Sharia and India

Islam being the fastest flourishing religion in the world has paved its way for ‘Sharia’ the most controversial legal system to spread its wings briskly. However, can Sharia be called a law is the real question. Sharia is a collection of teachings from the Prophet and is an inspiration adapted from the way he lived his life. Sharia thus has a divine and philosophical genesis that provides a devote Muslim with guidance to live an Islamic life. The dawning of Sharia is not from a book of statute neither does it consist of any judicial precedent or regulations, nor do its origin root back to the state.

Most of the Muslim majority countries like Saudi Arabia, Iran, Iraq, Afghanistan etc. follow the strict canon of Sharia. Indonesia is the country with the highest Muslim population in the world. A research nevertheless states that India will own that distinction by 2050 while still remaining a Hindu majority country. This puts light on how rapidly the Muslim population is growing in India.
Sharia in India has always been a contentious issue. This is because unlike the Islamic countries, the All India Muslim Personal Law Board (AIMPLB) accepts the Indian Penal Code as far as dealing with crimes with regards to Muslims is concerned. The AIMPLB came into being in 1973. The Board was constituted to adopt and provide continuation to the Muslim Personal Law in India (Muslim Personal Law (Shariat) Application Act of 1937). The main reason for the constitution of the Board was to safeguard Sharia from any law or legislation that infringes on it.

The Muslim Personal Law (Shariat) Application Act 1937, deals with all personal matters regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments). A similar Board called All India Muslim Women Personal Law Board was constituted in 2005 to focus on issues specifically related to Muslim women in case of marriage, divorce, and other rights. However, the latter did not gain much leverage.

Another legislation that facilitates the marriage matters for Muslims in India is the Dissolution of Marriage Act, 1939. This provides for provisions that deal with circumstances where a Muslim woman seeks to obtain a divorce or has been divorced by her husband or any matter connected therewith.

The Shariat code of conduct applies to all the Muslims in India only barring an exception for the Special Marriage Act under which, a Muslim, if so elects can get married. The practise of Sharia in India has often come under a number of scrutinies in the past and has always been a topic for controversial debates over the years. These have been mostly related to the protection of fundamental right bestowed by the Constitution that has been threatened under the application of the personal law of Sharia. The Shariat Application Act clearly states that the State does not have right to interfere in the matters of personal dispute. However, the State being secular a system does not have a defined line up to which it can have access into the personal matters of its citizens. Where on one hand most Muslims in India consider Sharia as a complete code of conduct and absolute in every which way, the Constitution of India on the other hand bestows on its citizens the freedom of religion as a fundamental right. This creates an enormous conundrum when it comes to bringing any form of legislative change in the personal law.

In India, time and again it has been emphasized that the personal laws shall be in conformity with the Constitution. The AIMPLB however, insists that personal laws cannot be said to violate Part III of the Constitution as they form an essential and integral part of a religion and Article 25 of the Constitution of India provides protection for the same. The Law Commission of India on the other holds out that the personal laws cannot be such that they result in contradicting the Constitution of the country. They further put prominence that in case of an absence of consensus the best way to move forward is by preserving the diversity of the personal laws, while ensuring the same do not contradict the Constitutional text in any manner. The Commission has suggested that the personal laws should be codified to the greatest extent possible and any inequalities that creep in such codified version shall be remedied by amendment.

In an incident that took place in north India, a 28 year old woman was raped by her father-in-law. A Fatwa was issued in the case which read “If one raped his son’s wife and it is proved through witnesses, or the rapist himself confesses it, Haram Musaharat will be proved. It means that the wife of the son will become unlawful forever to him i.e. the son. The woman with whom father has copulated legally or had sexual intercourse illegally in both ways, the son can’t keep physical relationship with her. The Holy Quran says: “Marry not the woman whom your father copulated”.

The Supreme Court of India however, ruled that Fatwas do not have any legal status in the Indian Constitutional scheme but the practice of issuing Fatwas in themselves is not illegal as it forms a part of informal justice delivery system and is solely based on the discretion of the person to accept or reject it as not all Fatwas are bad but at the same time a Fatwa is non-binding and cannot be derived as a force of law. The paramount part to note in cases like these is the frightful thought of patriarchal dominance which governs the principles of such predated conventions.
Sharia Law, as they call it, is a crude form of law as a lot of the rules mentioned in it date back to the age of the Prophet (Sixth-seventh century), the changing times have had little to almost no impact on its effectiveness as a set of guidelines to run a society, especially in a lot of Middle- Eastern Wahabi regimes where the law is still practised to the last bit with precision.

The Arabic term for Sharia is ‘the way’ and it does not literally translate into ‘the law’. Sharia thus does not have a judicial milieu, all its rulings are based on moral and ethical teachings mentioned in the Quran and the Hadith (words, actions, teachings of the Prophet).

Speaking about India and the application of this stringent code of ethics in the largest democracy in the world, it almost seems impossible for its application as a strict code of conduct as has been the case with the Muslim countries. Most of the Indian population being Hindu further determines the fate of Sharia in India. Though Sharia has been practised as a personal law since a long time now, a complete application of this law even with regards to the Muslim population in India is a remotely extinct idea as a lot of its dictum often emerges to oppose the Indian Constitution in some way or the other and this not only would threaten the ambit of democracy but also paralyse the effect of the Indian legal system.

In the times where Jihad seems to be the biggest condonations for Muslims and where the world peace hangs on the edge of threat inflicted by fundamentalist in the epithet of Islam, a world ruled by such ideologies does not seem to hold a bright future.

Sharia being a complete contrast to the Western ideology cannot be expected to grow in countries seeking development as progressive civilisations. The fundamentals of Sharia being completely contradictory to the fundamental principles of the West does not aid its further proliferation.

Change is the only constant, human society formed laws to regulate human life, laws of state have been amended from time to time as per the needs of the changing society, Sharia on the other hand defies the basic purpose of law as it preaches that life should only be led according to certain principles that were set out some fifteen centuries ago, this nullifies the basic concept of law being, ‘laws are made to aid human existence rather than humans coming into existence to practise a set of laws’.

India is a democracy that gives the right to its citizens to be secular in their practise of religion. So even if sharia endures as a personal law in India for centuries to come, it can never take the place of a mandatory statute, as not only does Sharia form a brutal set of criminal laws for today’s world, but its civil implications would also prove to be a deficit to the Indian democracy.

1. Asifa Quraishi-Landes,The Washington Post, ‘Five myths about sharia’, June 24, 2016,
2. Michael Lipka, Pew Research Centre, ‘Muslim and Islam: Key findings in the U.S. and around the world’, August 9, 2017,
3. Anand Patel, India Today, ‘Fact File: Sharia courts decoded’, July 13, 2018,
4. The Muslim Personal Law (Shariat) Application Act, 1937
5. Dissolution of Marriage Act, 1939
6. Adrija Roychowdhury, India Express, ‘Shariat and Muslim Personal Law: All your questions answered’,
7. The Hindu, ‘Personal laws and Constitution’, October 19, 2016,
8. The Law Commission of India, ‘Consultation Paper on Reforms of Family Law’, August 31, 2018,
9. Supreme Court of India- Vishwa Lochan Madan vs Union Of India & Ors, July 7, 2014 Bench: Chandramauli Kr. Prasad, Pinaki Chandra Ghose
10. Spike Hampson,‘The real reasons Islamic Sharia law is incompatible with the West’, June 4, 2018

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