Muslim Personal Law
Personal law is that branch of law which regulates the personal matters of individuals as marriage,divorce, guardianship etc. It is called personal law because it deals with the personal matters of a person it affects only to the person concern. It deals with the matters of family so it is also called family law. Personal laws are generally based on religion. It is practice to call the personal law of different community with their religion. For example personal law of Hindu community is called Hindu law, personal law of Muslim community is called Muslim law, personal law of Christian is called Christian law etc, these all are based on their religion. The main features of personal law are as follow .
Personal law as mentioned above is religion based so it is not of general application. Personal law of one community can be applied to all the persons uniformly like other general laws.
Personal law are applicable only to family matters such as marriage, divorce, guardianship etc.
Personal law moves with the person. In other words person moves with his own personal law. If a person goes to America from India, he carries his personal law with him in America. If he dies in America his funeral will be completed as per his personal law.
Muslim law is that branch of civil law which deals with the family matters of Muslims.
Who is Muslim ?
Persons who have faith in Islam are called Muslim. The term Islam is Arabic word. Its literal meaning is submission to the will of God. In legal sense Islam is a religion in which it is believed that
God ( Allah) is one and only one and Prophet Muhammad is His messenger (Rasool).Thus the only requirement of being a Muslim is that one should have faith only in God (Allah) and Prophet Muhammad as His messenger. This is the fundamental requirement of being a Muslim. If a person who follows all the culture and practices but does not have faith in fundamental principle of Islam he never be treated as Muslim. Similarly if person who does not follow the practices and culture of Islam but he believes in the core principle of Islam, he will be treated as Muslim. But it is very difficult to ascertain the true belief of a person in God and so only on this basis it is difficult to say whether a person is Muslim or not because it is a matter of faith, internal aspect, feeling of heart. To sort out this aspect court has evolved a method to test whether a person is Muslim or not .For this purposes court has categorised Muslims in two groups.Muslim by birth and Muslim by conversion.
Muslim by birth
For the purposes of Muslim law a person whose both parents are Muslim and he himself has not converted to another religion will be considered to be Muslim. If only one of the parent is Muslim then it has to be seen whether the concern person has been brought up as Muslim or not, if yes he will be considered to be a Muslim.
Muslim by conversion
A person who is non Muslim may become a Muslim by conversion. If he is sound mind and has attained the age of majority. A person who accepts Islam after renouncing his religion is called converted Muslim.
Methods of Conversion
Conversion to Islam may took place in two way-
• By Public Declaration
• and By Ceremony
By Public Declaration
A person may by public declaration be converted to Islam. what he has to do is that he has to make a public declaration that he has renounced his original relegim and is now professing Islam and believes that there is only one God (Allah) and that Muhammad is His messenger.
The second method of conversion is through ceremony. A person may go to a mosque where the Imam may ask him to read a Kalema and give him a Muslim name and thereafter the person becomes a Muslim. The Kalema includes
” La ilaha-ill Allah, Muhammad-ur-Rasool- ullah”
It means there is one God Allah, Muhammad is the messenger of Allah.If the conversion is for malafide purposes then such conversion has been considered to be illegal. It is difficult to ascertain the faith of someone it is possible that a person may adopt the Islam only for certain benefits of Muslim law.for example a person may convert into Islam not because of his actual faith but only to get benefit of marrying with four wives which is not allowed under his personal law and is allowed under Muslim law.
Therefore conversion made for certain benefit cannot be treated as true conversion.
Skinner V. Orde 1871 14 MIA 309.
In this case a christian widow was living with a man who had already a living wife. To legalise their cohabitation they converted to Islam and became Muslim because under muslim law four wives are allowed. The Privy Council held that such conversion as malafide.
Sarala Mudgal v. Union of India (1995) 3 S.C.C. 635.
A Hindu man converted to Islam and thereafter contracted second marriage. The Supreme Court held that conversion was malafide and declared the later marriage as void and punishable as bigamy under section 494 of The Indian Panel Code 1860.
Lily Thomas V. Union of India A.I.R. (2000) SC 1650.
Another landmark judgement on this point is Lily Thomas V. Union of India A.I.R. (2000) SC 1650. The Supreme Court confirming its earlier view in Sarla Mudgal case held that conversion for legalising second marriage is malafide and it is void.
From above mentioned it is clear that in case of Muslim by birth there is presumption that he professes Islam. While in case of converted Muslim bonafide intention must be established which can be inferred from the facts and circumstances of the case.