MOHAMMEDAN L A W

B. P. Bhatnagar*

I. INTRODUCTION

Fiqh1 or Muslim jurisprudence presents a diversity of juristric criteria

in striking contrast. Sacred 2 in its classical exposition, idealistic 3 in
its directions under a divine nomrjcracy forming the exclusive
d e t e r m i n a t i o n of h u m a n conduct, a n d causistic 4 in its methods, it is not
all heteronomous, immutable a n d irrational Its enduring m rit lies
in its capacity to adjust to t h e changing h u m a n society a n d the n^eds of
life, provided its religious basis is placed a n d understood m its correct
perspective. 5 Closest ties exist between religion 6 and life, for Islam is
♦Rajasthan Judicial Service, Advocate of the Rajasthan and Punjab High Court,
Part-time Lecturer, University Law College, Jaipur.
1 The term Fiqh is preferably to be understood as synonymous with Shanat for
Muslim doctors seem to have made no distinction between them because the criterion of
all human action in both Fiqh and Shanat is the same seeking the approval of God.
Literally, however, shanat means road to the watering place for camels, the path of
salvation to be followed, and is thus a wider term comprising in its scope all human
action, religious, mora]^ legal and special, than Fiqh which is a narrower onc} mcanmg
law as a science. Shanat is divinely ordained, Fiqh is the result of human reasoning,
conforming, to usul or the first principles and to furu or the particular injunctions,
both laid down by the God and his Prophet In its classical theory, Fiqh gives prime
importence to the religious and ethical teachings of the Quran, while according to its
modern theory, it goes to the roots of law as they are found in the history of its growth
and its institutions Study of both the theories is essential for a critical study of the
law. See Fyzee Asaf A A , Outlines of Muhammedan Law 16-30 (3rd ed 1964 Oxford),
Levy, R , Social Structure of Islam 1^0 (1957 Cambridge), Fitzgerald, Vesey, Law %n the
Middle East 85-86 (Khaddun & Liebesny ed 1955)
2. Law in classical Islamic theory is the revealed will of God, a divinely ordained
system preceding and not preceded by the Muslim State, controlling and not controlled
by Muslim Society Culson, N J A History of Islamic Law Islamic Surveys (Edinburgh).
3 Schacht Joseph An Introduction to Islamic Law 200 (1964 Oxford) observes:
The central feature that makes Islamic religions law what it is, that guarantees
its unity in all its diversity, is the assessing of all human acts and relationships,
including those which we call legal from the point of view of the concepts
obhgatory/recommended/indifferent/reprehensible/forbidden the whole of
the law ib permeated by religious and ethical considerations each institution,
transaction or obligation is measured by the standards of religion and moral
rules
4 Id at 205
5. That Muslim law is a conglomeration of chaotic rules based in the main on
the arbitrary dictates of a revengeful Semitic deity, and on decisions—sometimes
apocryphal, often without reason,-~of the Prophet of Islam, coupled with the fatwas
and deductions of fanatical Muslim and muftis and kazis through out the Middle
ages, is a superficial view See Fyzee, op cit. supra note 1 at IX.
6. The Arabic equivalent of the word 'religion' is 'dm* which means a path or
way. See Tayabji, F B Muhammedan Law 3 (3rd ed. 1940) quoting Max Muller Intro-
duction to Science of Religion 152 (1873 Lond )

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 MOHAMMEDAN LAW 405

a complete way of life, a religion, an ethic and a legal system all in

one. 7 This gives Muslim law its dynamic quality v moulding the social
order and community life of the Muslims from time to time, by
exerting pressure upon their social and individual activities as a whole. 8
Quaranic precepts a n d postulates forming the Shariat are, therefore,
not the sole determinants of Muslim law,* in their proper role they
form the Kelsen's Grundnorm the basic norm of the first constitution, 9 to
which the Muslim community is under perpetual duty to conform,
thereby providing the Muslim law uniformity, continuty and structural
order. Into this framework must be filled the other determinant, the
changing needs and aspirations of the people, by such legal devices as
ijma or the consensus of the jurists, kiyas or the analogical deductions,
istihsan or the juristic equity, istishalah or the public good, ijtihad or
independent reasoning, taqlid or following or immitation, fatwas
or opinions of jurists, 1 0 and above all, juristic opportunism. 1 1
For the necessity and want of social life are important guiding
, principles in conformity to which law should be applied in actual
fact-situations, and so long this condition is kept in mind, the courts in
administering the Muslim law are entitled to take into account the
circumstances of actual life and the changes in the people's habits and
modes of living. 12 T h e r e is thus an intimate fusion of law and
religion. 13 No value-oriented approach to the decisional development
of the law can, therefore, be hazarded without regard to these two
basic determinants of Muslim law, Quranic precepts and growing
human needs or to use the words of a modern scholar 14 without
keeping
the force of conservatism and forces of progressiveness in equalibrium, as
both are necessary for the preservation and continuity of Islam and its law;
without the former it would lose its character and succumb to dangerous here­
sies, without the latter, it would lose touch with the changing conditions of
life.

7. Prof. Saba Hebachy, in his introduction to Anederson J.N.D., Islamic Law in

the Middle East ix (1959 Lond.).
8. Fitzgerald. Vesey, op. cit. supra note 1 at 85; Gibb, H.R.A. Mohammedanism
173 (Paper back ed. 1955).
9. Kelsen, Hans, General Theory of Law and the State 123 ff, 153 (Cambridge Mass,
1949).
10. For a reference to these legal devices, see Fyzee, op. cit. supra note 1 at 14-37
and Tayabji, op. cit. supra note 6 at 18-22.
11. Culson, N.J., op. cit. supra note 2 at 221.
12. Abdur Rahim, The Principles of Muhammedan Jurisprudence 43-44 (T.L.L.,
London 1911).
13. It is to be remembered that Hindu and Mohammedan Laws are so
intimately connected with religion that they cannot be discovered from it
per Mohammod, J. in Govind Dayal v. Inayat Ullah, (1885) I.L.R. 7 All. 775. But
modern scholars are suggesting the theoretical seperation of law and religion, see
Fyzee, op. cit. supra note 1 at 37.
14. Hebachy, Saba, " I s l a m : Factors of Stability and Change," 54 Col. L.R. 712
(1954).

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406 ANNUAL SURVET OF INDIAN LAW 1966

To ignore the former, in our survey of the law, is un-Islamic, to

ignore the latter is unrealistic. Muslim jurisprudence today is, therefore,
faced with the problem of defining the relationship between the norms-
imposed by religious faith and the impact of mundane forces giving life
and nourishment to the society. It is, therefore, to be seen how for
the decisions of the year under review solve this problem. Sociological
evaluation accordingly must be subject to this limitation that the
solution of the problem must be found in the midway, neither in the
abstract traditionalism nor in the modern secularism but by taking law
as a code of behaviour founded upon certain basic religious precepts,
divinely ordained, but which allow the reception of the changing
social facts. 15 The continuum between the past and present should
represent the dynamics of Musliam law and form the basis of this
review.
II. GIFT
An authoritative pronouncement was made by the Supreme Court
on the three essential requirements of a valid gift in Muslim law, in a
case from the Patna High Court, Maqbool Alam v. Khodaija.16 Facts,
in short, were these: S, a Muslim, held a tenure under the Maharaja
of Dumraon. S died in 1910 leaving behind him, his mother W, his
second wife E> three sons Am., Asg., and Ash., and two daughters
born of his first wife. Of these several cosharers, only H and M were
recorded as such in the revenue record. The Maharaja obtained two
rent decrees, one against H and M and the other against L, son of
Asg., who purchased the tenure in execution of the first decree. K
second wife of Asg. purchased the said tenure in execution of the
second rent decree against L and obtained its possession through court.
In the meantime N, wife of Am. succeeded in getting her share in the
tenure declared in a litigation between the cosharers. On this basis,
she filed a title suit against the Maharaja and L in which K was later
impleaded, for partition of the tenure and for the possession of her
share. N died pendent lite and the appellant was substituted in her
place. This suit was decreed in his favour and against K. The
appellant obtained possession of N's share from K in the execution of
this decree but K got this property back from the appellant by another
litigation. Thereupon, the appellant filed the present suit for possession
of the share of N in the tenure, contending that N was not bound by
the two rent decrees as she was not a party thereto and that she had
made an oral gift of her share in his favour. The suit was decreed
by the trial court but was dismissed by the High Court and so the
matter reached the Supreme Court by special leave.
One of the several questions raised before the Supreme Court was
whether the alleged oral gift was made in fact as well as in law. Mr.
Justice Bachawat, delivering the judgment of the Supreme Court
15. Culson, N.J. op. cit. supra note 2 at 224.
16. A.I.R. 1966 S.C. 1194.

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 MOHAMMEDAN LAW 407

answered this question in the negative. H e concluded that the gift

was not proved, t h a t the donor N was not in possession of her share at
the time of gift and so did not deliver the same to the appellant and
that she did nothing to put it within the power of the appellant to
obtain the possession of the subject of gift. It was held that the " t h r e e
pillars of a valid gift under the M o h a m m e d a n law are declaration,
acceptence and delivery of possession," 17 and since N did not deliver
physical possession of her share to the appellant nor did she do any­
thing to put it within his power to obtain the same, the gift was invalid.
Passages from the two decisions of the Privy Council, Mohammed Abdul
Ghani v. Mt. Fakhr Ishan Begam,18 and Mohammed Baksh Khan v.
Hosseini Bibi,19 as also from Hamilton's Hedaya,*0 stating these essential
requirements of a gift and continuing a Qurantic tradition attributed
to the Prophet — " A gift is not valid without seisin," were relied upon
in support of the law so laid down.
T h e decision is, in many respects, more than a mere restatement
of the law on the subject. First, it is a welcome affirmation of the
judicial trend towards the eclectic application of the basic Quranic
precepts and postulates to the changing complex patterns and needs of
society, thus reevaluating their purity and efficacy with dynamic
forces. T h e need for such an approach has been emphasized in the
beginning of this review. T h e doctrine of seisin attributed to the
Prophet was developed on the lines of the modern juristic ideas to
accommodate the cases where the donor is not in the civil physical
possession of the subject of gift at the time of making the gift.
Secondly, it has clarified the elusive concept of possession in the
case of a mortgagee and a lessee and set at rest a long standing
controversy touching the proposition that the property in the hands of
an usurper cannot be given away by gift. Rejecting this view 2 1 as
rigid, the modern theory of constructive possession was applied and it
was held that
the donor may lawfully make a gift of the property in possession of the tress­
passer. Such a gift is valid, provided the doner either obtains and gives
possession of the property to the donee or does all that he can to put it within
the power of the donee to obtain possession.22

Thirdly, while it has solved this controversy, it has created a

serious difficulty in the application of the law laid down by it, if I may
say so iri all humility and with respects. T h e statement of the law
that delivery of physical possession of the subject of gift, as the 'sine

17. Id. at 1196.

18. A.I.R. 1922 P.C. 281 at 288.
19. (1885) 15 Ind. App. 81 at 95 ( P . C ) .
20. Hamilton, Hedaya 482 (Grady ed. 1957).
21. See Doorr ool Mookhtar, Book on Gift 635 cited in Mullick Abdul Gufjoor
v. Muleka (1884) I.L.R. 10 Cal. 1112, at 1123.
22. Supra note 16 at 1197.

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408 ANNUAL SURVET OF INDIAN LAW 1966

qua non' of a valid gift, has been m a d e absolute and unqualified,

irrespective of whether the validity of the gift is challenged by the
donor or donee or one claiming through either or even by a stranger.
Before this decision of the Supreme Court, the state of law was that
the requirement as to delivery of possession or seisin was not necessary
where the gift was challenged by a stranger. 2 3 In other words, a
stranger could not invoke the rule that the gift is bad because there
has been no delivery of possession or seisin by the donor. M r . Justice
Bose, laid down this rule in Halimbi wlo. Mohammad Adbar v. Rahamat
Ali Kasam Ali^ following two authorities of the Privy Council in
Kalidas v. Kanahiya Lai,**5 and Mohammed Baskh Khan v. Hosseini Bibi.2&
Helimbi dictum was again followed by M r . Justice Bose in Kalu Beg
v. Gulzar Beg.Q7 However, in the case under review, even though the
gift was challenged by a stranger, for K was a stranger being a
purchaser at an execution sale, the unqualified statement of the rule
requiring delivery of physical possession of seisin as an essential condi­
tion of a valid gift has the effect of being interpreted that for the
application of this essential requirement, it is immaterial whether t h e
gift is challenged by a stranger. In other words, even a stranger can
challenge the gift on the ground that there was no delivery of posses­
sion. It is unfortunate that this position of the law making an exception
in case of a stranger was not taken by the appellant nor was it brought
to the notice of the Supreme Court. It is submitted that Mohammed
Baksh Khan case was referred to in support of other proposition and
not on the question whether even a stranger can challenge the validity
of gift for want of seisin. It is hoped that on some other occasion, t h e
Supreme Court would resolve this difficulty.

III. PREEMPTION

Yet another nail was driven into coffin of the Muslim preemptor
by the decision of the Allahabad High Court in Mahaboob Khan v.
Ram Bharosey Lai.28 U n d e r the Muslim law, the following classes of
persons 29 are entitled to claim shufa or preemption ( l ) a cosharer in
the property, shafi-isharik; (2) a participator in immunities and
appendages, water, shaji4-khalit; and (3) owners of adjoining immoveable
property shaji-i-jar.

23. Fyzee, op. tit. supra note 1 at 221, following Kairum Bi v. Maraim Bi, A.I.R.
1960 Mad. 447; Saxena, Muslim Law as Administered in India and Pakistan 422 (4th ed.
1963); Mulla, D.F., Principles of Mohammedan Law 133 (15th ed. 1961) following the
Madras case of Kairum Bi and Pakistan case of Fazal Ahamad v. Rakhi, (1958) Pakistan
Law Reports, Lahore Series, 218.
24. A.I.R. 1940 Nagpur 70.
25. 11 Ind. App. 218.
26. Supra note 18.
27. A.I.R. 1946 Nag. 356.
28. A.I.R. 1966 All. 271.
29. Mulla D.F., op. cit. supra note 23 at 203.

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 MOHAMMEDAN LA W 409

T h e Islamic concept of shufa involves taking possession of another's

property contrary to his inclination. 30 It is a right which the owner of
a certain immovable property possesses, as such for the quiet enjoyment
of that immovable property, to obtain proprietary possession of certain
other immovable property, not his own, on such terms as those on which
such latter immoveable property is sold. It is simply a right of substi­
tution, entitling the preemptor, by means of a legal incident to which
the sale was subject, to stand in the shoes of the vendee in respect of all
rights and obligations arising from the sale under which he derived his
title. 3 1 It being a remedial right 3 3 to follow the thing sold, it is
founded on the necessities of Muslim families arising out of their minute
subdivision and inter-division of ancestral property as a result of the
operation of their law of inheritance, as also on the desire to prevent
hardships, inconvenience and dispute by the introduction of a stranger
purchaser. T h e exercise of this right, therefore, imposes a limitation or
disability upon the ownership of property to the extent t h a t it restricts
an owner's unfettered right of sale and to obtain the best price of his
property and compels him to sell the property to his cosharer;
neighbour or the participator in appendages. In its very nature, it has
been looked upon even by Muslim jurists as a restraint of power of
alienation of the owner. 3 3 Such being the nature and justification o f
the right of preemption under the Muslim law, it has permitted legal
devices to defeat it, though some scholars have condemned such devices
as abominable. 3 4 After the enforcement of the Constitution of India,
the claim of the right has frequently been questioned as imposing un­
reasonable restrictions- on the fundamental rights of the citizens to
acquire, hold and dispose of property guaranteed under article 1 9 ( l ) ( / )
of the Constitution, 35 and the validity of the law providing such right
has been judicially examined having regard to the provisions of
article 19(5) of the Constitution. 3 6 T h e tendency of the Courts has
been to restrict its operation within strictest limits by rigid interpreta­
tions in larger public interest.
30. Sir Roland K. Wilson, Anglo-Mohammedan Law—A Digest 387 (6th ed. 1930)
following Hedaya.
31. Per Mahamood, J. in Govind Dayal v. Inayatullah (1885) I.L.R. 7 All. 775 at
799, followed by the Supreme Court in Bishan Singh v. Khazan Singh, A.I.R. 1958 S.G.
838.
32. Per Subba Rao, J., in Bishan Singh v. Khazan Singh, A.LR. 1958 S.C. 838.
33. Fatwai-Alamgiri, verse 249; Hedaya op. cit. supra note 20 at 548-550, states
The right of Shufa is but a feable right as it is the disseizing another of his pro­
perty merely in order to prevent apprehended inconveniences.
34. Tayabji, op. cit. supra note 6 at 725.
35. See more particularly Panch Gujar Gour Brahmins v. Amarsingh, A.I.R. 1954
Raj. 100 (F.B.); Babulal v. Goverdhan Dass, A.LR. 1954 M.P. 1 (F.B.); Moti Bai v.
Kandkari Chanayya, A.LR. 1954 Hyd, 161; Bhimrao v. Patil Bua, A.LR. 1960 Bom. 552;
Bhauram v. Baij Nath Singh, A.LR. 1962 S.C. 1476; and Sant Ram v. Lah Singh, A.LR.
1965 S.C. 314.
36. Art. 19(5) of the Ind. Const, saved the operation of any existing law in so far
as it imposes or prevents the state from making any law imposing, in the interests of
the general public, reasonable restrictions on the exercise of the right conferred by
art. 19(1)(/).

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410 ANNUAL SURVEY OF INDIAN LAW 1966

Such a challenge to the claim of this right was again made in the
Allahabad case under review, on a reference to the divisional bench,
out of two suits for preemption. In both the suits, preemption was
claimed on the ground of custom and the validity of the custom was
challenged as void under article 13 of the Constitution. Before the
divisional bench, it was first argued that the custom of preemption had
not been affected by articles 13 and 19 of the Constitution. Reliance
was placed on Bhim Rao v. Patil Bua.^ This contention was repelled
on the strength of the decisions of the Supreme Court in Bhau Ram v.
Baij Nath Singh?8 and Sant Ram v. Labh SinghS9 holding that customary
law of preemption is hit by article 13 read with article 1 9 ( l ) ( / ) of the
Constitution insofar as it imposes a restriction as regards acquiring,
holding or disposing property even assuming that preemption creates a
right which attaches to property. It was then contended that the
expression ' 'existing law" occurring in article 19(5) has to be inter­
preted in the light of the definition of this expression under clause (10)
of article 366, which does not expressly include customary law, and
therefore customary law is not saved under article 19(5). Moti Bai v.
Kand Kari Chanayya*0 of the Hyderabad High Court was relied in
support of this contention. The contention was rejected for three
reasons: First, that the context on article 19(5) requires that the
expression "existing law" must be understood in broad sense as includ­
ing any kind of law, on a dictum of the Rajasthan High Court in Ranch
Gujar Gour Brahmins v. Amar Singh^1
there is no doubt that the restrictions imposed by any customary law cannot
be more sacrosanct then the restrictions imposed by statute law.*3
Secondly, following the Supreme Court decision in Sant Ram v.
Labh Singh,*3 on the implications of the expression "all laws in force"
appearing in article 13, as laying down that it includes within its ambit
the customary law, their Lordships held that
it would be a curious position if customary law is hit by clause (1) of article 19
but cannot be saved by clause (5) of Article 19.44
Thirdly, since the opening words of article 366, defining the
expression ' 'existing law" provide that all the definitions are to be read
as subject to context, the context of clause (5) of article 19 include
'customary law.'
However, the ice was broken while dealing with the challenge to
the claim on the ground of shafiri-khalit. It was contended that the law
37. A.I.R. 1960 Bom. 552.
38. A.LR. 1962 S.C. 1476.
39. A.LR. 1965 S.C. 314.
40. A.LR. 1954 S.C. 161.
41. A.I.R. 1954 Raj. 100.
42. Id. at 103.
43. A.I.R. 1965 S.C. 314.
44. Supra note 28 at 273.

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 MOHAMMEDAN LAW 411

of preemption as regards shaji-i-khalit is saved by article 19(5), being

a reasonable restriction in general public interest. T h e decision of the
Supreme Court in Bhau Ram case was reviewed in laying down the rule
of guidance to meet such challenge. Appreciating that the claim on
the ground of shaji-i-khalit must be of various kinds in view of the
variety of easementary rights available under the law, it was held t h a t
mere ownership of an easementary right is no ground of objection to
the introduction of a stranger. Test of reasonableness of restriction in
such cases is whether the sale of the adjoining property endangers the
easementary right claimed as the ground of preemption. If the
easementary right remains unaffected by the sale, as was conceded in
the instant case, the restriction cannot be recognized as reasonable.
Accordingly, the rule of guidance was laid down thus : whether such
claim would be protected under clause (5) of article 19 would depend
upon the nature of the claim made by a shaji-i-khalit. T h e reference
was accordingly answered holding that the custom of preemption is not
void under article 13 of the Constitution as regards preemption by
shaji-i-khalit, it is void as regards shaji-i-bar, and whether it is void or not
as regards shaji-i-sharik would depend upon the nature of the claim. 4 5
T h e case stands as one of the landmarks of a sociological
approach towards problems of legal and specially constitutional interpre­
tation. Interpretation of law and constitution in a developing society
is a delicate task of balancing the conflicting claims and ideologies in
which pedantic niceties and forensic gymnastic have to give way to the
upholding of larger social values. T h e case reaffirms this new judicial
approach by interpreting the constitutional provisions and legal rights
from social change. T h e case was decided on secular considerations.
Reasonableness of t h e claim of shaji-i-khalit was decided on a social
data, whether the introduction of the stranger would endanger the
exercise of the easementary right. It stands as a leading authority on
the test of reasonableness and for the rule of guidance to be applied in
judging the validity of the claim of preemption of a shaji-i-khalit or
the owner of easementary right, under the Muslim law whether
operating as a personal law, or under a contract or a statute or as a
common law of the land or lex loci. Finally, it shows the trend of the
courts in narrowing down the Jaw of preemption within strictest limits
in social interests

IV. MARRIAGE

T h e question arose in a decision of the Allahabad High Court in

Smt. Rabia Khatoon v. Mukhtar Ahmed,*6 whether a muslim wife, can
refuse consortium even after the consummation of marriage on the
ground of failure of the husband to pay prompt dower. T h e fact-
situation was t h i s : T h e appellant was married to the respondent in

45. Ibid.
46. A.LR. 1966 All. 548.

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412 ANNUAL SURVET OF INDIAN LAW 1966

1948. The marriage was consummated with the consent of the wife
a n d a son was born of the wedlock in 1951. T h e wife went to her
father's house shortly after the birth of the son and refused to come
back to her husband when he went to fetch her. No maintenance
allowance was paid by the husband to the wife since she stayed with
her father. T h e wife sued the husband for dissolution of her marriage
contending that the husband failed to pay her prompt dower of
Rs. 5,000 inspite of her demand, that she continued to perform her
marital relations with her husband for over two years, that her husband
treated her with cruelty and turned her out of the house and failed to
maintain her. T h e husband denied the allegation of cruelty and
contended that the dower claimed was only Rs. 500 and that too was
deferred. T h e husband filed a counter-suit against the wife for
restitution of conjugal rights in which similar contentions were raised
by the parties. T h e courts below found that there was no cruelty
upon the wife by the husband, that the dower settled was prompt
a n d that it was Rs. 5,000 and that the husband has not provided
maintenance to his wife ever since she left his house. T h e lower
appellate court, however, held that the wife having admitted the
husband to sexual intercourse, she was not entitled to refuse to live
with him and that non-payment of prompt dower could not be a good
defence to the suit for restitution of conjugal rights. O n these find­
ings, the wife's suit for dissolution of marriage was dismissed and the
husband's suit for restitution of conjugal rights was decreed subject to
payment of Rs. 5,000 as prompt dower. Both the parties appealed to
the Allahabad High Court. T h e appeals were heared by a single
J u d g e of the High Court, who being of the opinion that the observa­
tions of M r . Justice Mahmood in Abdul Kadir v. Salima,^ to the effect
t h a t a M o h a m m e d a n wife has no right to refuse herself to her husband,
if the prompt dower is not paid, when the marriage has been consum­
m a t e d with her consent, are in the nature of an obiter dictum and
require reconsideration, referred the matter to the divisional bench
consisting of M r . Justice Uniyal and M r . Justice K h a r e . The
case of Abdul Kadir v. Salima was discussed with special emphasis
on the reasoning of M r . Justice Mahamood who relying upon
Hedaya, Doorool Mukhtar, Fatwa Kazi Khan and Fatwa Alamgiri, held
that the M o h a m m e d a n law entitled the wife to resist the claim
of the husband for cohabitation with her by pleading nonpayment of
prompt dower provided the marriage is not consummated with her
consent. T h e learned Judge noticed the difference of opinion prevail­
ing between Abu Hanifa on the one side and his two disciplies, Abu
Yusuf and I m a m M o h a m m e d on the other, the former holding that
she can refuse herself to her husband even after consummation of
marriage, while the latter having a contrary view. M r . Justice
M a h a m o o d , adopted the view of the two disciples and laid down the
_
47. (1886) LL.R. 8 All. 149 (F.B.).

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 MOHAMMEDAN LAW 413

above rule, on the assumption that in the case of difference of opinion,

the opinion of the two disciples would prevail.
The divisional bench adopted the rule laid down by Mr. Justice
Mahamood, and following the decision of Sir Suleiman in Mst. Anis Begam
v. Mohammad Istafa,*8 justified the rule on the grounds that the view of
Mr. Justice Mahamood, has held the field for seventy-five years, that, to
reject it as a bad law and to hold according to Hanafi law that a
Muslim wife can refuse to go to her husband even after consummation
of marriage with her consent, if her dower remains unpaid, would not
only create uncertainty in the law but also disturb the domestic peace
of Muslim families throughout India. It was observed that it would
be dangerous to adopt this view, having regard to the prevalent prac­
tice and the modern conditions of life. It was further held that as
the suit for restitution of conjugal rights is in the nature of a suit for
specific performance, the court can, in its discretion, impose conditions
on the husband, to ensure payment of her prompt dower. The case
of Mst. Noor Bibi v. Pir Bux,i9 holding a contrary view was not
accepted as it is inconsistent with progressive thought and has not been
followed in India, except Oudh.
On the question of failure of the husband to provide maintenance
to the wife, as a ground for her prayer for the dissolution of her
marriage, the divisional bench held that there is no right in the wife
to refuse to live with her husband after the marriage has been con­
summated with her consent. So long as she keeps herself away with­
out the fault of the husband, she has no right to claim maintenance
from the husband and the husband cannot be considered guilty of
negligence in maintaining her. In support of this view, the cases of
Badrulnisa Bibi v. Mohammad Tusuf50 and Zaffar Hussain v. Akbari
Begam,51 were relied. In the result, the appeals were dismissed.
The decision is based upon the case of Abdul Kadir v. Salima,
which has since been followed by the various other High Courts, 52 so
much so that the standard works53 hold the rule in Abdul Kadir v.
Salima as settled. However, I feel, it is my most embarrassing duty to
say, with due respects, that the main planks of the rule laid down by
Mr. Justice Mahamood, in Abdul Kadir v. Salima, are questionable,54
for these reasons :
48. A.LR. 1933 All. 634.
49. 1950 Sind 8.
50. A.LR. 1944 All. 23.
51. A.LR. 1944 Lahore 336.
52. See Kunhi v. Moidin, (1888) I.L.R. II Mad. 327; Bai Hansa v. Abdullah, (1905)
I.L.R. 30 Bom. 122; Hamidunnessa v. Zohiruddin, (1890) I.L.R. 17 Cal. 670.
53. See Tayabji, op. cit. supra note 6 at 183; Fyzee, op. cit. supra note 1 at 135;
Mulla, op. cit. supra note 23 at 248; Saxena, op. cit. supra note 23 at 213, Wilson, op. cit.
supra note 30 at 123.
54. For an authoritative discussion challenging the correctness of the decision in
Abdul Kadir, see 2 Ameer Ali, Mohommedan Law 512-518 (4th ed. 1917).

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414 ANNUAL SURVET OF INDIAN LAW 1966

First, Mr. Justice Mahamood, proceeded on the assumption that

the right of the wife to resist her husband so long as her dower remains
unpaid is analogous to the unpaid vendor's lien on the goods remaining
in his possession and her surrender resembles the delivery of the goods
to the vendee, so that her lien for unpaid dower ceases to exist after
consummation. It is submitted such an anology of treating wife and
her person as a chattel is an affront to civilized notions of modern
society and does not seem to have any sanction under the Muslim law.
The concept of dower under the Muslim law does not conceive it as a
bride price, or a consideration for the use of her person, but it is, on
the other hand, a mark of respect for the wife, and actually a marriage
settlement. 55
Second Mr. Justice Mahamood referred to Doorr ool Mookhtar as
one of the authorities in support of the rule, which, however states to
the contrary. 56 This authority, further more, quotes Abu Yusuf as
laying down that if dower is deferred to a determinate time, the woman
has a right to refuse cohabitation. 57
55. See Fitzgerald, op. cit. supra note 1 at 62; Abdur Rahim, op. cit. supra note 12
at 334; Hedaya, op. cit. supra note 20 at 44; Tayabji, op. cit. supra note 6 at 170-171;
Fyzee, op. cit. supra note 1 at 127.
It is un-Islamic to treat dower or Mahr as sale price, by equating it with the
notion of sale price of Arab woman in pre-Islamic times, for the Prophet
prohibited such sales ordering that money should be given to the bride odium
connected with price or consideration for sale of bride ought not to be attached
to c Mahr', which not only prevented sale but provided for the women who
had before been treated as chattel
Tayabji, op. cit. at 171.
Baillie in his Digest of Moohummudan Law (3d. impression 1957) at 91 defines dower
to be
the property which is incumbent on a husband, either by reason of its being
named in the contract of marriage, or by virtue of the contract itself, as
opposed to the usufruct of the wife's person....Dower is not the exchange or
consideration given by the man to the woman for entering into the contract;
but an effect of the contract, imposed by the law on the husband as token of
respect for its subject, the woman....
See also Mt. Fatma Bibi v. Lall Din, A.I.R. 1937 Lahore 345.
56.
It is the wife's right to prevent the husband from connubial intercourse, and
that which is implied therein, and from journeying with her, even though
after connubial intercourse and 'retirement' to which she has consented,
because all connubial intercourse has been contracted with her, and the
rendering of some does not imperatively require the rendering of the rest.
The right is for the purpose of obtaining which has been stated as prompt
dower, whether wholly or partly....
Doorr ool Mookhtar, quoted by Ameer Ali, op. cit, supra note 54 at 512-13.
Another celebrated authority, Macnaghten, W. H., Principles and Precedents of
Mohammedan Law 281 (1869) discussing case XXXI at 281, quotes Doorr ool Mookhtar,
as stating "She is competent to preclude him from the enjoyment of conjugal rights....
57. Ameer Ali, op. cit. supra note 34 at 513; Macnaghten, op. cit. supra note 56 at
282.

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 MOHAMMEDAN LAW 415

Third, the views of Mr. Justice Mahamood are not supported by

authorities of repute which are entitled to great weight. 58 After
quoting these authorities, Ameer Ali observes :
These passages show clearly that the rule laid down by the Hanifa is recog­
nised as law. None of the authorities support the proposition of the disciples
that the woman whose prompt dower remains unpaid, but who has once
cohabited with her husband, may be compelled to cohabit against her will, if
she refuses cohabitation in order to exact payment of such dower. 69

Macnaghten, 60 holds that before the dower that may be due is paid
the husband has no right to force and compel his wife to come to his
house. He cites Abu Yusuff as stating that she has this right by
favourable construction. To quote the words of the great jurist, Ameer
Ali,
it is respectfully submitted, that the judgment in Abdul Kadir v. Salima proceeds
on wrong analogies and is founded on a total misconception of the rules which
have already been set fourth in detail and on which practically there is no
difference among the later Jurists. 61
Fourth, two weighty reasons have been given by the divisional
bench in the case under review, for justification of upholding the rule
of Mr. Justice Mahamood namely, it would otherwise create uncertainty
in law and disturb the domestic peace of Mohammedan families
through out India as the rule has been followed for nearly seventy-five
years. It is submitted with respects that these reasons are plausible.
There are sentimental, practical, ethical and compelling economic
considerations governing the claim of a Mulsim wife for prompt dower
and the very denial of her right would threaten the domestic peace.
Moreover, to allow the husband the decree for restitution of conjugal
rights conditional upon payment of the unpaid dower as the divisional
bench has held, would mean encouraging the disappointed wife to
refuse submission to her husband so as to compel him to sue for
restitution of conjugal rights and thereby to obtain a decree for the
payment of her unpaid dower. It is submitted, this is no solution for
the prevention of domestic unhappiness. The argument that the rule
has held the field for a long time is no good reason to immortalize an
error having social cousequences. If the divine law is not immutable,
there is hardly any logic to hold immutable a man made interpretation
of the same. Mere antiquity or inveteracy should never be a
justification for a bad law, for to quote a modern scholar,62 in such a
case, law would "thank nothing but a vicious antiquity for a rule
which constituted a serious anomaly9' in our law of family relations.
58. See the passages from 'Tanwir-ul-Absar\ 'Radd-ul-Mukhtar', 'Vikaya-ur-
Rawaeh*, 'Sharh-i-Vikya' 'Kanz-ud-Dakaik', as quoted in Ameer Ali, op. cit. supra
note 54 at 515.
59. Id. at 515.
60. Macnaghten, op. cit. supra note 56 at 281-282.
61. Ameer Ali, op. cit. supra note 54 at 517.
62. Allen C. K., Law in the Making 328-329 (7th ed. 1964).

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416 ANNUAL SURVEY OF INDIAN LAW 1966

Moreover, to perpetuate an error is not favoured by Muslim law.

Prophet has himself said, " M y community will never agree on an
error."63 As for the 'stare decisis', there is a high authority of the
Supreme Court 6 4 holding t h a t even where a decision has not been
dissented from for a long time but has on the other hand been
followed, it is not entitled to be treated as immutable. T h e rule of
'stare decisis', it is respectfully submitted, places on the judges a duty
of choice-making from the changing social, economic and technological
conditions and in making this choice, it requires them to give scrupulous
heed to the alternative paths presented by the authoritative legal
materials. 6 5 Besides, Muslim law is itself juristic law, created and
developed by private specialist, in which scholarly handbooks have the
force of law. 6 6 It is, therefore, respectfully submitted that the rule of
M r . Justice M a h a m o o d as affirmed by the decision under review
requires reconsideration to make the law more realistic and to bring it
in accord with the Islamic concepts of social justice.

V, MAINTENANCE

T h e question of enforceability of a father's agreement to

maintain his illegitimate child, and of a husband's ante-nuptial
agreement with his wife to live with her at her parent's house after
marriage, came before the High Courts of Rajasthan and Calcutta
respectively. T h e "unruly horse of public policy 55 was harnessed to
support these agreements in larger social interest. T h e two cases
Sukha v. Ninni61 and Nizamul Hague v. Begam Noorjehan^ arose
out of maintenance proceedings under section 488 of the Code of
Criminal Procedure, 1898.
In Sukha v. Ninni the facts were as follows : As a result of the
union between Sukha and Ninni, a female child was born. Ninni
obtained an order against Sukha, upon her application under section 488
of the Criminal Procedure Code, for the payment of Rs. 10 per month,
for the maintenance of the illegitimate child. Sugha filed a revision
against this order before the sessions judge, but later withdrew it, as
he executed an agreement with Ninni, to pay Rs. 8 per month, for the
maintenance of the child till the child was married. Sukha failed to
honour this agreement, whereupon Ninni sued him upon the agreement.
Sukha reststed the suit denying the agreement. T h e suit was decreed
by the trial court and the first appellate court. Hence Sukha filed a
second appeal before the High Court.
T w o contentions were urged before the High Court. First, that
under the Muslim law, a M o h a m m e d a n is not bound to maintain his
63. Abdur Rahim, op. cit. supra note 12 at 115.
64. Vidya Charan Shukla v. Khub Chand Baghel, A.I.R. 1964 S.C. 1099.
65. Stone, Julius, Legal System and Lawyers' Reasoning 282 (1964).
66. Schacht, Joseph, op. cit. supra note 3 at 5.
67. A.I.R. 1966, Raj. 163.
68. A.I.R. 1966 Cal. 465.

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 MOHAMMEDAN LAW 417

illegitimate child, and second, that the agreement is unenforceable in

law. Mr. Justice Beri, who decided the appeal, held that according
to Muslim law, it is no duty of a man who has begotten an illegitimate
child to maintain it. Reliance was placed on a Bombay case, Roshan
Bai v. Suleman Haji Ahmad Umar.69 This seems to be settled view of
the leading authorities-70 The case-law on the subject was fully
considered in a case from Kerala, Pavitri v. Katheesumma,71 wherein an
illegitimate daughter's claim to maintenance was not judicially
recognized, whatever may be the moral or ethical obligation of the
putative father.
The second contention related to the enforceability of the agree­
ment in regard to which two arguments were put forward. The first
is that the agreement was without consideration. The learned Judge
repelled this contention holding that the liability created by the order
of the district magistrate pursuant to which Sukha was liable to pay
Rs. 10 per month as maintenance, and which became a final order,
formed a good basis of consideration for the agreement because it was
at the desire of the promisor that the promisee abstained from recover­
ing under what had obviously become a final executable order.
It was in disposing of the second argument that the sagacity and
the pragmatic approach of Mr. Justice Beri, is seen. It war urged
that the agreement is void under section 23 of the Indian Contract Act
because its consideration is unlawful, on the ground that the agreement
is of such a nature that if permitted, it would defeat the provisions of
the Muslim law. His Lordship rejected this argument holding that an
agreement for maintenance is to be enforced regardless of the provisions
of the personal law. After placing reliance on the high authority of
Khwaja Mohammad Khan v. Hussaini Begam,™ and Tasaof Ali Chowdhary
v. Mst. Fyzoonissa Khatoon,™ Mr. Justice Beri observed :
An agreement to maintain an illegitimate child, for which the Mohammedan
Law as such makes no provision, will in my opinion not have the effect of
defeating the provisions of any law. As a matter of fact, maintenance of
illegitimate children has been statutorily recognised under S. 488 of the Code
of Criminal Procedure in our country and it is in consonance with this whole-
some public policy that the offsprings born under such circumstances are to
be provided for and should not be left to the misfortunes of vagrancy and its
attendant social consequences.7*
This is how the individual interest in avoiding the agreement on the
pretext of absence of any obligation under the personal law was
balanced against the social interest underlying the provision for illegiti­
mate children, "to make the good of existence . . . . go round as
69. A.I.R. 1944 Bom. 213.
70. See Fyzee, op. cit. supra note 1 at 206; Tayabji, op. cit. supra note 6 at 312.
71. A.I.R. 1959 Ker. 319.
72. (1910) I.L.R. 32 All. 410 (P.C).
73. (1870) 15 Suth. W.R. 29C.
74. Supra note 67 at 164.

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418 ANNUAL SURVEY OF INDIAN LAW 1966

far as possible with the least friction and waste," the core of Dean
Pounds' pragmatism, 7 5 according to which legal concepts are determined
by social facts. T h e case reaffirms the rule that where there is no
express prohibition to the making of an agreement in respect of a
matter under any law, the making of such agreement cannot be said
to defeat the provisions of any such law to attract the bar of section 23
of the Indian Contract Act. Lastly, the decision is in accord with the
Islamic spirit. T h e Quaranic injunction is "Muslims must abide by
their stipulations." 7 6
Nizamul Haque v. Begam Noorjehan11 is another landmark in this
direction. Begam Noorjehan who was formerly a Hindu, after her
conversion to Muslim faith, married Nizamul Haque and got a child by
him. Fearing that it would not be convenient to her to live with her
husband's people under strict forms, she at the time of her marriage,
made Nizamul Haque to execute a marriage agreement, Kabinama,
providing that he would live with her in her parent's house even after
marriage. H e lived with her at her house for some time but latter
their relations were strained and he began to reside with his people.
Begam Noorjehan filed an application against her husband under
section 488 Criminal Procedure Code and obtained an order for the
payment of maintenance allowance of Rs, 70 per month for herself
and Rs. 30 per month for the child. T h e husband filed a revision
before the Calcutta High Court, challenging this order on two grounds,
firstly, that it had not been proved that he had neglected or refused
to maintain his wife and child and secondly, that the agreement is void
as against public policy.
Appreciating the evidence on merits, the first contention was
rejected. T h e second contention rais d fine points of law. The
petitioner's learned counsel relied on the comments under section 26 of
the book Mohammedan Law in India and Pakistan by Babulal Verma, 7 8
following a decision of the Allahabad High Court in Khatun Bibi v.
Rajjab19 holding that an agreement to the extent to which it binds the

75. See Stone, Julius, Human Law and Human Justice 264 (1965), for an enlighten­
ing discussion on pragmatism. The great jurist of our times sums up Pounds*
pragmatism in these words :
The core of Pounds' theory of justice, justifying its descriptions as "prag-
matist", may be stated at the outset in his own words. Justice as applied to
law is not, he writes, "an individual virtue." Nor is it "the ideal relation
among men." It is merely such an adjustment of relations and ordering of
conduct as will make the good of existence....go round as far as possible with
the least frictions and waste....
76. Culson, N. J., op. cit. supra note 2 at 190. The relevant Quranic verse, when
translated reads. "0 ye who believe; Fulfil your undertakings" quoted by Quardri, A.A.,
Islamic Jurisprudence in the Modern World 97 (1st ed. 1963).
77. A.I.R 1966 Cal. 465,
78. Babu Ram Verma, Mohammedan Law in India and Pakistan 87 (3rd edn.
1959).
79. A.I.R. 1926 All. 615.

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 MOHAMMEDAN LAW 419

husband to live with his wife at her father's house, is invalid. Reference
was also made on behalf of the petitioner to Imam Ali Patwari v.
Asfatunnessa80 in which it was held that a condition in the kabinama
that the husband was to live with the wife in her father's house was
illegal. Both these cases were distinguished on facts.

M r . Justice D . N . Das Gupta who heard the revision petition

discussed the special circumstances in which the kabinama was executed
in the case under review. T h e learned J u d g e was satisfied on facts
that the husband executed the agreement under the special contingencies
in which the wife was placed. She being a Hindu before her conver­
sion to the Muslim faith, naturally feared that she might not be able
to live conveniently with her husband's people who might impose upon
her to observe strict forms and so secured the agreement. M r . Justice
Das Gupta, therefore held that under these special circumstances there
is nothing in the agreement which is opposed to any law, the public
policy or the M o h a m m e d a n law. H e supported his view from the
decided cases 81 in which agreements by the husband in favour of his
wife allowing her to live at her parents' house under certain contingencies
were held to be not invalid and nor opposed to public policy.

The cise thus distinguishes between agreements providing the wife

an absolute and unqualified right to reside at her parents' house and
those in which such a right is given to her under special contingencies
e.g.) ill-treatment by the husband, disagreement with his people, etc.,
intended to regulate marital relations and to ensure to the wife decent
treatment even in unfavourable circumstances. Agreements of the
former type have been considered as opposed to public policy for they
would create moral, social a n d legal difficulties. 82 Eminent writers a n d
legists have, therefore, not favoured such type of agreements. The
courts have not upheld them on grounds of public policy, as has been
discussed in these authorities. However, with regard to the agreements
of the second type, the courts have adopted a pragmatic approach in
considering the special contingencies safe-guarding the interests of the
wife in matrimonial matters as against a hostile, unkind and unfavour­
ably disposed husband or his family and supported such agreements to
ensure domestic happiness. Ghoicemaking in such matters, is of course,
a difficult task for the courts, for in the words of an eminent scholar. 8 3

80. A.I.R. 1914 Cal. 369.

81. Sebed Khan v. Bilatunnessa Bibi, 25 Cal. W.N. 888; Hamidulla v. Faizunnissa,
(1882) I L.R. 8 Cal. 327; Mohammad Tasin v. Muntaz Begam, A.I.R. 1936 Lahore 716.
82. Fyzee, op. cit. supra note 1 at 121, discusses these difficulties in the light of
decided cases, for instance it would be difficult for the husband to exercise control over
the wife's actions; consortium would not always be easy, the question of separate
maintenance would arise, the guardian of children would raise theory problems, the
adjustment of mutual rights and obligations would be difficult.
83. See Wilson, op. cit. supra note 30 at 135; Mulla, op. cit. supra note 23 at 240-41;
Macnaghten, op. cit. supra note 56 at 256.

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420 ANNUAL SURVEY OF INDIAN LAW 1966

public policy is an unruly horse to ride. It is difficult to guide the

animal on level ground, it is still more difficult to make him leap over a stile
on which a master exponent of equity has affixed the device... . e *
Public policy has, of late been recognized to play a dual role: enabling
and the disabling one, in the former sense,
it is another name for the fundamental, ethical, political and social principles
which guide the legal evolution, whether in legislation or legal administration,
at any given time. 85
It is submitted cases of the type under review show encouraging
signs of the robust use of 'public policy' doctrine in the solution of
growing legal problems without departing from the spirit of the
Muslim law which favours sanctity of agreements. T h e rigour of the
Quranic precepts was relaxed by judicial reasoning to support social
realities.
VI. ALIENATION OF J O I N T IMMOVEABLE PROPERTY
I n Maimunissa Bibi v. M. S. N. JV. Abdul Jabbar^ a piece of
immoveable property jointly belonging to Maimwnnissa Bibi, the mother
and her three sons, two of whom were minors, was sold to the
respondents for Rs. 500. T h e mother signed the sale deed on her
behalf and as a guardian of the minors. T h e executants of the sale
deed sued the vendees to set aside the sale contending that the mother,
as a de facto guardian of the minor vendors could not legally make
the conveyance on behalf of the minors and so the entire transaction
was void. T h e trial court accepted this contention and set aside the
sale, directing the plaintiffs to pay Rs. 500 to the vendees as a
condition to their getting back the property* T h e vendees appraled
against this judgment and the lower appellate court 1 eld that the
conveyance was void qua the shares of the minors only and that it was
binding on the major vendors as regaids their shares. Accordingly the
court granted a preliminary decree for partition and separate possession
of 21/40 shares representing the shares of the major vendors. The
aggrieved vendors, therefore, filed the second appeal before the
Madras High Court. O n the authority of the Privy Council in Pratap
Singh v. Sant Kaur81 and of the Supreme Court in Md. Amin v. Vakil
Ahmad,88 it was contended on behalf of the appellants that the entire
transaction was void. M r . Justice Veeraswami rejected this contention,
by distinguishing the conveyance in the instant case, from a family
settlement, which was the subject-matter of the case before the Privy
Council and the Supreme Court. It was observed that the Privy
Council and the Supreme Court were concerned
with a contract, which by its very nature could not be cut up and upheld in
one part and held to be void in another part. The nature of a conveyance is
not identical with that of a contract or an agreement or a family settlement.

84. Tayabji, op. cit. supra note 6 at 115 who has strongly supported such agree­
ments
85. Friedmann, W\, Legal Theory 445 (1960).
86. A.I.R. 1966 Mad. 468.
87. A.I.R. 1936 P.C. 181.
88. A.I.R. 1952 S.G. 558.
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 MOHAMMEDAN LAW 421

Accordingly the learned Judge affirmed the view of the

lower appellate court, that the only effect of the incapacity of the
mother to represent her minor sons and make a conveyance of
his share is that a minor is not a party to the conveyance and
therefore the conveyance should be deemed to be by the other
executants alone, who were were 'sui juris' and as such, they were
bound by it. T h e ratio of another case of the Privy Council, Matadin
v. Ahmed AliS9 was relied upon in support of this view. The
respondents relied on Kadir Meeral Beevi v. Mohammed Koya90 holding
that a conveyance executed by a de facto guardian of Muslim minor
for the purpose of discharging the debt of the minor's father, was
binding on the minor. This case was, however, distinguished because
the precise question raised in the instant case did not arise in that case
and also for the reason that the Privy Council authority of Matadeen
was not referred to therein. Following the dictum of M r . Justice
V e n k a t a r a m a n a Rao, in Khatoon Bibi v. Abdul Wahab,91 the learned
J u d g e helc^ that every Muslim heir is entitled to sell or mortgage or
otherwise encumber his share of the property without reference to the
other heirs just like any tenant-in-common. T h e major vendors being
competent to alienate their shares, the sale must be held to be good
atleast to that extent. I n the result, the question was answered in the
negative and the appeal was dismissed by the High Court.
T h e importance of the case lies from the juristic point of view.
In Imambandi v. Mutsaddi^ the Privy Council h a d held long ago that
under the Muslim law, mother of a minor is not his legal guardian,
she being a de facto guardian, will have no power to act on behalf of
the minor and make a valid conveyance of his property. However,
the law was not clear as to whether a conveyance effected by several
persons, one or more of whom being a minor, and represented by his
d e facto guardian, is void qua the minor only or as against all the
covendors, major and minor both. T h e case has settled the law
on a sound footing by an inevitable and imperious logic from
precedents if not exactly in pari matetia, at least in consimili casu.

VII. CONCLUSION

Some of the cases under review show the guide-lines of proper

approach to Muslim law which is not moribund and static 'corpus
juris' but it is a living law of the Muslim community. There is a
welcome affirmation that " t h e element of human interest provides a
greater substratum than does the logical structure of l a w " and some of
its barren traditions. Indeed the h u m a n factor plays a paramount
role in legal operation as it does in surgical one, and in assessing the

. 89. I.L.R. 34 All. 213; 39 Ind. App. 49 ( P . C ) .

90. A.I.R. 1956 Mad. 368.
91. A.I.R. 1939 Mad, 306.
92. A.I.R. 1918 P.C. 11.

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importance of h u m a n factor in each case, the learned judges seem to

have given due weight to the Islamic 'Grundnorms'. Except in Rabia
Khatoon, the doctrinaire approach has given way to sociological
evaluation of the Shariat. The cases of Maqbool Alam Khan, Mahboob
Khan, Sukha and Nizamul Haque are important landmarks in this
direction, providing attractive solutions for problems of choices of
grounds of decision. In Sukha and Nizamul Haque shreds of pragmatic
approach are to be seen.
T h o u g h 'stare decisis* is a n important postulate of judicial
reasoning, Rabia Khatoon cannot be defended on the doctrine of
communis error facit ius and that to depart from the rule in Abdul
Kadir v. Salima would introduce uncertainty in law and disturb the
transactions settled, which weighed upon the judges in Rabia Khatoon
is an unconvincing proposition. 9 3 T h e rule in Abdul Kadir v. Salima
accordingly requires reconsideration to restore to the Muslim wife,
social justice guaranteed by the traditionally basic concept of 'dower'
epitomized by its payment. As Cardozo has put it:
Back of precedents are the basic juridical conceptions which are the postulates
of judicial reasoning, and further back are the habits of life, the institutions of
society, in which these conceptions had their origin, and which by a process of
inter-action, they have modified in t u r n . . . . 9 4
It must, therefore, be conceded that the religious basis of the
Muslim law does not make it immutable to be indifferent to the
changing social needs. T h e Quranic precepts have a wider perspective,
capable of varying interpretations to meet new social problems. The
correct way to look at the problems of Muslim law is to determine in
each fact-situation the limitations of the fundamental ideology of the
Shariat and to interpret them in a way best suited to cater to the
particular needs of time and place, without departing from their spirit.
T h e revelations of the Prbphet and the, practices and traditions attri­
buted to him and his followers of repute must; therefore, be viewed as
laying down the broad patterns of stable social behaviour along a
well defined path of spiritual discipline. Within these bounds, the
Muslims law continues to be a growing organism, a living social
phenomenon reflecting the people's s^oul. It is in this delimited field

93. Cf. Allen, op. cit. supra note 62 at 335 :

The argument usually advanced in support of it, that it is better to let things
alone, however, muddled they may be, than to introduce uncertainty into
rights of property or principles of liability, is also unconvincing on many
circumstances; for when an established doctrine is reversed by a competent
tribunal the position for the future does not differ from that which follows
upon a statutory change of the law It may not always be easy, but it is per­
fectly possible, for lawyers and, indeed, it is a considerable part of their
business to adopt themselves to these changes as they occur. It is clear there­
fore that there must be some limits to the doctrine of'communis error'for
otherwise the law will never progress at all....
94. Cardozo, Benjamin N., The Nature of the Judicial Process 19 (Yale University
Press, New Haven).

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 MOHAMMEDAN LAW 423

that the judges are to provide for the gaps, the loopholes, the open
spaces and the new situations. Each decision must accordingly pulsate
with life, for the light and reason of judicial decisions are to be found
in the social elements of every kind that are the living force behind
the facts they deal with. 95 It is in this very field that the Shariat,
the natural law of the Muslim community96 is in the process of
remaking, being reinterpreted and rediscovered under the impact of
new social needs and values emerging to rec gnition and power.
These are the limitations of Islamic legal modernism.97

95. Id. 16, quoting Ge'ny, translated in 9 Modern Legal Philosophy p. 45.
96.
Just as natural law exists in nature, to be discovered by reason, so the Shariat
as the Islamic natural law, was revealed to, or discovered by, the Prophet
Muhammad.
Fitzgerald, Law in the Middle East, op. cit. supra note 1 at 349-352.
97. See also Gulson, op. cit. supra note 2 at 218, 225 containing thought provoking
observations on the limitations of current process of modernization in the Islamic law.

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