Application of Muslim law || Why Muslim law is applicable to Non-Muslim also? Are Hindus bound to follow Muslim Law?
Muslims are divided into two groups (Sunnis and Shias) and Muslim law is applied (enforced) between the two sects on the following causes if the person:-
- Muslim by birth
- Muslim by conversion
- Non-Muslim (in some exceptional cases)
(1) Muslim by birth: A person who is born in a Muslim Law, whose parents are Muslims, the Muslim law is applied upon them fully. A person who has been born in the Muslim faith and has never been proven to have adopted any other religion must be held to be a Muslim¹. Anybody who denies that they are not Muslim, the burden of proof would be on those who assert the contrary. Unless and until the contrary is proved there is a presumption that they are Sunnis (To which sects the great majority of the Muslims of the country belong). There is freedom to every adult Muslim, whether male or female that he or she can renounce the one sect or sub-sect and adopt the other and thereafter he should be governed by the law of the new sect or sub-sect.
(2) Muslim by conversion: Normally conversion related to Muslim religion is done by force, war, and the facility of getting the advantage of four marriages. For those who are converted to Muslim upon them the Sunnis laws are enforced. However, if a converted person claims that he will be governed by a particular sect then he will be governed by the same, otherwise, the normal presumption is that he will be governed by Sunni law ².
Law of Defendant is Applied in the Matter of Litigation: Muslim Law of a particular sect will be applied where both the parties to the transaction are Muslims of the same sect, but if both the parties are not Muslims of the same sect, the rights of the parties would be determined in accordance with the law of the defendant³. For example, suppose a Sunni Musalman marries a Shia wife and sues for the maintenance or restitution of conjugal rights. In that case, Shia law being the law of the defendant (wife) will be applied. And for this rule in certain cases, Muslim law is applied to Non-Muslim also.
(3) Muslim law applies to Non-Muslims: In applying the rules of Muslim law, the policy of the court is that where the parties to a suit differ in their religion or do not belong to the same school of Islamic law, the law of the defendant is applied⁴. It means that if one party to a suit is a Muslim but the other is a Non-Muslim, the Muslim Law is applied if the defendant is a Muslim. A good illustration is a married woman who renounces Islam and converts to any other sect, then in order to decide the matters, the law of Muslim will be applied to her. Under section 4 of the Dissolution of Muslim Marriage Act, 1939, such a woman may obtain a decree for the dissolution of her marriage on any grounds mentioned in section 2 of this Act. [Because after she converted to another religion, when she filed a suit for divorce she would be called plaintiff and her husband would be a defendant. That is why the law of defendent applied upon her].
However, the main thing is, "Islamic law interfered with non-muslim only where they were directly or indirectly involved with Muslims".
Another example of the application of Muslim law to a non-muslim is the availability of the right of Pre-emption.
Illustration :
'A' and 'B' are family members, both belong to the Muslim sect. If 'A' sells his property to 'C' who is Hindu, after that when the sale is complete this right of Pre-emption (Shufa) will arise, and 'B' can claim the property from 'C' on the ground of qualification of rights of Pre-emption. Because "Strangers should not be allowed to enter into the family affairs". A right of Pre-emption is based on a contract a Muslim co-sharer is entitled to Pre-emption even against a Hindu purchaser (Sita Ram v/s Jiaul Hassan 1921, 48 IA 475).
Other good examples are Gift (HIBA) and Will (Wasiyat), where a Muslim may make a lawful gift in favor of a Non-Muslim but a donor can't gift more than one-third of his whole property and the Muslim can't dispose of by will more than ⅓rd of what remains of his property after payment of his funeral expenses. Although he/she makes a will in favor of non-Muslims. This means that a non-Muslim can not get the benefit of property of more than one-third of Muslims property. If he gets it will be void. Therefore we can say Muslim law is applicable to Non-Muslim also.
In some cases, the courts have refused to apply Muslim law where one party is non-Muslims.
In Ibrahim v. Miruddin [(1870) 6MHC 26], it was held by the Madras High Court that the right of pre-emption cannot be applied amongst Muslims as it places restrictions on the liberty of a person to transfer property. So the doctrine of Pre-emption is not recognized in many places. But in certain cases, the rules of Muslim law are undoubtedly applied to a Non-Muslim, which we discussed above.
For instance, by the Special Marriage Act, 1954 Muslim law is applied to Non-Muslim. Although the act (Special Marriage Act, 1954) is not under Muslim law, it's a separate act. But there have a provision which allows a marriage between prohibited relationships which barred/void under the Hindu Marriage Act, 1955. Sub-section 4, under section 4 of the Special Marriage Act, 1954 has a provision that "The parties are not within the degree of prohibited relationship provided that where customs governing at least one of the parties permits of a marriage between them, such marriages may be solemnized".
Illustration: 'A' & 'B' both are brothers and they are Hindu. 'C' is a daughter of 'A' and 'B's son is 'D'. In that case 'C' & 'D' can't marry each other because section 3 of the Hindu Marriage Act, 1955 in definition Claused (g) defined 'brother and sister' under a degree or prohibited relationship. But if 'A' renounce his sect and accept Islam then 'C' & 'D' can marry. The reason is that 'C' is custom permits marriage between prohibited relationships. Therefore by the Special Marriage Act, 1954 Muslim law is applied upon 'D' also, who is Hindu.
Note: Considering the above example, we can also say that in many cases Hindu Law is applied to Muslims also. (e.g. doctrine of pre-emption).
(¹) Bhagwan Baksh Singh v. Drigbijai Singh, AIR 1931 oudh 301
(²) P.C. Jain - Mohammedan Law, edition 4th. page 30
(³)Aqil Ahmed: Mohammedan Law, Ed. 25, p.97
(⁴) Fyzee; Outlines of Mohammedan Law, Ed. IV. p. 79
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