THE HISTORY OF SHARIA APPLICATION ACT, 1937 [SAA] Indian Muslims First To Begin Codification

DAY 14

THE HISTORY OF SHARIA APPLICATION ACT, 1937 [SAA]

Indian Muslims First To Begin Codification

Is it that the Muslims were the first to codify their family law? 

It is indeed tragic that the community which started first to codify its family law is still to end the process, 73 years into independence. While the rest of the population enjoys the security of the law, however faulty its implementation, and faulty it is, the largest minority in India and the second largest in the world still remains deprived of that privilege. 

Today there is resistance to codifying Muslim law from the orthodox clerics and many are still wondering what the issue is all about. But Muslim law began to get codified even before Hindu law. The call for codification of Muslim law then came from various quarters. It came from religious groups, political groups, social reformers as well as Muslim women’s organisations. While each had their own reasons, they all wanted legal reforms to happen. 

Name the family laws which govern different communities in India? 

At the cost of repeating myself which I have done in practically all articles on Muslim law, it is important to recall that Hindus are governed by 4 Acts, Hindu Marriage Act, Hindu Succession Act, Hindu Minority and Guardianship Act, Hindu Adoption and Maintenance Act Hindu law governs Sikhs, Jains and Buddhists. The Christians are governed by Indian Christian Marriage Act of 1872 and the Parsis are governed by Parsi Marriage and Divorce Act of 1936.

Muslims as on today are governed by Shariat Application Act, 1937 about which we will learn today. They also have the Dissolution of Muslim Marriage Act, 1939, The Muslim Women (Protection of Rights on Divorce) Act, 1986 and the recently passed The Muslim Women (Protection of Rights on Marriage) Act, 2019 

Other than these personal laws all the citizens are governed by the optional family law called the Special Marriage Act, 1954 which makes space for inter and intra religious marriages. This law gives you the freedom to opt out of your personal laws. 

What are the implications of these laws? 

With passing of these Acts, it became mandatory that each community is governed by their respective family laws unless they choose to marry under the Special Marriage Act. Before these codified laws were passed, Indians across religions followed a mix of customs and traditions. Even now it will not be surprising to know that even the well-educated and aware don’t know under which law they have married. We now follow a mix of codified law and local customs and traditions. Over the period of time, the personal laws are seen as intrinsic to each community’s socio-religious identities. 

What does the Shariat Application Act say?

Let’s look at the text of the SAA. It says, notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding succession, property, marriage, divorce, maintenance, dower, guardianship, gifts, trusts and wakf, the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat). In simple words it says that Muslim community hence forth will NOT be governed by customs and traditions but by the shariah law in matters of marriage, divorce etc. 

Which groups supported the codification process in 1937?

Muslim women wanted the shariah law although some of them also were also aware that the turn of political events in the 1930s are actually undermining the joint women’s call for equality and justice. Turning to codifying the shariah would ensure inheritance rights, they will have a say in the marriage, they will have the right to divorce and maintenance after divorce. These shariah provisions were conveniently ignored by the Muslim clerics then. Although the shariah provisions ensured rights for women, they were not made aware of it and were subjected to the discriminatory customs and traditions. 

Political leaders who paved the way of passing the SAA wanted a separate Muslim identity for their own political purposes. It fulfilled a colonialist agenda of creating religious identities and pitting them against each other. A community bound by a common shariah law, is easy to mobilise for creating a separate identity which can be then mobilised for political strength. 

Religious groups wanted shariah to further strengthen their religious identity which was increasingly feeling threatened by the turn of political events. 

What was the context in which the law was passed?

A quick look at the context in which the law was passed. The political scenario was changing rapidly. The Muslim League had emerged as a political representative of the Muslim community. The Muslim women along with other women were extremely vocal about their rights and were demanding a better legal deal for all women. The Muslim shariah provisions had been ignored very conveniently by the clerics then and as a result Muslim women suffered. While she had the right to khula, she was not allowed to exercise it. Many women were trapped in violent marriages with no hope ever to come out of it unless the husband divorces her. There was an alarming increase in the number of women who started to convert out of Islam to annul their marriages and save themselves the agony. The religious groups were alarmed along with the political leaders as a large number of Muslim women converting out of Islam would harm the numerical strength of the community standing at the cusp of national uprising against the British and also bearing the brunt of their divide and rule policy. Moreover as said earlier the Muslim women who led the rights movement then, knew that shariah provisions were favourable for them. They not only had the right to divorce but also right to post-divorce maintenance. The marriage was not possible without the woman’s consent. Moreover she also inherited property. Muslim women were not ready to give up their rights ensured by the religion but taken away by local customs. They played a significant part in ensuring that women got their shariah-protected provisions in the form of a codified law. 

Who opposed the SAA and why? 

The Act did face opposition from various quarters. The rural farmers of the north opposed the law as it ensured women’s right in the property. For centuries, women of all communities were deprived of their right to property and this Act in a jiffy restored that to the Muslim women atleast. Many Muslim land owners objected this fair provision. To pacify them, the Act barred the application of this law on agricultural property to ensure the political support of the Muslim landowning class. Such a convenient arrangement between the elite and the political dispensation then! Reminds you of the same arrangement between the religious groups and political dispensations in independent India. 

The opposition also came from the religious groups who for centuries had held the reins of religious matters, including the family law matters, in their hands. The passed fatwas, they misled the masses from the pulpit, depriving the women to educate herself, impacting her mobility, misinformed about purdah, deprived her of her right to divorce, maintenance, encouraged child marriage and kept her out of her property rights. Such a shame that this was allowed to continue even after independence. Even today women are deprived of her rights in the absence of shariah backed legal provisions. Some of them did support the passing of the law, but many objected to it being allowed to be governed by a secular dispensation, through lawyers and judges who will not necessarily be Muslims. This irked them more than the fact that 50% of the population will have access to their rights. They were clearly not comfortable with the power slipping away from their hands. 

All in all, the SAA ensured women’s right, specifically her right to property and her right to divorce. As we will see in the next article of the series that the process of codification did not stop. The next legislation came in less than two years of the SAA ensuring Muslim women’s right to divorce. 

Keeping in line with the trend set in 1937, the process of a comprehensive codification of Muslim law must happen.