The vehicles of these modifications have been three: (a) doctrine of equity, justice and good conscience, (b) precedent, and (c) legislation. The first two have proved to be very effective modes of change, while the role of the last has been peripheral.
Equity, Justice and Good Conscience:
In most systems of law, something akin to the English doctrine of equity, justice and good conscience has existed. Muslim law is no exception to this universal phenomenon.
Istihsan of the Hanafi School, and the doctrine of maselihul mursala of Malik, are near to the English doctrine of equity, justice and good conscience. Istihsan is used to override the Kiyas. In the words of Abdul Rahim: “It may happen that the law analogically deduced fails to commend itself to the jurist, owing to its narrowness and inadaptability to the habits and usages of the people and being likely to cause hardships and inconveniences. In that event also, according to the Hanafis, a jurist is at liberty to refuse to adopt the law to which analogy points, and to accept instead a rule which in his opinion would better advance the welfare of men and the interests of justice.” Thus, istihsan means equity or juristic preference. Schacht says that istihsan came to signify a breach of strict analogy for reason of public interest, convenience or similar consideration.
This is essentially a doctrine of the Hanafis, and other schools of Sunnis did not look at it kindly. Masalihu Mursala as propounded by Malik allowed the jurists to deduce law on the basis of general consideration of public good, but the followers of the Maliki school could not make much use of it as they thought it to be too vague to permit any deduction of rules of law. Another source of Muslim equity is read by Fyzee in the directions given to the Kazi to mitigate, in certain circumstances, the rigorous of a legalistic interpretation of the law. It is obvious that whatever directions were issued to the Kazi, or to whatever extent the doctrines of juristic preference and public good might be stretched, they could not be utilized to override the text of the Koran or the Sunna. They were, at best, used to override the Kiyas.
In its modern version, the doctrine of equity, justice and good conscience is essentially a product of the British administration of justice in India. Its earliest form is found in the Letters Patent of George I of the year 1726 which enjoined upon the courts to give judgments “according to justice and right”. Then, it came to mean the English notions of justice and right as understood by English lawyers. The Regulations of 1781 laid down that in cases, for which no specific directions had been laid down; the adalat was to act according to “equity, justice and good conscience”. Thus, was introduced the doctrine of equity, justice and good conscience which was interpreted to mean the application of rules of English law as modified to suit the Indian conditions and circumstances. This led to the opening of an area where the rules of Muslim law were blended with the rules of English law; or where areas of English law were superimposed on the rules of Muslim law.
By this process, several rules of Muslim law were modified and brought at par with the changed social conditions in India and with the English notions of equity and justice. For instance, the Muslim law of pardanashin lady, of guardianship, of divorce, of wakf, etc. has undergone considerable modifications.
The interference in the law has been made avowedly in those cases where the rules of Muslim law have been found wanting, or to be too rigorous, or to be not in consonance with the notions of English justice and equity. One remarkable instance of this is the law of pre-emption. Some High Courts hold that the law of pre-emption is in consonance with equity, justice and good conscience, therefore, enforced it, while others took the contrary view. Where the courts have been expressly directed to apply Muslim law, the doctrine of equity, justice and good conscience cannot be utilized to modify the law.
The common law doctrine of precedent has never been a part of Muslim law; the decisions of a Kazi never constituted a precedent in the English law sense. The nearest approach to this doctrine in Muslim law is fatawa, opinions of the jurists, which have great persuasive force. The fatawa possess not merely moral sanctions but also legal authority. The mufti whose function was to search out the law applicable in a given case, was supposed to look after the interest of the people not merely in this world but in the world hereafter.
Thus, a fatawa pronounced by a mufti or a scholar, had great authority as well as sanctity, yet the kazi was not bound by it. It was discretionary for him to follow the fatawa, or if he thought it fit in his judgment, he could ignore it and render an independent decision. There exist various collections of fatawa, of which the Fatawa-al-alam-giriyya is the most famous. The common law doctrine of precedent became part of Muslim law during the British period. These twin doctrines, equity, justice and good conscience and precedent, were used by judges to modify rules of Muslim law, and thus a body of new rules developed which was christianed by some western scholars as Anglo-Mohammedan law. The expression may not be very precise, but it very aptly designates the actual position. Schacht observes that in this manner, more than by positive changes which were few, Islamic law in British India has developed into an independent legal system, substantially different from the strict Islamic law of the shariat, and, therefore, properly called Anglo-Muhammedan law. He adds, “out of this law there has grown a new Anglo-Muhammedan jurisprudence.
This law, and the jurisprudence based on it, is a unique and a most successful and viable result of the symbiosis of Islamic and of English legal thought in British India”. During the British period, the English courts were enjoined under statutes and regulations to ascertain and administer the personal law of the Muslim in matters relating to marriage, dower, divorce, inheritance, etc. They tried their best to do so. In most cases, they were successful, but at times they were not. Some rules of Muslim law were interpreted by them in their own light, trained as they were in the common law traditions.
In this process, some rules of English law got blended with rules of Muslim law, and some rules of Muslim law got modified. Undoubtedly, some modifications were justified. (Govind Dayal v.
Inayatulla is an instance of the latter). By the use of the doctrine of hiyal (subterfuge), the medieval jurists discovered a way by which the right of pre-emption of a contiguous owner could be defeated; this was done by not selling a small strip of land adjoining to the contiguous owner. A full Bench of the Allahabad High Court refused to enforce this rule, and held that such “tricks and artifices” could not be permitted.
In the same way, the Muslim law of gift and wakf has been modified so as to accord protection to a pardanashin lady. Abdul Fata Mohamed Ishak v. Dhur Chowdhry is another illustration of this judicial tendency. In this case, a wakf for alal aulad was held void being violative of English rules against perpetuity and family aggrandisement. It is a different matter that the legislature intervened to restore this rule of Muslim law. Today, the doctrine of stare decisis is as much a part of Muslim law as it is of any other branch of Indian law.
Obviously, Islamic law has not known anything like the modern legislative assemblies. The Hanbalis did recognize administrative regulations, side by side with the sharia, which were called by them nizam (ordinance, or marsum or decree). There have existed other administrative regulations called Farmans and dastural-amals which related to gift of land under feudal tenures. Neither nizam and marsum nor Farmans and dastural-amals related to the personal law. During the British period, it was the proclaimed policy of the foreign rulers not to interfere with the personal law of the Indians.
The result was, as Danial Latifi puts it, that under the British imperialist rule in India, Muslim law suffered, both from the apathy and indifference of the rulers based on their political exigencies, and from the artificially buttressed orthodoxy of the ulama. Obviously, legislative modifications of Muslim law have been very few. Some were adopted to strengthen Muslim law.
Thus, the Shariat Act, 1937, was passed with a view to making Muslim law applicable to the Muslims in those matters where they were governed by a different law. Similarly, the Mussalman Wakf Validating Act, 1913 was passed to validate the wakf for alal aulad. However, there were some statutes which affected and changed Muslim law to some extent. The Caste Disabilities Removal Act, 1856 lays down that “so much of any law or usage as inflicts on any person forfeiture of any right or property, or may be held in any way to impair or affect any right of inheritance, by reason of his or her renouncing or having been excluded from the communion of any religion or caste, shall cease to be enforced as law”. This removes the disability of an heir arising on account of his apostasy or excommunication, but not of his descendents. The Child Marriage Restraint Act, 1929, affects the Muslim rule of puberty, inasmuch as it lays down that the minimum age of marriage for girls is completion of 18 years and for boy’s completion of 21 years. Section 112 of the Indian Evidence Act, 1872 affects the Muslim law of gestation.
The section lays down that a child born within 280 days of the dissolution of marriage shall be presumed to be the legitimate child of his father. The Special Marriage Act, 1954, applies only to those Muslims who solemnize their marriage under the Act. However, if a Muslim solemnizes or registers his marriage under the Act, succession to his property is governed not by Muslim law, but by the Indian Succession Act, 1925. There are several other statutes which modify some or other aspects of Muslim law. Thus, Ss. 107-108, Evidence Act, 1872 modify the Muslim law of presumption of death, Majority Act, 1875 affect the Muslim law of majority, Guardians and Wards Act, 1890 modify the Muslim law of guardianship, the provisions of the Succession Act, 1925 relating to administration of estates apply to Muslims with the execution of Chapters II and VII.
Some provisions of the Transfer of Property Act, 1872 and the Dowry Prohibition Act, 1961 apply to Muslims. Ss. 125-128 of the Criminal Procedure Code, 1973 modify the Muslims law of maintenance, the Administrator General’s Act, 1913 apply to Muslims. The following statutes either modify or codify the Muslim law of Wakfs: Mussalman Wakf Validating Act, 1913-1930, Wakf Act, 1954, the Wakfs Acts of Bengal (1934), Bihar (1947), Uttar Pradesh (1960) and Jammu and Kashmir (1959) and the Dargah Khawaja Saheb Act, 1955. Then there are the Kazis Act, 1880 and Haj Committee Act, 1959.
There are several State statutes which either modify or abrogate the Muslim law of pre-emption: these are the Bhopal Pre-emption Act, 1934, Berar Land Revenue Code, 1928, Rewa Pre-emption Act, 1946, Agra Pre-emption Act, 1922, Oudh Laws Act, 1876, Rajasthan Pre-emption Act, 1956, Jammu and Kashmir Pre-emption Act. The Dissolution of Muslim Marriage Act, 1939 makes an innovation in Muslim law, since it confers a right of judicial divorce on a Muslim wife on certain grounds. Two State statutes affect the Muslim law of dower by fixing the maximum limit of dower. These statutes lay down that when a court finds that the stipulated dower is beyond the means of the husband, it can fix a reasonable amount of dower with reference to the means of the husband. The Bengal Muhammadan Marriages and Divorces Registration Act, 1876, Assam Muslim Registration Act, 1935 and the Orissa Marriage and Divorce Registration Act, 1949 provide for the registration of Muslim marriages and divorces. However registration is not obligatory. Article 44 of the Indian Constitution makes it a principle of State policy that ‘the State shall endeavour to secure for the citizen a uniform civil code throughout the territory of India”. And the State did endeavour to reform the Muslim personal law, when in 1963 a proposal was moved in Parliament for reforming Muslim personal law.
Although the proposal had the backing of the progressive sections of Muslims, it was opposed by the orthodox, and the community’s protest was conveyed through no less a person than Zakir Husain, the then Vice-President of India. The Indian Muslim Majlis-e-Mushawarat led the agitation against the contemplated reforms. In 1970, the All India Muslim Political Convention sought an assurance from the Government of India that “no attempt would be made to change the personal law of any community and specially that of the Muslims”.
And the Union Government has, from time to time, assured the Muslim community accordingly. And for the present, the matter rests there. However, judicial activism in the direction of having a uniform Civil Code continues. In 1985, Md.
Ahmed Khan v. Shah Bano Begum, the Supreme Court said: “It is also a matter of regret that Article 44 of our Constitution has remained a dead letter”. In Ms. Jordan Diengdeb v. S.S. Chopra, O.
Chinnappa Reddy expressed the same sentiments. Once again in 1995, the Supreme Court in Sarla Mudgal v. Union of India voiced the same sentiments, this time in a stronger language. Kuldeep Singh, J.
said, “successive governments till date have been wholly remiss in their duty of implementing the constitutional mandate under Article 44. Therefore, the Supreme Court requested the Government of India, through the Prime Minister of the country to have a fresh look at Article 44 of the Constitution of India and endeavours to secure for its citizens a uniform Civil Code throughout the territoiy of India”. R.
M. Sahai, J., agreeing with his learned brother-Judge said: Our is a Secular Democratic Republic. Freedom of religion is the core of our culture. “But religious practices, violative of human rights and dignity and sacredotal suffocation of essentially civil and material freedoms, are not autonomy but oppression”.
Therefore, a unified code is imperative both for protection of the oppressed and promotion of national unity and solidarity.