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. 

We Welcome the Law Against Triple Talaq

The triple talaq law has invoked sharp reactions in a polarized atmosphere. The question of gender justice for Muslim women has been forever mired in a complex web of politics and patriarchy. Nevertheless, this is a historic moment for Indian democracy. Reform in Muslim family law which remained elusive for seven decades post-independence has become possible thanks to the democratic movement of Muslim women against triple talaq. The Supreme Court judgment of 2017 and this law became possible thanks to tireless efforts of ordinary women. It is no less significant that they received popular support from women and men across India.

Ideally, India needs a Muslim family law which protects legal rights of women just as the Hindu marriage and other family laws. Ideally this law should have been passed through consensus and unanimously by Lok Sabha and Rajya Sabha.  This should have happened in 1950s and 1960s when the Hindu Code laws were being passed and other laws were being amended to enable divorce rights for Christian women. But then we do not live in an ideal world. Indian women continue to bear the brunt of male-dominated society and narrow electoral calculations of politics. Women continue to suffer at home, in family, in society despite of the Constitutional promise of justice, equality, non-discrimination. Muslim women additionally bear this brunt owing to perpetuation of patriarchal norms in the name of religion. It is not an exaggeration to say that Quranic injunctions of justice have failed to translate into reality for ordinary women.

Some of the key objections to the triple talaq law need to be evaluated. This law criminalizes instant triple talaq. Let us bear in mind that the Muslim women’s demand is not about punishing the man, but to ensure justice and fair-play to the wife. Nevertheless, a law would be meaningless without deterrence. Triple talaq has been taking place despite the SC judgment banning it. Under the circumstances, what is the aggrieved woman supposed to do? She can do little else apart from quoting the judgment to the husband determined to pronounce talaq and throw her out. However, the law enables reconciliation between the two by making the offence bailable and compoundable. The fear mongering is unfounded as the FIR can be filed only by wife or family members -- all of whom would be fellow Muslims. This demonization of the woman as though she is simply waiting for the law to send the husband behind bars is laughable and outright patriarchal. Just remember the pathetically low conviction rates in cases of Hindu bigamy, dowry, domestic violence. The conservative personal law board, politicians and some legal experts who have no understanding and concern for the condition of women are baselessly opposing the law. They are attempting to raise fear in the minds of ordinary Muslims by showing the danger of the BJP government. We don’t agree with many other policies of the government. But on the triple talaq issue, the government is 100% correct constitutionally speaking. The legal experts opposing this law need to explain why jail term is ok in Hindu bigamy or dowry or domestic violence but not in triple talaq !

In reality those opposing the triple talaq law never engaged with the question of justice for Muslim women, but are now suddenly concerned about the harm the law would bring to women. Another laughable objection is that: “Who will provide for her for the three years when the husband is in jail?” For heaven’s sake, how did they dream about the husband pronouncing instant unilateral talaq providing maintenance to the wife he has just divorced? We have documented hundreds of cases of women who did not receive a naya paisa from the husband. Not just that, in several cases, the husband simply threw her out of the home, snatched away her belongings and the items she brought as dowry. These experts seem hell-bent on opposing every action of the government; let the women continue to suffer! In throwing out the baby with the bath water, they are unwittingly contributing in retaining the male-dominated status quo.

Owing to the nexus between so-called secular political parties and conservative patriarchal clergy, Muslim women are denied the benefit of legal framework. Triple talaq, halala, polygamy take place in spite of Quranic principles of gender justice and constitutional safeguards. Everybody remembers how Shah Bano, a 65 year old divorced woman was denied a nominal monthly maintenance of Rs 125 granted by the court. The government, clergy, politicians connived to deny justice to a solitary woman under the bogey “Religion is in danger.” They find that the BJP-led government is walking away with the credit. But then, when Congress keeps quiet when women of the whole country demand abolition of triple talaq, this is bound to happen. The BJP has seen a window of opportunity where other political parties miserably failed. But then, who is responsible for this situation? Certainly not the muslim women! Allah created man and woman as equal. The conservative clergy has come in the way of rights granted by Allah!

The demand for change has come from within the Muslim community. Each affected woman is somebody’s sister, somebody’s daughter, and somebody’s mother. There has been a growing awareness about Quranic injunctions on gender justice. Today, Muslims are aware that instant triple talaq is not sanctioned by the Quran. This is the key reason why the conservative Muslim Personal Law Board could not achieve much success in their attempts to raise passions and invoke fear of “interference in shariat.” Sadly, the so-called secular parties remained ambiguous, and did not openly support the agitating Muslim women. This hypocrisy is exposed. It is pointless to go into the motivations of the government, but it must be stated that legal protection for women is mandated by the Constitution.


We are not suggesting that lives of Muslim women would change drastically and immediately. Legal reform is an important part of larger process of social reform. Large sections of Muslims are poor, educationally and economically deprived. They are under threat from communal violence and discrimination. The triple talaq law will have to be followed by awareness, education and empowerment of both women and men.

The Ordinary did the Extra Ordinary - Muslim Women Win for Themselves a Law against Triple Divorce

The Ordinary did the Extra Ordinary

Muslim Women Win for Themselves a Law against Triple Divorce

In the history of independent India, it is a first that the ordinary Muslim women have won a hard battle against the unjust practice of unilateral instant divorce. What Hindu women got in 1955-57 because of men like Nehru and Ambedkar, Muslim women got it through their own effort. No men, no scholars, no aalims, no lawyers – just ordinary women and activists whose sole concern was legal justice to Muslim women. Their struggle is of the women, by the women and for the women and also for the larger community. 

We know Shahbanu and Shahnaz were alone in their battles against entrenched misogyny, which enjoyed unquestioned political patronage. They challenged the sharia practices in the court of law, crying out discrimination and injustice. Not only were they not heard by the community but also hounded and pressurized into giving up their long drawn struggle. The well knit political, social and legal net of mullahs, religious institutions, government machinery and political parties were inextricably enmeshed leaving no room for women to even talk and express their anguish, let alone debate or demand. This entrenched network is singularly responsible for all the agony faced by Muslim women. Today the vested interest have no right to speak against the law because they allowed themselves to miss the bus which could have brought in much needed reforms in the personal law of the Muslims many years back. This syndicate, which scratched each other’s back at the cost of women, children and harried men too, did not allow any debate around the issues of personal law, treating it as their personal fiefdom, brooking no interference as if it was their citadel with no entry for anyone. Power balance within the community was too lopsided in favour of men. This power used pressure tactics, violence and community pressure to dissuade any women to raise her voice. These pressure tactics and strategies had full political backing leaving no room for women to assert herself even at the local police stations. The state comprising of government and political parties forgot all about their constitutional responsibilities towards the Muslim who is also a citizen of this country. 

This political apathy delayed the long due process of change but in hindsight it enabled women to rise up and challenge it herself. Victims and concerned women realized that if they won’t raise their voices nobody else would. It suits nobody, neither the Muslim men nor the political establishment to raise the question of security of Muslim women within the four walls of her house. If one cursorily looks at the backgrounds of women who led this struggle from the front, we see that they are from absolute humble backgrounds with no prior experience of activism or legal knowledge. Shayara, Afreen, Ishrat, Gulshan and Atiya are from lower middle class and poor families. They did not have large amounts of money nor any great social influence and definitely no political support. It was the sheer insensitivity of the socio-political system that spurred their strength into challenging the deep-seated discrimination and bias. It has been a women-led struggle all the way through with little or no support from any quarter. While the privileged amongst the community were insulated, the aware refused to speak up for the fear of backlash from the villainous clergy. All cloaked their arguments against reforms saying that Muslim women have got everything 1400 years back. When the women did not back out they gave legally coated arguments against state intervention. When this too did not dissuade the women, and then came the allegations and character attacks. Especially the last 5 years have been the most vicious where the most liberal and progressive stood hand in hand with the most regressive. That women who are demanding legal reforms are western, feminists, unIslamic, right wing Hindus in the garb of being Muslim, members of RSS, VHP and BJP and so on. Inspite of this sea of challenge from practically all established quarters, Muslim women won with huge support from within the community in the form of victims, their families and a large contingent of the brave women and men within and outside the community who spoke up for change. No doubt there that is a vast silent majority within the community, which has not spoken up for reforms but in their heart of hearts have welcomed the much need legal security.