Operation and Application of Muslim Law

Muslim personal law in India applies to a person who is a Muslim, by birth or by conversion, in the matters enumerated in S.2 of the Muslim Personal Law (Shariat) Application Act, 1937; it applies as a personal and not a territorial law, is administered by secular courts, and is displaced wherever a territorial statute governs.

Muslim law in India operates as a personal law, not a territorial one. It attaches to persons by reason of their religion rather than to a territory, and it governs only those matters that have been left to personal law after more than a century and a half of territorial codification. Three questions therefore have to be answered in sequence in any problem: to whom does it apply, in what matters, and subject to what.

Legal Framework

Provision	Subject	Key rule
S.2	Muslim Personal Law (Shariat) Application Act, 1937	In the enumerated matters, the rule of decision where the parties are Muslims is Muslim personal law, notwithstanding any custom or usage to the contrary
S.3	Muslim Personal Law (Shariat) Application Act, 1937	A Muslim may file a prescribed declaration to bring adoption, wills and legacies also under Muslim personal law
S.5 (now repealed)	Muslim Personal Law (Shariat) Application Act, 1937	Originally conferred jurisdiction to dissolve marriages; repealed and replaced by the Dissolution of Muslim Marriages Act 1939
S.58	Indian Succession Act, 1925	Excludes Muslims from the testamentary succession provisions of that Act
S.21 read with S.21A	Special Marriage Act, 1954	Where a marriage is solemnised under the 1954 Act, succession is governed by the Indian Succession Act 1925 and not by personal law
Whole Act	Waqf Act, 1995, as amended in 2025	A territorial statute regulating the administration of waqfs, displacing personal law on procedure and management

Who Is a Muslim for This Purpose

A person is a Muslim if he or she professes the religion of Islam, that is, believes in the unity of God and in the prophethood of Muhammad. Two routes lead to that status.

By birth. A child both of whose parents are Muslims is a Muslim. Where one parent is Muslim, the position historically followed the father, and the child of a Muslim father is treated as a Muslim.

By conversion. A person of full age and sound mind may become a Muslim by professing the faith, and no particular ceremony is essential. Formal conversion before a competent authority is evidence of it, but the substance is the profession of belief.

Why the courts scrutinise conversion rather than accepting it at face value: Because becoming a Muslim changes the law that governs a person's marriage and succession, conversion has been used instrumentally, most notoriously to acquire the capacity to contract a second marriage while a first, monogamous marriage subsisted. The courts have responded by looking at the genuineness of the conversion and, more importantly, by holding that conversion does not by itself dissolve a pre-existing marriage. That is the ratio of Sarla Mudgal and Lily Thomas, treated in Conversion to Islam and its Effects.

Profession of faith and motive

A conversion that is genuine in the sense of a real profession of Islam is effective to make the person a Muslim, and the courts do not sit in judgment on the sincerity of belief as such. What the courts have refused to accept is the legal consequence the convert wanted, namely escape from the obligations of the earlier marriage. The distinction matters: the convert becomes a Muslim, but remains bound by the first marriage and liable for bigamy. Do not state the proposition as "a conversion for the purpose of remarriage is void", which is inaccurate.

The Matters Governed: S.2 of the 1937 Act

S.2 lists the matters in which Muslim personal law is the rule of decision where the parties are Muslims:

intestate succession
special property of females, including personal property inherited or obtained under contract, gift or any other provision of personal law
marriage, including all incidental questions
dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat
maintenance
dower
guardianship
gifts
trusts and trust properties
waqfs, other than charities and charitable institutions and charitable and religious endowments

Why the list is examinable as a list: Every one of the topics in this paper sits inside it, and the boundaries of the list decide which law governs. Note in particular what is outside it.

Excluded	Consequence
Agricultural land	Custom and State tenancy legislation could continue to govern, which is why customary tenures survived in parts of India despite the 1937 Act
Adoption, wills and legacies	Not within S.2. A Muslim may bring them in by filing a declaration under S.3; absent that declaration, wills are still governed by Muslim personal law as such but the S.2 mandate does not extend to them
Charities, charitable institutions and charitable and religious endowments	Expressly carved out of the waqf entry in S.2
Criminal law, contract, transfer of property, evidence, procedure	Governed by territorial statutes applying to all persons regardless of religion

Muslim Law Is Displaced Wherever a Territorial Statute Governs

This is the proposition that decides most application problems.

Criminal maintenance. S.125 of the Code of Criminal Procedure 1973, now S.144 of the Bharatiya Nagarik Suraksha Sanhita 2023, is a secular provision aimed at preventing vagrancy. It applies to a divorced Muslim woman irrespective of her personal law, and the Muslim Women (Protection of Rights on Divorce) Act 1986 does not oust it: Mohd Ahmed Khan v Shah Bano Begum (1985), and decisively Mohd Abdul Samad v State of Telangana (2024).

Marriage under the Special Marriage Act. A Muslim who marries under the Special Marriage Act 1954 takes the consequences of that Act. S.21 provides that succession to the property of the parties and of the issue of such a marriage is governed by the Indian Succession Act 1925, so Muslim law of inheritance does not apply.

Waqf administration. The Waqf Act 1995, renamed by the Waqf (Amendment) Act 2025 as the Unified Waqf Management, Empowerment, Efficiency and Development Act 1995, regulates registration, administration, tribunals and the powers of Boards. Personal law continues to determine whether a valid waqf exists in substance, but the machinery is statutory.

Guardianship. The Guardians and Wards Act 1890 supplies the procedural framework for the appointment and removal of guardians, while Muslim personal law determines who is entitled to be guardian and in what order.

Why the personal and territorial division is the key to application questions: A question that asks "does Muslim law apply?" is almost always really asking whether a territorial statute has occupied the field. The right method is to identify the subject matter, ask whether a statute of general application governs it, and only if none does, apply personal law. Answers that begin and end with S.2 of the 1937 Act miss the second half of the analysis.

**Shayara Bano v Union of India (2017)** Supreme Court of India

Relevance to application: The case establishes something structurally important about how Muslim personal law operates in India. Because S.2 of the 1937 Act is the statutory provision that makes Muslim personal law the rule of decision, it is "law in force" within the meaning of Art.13(1), and is therefore open to challenge for inconsistency with the fundamental rights.

Held: Talaq-e-biddat was set aside by a majority of three to two. Nariman and Lalit JJ held it manifestly arbitrary and violative of Art.14, and struck down S.2 of the 1937 Act to the extent that it sought to recognise and enforce triple talaq. Kurian Joseph J reached the same result on the different ground that the practice is contrary to the Quran and therefore violates the Shariat itself. Khehar CJI and Nazeer J dissented, holding the practice to be protected personal law under Art.25.

Note for accuracy: only two of the five Judges held the 1937 Act unconstitutional in part. Do not describe the constitutional ground as a three Judge holding.

Uniform Civil Code, Art.44

Art.44 of the Constitution directs the State to endeavour to secure a uniform civil code throughout the territory of India. It is a Directive Principle and is not enforceable by any court. Judicial observations urging its enactment run from Mohd Ahmed Khan v Shah Bano Begum (1985) through Sarla Mudgal v Union of India (1995) to the present.

Current position on the Uniform Civil Code, as at August 2026

Two developments should be noted, and both should be stated with care.

Uttarakhand. The State enacted a Uniform Civil Code, which came into force on 27 January 2025, making it the first State in independent India to do so. It applies uniform rules of marriage, divorce, succession and live in relationships to residents of the State.

Pending Supreme Court proceedings. A challenge to provisions of the Muslim Personal Law (Shariat) Application Act, 1937 is pending, on the ground that the inheritance rules attracted by it discriminate against Muslim women. During hearings in March and April 2026 a Bench led by Chief Justice Surya Kant described a Uniform Civil Code as the "most effective answer" to discriminatory personal law provisions, and indicated that the remedy should come from the legislature rather than by striking the provisions down, since invalidation would create a vacuum. The petition relies on the Uttarakhand code to argue that Muslim women now hold different property rights depending on the State in which they live.

No final judgment had been delivered when this note was written. Present the challenge as pending, and verify the position before relying on it.

Illustrations

Personal law displaced by a territorial statute. A divorced Muslim woman applies for maintenance under S.144 BNSS. Her former husband argues that Muslim personal law confines his liability to the iddat period and that the 1986 Act is a special law excluding the general provision. The argument fails: the criminal provision is secular and applies irrespective of personal law, and the 1986 Act is in addition to and not in derogation of it, applying Mohd Abdul Samad v State of Telangana (2024).
Opting out by choosing a statutory marriage. Two Muslims marry under the Special Marriage Act 1954. On the death of one intestate, the Muslim rules of inheritance do not apply; succession is governed by the Indian Succession Act 1925 by force of S.21 of the 1954 Act.
Agricultural land outside S.2. A dispute concerns succession to agricultural holdings in a State whose tenancy legislation preserves a customary rule of devolution. Because agricultural land is outside the enumerated matters in S.2, the 1937 Act does not displace the custom, and the State legislation governs.
Bringing wills within the Act. A Muslim wishes the S.2 mandate to extend to his will. He files the declaration under S.3, on which adoption, wills and legacies are also governed by Muslim personal law in his case.

Recall Check

State the two routes by which a person becomes a Muslim for the purposes of personal law, and the test in each case.
Name four matters enumerated in S.2 of the 1937 Act and two significant matters excluded from it.
Explain, with one example, the proposition that Muslim personal law is displaced wherever a territorial statute governs.

Key Cases

Sarla Mudgal v Union of India (1995) Sarla Mudgal v Union of India 1995
Issue: Whether a Hindu husband who converts to Islam may contract a second marriage during the subsistence of his first Hindu marriage.
Rule: Conversion to Islam does not by itself dissolve a subsisting marriage solemnised under another personal law. The convert acquires Muslim status but remains bound by the first marriage.
Held: The second marriage was invalid and the husband was liable for bigamy. The Court also urged the enactment of a uniform civil code under Art.44.

Shayara Bano v Union of India (2017) Shayara Bano v Union of India 2017
Issue: Whether talaq-e-biddat is valid and whether S.2 of the 1937 Act is unconstitutional to the extent it recognises it.
Rule: S.2 of the 1937 Act, being the provision that makes Muslim personal law the rule of decision, is "law in force" for Art.13(1) and is amenable to constitutional challenge.
Held: Set aside by three to two. Nariman and Lalit JJ struck down S.2 to that extent on Art.14 grounds; Kurian Joseph J concurred in the result on the Quranic ground; Khehar CJI and Nazeer J dissented.

Mohd Abdul Samad v State of Telangana (2024) Mohd Abdul Samad v State of Telangana 2024 Citation: 2024 INSC 506; 2024 SCC OnLine Supreme Court 1686; Criminal Appeal No 2842 of 2024; judgment of 10 July 2024
Rule: S.125 of the Code of Criminal Procedure 1973, now S.144 of the Bharatiya Nagarik Suraksha Sanhita 2023, applies to all married and divorced women irrespective of their personal law, including Muslim women divorced by pronouncement of triple talaq. The Muslim Women (Protection of Rights on Divorce) Act 1986 is not a special law overriding the general provision; the remedy under the 1986 Act is in addition to and not in derogation of the criminal maintenance remedy, and a divorced Muslim woman may pursue both.

Distinctions

Basis	Personal law	Territorial law
Attaches to	Persons, by reason of religion	Territory, applying to all within it
Examples in this paper	Marriage, dower, talaq, gift, will, inheritance	Criminal procedure maintenance, Waqf Act, Guardians and Wards Act, Special Marriage Act
Source	Classical Shariah, attracted by S.2 of the 1937 Act	Statute enacted by Parliament or a State legislature
Effect where they meet	Yields	Prevails

Basis	S.2 of the 1937 Act	S.3 of the 1937 Act
Operation	Automatic, in the enumerated matters	Optional, by filing a prescribed declaration
Matters covered	The enumerated list: succession, marriage, dissolution, dower, maintenance, guardianship, gifts, trusts, waqfs	Adoption, wills and legacies
Effect on custom	Displaces custom to the contrary	Extends the personal law regime to the declarant

Flashcards

Is Muslim law in India a personal law or a territorial law?

A personal law. It attaches to persons by reason of religion, not to territory.

What is the test of whether a person is a Muslim for the purposes of personal law?

That the person professes the religion of Islam, believing in the unity of God and the prophethood of Muhammad. No particular ceremony is essential for conversion.

Which provision makes Muslim personal law the rule of decision in India, and in what terms?

S.2 of the Muslim Personal Law (Shariat) Application Act, 1937, which applies Muslim personal law in the enumerated matters notwithstanding any custom or usage to the contrary.

Name the six modes of dissolution expressly mentioned in S.2 of the 1937 Act.

Talaq, ila, zihar, lian, khula and mubaraat.

Which two important subjects are excluded from S.2, and how can one of them be brought in?

Agricultural land, and adoption, wills and legacies. The latter group may be brought in by filing a declaration under S.3.

Does the Muslim Women (Protection of Rights on Divorce) Act 1986 exclude the criminal maintenance provision?

No. Mohd Abdul Samad v State of Telangana (2024) held that S.125 CrPC, now S.144 BNSS, applies to a divorced Muslim woman and that the 1986 Act is in addition to, not in derogation of, that remedy.

What law governs succession where two Muslims marry under the Special Marriage Act 1954?

The Indian Succession Act 1925, by force of S.21 of the 1954 Act, not Muslim personal law.

Why is S.2 of the 1937 Act constitutionally vulnerable?

Because it is the statutory provision giving Muslim personal law force as a rule of decision, it is "law in force" within Art.13(1) and can be tested against the fundamental rights. It was struck down in part in Shayara Bano.

Is Art.44 enforceable?

No. It is a Directive Principle and is not enforceable by any court, though it has been the subject of repeated judicial exhortation.

Which State has enacted a Uniform Civil Code and when did it come into force?

Uttarakhand, with effect from 27 January 2025.

Exam Scenario

Problem: Rashid, a Muslim domiciled in India, married Nasreen under Muslim rites in 2015. In 2019 they jointly executed a document purporting to be a will of Rashid's agricultural land in favour of his nephew. In 2022 Rashid married Farah under the Special Marriage Act 1954. Rashid dies intestate in 2026 as to his other property, leaving Nasreen, Farah, a son by Nasreen, and a daughter by Farah. Nasreen applies for maintenance under S.144 BNSS. Advise on the law applicable to each of the following: the validity of the will of agricultural land, the succession to the property left intestate, and Nasreen's maintenance claim.

Step 1: State the governing method at the outset

For each issue:

Identify the subject matter.
Ask whether a territorial statute occupies the field.
Apply personal law only if none does.

Step 2: The will of agricultural land

Two exclusions bite together.

Exclusion from S.2	Effect on these facts
Wills and legacies, unless a declaration is filed under S.3	None was filed, so the S.2 mandate does not reach the will
Agricultural land	Separately excluded, so the relevant State legislation on agricultural tenures governs, and custom so far as it permits

If Muslim personal law reaches the will by force of the general personal law rather than S.2, the substantive limits apply in any event: the bequeathable third, and the invalidity of a bequest to a non heir beyond one third without the consent of heirs, on which see Jafri Begam.

Step 3: Succession, and the Special Marriage Act argument

S.21 of the Special Marriage Act 1954 provides that succession to the property of the parties to such a marriage is governed by the Indian Succession Act 1925. Consider carefully whose property and which marriage.

Rashid was a party to a 1954 Act marriage, so the argument is available that succession to his property falls under the 1925 Act rather than Muslim personal law, displacing the Quranic shares entirely and admitting Farah and the daughter on Indian Succession Act principles.

S.21A excludes the operation of S.21 where both parties profess the Hindu, Buddhist, Sikh or Jaina religion, and therefore does not assist here.

Step 4: The prior question, was the 1954 Act marriage valid at all

S.4(a) of the 1954 Act requires that neither party have a spouse living. Rashid's marriage to Nasreen subsisted in 2022, so the 1954 Act marriage was contracted in breach of S.4(a).

Argument	Consequence
The 1954 Act marriage stands	S.21 operates and the Indian Succession Act 1925 governs Rashid's estate
The 1954 Act marriage is void for breach of S.4(a)	The S.21 argument is defeated and Muslim personal law is restored to the succession

The better view is that the second marriage is void. Muslim personal law governs, Nasreen and the son take Quranic shares, and Farah and her daughter must look to whatever rights arise outside the invalid marriage. The daughter's legitimacy would then need separate treatment.

Step 5: Maintenance

S.144 BNSS is a secular, territorial provision aimed at preventing destitution and applies irrespective of personal law: Mohd Ahmed Khan v Shah Bano Begum (1985), Danial Latifi v Union of India (2001) and Mohd Abdul Samad v State of Telangana (2024).

Nasreen, being a wife and not having been divorced, claims as a wife. The 1986 Act does not arise unless and until she is divorced, and even then it would not oust the BNSS remedy.

Two traps in this problem

The S.21 point is the most valuable in the problem. Develop it rather than mentioning it.

Do not skip the prior question of validity. Test the 1954 Act marriage against S.4(a) before drawing any S.21 consequence, and argue it both ways.

Conclusion. Rashid's attempt to move between legal regimes failed at each point, because personal law yields to territorial statute but a territorial statute has its own conditions of validity.