Application of Muslim Law:

It is Muslim personal law which is applied in India to Muslims. It is not the pure Muslim law that is so applied. The entire Muslim jurisprudence is a huge mass, only a limited portion of it has now the force of law. A great portion of it has come to be rejected as uncertain, complex and artificial. The gap caused such rejection has been compensated by the rules equity, justice and good conscience. Many modifications have been made, intentionally through legislation and unintentionally through judicial precedents. Hence at the present day in matters only of inheritance and succession, wills, gifts, marriage, dower, divorce, paternity, guardianship, maintenance, trust and waqfs, the Muslim law is applied to Indian Muslims.

Notwithstanding any customs or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, 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 and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).

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The rules of Muslim law so far applicable in India may be classified as under:

(i) Those which have been expressly directed to be applied: These rules are expressly directed by the legislature to be applied to Muslims such as rules of inheritance and succession. These rules are applicable only to the extent that they are not interfered by the subsequent legislation. Thus, where Muslim law is specifically directed to be administered, the Courts has to administer the rules of Muslim law irrespective of the fact that they might not, in the opinion of the court, conform with justice, equity and good conscience.

(ii) Those which are applied on principles of justice, equity and good conscience: These are neither expressly directed to be applied not abrogated by legislative Acts, are applied as principles of justice, equity and good conscience such as the law of pre-emption. It is on this ground that some High Courts have held that Muslim law of pre-emption is applicable to Muslims. But the same law of pre-emption has been made inapplicable in Madras on the same ground of equity, justice and good conscience in as much as the law of pre-emption places restriction upon the liberty of transfer of propery.

(iii) Those provisions which are not applicable at all: The application of some portions of Muhammedan law barred by the enactment of statutory provisions such as the Muhammedan law of Crimes, law of evidence, law of torts, etc. Some of the provisions of Muslim law have come under the provisions of various statutes. In such cases the Muslims are governed by the same statute law which governs other communities. The portions of procedure and evidence under Muslim jurisprudence have now been superseded by the codes of Civil and Criminal Procedure and Evidence Act.

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