INTRODUCTI ON

WHO IS MUSLIM?

Any person who follows the fundamental tenets of Islam is called a Muslim. It is not necessary that he should follow some particular rites or ceremonies. In this way, the Muslim law is applicable to a person if he professes Islam. It is not necessary that he should be born a Muslim. Ameer Ali’s opinion, as accepted by the Indian courts, is perfectly right when he remarks:

“The Muslim Law applies to all Muslims, whether they are so by birth or by conversion. Any person who professes the religion of Islam, in other words, accepts the unity of God and the prophetic character of Mohammad, is a Muslim and is subject to Muslim law.”[i]

For the purpose of the application of Muslim law, the Muslim falls under the following categories:

1. Muslim by Birth
2. Muslim by Conversion

Muslim by Birth

If a child is born to Muslim parents, the presumption is that he is a Muslim. In other words, a person whose both parents were Muslim at the time of his birth is regarded to be a Muslim by birth. Moreover, according to the Shariat, if one of the parents is Muslim, the child shall be treated as Muslim.[ii] But in India, in the earlier days, the rule was that the child takes to the religion of his father.[iii]

But later the Indian courts have held that where only one of the parents of a child is Muslim, the child is to be regarded as Muslim only when it is proved that he has been brought up as a Muslim. A child whose mother was a Muslim and father was a Hindu was brought up as a Hindu; it was held by the court that such a child is Hindu, although his mother was a Muslim. [iv] Similarly, the general rule of a Muslim Law is that if either of the parents were non-Muslim and became a bona fide convert to Islam, the presumption was made that the child was a Muslim, but they were to be educated in Islamic faith. [v]

It has not been established by the Indian courts that a born Muslim should be strict orthodox to Islam propounded by the Prophet; it cannot be said that he is not a Muslim. Only belief in the Unity of God and the Prophet Mohammed is enough. It is sufficient that he professes Islam.

In Jiwan Khan v. Habib, it was contended that the Shias, who use abusive language against the first three Caliphs, are not true Mohammedans. But the Lahore High Court has decided that despite their peculiar beliefs, they do accept the basic tenets of Islam. The Unity of God and the Prophethood of Mohammed and so they are clearly within the pale of Islam. [vi]

Thus, if a person is a Muslim by birth and has not abjured Islam, Muslim law will apply to him; the burden of proof that he does not follow Islam lies on the person who alleges it. A born Muslim will continue to be so till he renounces Islam. Mere observance of some form of worship of another religion will not by itself make that person a non-Muslim. Renunciation of Islam requires no other proof than a person’s declaration, the only condition being that it should not be casual, but it should be such as to which the declarer adheres and in which he persists.

The sincerity or bona fides of a declarer is immaterial If a person declares that he has no belief in God, the Quran and the Prophet, it is enough to prove renunciation.[vii] One may relinquish a faith, which is an easy thing to do, but one may not acquire liking for those things which one has been taught to detest throughout one’s life.

Muslim by Conversion

Religious conversion is the adoption of new religious beliefs that differ from the convert’s previous beliefs. It involves a new religious identity, or a change from one religious identity to another. Conversion requires internalization of the new belief system. A newly converted Muslim is called a Muallaf.

Any person of any religion who is of sound mind and has attained the age of majority can become the follower of Islam after renouncing his original religion. By adopting Islam, a non-Muslim becomes a Muslim and the rules of Muslim personal law begin to apply to him immediately. A non-Muslim can become a Muslim for the purposes of the application of Muslim law if he fulfills the following conditions:

1. Profession of Islam
2. Undergoing the ceremonies of conversion.

By the very fact of professing Islam and believing in the basic tenets of Islam, a person embraces Islam, no matter whether he be a Hindu, Christian, or any other religion, provided it is not malafide or colorable or made with a view to perpetrating fraud upon law. [viii]  A non-Muslim can become a Muslim by undergoing the ceremonies of conversion prescribed by Islam. These ceremonies are:

1. A non-Muslim who desires to become a Muslim may go to a mosque.
2. In the Mosque, the Imam will ask him: ‘Are you voluntarily embracing Islam?’

• If that person relies in positive, he is given the Kalma of Tawhid (La Illaha Illal-lah Mohammed-dur Rashul Allah) to recite

1. On completing the recitation of the Kalma of Tawhid, the ceremony of conversion is complete and the non-Muslim becomes a Muslim.
2. Then the Imam confers a Muslim name on that convert. Sometimes in mosques, a register is also kept in which the name of the convert is entered and he puts his signature there. [ix]

Every person is born a Muslim because we are all created by God. Therefore, a preferred term would be reversion rather than conversion. On conversion to Isla, converts, no matter what their previous religion may have been, must be taken, at that moment, to have renounced their former religion and personal law and to have substituted for it the Muslim religion and so much of the personal law as necessarily flows from that religion. [x] Thus, an Indian Christian domiciled in India can, after his conversion to Islam, legally contract a second marriage with a Muslim woman while his former marriage with a Christian woman is still subsisting. [xi]

The succession to property of a convert to the Muslim religion would be governed by Muslim law and not by the Indian Succession Act. The effect of apostasy from Islam (i.e., conversion to some other religion) can be examined from the following angles:

1. Effect on Succession—According to Muslim Law, a difference of religion is a bar to inheritance. But, by the application of the Freedom of Religion Act, 1850, a convert from Islam does not lose his right of inheritance. That Act does away with the provisions of Muslim Law by which apostates were excluded from inheritance.
2. Effect on Marriage—If a Muslim husband renounces Islam, his marriage with his Muslim wife is dissolved ipso facto. On the other hand, for a Muslim wife, mere renunciation of Islam by her does not ipso facto dissolve the marriage.

Muslim law is a personal law, like Hindu law. It is significant to note that the whole of Muslim law is not applied by Indian courts. The courts apply such rules of Muslim law that regulate the family matters or ‘personal matters’ of Muslims. The Indian courts have the authority to administer Muslim law on the basis of enactments or on the ground of equity, justice, and good conscience. Thus, the Indian courts apply those rules of Muslim law:

1. Which have been expressly directed to be applied to Muslim, except in so far as they are altered or abrogated by the Indian Legislature.
2. Which, though not expressly directed to be applied, is not excluded by the Indian legislature, either expressly or by implication These rules are applied as a matter of equity, justice and good conscience. No rules of Muslim law that have not been expressly directed to be applied can be applied if they have been abolished, either explicitly or by necessary implication.

CONCLUSION

Muslim family law, rooted in the fundamental principles of Islam, governs various aspects of personal status for individuals who identify as Muslims, whether by birth or conversion. The distinction between being a Muslim by birth and a convert highlights the inclusivity of the faith, as the essence lies in the belief in the unity of God and the prophethood of Muhammad. Indian courts play a critical role in interpreting and applying Muslim law, ensuring it aligns with contemporary principles of equity, justice, and good conscience. This framework allows for the adaptability of Muslim law within the Indian legal system while preserving the unique cultural and religious identity of the Muslim community. As societal norms evolve, the application of Muslim law continues to reflect the need for balance between tradition and modernity, ultimately safeguarding the rights and responsibilities of individuals within Muslim families.

[i]Ameer Ali, Mohammedan Law, Tagore Law Lectures, Vol. ii. 1929.

[ii] Baillie, II 263, Bhagwan Baksh Singh v. Digbijai Singh, AIR 1933 Oudh 301.

[iii] Skinner v. Orde, (1871) 14 MTA 309.

[iv] Bhaiya Sher Bahadur v. Bhaiya Ganga Baksh Singh, (1914) 41 IA 1.

[v] The Hedya, 64.

[vi] Jiwan Khan v. Habib, (1933) 14 Lah 518.

[vii] Mst. Resham Bibi v. Khuda Baksh, (1938) ILR 19 Lah 277.

[viii] Skinner v. Skinner, ILR (1897) 25 Cal 537: 25 IA 34 (PC).

[ix] Rakeya Bibi v. Anil Kumar, 1948 Cal 119.

[x] Advocate-General of Bombay v. Jimbabai, ILR (1917) 41 Bom 181.

[xi] John Jiban Chandra Datta v. Abinash, ILR (1939) 2 Cal 12.