Custom and Muslim Law in British India

British Institute of International and Comparative Law
Custom and the Muslim Law in British India Author(s): George Rankin Source: Transactions of the Grotius Society, Vol. 25, Problems of Peace and War, Papers Read before the Society in the Year 1939 (1939), pp. 89-118 Published by: Cambridge University Press on behalf of the British Institute of International and
Comparative Law
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By the Right lon. (Read
Sir GEORGE RANKIN, Kt., LL.D.
before the Society at India House on June 21, 1939.)
Important changes have recently taken place in India with regard to customary law in its application to Muslims. In 1935 the local legislature of the North West Frontier Province passed an Act (VI of 1935) providing that a large number of matters as to which custom had been the rule of decision primarily applicable by the Courts should in the future be decided in accordance with the Muslim Personal Law (Shariat) where the parties are Muslims. The matters upon which this change of law was to have effect were numerous and wide--succession, special property of females, betrothal, marriage, divorce, dower, guardianship, minority, bastardy, family relations, wills, legacies, gifts, any religious usage or institution including waqf (trust or trust property). The Muslim law was, however, made to apply to these subjects only in so far as it had not been altered or abolished by legislative enactments and was not " Law and Justice " opposed to the provisions of the local Regulation. Subject, however, to any such statutory provisions, the primary rule of law, which for Muslims as for Hindus and others had formerly been custom, and which had allowed of effect being given to the Hindu or Mahomedan Law only in the absence of proof of custom, was no longer so far as Muslims are concerned to be in force. Custom was to make way for the Shariat or religious law itself. This provincial Act of 1935 was followed in 1937 by an all-India Act passed by the Central Legislature (Act XXVI of 1937) to a similar-though not the same-effect. By 1987 agricultural land, charities and charitable religious endowments were no longer within the competence of the Central Legislature
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and had to be excluded from its Shariat Act of 1937. The Muslim law as to adoption, wills and legacies was, under this statute, to be applied in derogation of customary law only to those Muslims who should make a formal declaration of their desire therefor and to their minor children and descendants. But otherwise the widest range of subjects is included under the new rule that custom or usage shall, in the case of Muslims, The Act give way to the Muslim Personal Law (Shariat). mentions intestate succession, special property of females, marriage, the various forms of Mahomedan divorce, maintenance, dower, guardianship, gifts, trusts, trust properties and wakfs (if not charitable or religious). The unavoidable exclusion of agricultural land has, of course, made a considerable gap in the effectiveness of the new principle as comparatively little of the land of India can be placed outside this category; on the other hand it is only in certain parts of India that rights in agricultural land are governed by custom as distinct from the general law. These legislative changes were made in accordance with Muslim opinion: indeed by the force of sentiments prevailing widely among Muslims and strongly represented in the Indian Legislative Assembly. Much of the care taken by the Legislature (since 1872 at least) to respect the customs of the people has, it would seem, been misguided. We are now witnessing a revolt against custom and in favour of the law-that is, the personal or religious law of the parties. It is, I think, a new phenomenon in the relations between law and custom. It would at least have been found interesting (had they lived to hear of it) by a number of persons-administrators as well as lawyerswhose work for India has been affectedby it-Warren Hastings, Sir George Campbell, Sir William Jones, Sir Henry Maine, Sir to ensure that James Stephen. The history of the British efforts the Indian peoples should have the benefit of being governed by their own laws is a history which has more than one chapter. Upon Hindu law, for example, important effects for better and for worse have resulted from the facts that it has been administered by British Indian Courts and has developed under the influence of English Judges in India and on the Judicial Committee of the Privy Council. But we are here concerned only
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with the Mahomedan Law, and it is necessary to avoid assuming that any valuable generalisations can be made which are applicable equally to the Shara and the Shastras. Though both Mahomedan Law and Hindu Law are religious in origin, and to some extent in sanction and in content, they are very different in their attitude towards custom, which has a greater scope in " Under the Hindu system ", said influencing Hindu Law. Sir James Colvile, delivering the judgment of the Judicial Committee in 1868, " clear proof of usage will outweigh the written text of the law " (a). Sir Charles Roe, in a well-known Full Bench case of the Punjab Chief Court, observed: " It may be remarked that Hindu law itself is after all only customary law embodied in treatises and idealised and ascribed to a divine origin " (b). In his History of India (Book I, Ch. V), 8rd ed. 1849, p. 48, Mountstuart Elphinstone writes: " I scarcely know where to place, so as to do justice to the importance assigned to it in the Code (c), the respect enjoined to immemorial custom. It is declared to be ' transcendent law' and 'the root of all piety '. It 'is indeed to this day the vital spirit of the Hindu system, and the immediate cause of the permanence of these institutions." Mahomedan law, on the other hand, gives to custom a limited and special value; and the change to which we have referred marks the end of an interesting and prolonged experiment and the beginning of a new phase in the history of Islam in India. The Mahomedan law is a religious law: but this statement is perhaps more readily accepted than understood. The Koran, which lies at the root of it, is reverenced not as having been composed by the Prophet but as on a higher plane: " it being it is put in Sale's their general and orthodox belief ",-as classical Preliminary Discourse-" that it is of divine originnay, that it is eternal, uncreated, remaining, as some express it, in the very essence of God ". It contains not only a body of religious doctrine centring round the main tenet of the unity of God, as well as a number of occasional passages arising from particular emergencies; but also a number of laws and directions
(a) Collectorof Madura v. Mutu Ramalonga (1868), 12 M. I. A. 397. (b) Gujar v. Sham Das, 107 P. R. 1887, p. 245. (c) That is, the Code or Institutes of Manu.
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upon such matters as marriage, divorce and inheritance which may be regarded as the institution of a civil law. These directions are the commands of God. " God hath thus commanded you concerning your children. A male shall have as much as the share of two females ", etc., etc.-so runs the well-known passage in the fourth chapter (Sura) which often adds to its rules the sentence, " This is an ordinance from God and God is knowing and wise ". But while a great deal that is basic to Mahomedan law could be learnt by reading the second, fourth, fifth and sixty-fifthSuras of the Koran, it would be an error to suppose that the sacred book contains the whole of the law. " Though the Mahomedan Law purports to be founded essentially on the Koran, most of the rules and principles which now regulate the lives of Muslims are not to be found there " (d). As it developed in the second and succeeding centuries of the Mahomedan era, not Mahomedan law merely but Mahomedanism as a religion, social system and mode of life came to be rested not only on the Koran but on three other foundations: (1) traditions of the sayings and acts of the Prophet (hadis or sunnat), (2) the unanimous consent of the learned doctors This is true (ijma), and (3) analogical reasoning (kiyas). doctrine among the Sunnis who follow the four Imams in placing the sources of their law in that order of importance (e). The differentschools allow differentimportance to these principles and the schism between Shias and Sunnis has meant that very traditions. differentvalues have been attributed to the different In any view the pre-Mahomedan institutions of Arabia-the backward and indeed barbaric state of society which came to be described as " the days of ignorance "-had a profound effect upon the law of Islam not only directly but also indirectlythat is through and by means of traditions as to what the Prophet did and said. This is the more intelligible when we reflectthat Islam did not profess to be a new religion formulated by Mahomed, but the continuation of religious principles revealed by earlier prophets or teachers, Hebraic and other. The conception of law as the " speech of God " is accompanied by recognition that God has promulgated his laws from time to
(d) Ameer Ali, 4th ed., Vol. I, p. 8. (e) Fusul Karim v. Haji Mowla Baksh (1891), L. R. 18 I. A. 59, 70-1.
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time since the days of Adam, that they admitted of modification from time to time, and that the laws revealed might become forgotten or corrupted. Hence the Mijtahids or jurists by the consensus of their opinion are a source of law: though we may note that there has been diversity of opinion on the question whether ijma may be collected in modern times. The individual deductions of jurists by means of analogical reasoning have the authority proper to expositions of the law: their scope is limited to matters not provided for by the Koran or tradition or consensus of opinion among the learned. The schools of law differmuch in the comparative value and authority which they attribute to kiyas and to tradition. What, then, is the place of custom in the law of Islam? What room is there for custom apart from the usages of Arabia in the time of the Prophet unrepealed by him, or sanctioned by his conduct or his silence ? A short answer may be given from Sir Abdur Rahim (f), the distinguished lawyer who presides over the Indian Legislative Assembly:" As to customs which have sprung up since the Prophet's death, their validity is justified on the authority of the text, which lays down that whatever the people generally consider to be good for themselves is good in the eye of God. Thus the conception of law as an emanation from God is said to hold good in the case of customary laws as well. Custom as a source of laws resembles analogical deduction in one important respect, it has no legal force if it be repugnant to the revealed law or to the law founded on ijnma. It resembles ijma to this extent that the legal character of a custom has no relation to juristic reasoning, just as the authority of a law passed in ijma is not affected in any way by the reasons which influenced the learned. But customary law is of inferior authority compared to ijma inasmuch as it is based on the practice of the people generally while ijmna implies deliberation on the part of men well versed in the principles of law. It is, however, of superior authority to a rule based merely on analogy."
(f) Muhammadan Jurisprudence, pp. 55, 136.
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And again (p. 136):-" It is laid down in Hedaya that custom holds the same rank as ijma in the absence of an express text and in another place in the same book custom is spoken of as being the arbiter of analogy. . . . There is agreement of opinion among the Sunnis that custom overrides analogical law and a student of Muhammadan law cannot help noticing that custom played no small part in its growth, especially during the time of the Companions and their successors. The Hanafi writers on jurisprudence include custom as a source of law under the principle of istihsan or juristic preference" (or, as we might say, equity). Thus there is no difficulty in taking account of custom upon certain questions, e.g., whether for purposes of a valid marriage a man of one trade is the equal of a woman whose father follows another trade, whether in the absence of express agreement dower is payable in two parts, prompt and deferred, and if so what amount of prompt dower is payable, and is it payable before consummation of the marriage? But, very differentis the position when it is proposed that custom should be allowed to regulate such matters as succession and inheritance or to interferewith the fundamental rules laid down in the Koran to govern marriage and divorce. The limited sphere within which the Mahomedan law recognises custom was considered by the Bombay High Court in 1925 (g), where a custom that the office of kazi should devolve by heredity in a certain village was held to be bad as Mahomedan law does not recognise any such right. The Court accepted as correct the statement that " custom (urf) is recognised as one of the sources of Mahomedan Law under certain conditions, especially if it is not unreasonable, nor against public policy, nor against the recognised principles of the Mahomedan Law " (h). British responsibility for administering law and justice to Indians generally in Bengal may be taken to have begun in 1765 when the East India Company obtained from the Moghul Emperor the grant of the diwani-the management of the
(g) Kasamkhan v. Kaji Abdulla Kaji Mahamad (1925), 93 I. C. 135. (h) Civil Law of Palestine, by C. A. Hooper (Jerusalem,1936), Vol. II, p. 13.
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revenue and civil justice. The Moghuls had administered Mahomedan law both civil and criminal: their administration, though exceedingly corrupt and inefficient, had the merit of leaving questions between Hindus to be decided according to their own Shastras. The Mahomedan criminal Courts did not come to an end till 1790. In Calcutta, Madras and Bombay, British civil Courts had been established in the seventeenth century: in 1726 by Royal Charter, Mayors Courts were set up with an appeal to the Governor and Council and thence to the King in Council. This Charter was treated as introducing into the Indian Presidencies all the common and statute law of England as it stood in 1726, and by an amending Charter of 1753 it was made clear that these Courts were limited in their jurisdiction to suits between persons who were not natives unless by consent of the parties. In a judgment of Lord Stowell is to be found a well-phrased, if old-fashioned, explanation of the curious position of these British Settlements and Courts established within a Mahomedan country. He had, he said, " made enquiry of a person of the greatest authority on such a subject who is " just returned from the highest judicial situation in that country -doubtless his friend, Sir Robert Chambers-and he put the position of Calcutta thus:" In the western parts of the world, alien merchants mix in the society of the natives, access and intermixture are permitted and they become incorporated almost to the full extent. But in the East from the oldest times an immiscible character has been kept up: foreignersare not admitted into the general body and mass of the society of the nation: they continue strangers and sojourners as all their fathers were: Doris amara suam non intermisceat undam (i) . . . Though the sovereignty of the Mogul is occasionally brought forward for purposes of policy, it hardly exists otherwise than as a phantom: it is not applied in any way for the regulation of these establishments. This country exercises the power of declaring war and peace, which is among the strongest marks of actual sovereignty, and if the high, or as I may almost say, this empyrean sovereignty of the Mogul, is sometimes
(i) Virgil, Ed. X, 5.
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brought down from the clouds, as it were, for purposes of policy, it by no means interfereswith that actual authority, which this country and the East India Company, a creature of this country, exercises there with full effect" (k). In 1765 the position changed: the question is no longer how the Moghuls treated the British but how the British treated the Muslim and the Hindu inhabitants of Bengal. Warren Hastings acted upon the grant of the diwani by ordaining (Regulation II of 1772, s. 27) that in all suits regarding inheritance, succession, marriage, caste and other religious usages or institutions, the laws of the Koran with respect to Mahomedans, and those of the Shastras with respect to Gentoos (Hindus) should be invariably adhered to. The Regulating Act of 1773 and the Supreme Court's Charter of 1.774 having introduced some confusion as to the powers of the Supreme Court over Indians outside Calcutta, were amended by the Act (21 Geo. 3, c. 70) of 1781 which restricted the powers of the Supreme Court, so far as Indians were concerned, to the limits of the town of Calcutta (" the Maratha ditch "), leaving the " mofussil " to the Company's Courts and the Regulations of the GovernorGeneral in Council save as regards disputes between European British subjects. Within the town of Calcutta the rule of law prescribed by section 17 of the Act of 1781 was somewhat differentfrom the rule laid down for the Company's Courts in 1772. The language was " Provided that their inheritance and succession to lands, rents and goods, and all matters of contract and dealing between party and party, shall be determined in the case of Mahomedans, by the laws and usages of Mahomedans, and in the case of Gentoos, by the laws and usages of Gentoos; and where only one of the parties shall be a Mahomedan or Gentoo by the law and usages of the defendant." The directions of 1772 and of 1781 as to native law and usage give way in many matters now to express legislative enactment, as there now exists a large body of law which is common to all parts of India and to all persons therein. This common law of India is statutory. The Indian Contract Act, the Transfer of Property Act. the Indian Succession Act and many other Acts
(k) The Indian Chief (1800), 3 Rob. Adm. Rep. 29.
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will spring to mind as instances. But in the town of Calcutta and over a large part of eastern India-Bengal, Bihar, Agra, Assam-the general provisions which were laid down in 1772 and 1781 have continued to the present day with no more than verbal alterations, notwithstanding that the two provisions are discrepant and that there is no foundation in common sense for the differencebetween them. The provision of 1781 is now in a more generalised form section 112 of the Government of India Act (1915, 5 & 6 Geo. 5, c. 61), and that of 1772 is section 87 of the Bengal, Agra and Assam. Civil Courts Act (XII of 1887). Bombay, as we shall later notice, presented special problems as to custom early in the nineteenth century and in the second half of that century the Punjab presented others. But towards the end of the eighteenth century, at the initial stage of British administration, the whole emphasis was upon the right of the Mahomedan community to the Mahomedan law-a right which Warren Hastings had recognised in 1772 and which was reaffirmed by Regulation IV of 1793. This had the strong approval of Sir William Jones, whose letter (March 19, 1788) to the Governor-General has been often quoted and discloses the standpoint of that date :" Nothing could be more obviously just than to determine private contests according to those laws, which the parties themselves had ever considered as the rules of their conduct and engagements in civil life: nor could anything be wiser than by a legislative Act, to assure the Hindu and Mussulman subjects of Great Britain that the private laws, which they severally hold sacred, and violation of which they would have thought the most grievous oppression, should not be suppressed by a new system, of which they could have no knowledge, and which they must have considered as imposed on them by a spirit of rigour and intolerance ". The sincerity of this belief is shown by the action of Warren Hastings in having the Hedaya translated into Persian (whence it was translated by Hamilton into English (1791)). Also by the elaborate proposals (1) of Jones for a digest of Hindu and Mahomedan law and by his own work on the Sirajiyyah and Sharifiyyah. In 1793 by Bengal Regulation XI of that year
(1) Cf. p. 306 of Lord Teignmoutha Life of Jones.
G.S. 7
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(amended in 1800) the custom of impartibility which had been permitted to govern certain extensive zemindaries, and to cause them to devolve entirely oAi the eldest son or next heir to the exclusion of all other relations, was declared to be void as repugnant to both Hindu and Mahomedan laws. This was, however, soon amended by Regulation X of 1800, and the joint effect of the two Regulations is very difficultto assess. At firstthe fullest effectwas given by the Company's Courts to the principle of respecting the Mahomedan law and it was carried beyond the scope of the matters mentioned in Regulation IV of 1793: " The Courts of this country have invariably applied in practice the Mahomedan Law to a variety of cases other than those coming under the denomination of inheritance, marriage, caste, and even if immemorial and recognised practice did not legalize the action of the Courts, it cannot be said that when this Court administers to Mahomedans their own law, they do otherwise than administer justice according to equity and In cases within the terms of the good conscience" (m). the Judicial Committee has been vigilant to enforce Regulation the Mahomedan law in spite of objections taken to it from the standpoint of other systems. " They can conceive nothing more likely to give just alarm to the Mahomedan community than to learn by a judicial decision that their law, the application of which has been justly secured to them, is to be over-ridden upon a question which so materially concerns their domestic relations " (n). In that case the Judges of the Sudder Court of Calcutta had refused to follow the Mahomedan law upon a question of a Mahomedan husband's claim for restitution of conjugal rights. The Privy Council have gone so far as to uphold a divorce pronounced by the husband under compulsion and threats upon the principle expressed by Jackson, J., in 1869: " We are not at liberty to substitute for the express rule of Muhammadan law as expounded by the best authorities that which according to our opinion might be a more enlightened and proper rule of law " (o).
(m) ZohorooddinSirdar v. Raharoollah Sirdar (1864), Gap No. W. R. 187. (n) Munshee Busloor Ruheem v. Shumsoon-nissa Begum (1867), 11 M. I. A. 551. (o) Ibrahim v. Enayetur, 4 Beng. L. R. 13; 12 W. R. 460; Rashid Ahmad v. Anisa Khatim (1932), 59 I. A. 21.
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But if we concentrate our attention on the parts of India Bihar, Agra and Assam-whose already mentioned-Bengal, ordinary civil Courts have been governed since 1798 by enactments substantially identical with the rule laid down by Warren Hastings in 1772, we find that it was long doubted whether Mahomedan law was patient of invasion by custom. No provision for giving effect to custom was made by the terms of the Civil Courts Act (XII of 1887) or its predecessors. The High Court of Allahabad from 1866 till it was on this point overruled in 1913 by the Judicial Committee stoutly refused to recognise special usage in derogation of the Mahomedan law. In a Full Bench case (p) it was held that when a family has professed the Muhammadan religion for successive generations, the Courts in this country on the occasion of a claim to succession being met by a plea of special usage, are bound to dispose of the case under the Muhammadan law, and cannot recognise any such plea of usage, which is opposed to the Muhammadan law. In 1866 the Judicial Committee are seen to be in doubt about the admissibility of custom to vary the Mahomedan law: " They must, however, observe that to control the general law, if indeed the Muhammadan law admits of such control, much stronger proof of special usage would be required than has been given in this case " (q). The Calcutta High Court in 1882 (r), noticing these observations, threw doubt upon a previous decision which had applied to Mahomedans the presumption as to joint family which arises in the case of Hindus. Prinsep and O'Kinealy JJ. observed " The Mahomedan law of inheritance is based on the Sura Nissa in the Kuran which was revealed in order to abrogate the customs of the Arabs and on the Hadis or traditions of the Prophet. According to the principles of Mahomedan law any attempt to repudiate the law of the Kuran would amount to a declaration of infidelity such as would render the individual concerned liable to civil punishment by the Kasee
(p) Sarmast Khan v. Kadir Dad Khan (1866), Agra Full Bench Rulings, Vol. I, p. 38. (q) Jowala Baksh v. Dharm Singh, 10 M. I. A. 511. (r) Hakim Khan v. Gul Khan, 10 Cal. L. Rep. 603.
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in this world and to eternal punishment in the next. No custom opposed to the ordinarylaw of inheritancewhich was created to destroycustom, would be recognisedby the Doctors of the Mahomedanlaw, and in our opinionit follows as a natural consequence that no such custom should be recognised by our Courts which are bound by express enactment to administerMahomedan law in questions of inheritance among Mahomedans". And in 1900 this reasoningwas followedin Allahabad by Knox and Ackman JJ.: " The law whichgovernstheseProvincesgives no opening where parties are Muhammadans to the considerationof to any case of this custom, and we have not been referred Court which at all points that way " (s). But in 1918 (t) the Judicial Committee overruled this doctrinewithoutgiving any reasoned judgmenton the matter, and since that date it does not appear that customhas any less effect, substantiallyspeaking,upon Mahomedan law in Bengal or Agra than it has under the Punjab Laws Act of 1872 and similar enactmentswhere, as we shall presentlynotice, it is expresslymentionedas the primaryrule of decision. The historyof Madras is in this respectnot quite the same as of the more northern part of Eastern India. In the charter of 1800 settingup a SupremeCourtat Madras wordswere added to the provision applyingthe laws and usages of the Mahomedans and Gentoos: " or by such laws and usages as the same would have been determined by if the suit had been broughtand the in a Native Court". The wordswould seem action commenced of recognising to admit of the possibility usages at variance with the Mahomedan law. And in section 16 of the Madras Civil CourtsAct (III of 1873) the phrase Mahomedanlaw is amplified by the expression" or by customhavingthe forceof law ". So " of Madras were in the town nor in the " mofussal that neither the conditions quite the same as in Calcutta and Bengal. Indeed under the Act of 1873 the positionis plain enough. As
(s) Jammya v. Diwan, I. L. R. 23 All. 20, 21. (t) Muhammad Ismail v. Lale Sheomukh, 17 C. W. N. 97.
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Sir LawrenceJenkins said in a case beforethe JudicialCommittee in 1922:" The litigants are Muhammadans to whom this Act so that prima facie all questions as to succession applies: them must be decided according to Muhammadan among Law. In India, however, custom plays a large part in the ordinarylaw, and it is now established that modifying there may be a custom at variance even with the rules of Muhammadan Law governingthe successionin a particular communityof Muhammadans. But the custom must be proved" (u). In Bombay, the question of custom became of vital importanceto Muslims. The charterof the Bombay Supreme Court (1827) contained for the town of Bombay the same reference as the Madras Charterhad introducedto the laws and which a Native Court would have applied. For the usages mofussalof Bombay Regulation IV of 1827 prescribesthat the order: in the following rule of decision should be the following if Acts and of the the first, country; Regulations; none, usages if none, the law of the defendant. [In the absence of other " is prescribed rule " justice, equity and good conscience specific as the ultimate rule in all Provinces.] In 1847 Sir Erskine Perry as ActingChiefJusticehad to considerthe legal position of two bodies or sects-viz., the Khojas and the CutchiMemons; and held that in the absence of proof of special usage to the contrary these people, though Mahomedans, are governed in not by the Mahomedan matters of succession and inheritance, but by the Hindu law (x). Khojas and Cutchi Memons were it would seem,Hindus: long ago theybecame converts originally, to Islam but have retained the Hindu law of succession and inheritancethough not the other doctrinesof the Hindu law. The position of such an individual has been epigrammatically describedas "a living Mahomedan but a dead Hindu ". (The Khojas (y) are well known as having the Aga Khan as their spiritualhead.) In both the cases beforeSir Erskine Perry the
(u) Muhammad Ibrahim Rowther v. Shaik Ibrahim Rowther (1922), I. L. R. 45 Mad. 308, 314. (x) Hirbai v. Sonabai, Perry's O. C. 110. (y) Ad.-Gen. v. Aga Khan (1866), 12 Bom. H. C. R. 323.
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claim was by a female relying on her Koranic right of inheritance and repudiating the Hindu principles which exclude women from inheritance. The cases had to be decided under the terms of the Supreme Court Charter: its reference to the principles which would have been applied to the suit had it been brought in a native Court was separately considered. It was made "matter of grave argument whether any custom conflicting with the express text of the Koran can be valid amongst a Muhammadan sect ". Sir Erskine Perry, referringto the clause in the Charter, said:" I think it is quite clear that the clause in question was framed solely on political views, and without any reference to orthodoxy, or the purity of any particular religious belief. It was believed erroneously that the population of India might be classified under the two great heads of Muhammadan and Gentoo, and the- use of the latter term as a nomen generalissimum, which is unknown by-the-bye in any eastern tongue, or even in colloquial use except in the Presidency of Madras, shows that the main object was to retain to the whole people lately conquered their ancient usages and laws on the principle of uti possidetis. It may be questioned whether one individual in the Legislature-with the excepaware of the sectarian tion perhaps of Mr. Burke-was differenceswhich distinguished Shea from Sunniy; and not even that great man, we may be assured, was at all conscious that there were millions of inhabitants in India such as Sikhs, Jains, Parsis, Hebrews and others who had nothing or next to nothing in common with Brahminical worship. But the policy which led to the clause proceeded upon the broad easily-recognisable basis of allowing the newly conquered I am clearly people to retain their domestic usages. ... therefore of opinion that the effect of the clause in the Charter is not to adopt the text of the Koran as law, any further than it has been adopted in the laws and usages of the Muhammadans who came under our sway: and if any class of Muhammadans, Muhammadan dissenters as they may be called, are found to be in possession of any usage which is otherwise valid as a legal custom and vihich does not conflict with any express law of the English Government,
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they are just as much entitled to the protection of this clause as the most orthodox Sunniy who can come before the Court ". This was a very important decision. In so far as it removed all danger that the law of India should attempt to enforce any standard of Islamic orthodoxy, it must command approval. Until early in the nineteenth century it was very generally assumed in India that Mahomedan law meant Sunni law. But this school is itself divided into four sects called after the four doctors or Imams-the Hanafi, the Shafei, the Maleki, and the In Oudh the reigning family was of the Shia schoolHanbali. the party of Ali; but in Bengal, and throughout India as a whole, the majority of Muslims are Sunnis, and it has been held that there is a presumption that a Mahomedan is a Sunni and that a Sunni is governed by Hanafi law (z). The judgment of Lord Watson delivered in 1890 in a case where the question at issue was whether a certain widow lady died a Sunni or a Shia throws a sidelight upon the history of this matter. "b ut it must be kept in view that at the date of these proceedings (1805 and 1810) the only course of succession recognised by the Native Courts was that of the Sunnis, which had been the general law of the country from the time when it firstcame under Mahomedan rule: it is by no means certain that the Sudder Court, or litigants before it, always paid regard to or understood their rights under the Shia law. The observation just made does not apply to the state of the law in 1838. Long before that time the supremacy of Sunni law had disappeared, and it must have been generally known that the Shia rule governed the succession of Shias and the Sunni rule that of Sunnis " (a). Indeed it was in 1841 that the Privy Council affirmed the right of Shias to have law administered to them in accordance with their own traditions and beliefs. The judgment of Baron Parke (b) upon section 15 of Regulation IV of 1793 was as follows :.lahomedally f. A. 73.
(z) Bafatun v. Bilaiti (1903). T. L. R. 30 Cal. 683, 686; Akbarally v. Khan (1890), L. R. 17 (a) Mt. Hayat-un-Nissa v. Sayyed Muhammad A.41
(1932), 34 Born. L. R. 655.
2 Moo. I. A. 441, 477. (b) Rajah Deedar Hossein v. Ranee Zuhoor-oon-Nissa,
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" According to the true construction of this Regulation in the absence of any judicial decisions or established practice limiting or controlling its meaning, the Mahomedan law of succession applicable to each sect ought to prevail as to litigants of that sect. It is not said that one uniform law should be adopted in all cases affectingMahomedans but that the Mahomedan Law, whatever it is, shall be adopted. If each sect has its own rule according to the Mahomedan law. that rule should be followed with respect to litigants of that sect. . . . It is true that Soonee law has generally prevailed because the great majority of the Indian Mahomedans are Soonees, there being very few families of the Sheeah sect, except those of the reigning princes, which will account for the prevalence of the Soonee doctrines in the Courts, but there is no practice which excludes the application of the Sheeah law to the rights of persons professing the tenets of that sect." But in other respects the decision of Sir Erskine Perry has been approved by the highest authority and its principles extended to similar cases. The position was put by Lord Dunedin in 1922 (c) in the following terms:" There are among the Mahomedans certain groups whose ancestors were Hindus and professed the Hindu religion, and were then converted to Islam. Among these groups may be reckoned, as is shown by decided cases, Khojas, Suni Borahs, Molesalam Girasias, Cutchi Memons, Nassapoona Memons; and lastly Halai Memons, to which group the deceased belonged. Now with regard to the groups other than Halai Memons, it has been held by a succession of cases beginning with a case decided by Sir Erskine Perry in 1847, that the converts had retained their Hindu law relating to the exclusion of females from succession, and that that law had been engrafted as a custom on the Mahomedan law although not in accordance with the rules of the Koran." Though accepted by the Judicial Committee and the Indian Courts, the retention by such converts to Islam of Hindu principles of succession and inheritance has not always met with aEpproval from Mahomedan lawyers. The late Syed Ameer
(c) Khatubai v. Mahomed Haji Abu (1922), L. R. 50 I. A. 108, 111.
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Ali (d) appears to have considered that the decision of Sir Erskine Perry is not in consonance with later decisions of the Privy Council such as Abraham v. Abraham ((1863), 9 Moo. I. A. 195) and Jwala Bakhsh v. Dharam Sing ((1860), 10 Moo. I A. 511). He complains as regards Khojahs and Cutchi because these two communities were originally Memons:-" Hindus, they have been held by the British Courts of Justice immutably bound by Hindu customs ". " Although many of them have for years past tried to place themselves under the law of the religion they profess, the British Indian Courts have allowed them so far no escape from the bondage they had This complaint may accepted on their original conversion." or may not be regarded as valid as a complaint against the Courts of Law, but the Shariat Act of 1937 has abolished the reign of custom as regards succession and inheritance (subject to the exceptions, e.g., for agricultural land which it contains) and has provided for a facultative escape from the rule of custom so far as regards adoption, wills and legacies. Formerly by Acts of 1920 and 1923 Cutchi Memons could by formal declaration subject themselves, their minor children and their descendants to the Mahomedan Law in matters of succession and inheritance. As regards wills, the chief feature of the Mahomedan law is that only one-third of a man's property is disposable by his will: Khojahs and Cutchi Memons who do not elect to the contrary will apparently continue to be free of this restriction. The territories now forming the Punjab were acquired at differentdates, but the greater part of its present extent had been attained by 1849, and in 1854 there was promulgated a book compiled by Sir Richard Temple and called the Punjab Civil Code. In 1849 it was considered that the Government of India possessed the right of legislating for them as they were conquered territories, and a Despatch of 1849 which spoke of the Government's desire to uphold native institutions and practices and to maintain village co-parcenaries became the basis of the observance of customary law. When Sir Barnes Peacock cast doubt on the right of Government to make laws for nonregulation provinces by mere executive order, a provision was
(d) Mahommedan Law, Vol. II, 5th ed., 1929. See pp. 140, 136, 10.
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introduced into the India Councils Act of 1861 confirming all laws previously made; but this Act was regarded as a declaration that Sir Barnes Peacock had been correct in his opinion. The Punjab Civil Code was a manual containing rules from many different sources-the Regulations, Hindu Law, Mahomedan The work was Law, English Law and also provincial usage. acted on as though it were a code of substantive law for some sixteen years and it was looked upon as containing the civil law of the Punjab. It was held at one time that it had acquired the force of law by virtue of the India Councils Act but that view was later overruled. Its general effect between 1854 and 1872 has been described by saying that in questions relating to succession, the principal relations of family life and to the transfer of landed property otherwise than from landlord to tenant, it prevented, by the strength it gave to custom, the importation either of the English law or usually of the more intricate provisions of the Hindu and Mahomedan law, amongst the rural population. Punjab Customary Law, (Tupper: vol. I, p. 7.) It was superseded by the Punjab Laws Act of 1872, which was drafted by Sir James FitzJames Stephen, who had succeeded Sir Henry Maine as Legal Member of Council. This Act deprived the Punjab Civil Code of any legal force though it is in some matters regarded as evidence of custom. The statute of 1872 is the main enactment which the Shariat Act of 1937 was intended to alter. It introduced custom as the primary rule of decision provided always that the custom was not contrary to justice, had not been declared void by After competent authority, or altered or abolished by law. custom, Mahomedan and Hindu law, if not modified by custom or altered or abolished by legislation. The long list of subjectmatters to which this system was to be applied we have already seen in the Shariat Act: succession, special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies,.. gifts, partitions, any religious usage or institution-all are mentioned in the Act of 1872. That priority should be given to custom as overriding Mahomedan or Hindu law was strongly advocated by Sir George Campbell at the meeting of the Governor-General's Legislative
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Council (March 26, 1872). He had long served in the Punjab but had become Lieut.-Governor of Bengal, and the provision whichpassed into law was introducedby him as an amendment to Stephen's bill, which he had persuaded Stephen to accept. Having scandalised that eminent jurist by describing the Punjab as " much ridden over by lawyers" and declared his opinion " that if ever the countrybecame too hot to hold us, it would be the lawyers that had done it ", he observed (as recordedin the Abstractof Proceedings):" The provisionsof the Bill whichattractedhis attention, and with regard to which he had the gravest doubts, were . . . the provisionsof section 5 as to the laws by which certain questions should be decided. It enacted, in regard to a large number of subjects, that the Muhammadan law in cases where the parties were Muhammadans, and the Hindu law in cases where the parties are Hindus, should form the rule of decision, except where the law had been alteredor abolished by legislativeenactment, or was opposed to the provisionsof the Act. He was quite willingto admit that certain simple rules, excerpted from the Hindu and Muhammadan law, had to a certainextenthad forcein the Punjab: but it appeared to him that a section of this kind would import into the Punjab, not the simple law of the Province, but the whole of the complicationsof the written Hindu and Muhammadan laws, and the whole of the voluminous case-law comprehendedin the decisions of the Courts all over the country, and more especially in the decisions of the High Court at Calcutta. That he regarded with the gravest apprehension. He should so regardit, not only because it would open a wide door for lawyers, but because it was not the law of the Punjab. Not one out of ten-perhaps not one out of a hundred-persons in the Punjab was governedby the strictprovisionsof the Hindu and Muhammadanlaw. The only object of [his] amendment was to provide in simple words, in such a way that the officers of the Punjab in administering the law might not mistake, that custom came first, and that Hindu and Muhammadan law only came when custom failed. . . So far as the Muhammadanswere concerned,His Honour
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believed that such a provision would meet the case. He believed that comparatively few of the Punjab Muhammadans were governed by pure Muhammadan law. It had always seemed to him that the Muhammadan law was a law, not for a settled place, but for a wandering people, possessed of flocks of sheep and herds of cattle, which were divided amongst their descendants by rule of arithmetic. Therefore, in dividing property and in other matters, where the parties were Muhammadans, it would be provided that the customs of the parties should first be ascertained; and in the absence of any customs the Muhammadan law should prevail, and as there could not be much doubt whether the person whose case was concerned was, or was not, a Muhammadan, His Honour thought that sufficientprovision for such cases would be made by the amendment ". Protesting that it was really hardly fair to the law and to lawyers in general to speak of them in the way in which the Lieutenant-Governor had spoken, Stephen agreed to the amendment. He added:" As regards the effect of custom, there was one point omitted which, he thought, was quite conclusive. The Punjab had been for twenty years under British rule, and land settlements had been made everywhere. Every custom throughout the country had been most scrupulously registered. The records of the different villages gave the customs of the country a degree of stability which they never had before. The thing had been reduced to a certainty. ... " Customary law has by no means been reduced to a certainty even yet; but much has been done in the Punjab, Oudh and elsewhere to ascertain customs not merely by judicial decision but by executive action directed to establish and maintain useful records of custom. In the Punjab customs relating to succession, transfer of property and other matters were recorded at the time of making the early settlements-in the fifties and sixties-in the village administration paper called the " wajib ul arz ", a document which was partly a declaration of fact and partly a written agreement. About 1864 the practice was begun by Mr. E. Prinsep of interrogating collectively villagers of the same tribe or part of a district and in this way a record of tribal
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custom came into being called the " Rivaj-i-Am ". The wajib ul arz was given by statute a special value, a presumption of truth being attached to entries therein by section 46 of the Punjab Land Revenue Act, 1887. In the more modern settlements, however, the customary law has been embodied not in these but in a general record of custom called by the name Rivaj-i-Am, entries in which are evidence of custom under section 82 (4) of the Indian Evidence Act. These official records have a high value as evidence, though their value has sometimes been impaired by the Settlement Officer shaping them in a form which he approved and not seeing that they were confined to statements as to customs which were in fact observed as distinct from endeavours to legislate for the future. The stress laid by the Act of 1872 upon custom must not be mistaken or exaggerated. In Abdul Hussein Khan v. Sona Dero (e) the Judicial Committee approved the observation of Robertson, J., in Daya Ram v. Sohel Singh (f):" There is no presumption created by the clause (section 5 of the Act) in favour of custom; on the contrary it is only when the custom is established that it is to be the rule of decision. The Legislature did not show itself enamoured of custom rather than law nor does it show any tendency to extend the 'principles' of custom to any matter to which a rule of custom is not clearly proved to apply." The policy of the Act cannot be judged merely from its effect as regards Mahomedans. So far as others are concerned it is difficult to see what other policy could well have been expected to yield satisfactory results. The fact is that neither the Hindu nor the Mahomedan systems of law as we know them had for years had any general acceptance from the rural population; indeed the developed Hindu and Mahomedan law of the text-books was unlikely, according to those best qualified to judge, to fuse well with the popular usages of the country. In the Punjab the British administration was for the first time confronted with the village community and with the problems presented by villages or pattis representing joint agricultural
(e) (1918), L. R. 45 I. A. 10, 13-4. (f) 110 P. R. 1906, F. B. 410-1.
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ownership founded on common descent. As observed by Sir Charles Roe (g):" The whole principle underlying the enjoyment of and succession to land in villages held by a body of proprietors belonging to one tribe, or descended from a common ancestor, is that the land does not belong absolutely to the individual holder for the time being, it belongs to the family or community" (g). The basis of the most important rules of Punjab customary law is that in most of the Punjab villages land is held by a male proprietor " as a member of a village community which at no distant period held the whole of their lands jointly, recognising in the individual member only a right of usufruct. that is a right to enjoy the profits of a portion of the common land actually cultivated by him and his family and to share in those of the portion still under joint management. In such a community the proprietary title and the power of permanently alienating parts of the common property is vested in the whole body " (h). While a person who is not an agriculturalist or a member of an agricultural tribe may be governed in any particular matter by custom, and a person who is an agriculturalist may be governed by his personal law, nevertheless on the question whether the Punjab customary law applies to any individual it is of importance to ask whether he is a member of an agricultural tribe and also a member of a village community. People who for generations have drifted away from agriculture or taken to living in cities will not be presumed to be governed " The code of agricultural custom, by customary law. especially the rule relating to the power of alienation, is the result not of any peculiar caste proclivities in the Province, but of the special exigencies of agriculture as a calling and of the spirit of self preservation which prevailed throughout the village communities in order to protect their very existence " (i). On the other hand, in the case of certain agricultural tribes
(q) Sita Ram v. Raja Ram, 12 P. R. 1892. (h) Gujar v. Sham Das, 107 P. R. 1887. (i) Per Lal Chand. J., in Muhammad Hayat Khan v. Sandhe Khan, 55 P. R. 1908, at pp. 276-7.
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the existence of many judgments of the Chief Court and entries in the rivaj-i-am may make it impossible or very difficult to suppose that the customary law does not apply. The Indian village system has had its effect upon the Mahomedan as upon the Hindu population by preventing the Koranic or Brahmanical principles from achieving complete ascendancy. Both have had to give way in large measure to village rules and usages which had no concern with religious thought but controlled the rotation of crops, rights of pasturage, alienation of lands, and liability to village burdens. Thus it comes about that even in Mahomedan families and even as regards succession and inheritance custom provides not exceptions merely but the general rule. In a case where the parties were Mahomedan Arab-Sayads Sir Lawrence Jenkins observed: "In this family custom is followed in matters of inheritance. S. . So the piesent enquiry is not whether in relation to the particular succession now in question the ordinary personal law is superseded by a custom, but what is the customary rule that regulates it " (k). The main feature of the Mahomedan law of inheritance is that it gives a share to females though it goes to a great extent It contrasts upon the rule of " double share to the male ". with the of Hindu law which strongly regards the male principle members of the joint Hindu family as the only co-parceners and while they exist allows to the females a right of maintenance and no more. It contrasts also with the Hindu principle of allowing a woman to take the estate of a limited owner and no higher estate when as Hindu widow, mother or daughter she succeeds by inheritance in the absence of males. Apart from the consent of a man's heirs, Mahomedan law allows him to dispose of one-third only of the property of which he dies possessed and in the case of Sunnis gifts made to an heir are invalid because they produce inequality among heirs. Yet in the Punjab custom imposes on the Mahomedan who is subject to the customary law principles which are not only foreign to his personal law and contradictory thereof but which can be seen to be modifications of Hindu rules. Thus custom in many
(k) Hashmat Ali v. Nasib-un-Kisa (1924), I. L. R. 6 Lah. 117, 122.
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cases gives an interest for life to a Mahomedan widow. In other cases it excludes females, e.g., married daughters, from inheriting in the presence of collaterals; again it imposes limits upon the female's right to deal with the property which she inherits, restricting it as nearly as may be to a right to enjoy the profits for her own life. While in some villages inhabited by Mahomedans a widow may be allowed larger powers, the general rule against alienations by a widow applies to Mahomedans and Hindus without distinction. Custom may refuse to her any right to claim partition or to sell save for necessity; or it may recognise a limited right in her to make a gift of it to a nephew or a son-in-law. As regards the right of a male proprietor to alienate, village custom follows closely neither Hindu nor the Mahomedan ideas but recognises that a man's male descendants have rights in his ancestral property and that it is necessary to prevent the intrusion of strangers into the proprietary body by rules as to pre-emption. The distinction between ancestral and acquired property, which is foreign to Mahomedan law, is of great importance under custom; the right of alienating ancestral property being sometimes restricted even in the absence of direct descendants in the interests of collaterals, e.g., nephews. In some cases gifts to daughters or sisters or their sons cannot be objected to; in others they can be cancelled. By an Act of 1920 collaterals cannot contest an alienation of ancestral immoveable property unless they are descended by male lineal descent from the great-great-grandfather of the alienor; and alienations of non-ancestral immoveables cannot be contested as being contrary to custom. Since the Punjab Legislature in 1900 passed the Alienation of Land Act the sanction of the Deputy Commissioner is required to permanent alienations of land made by a member of an agricultural tribe unless the alienee is a member of the same tribe or a tribe in the same group. The subject of Pre-emption has been dealt with by an Act of 1913. Apart from statute a proprietor has ordinarily by custom a right to sell or mortgage for necessity which includes his own antecedent debts if they are " just debts "-in the sense of a debt which is actually due and is not immoral, illegal or opposed to public policy, and has not been contracted as an act of reckless extravagance or of wanton
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waste or with the intentionof destroying the interestsof the reversioners (1). As an individualinstancemay aid in explainingthe movement whichhas led to the Shariat Act, the case of MussammatSardar Bibi v. Haq Nawar Khar (1934), I. L. R. 15 Lahore 425, may be taken and its facts considered. It was tried by the District Judge of Dera Ghazi Khan and was taken on appeal to a Full was the Bench of the High Court at Lahore. The plaintiff Karim who died of name a Gishkori Biloch Bakhsh, daughter by another daughter in 1921 leaving him survivingthe plaintiff, (since deceased), a widow and a minorson. Until 1920 the rule of succession which had prevailed in this tribe had been that to the exclusion sons succeededto the entireestate of theirfather in this case the name of his widow and daughters. Accordingly of the son was enteredin the revenue recordsas the owner of the lands left by the father. In 1927 the daughter (Sardar Bibi) broughther suit against the son, claimingthat succession to their fatherwas to be governedby Mahomedan law, which gives a share to widow and daughtersas well as to sons. She father'sestate. It appeared that in 1920 there had been a new Settlementof the district Dera Ghazi Khan. The family in question lived in a village in a sub-district(tahsil) called Jampur in the Sind tract-a tract about fortymiles long and about ten miles wide where the villages are not village communities,but rather aggregationsof independentunits of land included in a common boundary for administrative purposes. Before 1920 the Riwaj-i-ams had always recordedthe Gishkoris as governed by a customary rule of succession under which excluded by sons. The daughters'case daughterswere entirely was, however,that at the last Settlement (1920) all the Gishkoris who owned land appeared before the SettlementOfficerand made a declarationin favour of the Mahomedan law, i.e., they decided to abrogate the custom and to adopt the rule of succession laid down by the Mahomedan law. Those persons who made the statementhad signed it and one of them was Karim Bakhsh himself,whose propertywas now in question.
(1) Kirpal Singh v. Balwant Singh (1912), I. L. R. 40 Cal. 288.
G.S. 8
claimed in the events that had happened a 7/,3 share in her
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The two principal tribes inhabiting Dera Ghazi Khan were the Biloch and the Jat. The latter had in this district (not in the Punjab proper) observed the Mahomedan law in matters of succession, giving a share to widows and daughters; while the Bilochs had been governed by rules of customary law like those prevalent in the Punjab whereby in the presence of male descendants daughters took no share. According to the high authority of the officerwho had made the last Settlement, the position of the Biloch tribe in question and of others like it was that they " now profess to incline " towards the adoption of the Mahomedan law in matters of succession, but that this was a thing of very recent date and " more of the nature of a pious wish than a profession of actual facts ". The Full Bench came to the same conclusion as the District Judge, a Mahomedan officerof experience, that the statements made before the Settlement authorities and incorporated in the riwaj-i-am had been made " under the wave of religious renaissance and zeal which had passed over this district about 1920 ", that the Leghari Chief had taken the lead in the matter, and that the other " leading " Biloches " did not have the courage to openly profess that they would not submit to the Muhammadan Law ", and made the declaration " merely to show that they were as good Muhammadans as their Jat neighbours ". The Full Bench did not find it necessary to decide whether the custom would have been effectivelyabrogated as regards the tribes by whom or on whose behalf the declaration was made if it had been made after mature deliberation and with a genuine determination to act on it for the future. The Court, however, did decide that just as an individual could not by declaration suddenly give up a custom which his family or tribe had for generations followed, in favour of a differentcustom; so, too, he could not abrogate an old custom in favour of his personal law, the law of the religion to which he belonged. The learned Judges did not doubt, however, that as laid down by the Judicial Committee in 1863 " customs and usages as to dealing with property, unless their continuance be enjoined by law, as they are adopted voluntarily, so they may be changed or lost by desuetude" (m). They
(m) Abraham v. Abraham (1863), 9 Moore's Indian Appeals 199, 246.
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considered, however, that the abrogation of custom is to be inferred from a continuous course of conduct, and that this was consistent with the decision of the Privy Council in Rajkishan Singh v. Ram oy Surma Mozoomdar (1876), I. L. R. 1 Calcutta 186. The Shariat Acts of 1935 and 1937 show that the wave of religious renaissance or zeal which in Sardar Bibi's case came to so little was not a movement to be contemned as only sporadic and ineffective. It was a wave which took its strength from a flowing tide. The main reason for the passing of these Acts was that Muslims were beginning to consider that the Koranic principles which gave a right of succession to widows, daughters and other females were more enlightened than those which followed the Hindu law in regarding women as generally entitled to maintenance, but not entitled in the presence of males to a share. The principles which the Prophet had introduced to mitigate the savage treatment of women in Arabia's " days of ignorance " had been a great advance and had established themselves all the more securely that they were not too advanced to be capable of acceptance and assimilation by a primitive people. The doctrine of " double share to the male " may be regarded as one-sided but it has the merit of not excluding the female from all share in the inheritance. Save for the case of widows, to whom custom frequently gives a right for life similar to a life interest or to the limited estate of a woman at Hindu law, the effect of custom is very generally to deprive women of their right by the personal law whether Hindu or Mahomedan. As daughters marry into and become identified with another family than their own, a disinclination to see the family property pass into their hands or through them is a very general feature of public opinion. But the social consequences of disinheriting females may be very differentunder a system which regards marriage as an indissoluble union (as Hindu law does) and under the Muslim system which gives a power of divorce to the husband. When customs are recorded according to the voice of the elders of the tribe or village their insistence upon a custom disinheriting daughters can hardly be checked by any representations made by the womenfolk in their own interests. Claims
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to exclude daughtersfromsuccessionor claims to some special courseof successionwhichexcludesthemmay be made fordivers or caste snobbery oblique reasons: e.g., familyaggrandisement lead to of a custom of may allegations single heir succession. "The framersof section 5 of the Punjab Laws Act clearly in clause (6) that thereare tractsin the Punjab where recognised we are rather to expect to find law modifiedby custom than custommodified by law, and whileit may be trulysaid of certain portions of the Province that there is not an agriculturist, whetherHindu or Muhammadan, who is really governed by pure Hindu or MuhammadanLaw, I cannot but findthat there has been a tendencyin some quarters to overratethe strength of custom based entirelyupon selfishconsiderationsand very much to underratethe effect of religionand its dictates" (n). A second ground of some legitimate complaint against custom as a rule of decision is that the existence and content of any alleged custom is a question of fact which has to be established by a particular inquiry and by proof in the individual case-a matterwhich varies fromtribe to tribe and place to place and which is sometimescomplicatedratherthan simplifiedby the decisions of the Courts in previous cases. There can be little doubt that fromtime to time custom has been emphasised beyond necessity and matters have been recorded as custom which might well have been left to the general law. It is expectinga great deal of village elders or persons of similar education and position when asked what happens when H dies leaving such and such propertyand such and such persons him survivingto answer " We do not know. that particularcollocationof circumstances We never remember arising." If such questions were asked systematically of the inhabitantsof English villages and the answers carefully recorded, the record might be expected to contain a sad of nonsense. It is highlycreditableto the inhabitants admixture of Indian villages that the records of their customs should be as true and complete as we now have them: this is due also Officers. In the to the great care and experienceof Settlement cases (o) and text-booksone may read of the essentials of a
(n) Per Robertson,J., in Daya Ram v. Sohil Singh, 110 P. R. 1906, p. 411. (o) Abdul Hussein v. Sona Dero (1918), L. R. 45 I. A. 10.
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valid custom: negative conditions are that it must not be contraryto justice, equity and good conscience, nor declared void by competentauthoritynor contraveneany express law. The positive conditionsthat a custom must be ancient, certain and invariable are, however, not always satisfiedin any high degree where custom is relied upon to provide the general law, e.g., of succession, and not merelyto engraftexceptions thereupon. The Shariat Acts of 1935 (North West Frontier Province) and 1937 (all-India) are alike in that neither is intended to abrogate any statutoryrule or prohibition. Under Act I of 1869 the estates known in Oudh as taluqas are governed by or special principles of succession-male lineal primogeniture otherformof singleheir successionin accordancewiththe policy of Lord Canning to encourage a species of aristocracyin that Province where a custom of raiguddi had obtained previous to Britishrule. The successionto these estates is not affected by the Act of 1937, but it may well be that the Act will affect succession to other property of the same families, since in Mahomedan families a presumptionarises out of the custom relatingto these estates that other propertyis governed by a similarfamilycustom. The ground of the presumption is that thereis no distinction in Mahomedanlaw betweenancestraland acquired property-all property followingthe same rules of succession (p). That statutoryprovisions are not intended to be affected is made clearer by the Act of 1935 than by the All-India Act of 1937, but the intention is the same in both. The exception for agriculturalland contained in the Act of 1937 differentiates it fromthe provincialAct of 1935. The chief points upon which customarylaw alters the Mahomedan law concernimmoveableproperty and the successionthereto: hence the exclusion of agricultural land takes away a very large part of the Act of 1937. It is true that custom has of the effect invaded or displaced the Mahomedan law in other matters,but to estimate the extent and importance of this it is difficult invasion. Thus it has been held (though not in a case between
(p) Mustaza Husain Khan v. Mahomed Yasin Ali Khan (1916), L. R. 43 I. A. 269.
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INDIA.
Mahomedans) that the rule of iddat, the period during which a widow or divorced wife may not remarry,has no place in customarylaw (q). The practice of adoption under customary law is foreignto the Mahomedan law, but it appears to have no effectsave as a dispositionof property-the appointment of an heir by a sonless owner of land. It remains to be seen how wide will be the effectof the Act in respect of customs among Mahomedans to exclude females from succession,or to confine successionin the case of certainfamiliesto a singleheir. Time will be required to disclose the manner and extent to which the Act will have effect throughoutthe different parts of India. It would need more knowledgeof the countrythan can be claimed by the presentwriterto indicate its probable results with any fullnessor any chance of accuracy. But the a movement of opinionor public sentiment Act represents among Muslimsin India which is not likely to be checked, and which affectNorthernIndia at least. Much of its must profoundly influence will be conservative and unseen-in that it will prevent the introductionof new principlesinto the lex loci and will featuresof Muslim society. tend to preservethe characteristic ideas derived from other Modification systemsand by devices by due to the exigency of modern conditionsis a process which cannot be avoided and is not to be condemned,but it would seem to be the desireof the Muslimsin India that theirpersonal law should not be overlaid, as it were, by a tessellatedcarpet of particularcustomsin which the patternof the Shariat is not to be discerned.
(q) Bhagat Singh v. Musammal Santi, 102 P. R. 1919.

Custom and Muslim Law in British India

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British Institute of International and Comparative Law

Stable URL: http://www.jstor.org/stable/742815 . Accessed: 13/01/2014 05:20

AND THE IN BRITISH

By the Right lon. (Read

Sir GEORGE RANKIN, Kt., LL.D.

before the Society at India House on June 21, 1939.)

2 Moo. I. A. 441, 477. (b) Rajah Deedar Hossein v. Ranee Zuhoor-oon-Nissa,

claimed in the events that had happened a 7/,3 share in her

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