Muhammadan Law in India

Author(s): Asaf A. A. Fyzee

Source: Comparative Studies in Society and History , Jul., 1963, Vol. 5, No. 4 (Jul.,
1963), pp. 401-415
Published by: Cambridge University Press

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 MUHAMMADAN LAW IN INDIA

INTRODUCTION

The history of Muhammadan Law in India falls naturally into three

(A) The period of Muslim domination (1206 A.D.-1857 A.D.); (B) The
period (1661-1951); (C) The Republican period (commencing wi
promulgation of the Constitution of India on 26 January 1950). Th
are in such cases somewhat misleading and not mathematically "neat
may overlap, as in the British period, or, be ambient, as during the
Sultanate. On the other hand they indicate with some degree of clar
historical evolution and the time sequence of each system of jurispr
It will thus be seen that the Muhammadan law in India is one more instance
of law being a function of society, thus being in a continuous state of flux.
It is hardly necessary for me to add that the above classification must be
read subject to its natural limitations.
Muhammad b. Qasim first conquered Sind in 712 A.D. but such were the
difficulties-political, administrative, and military-which the early founders
of the Sultanate encountered that the regular enforcement of the shari'at law,
in the strict sense of the term, took place only in 1206, during the time of
Sultan Qutbu'd-din Aibak.1
Unfortunately, although a great deal of material is to be found scattered
in historical writing and works on administration and memoirs, no systematic
account either of Muhammadan law and its development, or of the administra-
tion of justice during the period, exists. Our information of the substantive
law and the texts applicable is fairly complete; but we have no proper account
of the exact procedure followed by the Courts in the course of litigation,
or the jurisdiction of the Courts and their precise powers. The work of
M. B. Ahmad is, unfortunately, the only one in the field; and with all its
undoubted merits, it is in many respects incomplete and unsatisfactory. Even
on the material he has gathered, the transliteration leaves room for doubting
the author's knowledge of Arabic, and the references are often incomplete.
While the material collected is useful, it has not been digested systematically
and the result is not a coherent whole, but in the nature of materials for, or
contributions to, the further study of the subject. The index contains a

1 M. B. Ahmad, Administration of Justice in Medieval India (Aligarh, 1941) 25.

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402 ASAF A. A. FYZEE

number of mistakes and misspellings, and is too meagre to prove helpful.

It is my earnest hope that some younger scholar will be induced to take up
the threads, and go over the same ground systematically, filling in the gaps
and correcting the manifest errors.
The real difficulty, as Professor Mohammad Habib (Aligarh) has often
explained to me, is that the material to be studied is to be found lying scattered
in a vast field, historical works, memoirs, administrative manuals, Government
orders and other state documents, such as treaties and grants, so that the
exhaustive study of the material is a matter of extreme complexity, and its
systematic presentation, of considerable skill and nicety. Nevertheless the
subject is of importance, and I should like to repeat with all the emphasis at
my command, that an adequate social history of India cannot be written
unless we know a great deal more of the history of the judicial process and
the administration of justice in Medieval India under Islamic domination.

I. THE MUSLIM PERIOD

The first period may be divided into two parts, the Sultana
Period. In the first, the sharl'at was sought to be applied str
difficulties began to arise; and with the Moghuls, it became
practice that while Muslims were to be governed by Muhamm
non-Muslims were to be allowed to continue the practice of
and customs, unhampered by considerations drawn from oth
William Jones and Morley (writing in the nineteenth century
the peculiar circumstances of the country it was very inadvis
tradition established by the Moghuls and introduce reform
not be appreciated by the people.2
In the beginning the Muslims tried to follow the law of th
strictly, but ancient custom and the laws of their non-Muslim
special problems; Hamilton for instance says:

Many centuries have elapsed since the Mussulman conquerors of IN

in it, together with their religion, and general maxims of governm
of their courts of justice.-From that period the MUSSULMAN
the standard of judicial determination throughout those countries
were subjugated by the Mohammedan princes, and have since rema
dominion. In one particular, indeed, the conduct of the conqu
differed from what has been generally considered in Europe (how
appear from many passages in this work) as an invariable princip
man governments; namely, a rigid and undeviating adherence to
not only with respect to themselves, but also with respect to all w
to their dominion.-In all spiritual matters, those who submitted

2 W. H. Morley, Administration of Justice in British India (London, 1

Outlines of Muhammadan Law, 2nd ed., 42.

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 MUHAMMADAN LAW 403

follow the dictates of their own faith, and were even protected in poin
with respect to a Mussulman, the LAW would take no cognizance.-In
ticulars, indeed of a temporal nature, they were considered as ha
themselves to pay obedience to the ordinances of the LAW, and were
constrained to submit to its decrees.-Hence the HINDOOS enjoyed
Mussulman government, a complete indulgence with regard to th
ceremonies of their religion, as well as with respect to the various pr
immunities, personal and collateral, involved in that singular compoun
and superstition.

After giving this heavenly account of the principles, the transla

Hedaya comes down to the earth of practical reality:
It is true, this statement rather accords with the spirit of the Moham
than with the practice of them; for it too frequently happened that too
was paid either to judicial ordinance or natural equity.-Where avarice
are united with despotic power, such a combination will occasion
corrupt the streams of justice.3

This passage shows the utter reliability of the witness and also th
the evils we now find in the sub-continent of India were of age-long
despite the great and humanizing reforms introduced by the fait
The Moghuls allowed the fullest liberty to their non-Muslim s
obedience to their own laws and customs, and this policy was ado
British from them.4 The Muslim Sultans who ruled India brought
a system of jurisprudence; but they had not come to a rude an
land. They therefore saw that they had to deal with a mature bod
laws, known as the dharma. And it is they, the Muslims, who for
well-known rule of Indian law that Muhammadan law would go
Muslims and Hindu law, the Hindus; and this was accepted by th
Company, confirmed later by the British Government and is n
established in the Union of India.5
In Islam, sovereignty belongs to God alone, and the king rules only in His
name, and as His servant and agent.6 It was the King's duty to see that the
commands of God were obeyed, unless there was a strong case made out by
custom. Akbar, it is said, "passed every moment of his life in self-examination
or adoration of God", and he was, according to Monserrate, stern in dealing
with offences against religion. Jehangir considered the daily administration
of justice in public as one of his sacred duties, and Shahjahan remarked that
"justice was the mainstay of his government".7 The Emperor Aurangzeb was
profoundly learned in the law and introduced many important reforms.8
The Kazi (cadi), as the lieutenant of the King, was also under strict disci-
3 Hamilton, Hedaya, Preliminary Discourse, xiv.
4 Fyzee, op. cit., 42; Ahmad, 32.
5 Fyzee, op. cit., 37; Ahmad, 90-91 and other places.
6 Ahmad, 66.
7 Ibid., 67.
8 Ibid., 266 ff.

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404 ASAF A. A. FYZEE

pline. If he passed orders in disregard of the shar'at, he would risk not only
dismissal, but also be liable to be put to death for apostasy in extreme cases.9
The Muslim princes as a rule did not tamper with justice and refrained
from altering the rules of the sharT'at; but as time went on several kinds of
rules having the force of law came to be recognized and enforced. The well-
known distinction between shari'at (sacred law) and qnuin (secular law)
came to be recognized; and laws, during the later Moghuls, were of three kinds:

(a) CANON LAW (ahkdm-i shar'iyya). These related exclusively to religious

matters, such as apostasy, conversion, and heresy.
(b) CRIMINAL LAW (ahkam-i jinaydt, qdnin-i fawjdarl). These included both
crimes and torts, e.g. theft, negligence, adultery and drunkenness.
(c) The KING'S REGULATIONS (qanun-i shahi). These consisted of farmans and
dastiru'l-'amals, and they dealt with gifts of land under feudal tenures.
They may be compared with the Edicts of the Romans, the Orders in
Council of British Kings, and the Qdnun Ndmes of Turkish Sultans.
(d) CUSTOM, USAGE (qanin-i'urf): This was a very important branch of
Indian law. The dharma says that custom over-rides the written text of
law. The sharV'at on the other land lays down that whatever the custom,
the nass (binding ordinance, based on the Koran or Tradition) prevails.
As regards Ijma' or Qiyas, it is doubtful if custom can be over-ruled by
them. Thus in India where there were a large number of conversions
from Hinduism to Islam, certain communities retained their own custom-
ary law as being beneficial to their sense of property and propriety. A
large piece of land cannot be broken up for the benefit of a son-in-law;
a business cannot be partitioned for a prodigal son; a daughter or wife,
being merely a woman, cannot obtain part of the father's lands. One
example is the Fatimid law as laid down in the Pillars of Islam,l0 and
another is the Hanafi law as applied in Kashmir, where by custom the
female heir (daughter or sister) is deprived of her share of lands. They
generally give a substantial dowry at the time of marriage but do not
allow any claim to be made at the time when the inheritance opens out.
The justification, from a practical point of view, is that this prevents the
fragmentation of agricultural land, in a country where even a bare sub-
sistence level is hardly maintained; and in commercial communities, split-
ting up a lucrative business into a doubtful partnership between two
comparative strangers, is hardly a desirable end. The daughter or sister
goes "outside" the family; she is "given away", and therefore the agnatic
relations naturally desire to protect their rights and prevent the intrusion
of relations by marriage. These and similar notions based on self-interest

9 Ibid., 68.
10 Da'a'im, II, Para. 1394.

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 MUHAMMADAN LAW 405

are too deep-rooted to be destroyed by the magic wan

Prophet-Koran.
(e) USE OF FATAWA AND PRECEDENTS. Although the sharf'at do
the doctrine of precedent as received in the Common Law in
elsewhere the persuasive force of the fatawa (singular, fatwa
opinion on a legal question) is in one shape or other recogni
the world. The fatwa of a great scholar has not only legal au
moral sanction, and cannot be compared with counsel's opinio
land, however eminent he may be. For he does not speak in
of religion, whereas the mufti is supposed to look after the i
the querist in the after-world as well. There were muftis an
in law attached to the law Courts whose duty it was to "spend
day in search of precedents". Nevertheless the Kazi had alw
his own judgement. Taqlld is permissible to those who do n
perfect knowledge but the man must make an honest effort
the nature of the rules applicable in his case; and in this proc
study the law from experts, commit to memory the Koran and t
and even important text-books, and then form his own judgemen
ever the method, we arrive at the basic fact that human jud
legal action must necessarily be a rational and voluntary act of th
will, for which he is responsible to God.
Thus in the Hanafi law as applied in India the authority of
Alamglr7 is second to none. A selection from it was transla
B. E. Baillie under the title of Digest of Moohummudan Law
volumes, the first of which deals with Hanafi (Sunnite) Law
second with the Ithna Ashari (Shiite) Law, based on the Shard
of Najmu'd-din al-Hilli. Baillie's is a magistral name in the M
law of India, and judges and text-writers have praised his work v
(2nd edition, London, Smith, Elder & Co., 15 Waterloo P
In recent times the Fatdwa 'Abdu'l-.Hayy (3 volumes, Firang
Lucknow, Urdu, 10th edition, Vol. I, 1935; Vol. II, 1926; V
1345 A.H.) have achieved the rare distinction of being consi
the highest authority. This scholar deserves a full-length study b
scholar of the 20th century. Another author who enjoys po
Mawlana Ashraf 'All Thanawl whose Imdad al-Fatawi (fou
Mujtabai Press, Delhi; Vol. I, 1345 A.H., Vol. II, ditto; Vo
Vol. IV, cover lost, probably, 1346.) is also widely used in Ind
authority are the fatawa delivered by the chief Mufti, for the t
of the Daru'l-'Ulum, Deoband, Uttar Pradesh. A very large n
fatwas are preserved by this famous seminary, and an effort is b
to publish a selection from this huge collection of over 100,0
I have 8 volumes, beginning with the fatawa of Mufti-i A'zam
Rahman and ending with the year 1335 A.H. The first volum

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406 ASAF A. A. FYZEE

short history of the Daral-Ifta' at Deoband. They constitute a very

authoritative series of Fatdwa in Urdu, and in my estimation, compare
very favourably with such juristic opinions in any part of the Islamic
world. They are of particular interest because they largely deal with the
social and personal problems that arise in the sub-continent of India.
The Shiites have a distinct theory of ijtihad, and the Twelver Shia have
their own mujtahids. A collection of Fatlwa held to be of great authority
is the Persian collection known as the Jami' ash-Shittat (see Tyabji, 93;
Ameer Ali, i,32). Although no collection of Fatawd seems to exist in
the Fatimid school, two collections of "Questions and Answers" are
deemed as of great authority-(1) Hawashi (2 volumes), and (1) Masa'il
Sayyidi Am7nji b. Jalal. These purport to be answers to questions addressed
to the Dda' of the time by interested parties (Wladimir Ivanow, Guide to
Ismaili Literature, 1st edition, Royal Asiatic Society, London, 1933; nos.
284, 285).
All these fatawd are persuasive authorities of great value, but the Kazi
(Court) is free to adopt the opinion most consonant to reason and
authoritative principles, but the doctrine known to the English law as
"precedent" was not embodied in the fabric of Islamic law as understood
in India in early times.
(f) "JUSTICE AND RIGHT"-"JUSTICE, EQUITY AND GOOD CONSCIENCE".
While no regular system of equity existed, as understood in the Law of
England, there are directions given to the Kazi to mitigate in certain
circumstances the rigours of a legalistic interpretation of the law. First of
all there were the adab al-Qddi (Duties of the Kazi), and in them we find
not only legal norms, but directions for private conduct, for the due
administration of justice, and for engendering confidence in the public
mind. A remarkable illustration is the letter purported to have been
written by Omar the Great to Abu Miisa al-Ash'ari when he was appointed
a judge." But to our present-day eyes, some of the rules are quaint, for
instance the Da'i'im says that for adultery the punishment of death should
be meted out immediately, for "if the judge wavers in his duty, the rains
will stop and drought will prevail".12 If the prediction contained in this
noble book would come true, there would be continuous famine in large
areas of the modern world, the rivers of the world and their super-abundant
water notwithstanding. The illustrious author of the Hediya gives some
sound but very intimate advice to a young Kazi who has a fair litigant in
his Court.13 It can be modernized to suit the twentieth century; but
essentially it deals with a universal axiom: That reason and passion cannot
co-exist. The ingenuity of the medieval lawyers had discovered another

11 Fyzee, Modern Approach to Islam (Asia Pub. House, 1963).

12 Da''im, II, Para. 1887.
13 Hamilton, Hedaya, 338a.

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 MUHAMMADAN LAW 407

instrument in the so-called hiyal (subterfuges) to circumvent t

An instance is to be found in the law of pre-emption (shuf'a) w
the right of a contiguous owner could be defeated by not selling
strip of land abutting on his estate; but a lethal blow was dealt t
rules by the pronouncement of Mahmood J. in Gobind Dayal v.
tullah, where he said that such "tricks or artifices" could not be perm
in our Courts, as they were considered to be "abominable" b
ancient authorities and could not be countenanced in an Indian Court
where the principles of equity prevailed. This is a clear case of "Justice
and Right" in the common law sense prevailing over the strict letter of
the law.14
The office of the Kazi could hardly have been a bed of roses, as
appears very clearly from this 6th/12th century authority:

The appointment of an ignorant man to the office of Kazee is valid, according to

our doctors.-Shafei maintains that it is not valid; for he argues that such appoint-
ment supposes a capability of issuing decrees, and of deciding between right and
wrong; and these acts cannot be performed without knowledge. Our doctors, on
the other hand, argue that a Kazee's business may be to pass decrees merely on the
opinions of others. The object of his appointment, moreover, is to render to every
subject his just rights; and this object is accomplished by passing decrees on the
opinion of others. (Italics mine).

At the present moment, at least in Britain and India, a Judge's position

is held to be enviable; he is independent and not subject to the whims of the
administration; he is hedged in by a certain divinity and the Constitution
protects him by an impenetrable shield against the arrows of judicial process
and arbitrary Governmental action. It was not so, however, in olden days;
for al-Marghinani says:

Several of our doctors, however, have said that the acceptance of the office of
Kazee without compulsion is abominable, because the prophet has said, 'Whoever
is appointed Kazee suffers the same torture with an animal, whose throat is
mangled, instead of being cut by a sharp knife.' Many of the companions, more-
over, declined this appointment: and Haneefa persisted in refusing it, until the
Sultan caused him to be beaten in order to enforce his acceptance of it; but he
suffered with patience rather than accept the appointment.15

This is in singular and healthy contrast to the efforts made, the influence
exercised and the wheels of office duly 'lubricated' to obtain judicial office
in many parts of the 'civilized' world.
Apart from a few exceptional cases the Muslim rulers of India were on
the whole tolerant to non-Muslims, and permitted them to continue their
religious practices and allowed them to follow their own laws. The Kazi had
a mufti (Muslim jurisconsult) and a pandit (a Brahman, learned in the law)

14 Cited and explained, Fyzee, Outlines, 300.

15 Hamilton, Hedaya, 334a.

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408 ASAF A. A. FYZEE

to guide him. The Committee of Secrecy, appointed by the House of Com-

mons (1772-73), recommended that the existing practice, followed by Muslim
rulers, should be supported and continued:
And your Committee finds that the Gentoo (non-Muslim) subjects enjoyed a similar
privilege with respect to all cases of a religious nature in which persons of that
persuasion were parties; for that in every such Case it was necessary that the
temporal Judge should be assisted by a Brahman of that caste (sic!), particularly
when that cause was of such a nature as might be attended with the consequence
of forfeiture of caste.16

Akbar once issued a proclamation on the subject, and it shows his realistic
approach to social prejudices and his essential humanity. Says the farman:
No man should be interfered with on account of his religion and every one should
be allowed to change his religion if he liked. If a Hindu woman fell in love with
a Muhammadan and changed her religion, she should be taken away from him by
force and be given back to her family. People should not be molested if they
wished to build churches and prayer rooms or idol temples or fire temples.17

Awrangzeb took a more strict view in his attitude to non-Muslims. He was

a man of genius, pious and God-fearing; his official correspondence shows
considerable directness of style in Persian; and yet, he never lived up to the
highest standards of Islamic tolerance as laid down in the Koran. For public
offices and posts of trust, he often chose non-Muslims, for, according to
him-umir-i dunyd ra az madhhab che nisbat (What has religion got to do
with worldly affairs?)l8
These rules, however, must be read subject to several practical reservations:
no ruler in the medieval times gave complete liberty of conscience to any
one else; even we today are far from the ideal to be attained. And yet it is
the truth that this attitude of civilized tolerance and permission to allow
members of every community to practise their own religions and follow their
individual laws, customs and usages was accepted by the British as the
correct policy and adopted by them in regard to the "Gentoos and the Mo-
hummudans".19
About the actual administration of justice we have a great deal of in-
formation in bits and pieces, but it has never been collected systematically
and interpreted critically. Many pious doctrines have been laid down, to wit,
Awrangzeb's exhortation in a letter of appointment:20

Be just, be honest, be impartial. Hold the trials in the presence of the parties and
at the Court house and the seat of government. Do not accept presents from the
people of the place, nor attend entertainments given by anybody and everybody...
Know poverty (faqr) to be your glory (fakhr).
16 Ahmad, 92.
17 Ibid., 93.
18 Ibid., 94.
19 Fyzee, op. cit., 42 sq.
2o Ahmad, 155.

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 MUHAMMADAN LAW 409

M. B. Ahmad rightly adds the advice that was given by Thom C

Judicial Officers in the United Provinces in 1938:

In this connection I would say it is well to discourage the blandishments, the

courtesies and the attentions of executive officers and prospective litigants and to
remember that the highest officer of the state, the most senior police officer, the
wealthiest citizen in the land, are entitled to no greater consideration in your court
than the humblest peasant. Indeed, if any distinction can be justified at all, it
must be in favour of the latter.21

With greater knowledge we shall be in a better position to judge; but it may

be said in general that there is considerable evidence that during the Moghul
rule, despite occasional lapses and cases of corruption, the level of the
administration of justice was high and the opinion of Ahmad22 is supported
not only by historians, too numerous to quote, but also by the fact that the
British who succeeded them kept the system intact, introducing no more than
the necessary changes. There can however be no doubt that in consonance
with the spirit of the times, both the law and the adminstration of justice
required reform, and the English rulers gradually introduced a system of
judiciary, and principles of interpretation, whereby the ancient systems were
interpreted and gradually moulded, in some respects only and without altering
their individual character, by the principles of "Justice, Equity and Good
Conscience".
Criminal Justice was administered in separate courts which were called
the fawdari Courts, and civil justice in the diwian Courts. We have consider-
able information buried in different sources on the working of these Courts;
but a systematic account, dealing with Courts, their justification and their
historical development is not forthcoming.
In regard to procedure, many details are recorded, but as in all autocratic
states, much depended upon the sweet will of the Sultan. The Sultan had the
power of remission of sentence, and it is recorded that in the case of a woman
from Gujarat, the accused was sentenced to death by stoning for the offence
of adultery; but the Governor remitted the sentence. Enhancement was also
possible, and the sentences were occasionally enhanced in a savage and
inhuman fashion. An interesting case is reported in the Storia de Mogor (i, 201).
The Accused, Daryia' Khatan, was a colourful character; she was prosecuted
for adultery and for having sold her nineteen paramours into slavery. The
Governor submitted the case to the Emperor, thinking that the Kazi would
probably sentence her to sangsari (stoning to death), a sentence totally
inadequate for her heinous crimes. The Emperor sentenced her to be torn
to pieces by dogs. Quite apart from the savagery, there is a complete disregard
for the rules of shart'at, which nowhere permits such terrible torture, and a

21 Ibid., 155-56.
22 Ibid., 272-end.

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410 ASAF A. A. FYZEE

man's sense of revenge against a mere woman playing with nineteen men,
appears to be the real reason.23
It would take us too long to go into the exact procedure followed in suits
and appeals. But it is certain that there was an existing system, which gave
satisfaction to the people and which was adopted by the British in the early
years. Later, no doubt, with the advent of the British Crown, the law of
England and in particular by the application of the principles of equity, newer
laws, newer procedures and newer methods of recruiting judical officers were
gradually introduced.

II. THE BRITISH PERIOD

It will be seen that in my classification, the British influence co

1661, while the Moghul period lingers on to 1857. A word of e
regarding this inconsistency is desirable. The history of the Br
India commenced with the formation of the East India Compan
during the reign of Elizabeth I. The Charters of 1600 and 1609
authority to make laws.
"... so always that the said laws, orders, constitutions, ordina
prisonments, fines and amerciaments be reasonable and not co
repugnant to the laws statutes, customs of this our realm."24
The exercise of judicial powers by the East India Company co
with the Charter of Charles II in 1661; and the responsibility for
istration of justice in India was confined until 1765 to the Facto
Company.25 An important landmark in the history of Indian law is
of the island of Bombay by Portugal to the British, and its lease by
to the East India Company in 1668 at a quit-rent of ? 10 per ye
established in 1851 one of the three High Courts, the others being a
and Madras, which upheld the traditions of British justice and h
to the Union of India in 1950, a system of laws and a tradition of up
of the judiciary, based upon the independence of the judges from
run the government of the State, which is one of the sound feature
administration in India at the present time. Now that the Portu
has departed from India, it must be a melancholy thought for
that be in Portugal that this tiny island, built upon seven fisher
is the capital of a state which pays 40% of the Income-Tax of In
For the history of law and its tradition, we have happily a wo
merit, clarity and independence from a leading member of the
which gives the History of this Court and describes the lawyer

23 Ibid., 202ff.
24 Setalvad, The Common Law of India (London, 1960), 4.
25 George Claus Rankin, Background to Indian Law (Cambridge, 1946), 1.

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 MUHAMMADAN LAW 411

way of life; and in view of the paucity of such works in Ind

even greater. This book is P. V. Vachha, Famous Judges, Law
of Bombay (Tripathi, Bombay, 1962). It was a publicatio
Centenary of the Bombay High Court in 1961, and is another
how Indians have tried to master and express themselves in a
with clarity, humour and a sense of style.
In the development of Muhammadan Law and its off-shoot
High Court has had a great influence; without going into n
I would refer to
(1) the Aga Khan Case (History of Khoja Ismailis; Ismailis are not governed
by Sunnite (Hanafi law), (1866) 12 Bombay High Court Reports 323 per
Arnould J.: (2) Haji Bibi's Case, (1908) 11 Bombay Law Reporter 409,
where it was laid down that the Khojas are Ismailis and are to be distinguished
from Ithna 'Ashari Shiites; (3) Bayabai v. Bayabai [1942] Bombay 847,
where it has been held that since the passing of the Shariat Act, 1937,
the will of a Cutchi Memon should be construed in accordance with the
Muhammadan Law; (4) Advocate-General v. Yusufally (1921) 24 Bomb
Law Reporter 1060, and Hasanali v. Mansoorali (1947) 75 Indian Appeals
Both these cases relate to the Da'udi Bohora community. The first is th
well-known Chandabhoy Gulla Case relating to some charities and the sec
is the Burhanpir Dargah Case where the position of the present dd'i al-mu
was questioned and ultimately it was decided that the Mullaji Saheb doe
possess a proper title to the position and has the powers of excommunicat
This was the subject of another case and recently it has been decided by t
Supreme Court that a certain Bombay Act repealing the power of exco
munication is ultra vires the constitution and the da'i of the Da'udi Bohoras
does possess the power of excommunication. This decision has caused acute
feelings of frustation in the community and we do not seem to have heard
the last of such cases. It may be pointed out that the Bohora community is
rapidly taking to modern ways and education, and resents the attempt made
by the Head Priest to rule them by the exercise of powers redolent of medieval
severity.
These are decisions relating to the large and prosperous commercial com-
munities of the Khojas, Bohoras and Cutchi Menons, and therefore they are
of great social significance. But there are other pronouncements also, which,
from a purely legal point of view show that next in importance to the Allahabad
decisions, the Bombay High Court has to its credit a number of judgements
which elucidate (and occasionally, mislead) the mind of the student. An
interesting paper could also be composed of the costly mistakes and blunders
made by judges, who, without knowledge of Islam and its culture, without the
slightest acquaintance with Arabic, Persian or even Urdu, and with a profound
faith in "Justice, Equity and Good Conscience" bravely attempted to expound
an ancient, complicated and highly developed system of law. That in such

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412 ASAF A. A. FYZEE

circumstances they achieved success is to their credit; that in others they

made mistakes is only natural. But on the whole the total achievement is
worthy of moderate and qualified praise.
The earliest trace of the statutory application of Hindu and Muhammadan
Laws to natives of India is to be found in in the Charter of George II granted
in 1753, whereby they could obtain exemption from the Mayor's Courts and
decide cases on the basis of their own religious laws.26 To implement this
policy effectively, an important rule was laid down in 1772, whereby maw-
lains and pandits were to attend the Courts as jurisconsults and assist the
judge in discovering the exact rule applicable. This policy, we have seen,
was a continuation of the policy of previous judicial administration, and
finally came the very important Mufassal Regulation of Warren Hastings,
1772, re-enacted formally as Sec. 27 of the Regulation of 1780, where it
was provided:
"That in all suits regarding inheritance, marriage and caste, and other
religious usages or institutions, the laws of the Koran with respect to the
Mahomedans, and those of the Shaster with respect to the Gentoos, and
where only one of the parties shall be a Mahomedan or Gentoo, the laws and
usages of the defendant shall be invariably adhered to."
It is important to observe that in Muslim countries the rule of the shari'at
is that the school or sub-school of a Muslim litigant is not taken into con-
sideration, but the cadi (judge) follows his own rite. But in India, contrary
to the universal rule in Islam-as the Court in India qua Court has no
particular rite or religion-the law of the particular person is discovered and
applied; and in case of conflict, the law of the defendant prevails.27
As the Courts of the Company gave place to those of the British Crown,
and more and more trained English lawyers took their seat as judges, it was
found that in many instances the "native" law, Hindu as well as Muham-
madan, was at conflict with the common law. As early as in 1726, the Letters
Patent of George I enabled the Courts to give judgement "according to justice
and right". This is the first use of a general expression the meaning of which
was not defined with precision but came to mean British notions of justice
and right, as understood by British lawyers; and the judicial officers very
naturally drew upon the rich, though sometimes baffling, treasures of the
common law.
Later came the direction that where no specific rules were laid down, the
judges were to act "according to justice, equity and good conscience". This
expression was also constantly before the Courts until Lord Hobbouse gave
us the classical definition in Waghela v. Shekh Masludin, namely that the

26 W. H. Morley, Digest, i, clxix.

27 Wilson, (5th ed., Calcutta, 1921), Anglo-Muhammadan Law, 31; Sir George Rankin,
Background to Indian Law, 9; Robaba (incorrectly, Robasa) v. Khodadad (1946) 48
Bombay Law Reporter 864, 878; Fyzee, op. cit., 43.

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 MUHAMMADAN LAW 413

expression is "generally interpreted to mean the rules of English la

applicable to Indian society and circumstances".28 But Stephen in
a report of the Law Commission on 31 March 1871, said th

Practically speaking these attractive words mean little more than an

understanding of imperfect collections of not very recent editions
text-books.29

While it is impossible to deny the validity of such criticism, there

that recourse to common law and equity, in most instances, r
angularities of the law of Islam according to the Hanafi school a
and applied in India, and brought it in line with modern notio
justice.
For example, the law relating to pardanashin women; the law of guardian-
ship; the laws of divorce, where, for instance, cruelty is to be defined, have
been slightly modified to bring the Muhammadan law in line with equity as
understoood in a modern Court. It is hoped that on a future occasion, an
opportunity will be seized to discuss more exhaustively the law of Islam and
how it was gradually affected by social conditions in India and by the prin-
ciples of the English common law and equity. "Muhammadan Law" is thus
a useful expression,-and we need not take the purists seriously when they
wish to insist on the use of 'Muslim' or 'Islamic' Law-and may therefore
be defined broadly as that portion of the law of Islam, which is received
in India, and which is affected both by the changing social conditions prevail-
ing in the country and by the principles of English law and equity, so far as
they conduce to justice.
Some of the reforms introduced by the British may be mentioned briefly:

(1) Criminal Law: The outdated Islamic Criminal law was abolished and
replaced by the Indian Penal Code, 1860.
(2) Slavery was abolished in 1843.
(3) The loss of civil rights on apostasy was abrogated: Act xxi of 1850.
(4) Instead of the tender age of puberty, the general age of majority was
fixed at 18, Majority Act, 1875.
(5) A High Court was Established in each of the three Provinces in 1851,
originally, and this was extended to other provinces as well, Indian High
Courts Act (24 and 25 Victoria, Chapter 104).
(6) The rules of equity were applied to the law of gifts as it affected parda-
nashin ladies (Tyabji, par. 359-A; Fyzee, 92, note (f).
(7) Recourse was had to the Doctrine of a "Lost Grant" by Lord Sumner in
Mohammad Mazaffar v. Jabeda Khatun (193) 57 Indian Appeals 125.

28 Setalvad, The Common Law in India, London, 1960, 12, citing Letters Patent of
September 24, 1726.
29 Rankin, op. cit., 119.

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414 ASAF A. A. FYZEE

(8) The extensive use of precedents in the context of Islam was laid down
by Sir Arthur Wilson in Baker Ali Khan v. Anjuman Ara Begum (dis-
cussed in Fyzee, Outlines of Muhammadan Law, 2nd edition, 1960,
page 39).
This is not and does not purport to be a complete or exhaustive list of the
points on which English law has affected the law applicable to Muslims in
India. But in making a beginning it is hoped that someone else with a
younger and keener mind will attempt a fuller study.
It was not always that the intrusion of English law was beneficial or
accurately stated the law according to the original authorities. A mistake was
committed in the case of family wakfs in the leading case of Abul Fata v.
Russomoy, where on principles drawn from the English law a form of wakf
was considered unlawful, which had always been accepted as lawful by the
Muslims of every rite. This caused a great deal of hardship and after con-
siderable agitation, the then Government of India was persuaded to interfere
and restore by statute what was lost by the decision.
The policy of non-interference in the personal laws of each religious com-
munity was, as we have seen, taken by the British from the Moghuls. An
excellent, and probably the last, illustration of this was the Shariat Act, 1937,
whereby all customs and usages contrary to the shar'at were over-ruled and
Muhammadan law, pure and simple, was restored to the place of primacy.
In the early days, the British viewed the laws of the "natives" with strict
neutrality;30 they also treated all their subjects with absolute equality. One
of the most eloquent pronouncements is that of Aungier, Governor of Bombay,
who says:
The Inhabitants of this island consist of several nations and Religions to wit-
English, Portuguese and other Christian, Moores, and Jentues, but you, when you
sit on the seat of Justice and Judgement, must looke upon them with one single
eye as I doe, without distinction of Nation or Religion, for they are all his Majesties
and the Honble. Company's subjects as the English are, and have all an equall
title and right to Justice and you must doe Justice, even to the meanest person of
the Island, and in particulare the Poore, the Orphan, the Widdow and the stranger,
in all matters of controversy, of Common right and Meum and Tuum; And this
not only one against the other, but even against myself and those who are in office
under me, nay the Honble. Company themselves when Law, Reason and Equity
shall require you soe to doe, for this is your Duty and therein will you be justified,
and in soe doing God will be with you to strengthen you, His Majestie and the
Company will commend you and reward you, and I, in my place, shall be ready
to assist, Countenance, honour and protect you to the utmost of the power and
Authority entrusted to me; and soe I pray God give his blessing to you.31

This policy has been accepted by the people of India and enacted in the
Indian Constitution. Article 25 says "... all persons are equally entitled to

30 Fyzee, op. cit., 43.

81 Setalvad, op. cit., 10.

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 MUHAMMADAN LAW 415

freedom of conscience and the right freely to possess, practise an

religion."
Article 26 says:

Subject to public order, morality and health, every religious denomination

or any section shall have the right-
(a) to establish and maintain institutions for religious and charitable purposes;
(b) to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable property; and
(d) to administer such property in accordance with law.

Article 29 protects first, the interests of a minority which has a "distinct

language, script or culture of its own," and secondly, "No citizen shall be
denied admission into any educational institution maintained by the State or
receiving aid out of State funds on grounds only of religion, race, caste,
language or any of them." *
ASAF A. A. FYZEE

* Based on a lecture delivered at the University of Cambridge, England, on

1962.

Editor's note: The reader is referred to J. Duncan M. Derrett: "The Administra-

tion of Hindu Law by the British", CSSH, IV (Oct. 1961). Comparative comment
will follow in later issues.

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