DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

2018-19

HISTORY PROJECT

ON

MOHAMMEDAN LAW DURING BRITISH INDIA.

Submitted to Submitted by

Dr. Vandana singh Aniket Sachan

Associate Prof. (History) Roll No. 28

Dr Ram Manohar Lohiya IIIrd semester,BALLB(HONS)

National Law University.

I would like to express my special thanks of gratitude to my teacher Dr. Vandana Singh , who
gave me the golden opportunity to do this wonderful project of History on
“MOHAMMEDAN LAW DURING BRITISH INDIA.”, Who also helped me in
completing my project and has rendered endless support, kind and understanding spirit during
my project completion. I came to know about so many new things I am really thankful to them.
The completion of this project could not have been possible without the participation and
assistance of various people thus, I would also like to thank my parents and friends who helped
me a lot in finalizing this project within the limited time frame.

I would also like to thank the Great Almighty, source of supreme knowledge for countless
love rendered on me.

ANIKET SACHAN

ROLLNO-28

ENROLLMENT ID- 170101028

BA LLB(HONS), IIIrd semester.

HISTORICAL BASIS OF THE ADMINISTRATION OF MOHAMMEDAN

MOHAMMEDAN LAW IN INDIA .................................................................... 6

REFORMS UNDER VARIOUS GOVERNOR GENERALS ............................. 6

1. Reforms under Warren Hastings (1772-1785 AD)........................................ 6

Judicial Plan of 1772 ...................................................................................... 6

2. Reforms under Cornwallis (1786-1793 AD) ................................................. 8

3. Reforms under William Bentinck .................................................................. 8

4. Government of India Act 1935 ...................................................................... 8

CODIFICATION OF SOME LAWS BY BRITISH ............................................ 9

CONCLUSION ................................................................................................... 11

BIBLIOGRPAHY ............................................................................................... 12
 INTRODUCTION

When the British established their hegemony over India (1757), they more or less continued
the Muslim pattern of judicial administration. But in the course of time, as they consolidated
their position, they completely changed the criminal law and introduced their own system to
deal with various matters of civil law. Legislative immunity was granted to certain specified
areas of Hindu and Muslim laws which, they considered, were deeply interwoven with religion.
During this period the British’s in India followed the policy of non-interference with the
religious susceptibilities of their subjects. They thought that anything could not be wiser than
to assure by legislative Act, the Hindus and Muslims of India that the private laws, which they
reversely hold sacred and a violation of which they would have thought the most grievous
oppression, would not be superseded by a new system of which they must have considered as
imposed on them a spirit of vigour and intolerance. As discussed above the British rule from
its inception followed a policy of non-interference in the religious matters of the Hindus and
Muslims. The Charter Act of 1753 exempted the Indians from the jurisdiction of the Mayor's
courts and directed that all disputes should be determined by the Indian themselves, unless both
parties submitted themselves to the jurisdiction of the court.

Much of the care was taken by the Legislature (since 1872 at least) to respect the customs of
the people has, it would seem, been misguided. But a revolt is prolonged to be witnessed against
custom and in favour of the law-that is, the personal or religious law of the parties. It is, a new
phenomenon in the relations between law and custom. The history of the British efforts to
ensure that the Indian peoples should have the benefit of being governed by their own laws is
a history which has more than one chapter.
Mohammedan 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 Mohammedan law is a
religious law: but this statement is perhaps more readily accepted than understood. The Quran,
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 their general and orthodox belief, that it is of divine origin, 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.
 HISTORICAL BASIS OF THE ADMINISTRATION OF MOHAMMEDAN LAW IN
BRITISH INDIA.

By Warren Hastings' famous "Plan" of 1772 a Court of Diwani Adalat, or Civil Judicature, was
set up in each Collectorate, presided over by the Collector as Divan of the Emperor. Criminal
Courts were established at the same time, in which the decision of the Kazi or Mufti was made
subject to the supervision of the Collector. The chief Courts were the Diwani Sadr Adalat,
composed of the Governor-General and Council for civil causes, and the Nizamat Sadr Adalat
for criminal cases. The latter was presided over by a Darogah Adalat, appointed by the Nizam
of Bengal, but superintended by the Governor-General and Council, in order to check any
violations of natural justice through the advice of the Mohammedan law officers, based on the
provisions of their law as to evidence and retaliation.
Capital sentences at this stage were sent to the Nizam for his final decision. Under this "Plan"
Mohammedans and Hindus were given the benefit of their own laws in suits regarding
inheritance, marriage, caste, and other religious usages and institutions.1

By the Regulating Act, 1773 s. 63, the Governor-General and Council were empowered to
legislate for Fort William and its dependencies in Bengal, and under this authority, after several
intermediate regulations, Impey's Code was promulgated in 1781. By this the functions of the
civil Judge were wholly severed from those of the Collector.2 The law to be administered
remained as before, the superintending Court, the Sadr Diwina Adalat, was made a Court of
Record. In the meantime, by Regulations of 1780 and 1781, it had been enacted that the " Law
of the Qoran " should be administered to Mohammedans in suits relating to "inheritance and
succession, marriage and caste, and other religious usages or institutions." This was repealed
by s. 15 of Reg. IV. of the Cornwallis Code of 1793.

1
Historical background of Personal Laws. (2018). Retrieved from
http://shodhganga.inflibnet.ac.in/bitstream/10603/52367/6/06_chapter%202.pdf
2
Mohammedan law in india. (2018). Retrieved from
https://www.jstor.org/stable/752116?seq=1#metadata_info_tab_contents
 MOHAMMEDAN LAW IN INDIA

With regard to the Supreme Court established by 1773 Regulating Act, in the case of
Mohammedan litigants, Law in cases relating to inheritance and law made for preserving the
authority, under fathers and masters of families, and for freeing for acts affecting members of
their families caste would also base upon personal laws. In the subsequent Statutes for
establishing Supreme Courts at Madras and Bombay. The variations consist generally in the
greater or less weight allowed to local custom in competition with the general provisions of the
Hindu and Mohammedan Laws. In case of difference the customary law generally prevails.
Rather important breaches have been made by legislation in the Mohammedan Law by Act 21
of 1850, which frees an apostate from forfeiture of his property; and by the Contract Act of
1872, which applies to transactions, in many cases, rules differing from those of the
Mohammedan Law. Majority is fixed by Act of 1875, at an age different from that fixed by the
Mohammedan Law. The duties of guardians are defined and modified by Act 8 of I89o, but
without radical alteration of their relation to their wards and the estate.

REFORMS UNDER VARIOUS GOVERNOR GENERALS

1. Reforms under Warren Hastings (1772-1785 AD)

His administrative reforms included re-structuring the Diwani area, Districts being the smallest
unit. Now the areas of Bengal, Bihar and Orissa were all divided into districts with an English
Company servant in each district behaving as the Collector of that district for the collection of
revenues. The judicial scheme was integrated with this revenue collection method.

Judicial Plan of 1772

There was a basic Small Cause Adalat, set up in order deal with petty cases or disputes that
came up, and this was up to the value of Rs. 10. Within each district or Pergunnah, the head
farmer (the eldest farmer of the district) was given the duty of adjudicating and delivering
justice for these small disputes. Above this Small causes Adalat a court known as the Mofussil
Diwani Adalat was established in each of the above districts. It was presided over by the
Collector. The decisions of the court up to the monetary value of Rs. 500 were final.

With regards to what law would be followed, Hastings decided that Muslim law would be
followed for the Muslims, Hindu law for the Hindus. More specifically he stated that the Qoran
would be followed for Muslims and the Shastras would followed for the Hindus. Now in order
to assist the Englishmen who acted as the collectors in administering the respective laws (as
they were unaware of the local laws being Englishmen who were barely acquainted with
English law itself as they were traders by profession and not lawyers), there were the local law
officers instituted to aid them. These law officers were the Kazis for the Muslims, and the
Pundits for the Hindus.

At the same level the Mofussil Fozdari Adalat or Mofussil Nizamat Adalat was set up. This
court was to deal with the administration of Criminal Justice. The Collector was expected to
undertake a sort of general supervision of the Adalat, seeing that equitable justice was
administered, sessions of the court were held regularly and that the judgements rendered were
impartial and not unfair. But over and above this, the Muslim law officers, the Kazis,
Muftis, and Maulavis were to interpret and apply Mohammedan Law to the cases at hand. They
were to pronounce the futwa and give the judgement.

Warren Hasting established, two court for resolving disputes –civil disputes for District Diwani
Adalat and criminal disputes for District Fauzdari Adalats. His administrative reforms included
re-structuring the area, Districts being the smallest unit. Now the areas of Bengal, Bihar and
Orissa were all divided into districts with an English Company servant in each district behaving
as the Collector of that district for the collection of revenues. The judicial scheme was
integrated with this revenue collection method.

District Diwani Adalat: It was established in districts to resolve the civil disputes which were
placed under the collector. In this court Hindu law was applicable for Hindus and Muslim law
for Muslim. If people seek more justice then they can move to Sadar Diwani Adalat which was
functioned under a president and two members of Supreme Council.

District Fauzdari Adalats: It was set up to resolved the criminal issues which were placed
under an Indian officers assisted by Qazi and Muftis. The entire functioning of this court was
administered by the collector. The Muslim law was administered in this court. But the approval
of capital punishment and for the acquisition was given by the Sadar Nizamat Adalat which
headed by a Deputy Nizam who was assisted by the chief Qazi and Chief Mufti.

Warren acted upon the grant of the diwani by ordaining (Regulation of 1772, s. 27) that in all
suits regarding inheritance, marriage, caste and other religious usages or institutions, laws of
the Koran with respect to Mahomedans, and the Shastras with respect to Gentoos (Hindus)
should be invariably adhered to. 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."

2. Reforms under Cornwallis (1786-1793 AD)

Under Cornwallis, the District Fauzadari Court was abolished and Circuit Court was set at
Calcutta, Decca, Murshidabad and Patna. It acts as a court of appeal for civil as well as criminal
cases which was functioned under the European judges. He shifted Sadar Nizamat Adalat to
Calcutta and put it under the supervision of Governor-General and the members of Supreme
Council who were assisted by Chief Qazi and Chief Mufti. The District Diwani Adalat was
renamed as District, City or the Zila Court which was functioned under a district judge.

He also established gradation civil courts for both Hindu and Muslim such as Munsiff Court,
Registrar Court, District Court, Sadar Diwani Adalat and King-in-Council. He is known for the
establishment of sovereignty of law.

With regard to the Sadar Diwani Adalat, the Governor-General and council presided over it.
The Chief Kazi, Chief Mufti and 2 Maulavis for cases, where Muslim law was to be applied,
aided them. And where cases where Hindu law was to be applied, the Governor-General and
Council were to be aided by Pundits.

3. Reforms under William Bentinck

Under William Bentinck, the four Circuit Courts were abolished and transferred the functions
of the abolished court to the collectors under the supervision of the commissioner of revenue
and circuit. Sadar Diwani Adalat and Sadar Nizamat Adalat were established at Allahabad. He
made the Persian and a Vernacular language for the court proceeding in lower court and made
English language as official language for Supreme Court proceeding. During his reign, Law
commission was set up by Macaulay which codified the Indian laws. On the basis of this
commission, a civil Procedure Code of 1859, an Indian Penal Code of 1860, and a Criminal
Procedure Code of 1861 were prepared.

4. Government of India Act 1935

The Government of India Act, 1935 changed the structure of the Indian Government from
“unitary” to that of “federal” type.. It also provided for the establishment of a Federal Court,
which was set up in 1937 with appellate and advisory jurisdiction. Its appellate jurisdiction was
extended to civil and criminal cases.

Hence, we can say that initially Indian law was guided by the custom and religious book which
was over the time evolve to the secular legal systems and the common law. It is noteworthy
that the entire evolution of Indian judiciary was influenced by the ruling classes. 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 opposed to the
provisions of the local “Law and Justice “Regulation.

CODIFICATION OF SOME LAWS BY BRITISH

During the British rule in India, except towards its close, no attempt was made to codify the
personal laws.3" As had been noted above, the British felt hesitant to interfere with the customs
and religious-cum-legal principles applicable to the Hindus and Muslims. The first Law
Commission had, however expressed a desire to prepare their code for the personal laws but,
thereafter, it became an accepted tenet of British policy not to interfere with these systems, to
leave them severely alone and to modify them only to the extent there was demand for the same
backed by a strong public opinion.4
Meanwhile the Britishers had penetrated into Muffassils and the absence of lex loci posed many
problems there. There was no lex loci or territorial law for persons other than Hindus and
Muslims in the Muffassils. While within the presidency towns, a lex loci prevailed in the
absence of personal or other special law.

3
Derrett, "The Codification of Personal Law in India :Hindu Law", 6 Indian Y.B of Int. Affairs (1957), p. 189.
4
M.P. Jain, Outlines of Indian Legal History p. 5 (1981).
First legislative measure relating to any subtantive provision of Muslim Personal Law was
enacted in British India was Avadh Laws Act of 1876. This was an Act of regional covering
ten districts of Uttar Pradesh which constituted the erstwhile Oudh state."5
On the suggestion of Sir Syed Ahmad Khan, the government thought it expedient to make a
law empowering itself to appoint Kazis in any area if demanded by a sizeable number of local
Muslims. Hence the Kazis Act 1881 was enacted. Other important legislation which need to be
mentioned in this context are the Transfer of Property Act 1882; The Guardians and Wards Act
1890; The Bengal Protection of Mohammadan's Pilgrim Act 1896.6
Although, the new statutes applied alike to all people irrespective of their religious affiliations,
the effect of some of the provisions was to limit the Hindu and Muslim laws in their own
spheres of application and to introduce in English common law.'" The Caste Removal
Disabilities Act ... abrogated the Hindu and Muslim laws of property in regard to apostates.
Many laws were passed introducing reforms in the old Hindu law.

In the field of Muslim law very little legislative activity is found. Most statutes were enacted
to restore the orthodox Muslim doctrines. The four central statutes were passed during the
British
India. The Mussalman Waqf Validating Act, 1913; The Muslim Personal Law (Shariat)
Application Act of 1937; The Insurance Act of 1938 and The Dissolution of Muslim Marriage
Act 1939, The Mussalman Waqf Validating Act of 1913 was passed to undo the effect of the
judgement given by Privy Council in Abdul Fata Case.7 The Muslim Personal Law (Shariat)
Application Act, was passed to fulfil the desire of Muslim community to replace customary
laws which was causing hardship to Muslim women, till that time, governed by Hindu
Customary law. The Insurance Act of 1938 was passed in order to solve certain difficulties
regarding the assignment of insurance policies in regard to Muslims. The Dissolution of
Muslim Marriage Act, 1939 gave Muslim women certain rights to get their marriages dissolved
by the court.

5
Anam Abrol, "Codification of the Personal Laws during British Rule in India - An Appreciable Attempt",
Supreme Court Journal, Vol. 1, 1991, p. 6.
6
Tahir mahmood, "Legislation for Muslims in British India" in An Indian Civil Code and Islamic Law, 63
(1976).
7
Abul Fata Vs Rassomoydhar Chowdhary (1894), 22 Indian appeals 76, 86-7.
 CONCLUSION

In the light of the above discussion, it is submitted that there were several factors which were
responsible for the shift of British policy of neutrality towards Hindu and Muslim law, i.e. their
desire to remove anachronistic practices from religion, improve the lot of women, achieve
uniformity and certainty in the law, overwhelming support by religious leaders for their
legislative innovations and later participation of Indian in law making process.
In ancient India there was not much distinction between personal law and public law. Religion
played a very important role in regulating the affairs of the people. During Muslim rule in India
which lasted about 700 years the state did not interfere in the personal laws of the other
community’s i.e. Hindu, Christians. The Muslim personal law enjoyed complete immunity
during this period. During the 150 years of British domination the position was almost similar
to that of medieval period and the personal
The Acts which were passed exclusively for Muslims were enacted mostly on the demands of
the Muslim community either to rectify misinterpreted judgement or to restore the correct
Islamic position in place of customary law applicable in many Muslim communities who had
converted from Hinduism. More or less the Britishers were hesitant to introduce their ideas in
the personal laws of Hindus and Muslims. They thought that interference with the existing
system of law might be resented by the Indians as an interference in their religion based laws.
The Britishers were very careful not to injure the religious susceptibilities of the Indians.

During the British rule, the colonial masters did not interfere into the personal laws of citizen
i.e. Hindus and Muslims. In the beginning, their basic aim was to trade from India and exploit
its natural resources. They continued judicial system enforced by Muslim rulers. After
consolidating their rule, they gradually changed criminal law and injected their own system in
civil laws. An attempt was made codify the personal laws by Britishers during their last years.
Although, First Law Commission was appointed in 1834 but some legislative enactments could
be made around 1860s such as Marriage Dissolution Act, 1866 and Indian Divorce Act 1869.
For Muslims, on the suggestion of Sir Syed Ahmad Khan, Britishers enacted Kazis Act 1881
for appointing Kazis. Several others laws were also enforced.
The whole history of personal laws proves that they were influenced by change of time to some
extents and Britishers introduced their system gradually but left personal laws untouched.
 BIBLIOGRPAHY

BOOKS
 M.P. Jain, Outlines of Indian Legal History p. 5 (1981).

ARTICLES
 Anam Abrol, "Codification of the Personal Laws during British Rule in India - An
Appreciable Attempt", Supreme Court Journal, Vol. 1, 1991, p. 6.
 Historical background of Personal Laws. (2018). Retrieved from
http://shodhganga.inflibnet.ac.in/bitstream/10603/52367/6/06_chapter%202.pdf
 Mohammedan law in india. (2018). Retrieved from
https://www.jstor.org/stable/752116?seq=1#metadata_info_tab_contents

WEBSITES
 https://www.jstor.org
 https://www.academia.edu/15906900/Islamic_law_and_colonial_encounter_On_t
he_discourse_of_Mohammedan_Law_in_British_India
 https://www.ukessays.com/essays/history/warren-hastings-impact-on-laws-of-
muslims-history-essay.php