi v Khuda Baksh AIR 1938 Lah 483 (India)
4. Skinner vs Orde And Ors. (1875) ILR 1 All 230 (India)
5. Ram Kumari v. Unknown (1891) ILR 18 Cal 264 (India)
6. Rakeya Bibi v. Anil Kumar Mukherjee ILR 1948 (2) CAL 119 (India)
About the Author:-
This Article has been written by Aryan Sinha, 5th Year law (BBA+LLB(H) student at Galgotias University, Greater Noida.
