Reasons why Classification is Unfounded – Gift under Muslim Law – 6

Five Reasons Why This Classification is UnfoundedWith great respect to the learned Judge, it is submitted that the thesis propounded by him creates more problems than it solves

It is impossible to differentiate between religious and secular gifts in all cases, because to repeat the oft-quoted dictum of Justice Mahmood, “It is to be remembered that Hindu and Mohammedan Laws are so intimately connected with religion that they cannot readily be dissevered from it”

The argument of the learned judge that “a gift by a Muslim paramour to a heathen mistress cannot claim immunity from Section 123 on godly grounds” is a sword that cuts both ways.” If the “Muslim Paramour” says that the gift to the “heathen mistress” is sadaqa to compensate her for the many “difficulties’ that she has undergone, there is hardly any ground to reject his contention, nor there is anything in Islam prohibiting such a woman to be the recipient of such a sadaqa

Regarding the contention of Justice Iyer that the old laws must be turned up to the New Law of Constitution, it is submitted that where a person was having some right by virtue of his personal law, it was not truncated upon by the Constitution. Provisions of Muslim Law relating to Polygamy, unilateral power of divorce by husband, the rule of inheritance whereby a male takes double than the female, the apostasy and its effect on marriage and maintenance are only a few examples where equality before law is affected either on the ground of religion or sex, and still Article 14 is of no help.

Justice Iyer’s contention that “the expression ‘gifts’ in Section 2 (of the Shariat Act) along with trusts and trust properties and wakfs takes color from the society of these words” is hardly convincing. He completely ignores the fact that in case of trusts and waqfs there is no express exemption from registration and attestation as in the case of the gift by virtue of Section 129, which could not be impeached merely on the ground that it will come in clash with Article 14 of the Constitution in case it includes secular gifts. If the religious object of a gift could save it from the requirements of registration, etc., as Justice Iyer contends, trusts and waqfs having religious objects must also be so exempt. But they are not because there is no statutory exemption in their case as in gifts.

In view of the established principles of Muslim Law, Justice Iyer’s classification of Muslim gifts into religious and secular groups, granting one the privilege of being orally made, goes against the norms of interpreting Muslim Law.

But if one finds a question well thrashed out and in later centuries a particular interpretation adopted by the leading doctors and textbook writers it would not be proper for us in the twentieth century to go behind such a consensus of opinion and decide a point contrary to such opinion…. Such a course of action would unsettle the Mohammedan Law. Although these observations of Sir Shah Sulaiman CJ in Anis Begam v Mohammed Istafa Wali Khan were expressed in another context, yet they hold well in the present case.

Aishwarya Says:

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