MUSLIM LAW

TOPIC:
COMPARATIVE STUDY OF MUSLIM LEGAL SYSTEM
WITH OTHER LEGAL SYSTEM.

SUBMITTED BY:-

AMIT RAJ

BCOM LLB SEM -IV

ROLL NO. -07

GUIDED BY:-

MS. PEMA BHUTIA

ASST. PROF IN LAW

Indian Institute of Legal Studies

Dagapur, Matigara,Siliguri, Darjeeling, West Bengal 734010

1
 ACKNOWLEDGEMENT

With profound gratitude and sense of indebtedness I place on record my sincerest

thanks to MS. PEMA BHUTIA, Asst. Prof In Law, Indian Institute of Legal Studies,
for her invaluable guidance, sound advice and affectionate attitude during the course of
my studies.

I have no hesitation in saying that she molded raw clay into whatever I am through her
incessant efforts and keen interest shown throughout my academic pursuit. It is due to
her patient guidance that I have been able to complete the task.

I would also thank the Indian institute of Legal Studies Library for the wealth of
information therein. I also express my regards to the Library staff for cooperating and
making available the books for this project research paper.

Finally, I thank my beloved parents for supporting me morally and guiding me

throughout the project work.

________________

Teacher’s Signature Student’s Signature

Date: __/__/____ Date:

2
 CONTENT

S. NO TOPIC PG. NO.

01 Introduction 5

02 The origins of Islamic law 6

03 Hindu and Muslim marriages are different in several aspects 7

04 Comparison between Hindu and Muslim testamentary law 9

05 Comparative study of laws of maintenance of wife in Hindu 11

law and Muslim law

06 Adoption in Hindu law and Muslim law 17

07 Conclusion 20

3
CASE LAWS

1. Bakul Bai v. Ganga Ram 1988 1 Scale 188 ………………………..16

2. Dilip Ghate v. Dilip Shanta Ram Ghate. [AIR 2003 Bom. 390]…..17
3. Geeta Satish Gokarna v. Satish Gokarna[AIR 2004 Bom. 345]…….16
4. Hani v. Parkash [AIR 1964 P & H 175]……………………………15
5. Mohammed Allahabad Khan v. Mohammad Ismail Khan…………..18
6. Ram Devi v. Raja Ram [1963 All. 564]……………………………..14
7. Ramesh Babu v. Usha [AIR 2003 Mad.]…………………………16
8. Sisir Kumar v. Sabita Rani [AIR 1972 Cal]………………………..14
9. Sushila Viresh Chhawda v. Viresh Nagsi Chhawda………………18

4
 SYNOPSIS

1. STATEMENT OF PROBLEM:
Why Muslim Law is not codified law ?

2. RESEARCH OBJECTIVES:
The main objective of the researcher is to find out the comparative detail of muslim
legal system with Hindu law in India.

3. RESEARCH QUESTIONS:
The research questions are:
i. What is the origins of Islamic law?
ii. What are the Comparison between Hindu and Muslim testamentary law?
iii. What is the Comparative study of laws of maintenance of wife in Hindu law
and Muslim law?
iv. What is the differences between Adoption in Hindu law and Muslim law?

4. RESEARCH METHOD:
The research method used to complete this project is the secondary method. The
secondary method that is used is the DOCTRINAL METHOD.

5. SOURCES OF DATA:
The sources of data used in completing the project is :
 Books
 Websites

5
 CHAPTER 1 :

INTRODUCTION
Muslims in India are governed by The Muslim Personal Law (Shariat) Application
Act, 1937. This law deals with marriage, succession, inheritance and charities among
Muslims. The Dissolution of Muslim Marriages Act, 1939 deals with the circumstances in
which Muslim women can obtain divorce. husbands and to provide for matters connected
therewith. These laws are not applicable in Goa state, where the Goa Civil Code is applicable
for all persons irrespective of their religion. These laws are also not applicable to Muslims
who have married under the Special Marriage Act, 1954. While other religious communities
in India have codified laws, Muslim personal law is not codified in India.

6
 CHAPTER 2:
THE ORIGINS OF ISLAMIC LAW.

Islamic law represents one of the world's great legal systems. Like Judaic law, which
influenced western legal systems, Islamic law originated as an important part of the
religion.
Sharia, an Arabic word meaning "the right path," refers to traditional Islamic law. The
Sharia comes from the Koran, the sacred book of Islam, which Muslims consider the actual
word of God. The Sharia also stems from the Prophet Muhammad's teachings and
interpretations of those teachings by certain Muslim legal scholars. Muslims believe that
Allah (God) revealed his true will to Muhammad, who then passed on Allah's commands to
humans in the Koran.
Since the Sharia originated with Allah, Muslims consider it sacred. Between the seventh
century when Muhammad died and the 10th century, many Islamic legal scholars attempted
to interpret the Sharia and to adapt it to the expanding Muslim Empire. The classic Sharia of
the 10th century represented an important part of Islam's golden age. From that time, the
Sharia has continued to be reinterpreted and adapted to changing circumstances and new
issues. In the modern era, the influences of Western colonialism generated efforts to codify
it 1.

1
http://www.crf-usa.org/america-responds-to-terrorism/the-origins-of-islamic-law.html [last senn on 4th
march,2018]

7
 CHAPTER 3:

HINDU AND MUSLIM MARRIAGES ARE DIFFERENT IN SEVERAL

ASPECTS
3.1 Hindu and Muslim marriages are different in several aspects, such as:
3.1.1. The aims and ideals

Aims and ideals Hindu marriage is a religious sacrament, wherein religious

sentiments play an important role. Dharma is considered the primary aim of Hindu
marriage; a son is desired to offer pinda-dan to pitras. On the contrary, the Muslim
„nikah‟ is a contract for the satisfaction of sexual appetite and procreation.

3.1.2. Endogamy rules

The endogamy rules restrict the Hindus to marry within their own caste. But
among the Muslims, marriage takes place between kiths and kins.

3.1.3. Exogamic rules

As regards the rules of exogamy, the Muslim community applies it to very near

relatives. But among the Hindus several types of exogamic rules prevail such as

gotra exogamy, pravar exogamy and sapinda xogamy which stipulate that the

relatives of seven generations from the paternal side and five generations from the
maternal side cannot marry, each other2.

3.1.4. Features of the marriage system

As regards the features of the marriage system, in Muslim marriage, the proposal

comes from the boy‟s side and it has to be accepted in the same meeting by the

girl, in the presence of two witnesses. The Muslims also emphasize on the

capacity of a person to contract marriage. They practise polygamy and have the

consideration of irregular or void marriages. They have also a preferential system

2
https://www.slideshare.net/sevans-idaho/the-origins-of-islamic-law [last seen on 4th march,2019]

8
 in mate selection. On the other hand, the Hindus do not have the custom of

proposal and acceptance and they do not believe in the capacity of making a

contract. The Hindus do not favour polygamy and do not have irregular or void
marriages or a preferential system in mate selection.

3.1.5. Marital relations

Hindu and Muslim marriages differ from each other in the very nature of

marriage. Among the Shia community of the Muslims there prevails a system of

temporary marriage, called „muta‟. In the Hindu society, there is no provision for

temporary marriage. Furthermore, the Hindus do not observe „iddat‟ for

contracting marriage.

3.1.6. Practice of dowry

The Hindus believe that in marriage, the wife and the husband are united together

for seven lives. As such, the Hindu marriage is indissoluble which comes to an

end only after the death of the spouses of course, at present the decision of the

court is required for a dissolution of marriage. On the other hand Muslim male can

divorce his wife according to his whims. Dissolution of marriage among the
Muslims does not necessitate the intervention of the court.

3.1.7. Widow remarriage

Hindus look notwithstanding the enactment of laws for widow remarriage, the

fact remains that the Hindus look down upon widow remarriage and socially reject

it. But the Muslims do not. Muslim widow is allowed to remarry after waiting for
the period of „Iddat‟.

9
 3.8. Nature of marriage etc.

The dowry system prevails in the Hindu society, but the Muslims practise
dower or „mehr‟.3

3 th
https://link.springer.com/chapter/10.1007%2F978-1-4020-4962-0_1 [last seen on 4 march,2019]

10
 CHAPTER 4:

COMPARISON BETWEEN HINDU AND MUSLIM TESTAMENTARY LAW

Hindu traditional law has some influence on the testamentary capacity of Hindus,
with respect to the fundamental rights on property as in Mitakshara and Dayabhaga system
respectively, most of the jurisprudence on Hindu testamentary succession is statutory,
codified in the form of the Hindu Succession Act, 1956 and the Indian Succession Act 1925.
On the other hand, the Muslim law on succession is entirely personal and traditional in
nature, emanating from the sayings in the holy Quran and mandates of the Sharriat.

There are certain fundamental differences between the way property can be disposed
off by Hindus and Muslims. Firstly, while the limitations on testamentary capacity of a Hindu
are based on the mode of acquisition of property: that is whether the property is ancestral or
self-acquired, the limitations in Muslim law are based on the sayings of the Quran limiting
the property to be bequeathed by a wasiyat to one-third of the property left after discharging
the debts and funeral expenses of the deceased.

Muslim law permits a will to be made with respect to only one-third of the property of
the deceased. It gives importance to the rights of legal heirs. Legal heirs should be given their
due in any case , before any stranger get the benefit of the property by will. Thus it puts the
interests of legal heirs before those of other people to whom the deceased wanted to give his
property. It is a rational law in such aspect and doesn‟t emphasize on ownership and there is
no element of arbitrariness in giving ownership of property to whomsoever the owner wants
to give. On the other hand , in case of Indian Succession Act, 1925 or the Hindu law on
testamentary succession , the concept of “absolute ownership” gives rise to arbitrariness with
respect to giving the property to whoever the owner wants and not necessarily the legal heirs.
Thus the interests of legal heirs are not secure. The owner enjoys the freedom to name who so
ever in his will as the successor or beneficiary4.

The Hindu and Muslim laws of testamentary succession also differ in regards to
women. While women in Hindu law have the power to distribute through will, the property
they have absolute ownership in, in anyway and to anyone, the rights of Muslim women,

4
Aqil Ahmad- “Mohammedan Law”, 21st edn. 2004, Central Law Agency, Allahabad.

11
there are certain exceptions to the general rules. For instance, generally, the share of property
in bequeathed in will cannot exceed a-third unless with consent of other heirs. However, if a
Muslim woman has no blood relations and her husband would be the only heir, then she can
Will two-thirds of her property in his favor. Another stark difference between the two laws is
that Muslim women can at no point of time get more than that inherited by the males in the
family, if the bequeathed share exceeds a-third of the property as well as in intestate
succession, where women get the exact half of their male counterparts 5.

Also, until recently, Hindus were restricted in giving away their property through will
for charity by application of section 118 of the Indian Succession Act. The section plainly
meant that to the extent to which the bequest is for religious or charitable uses, the
application of this section is attracted despite the fact that the bequest may be for only a part
of the property or some interest in the property. This section was declared unreasonable,
arbitrary and discriminatory and, therefore, violative of Article 14 of the Constitution 6.

5
Dr. Paras Diwan on Hindu Law, 2nd edn. 2005, Orient Publishing Company, Allahaabad.
6
Dr. Paras Diwan- “Muslim Law in Modern India”, 9th edn. 2005, Allahabad Law Agency, Faridabad
(Haryana).

12
 CHAPTER 5:

COMPARATIVE STUDY OF LAWS OF MAINTENANCE OF

WIFE IN HINDU LAW AND MUSLIM LAW

5.1 MAINTENANCE OF WIFE UNDER HINDU LAW

5.1.1 Analysis of Legislative Provisions

The relevant legislations which govern the maintenance of wife under Hindu
law are: The Hindu Marriage Act, 1955, and the Hindu Adoption and Maintenance
Act, 1956. Provisions contained therein would be discussed to know the legislative
position of wife under Hindu law. The relevant provisions are: Section 24, and
Section 25 of the Hindu Marriage Act, 1955, and Section 18 of the Hindu Adoption
and Maintenance Act, 1956. Section 24 of the Hindu Marriage Act, 1955, deals with
the alimony pendente lite and the expenses of the proceedings. This Section
empowers the court to order the respondent to pay the petitioner the expenses of the
proceedings, if it appears that either wife or the husband has not independent income
for his or her support and to meet out the necessary expenses of the proceedings. It
is to be noted that the court while making order under this Section, pays due regard to
the petitioner's own income and the income of the respondent.

Section 18 of the Hindu Adoption and Maintenance Act, 1956, deals with the
married women's right to reside separate and claim maintenance. This Section
comprises three Subsections. Subsection 1 of this Section entitles the Hindu wife to
get the maintenance from her husband during her life time. The right to be maintained
is irrespective of the fact that whether she was married before or after th
commencement of the Act. Subsection 2 of this Section provides justifiable grounds
to the Hindu wife under clause (a) to clause (g) which entitle the Hindu wife to live
separately from her husband without forfeiting her claim to maintenance. The grounds
are desertion, cruelty leprosy, having another wife by the husband, keeping a
concubine by the husband, conversion from Hinduism to another religion by the
husband or any other justifiable cause. Sub-Section 3 of this Section disentitles the
Hindu wife to separate residence and claim of maintenance from her husband if she is

13
 unchaste or ceases to be a Hindu by conversion to another religion. The rule laid
down in Section 18 of the Hindu Adoption and maintenance Act, 1956 must also be
read with Section 23 of this Act which lays down that it shall be the discretion of the
court to determine whether any, and if so what maintenance shall be awarded under
the provisions of this Act7. In Ram Devi v. Raja Ram8 the husband by his conduct
made it evidently clear that she was not wanted in the house and her presence was
resented by him, it was held that this amounted to cruelty and justified wife's living
separately.
5.1.2 Evaluation of judicial pronouncements
Now, some landmark judicial decisions would be discussed here to clarify the
application of these Sections in the matrimonial cases .First of all, we would like to
discuss the application of Section 24 and Section 25 of the Hindu Marriage Act, 1955,
then some cases would be discussed regarding the application of Section-18 of the
Hindu Adoption and Maintenance Act, 1956. In Hani v. Parkash,9 the question
before the High Court was that in case of non compliance an order under Section 24
of the Hindu marriage Act, 1955, can be the defence of the defaulter. Husband
obtained a decree of divorce against the wife on the ground of cruelty. She filed an
appeal against it. During pendency of appeal, she sought maintenance and litigation
expenses
under Section 24 of the Hindu Marriage Act, 1955. The court decreed Rs. 500 per
month as maintenance pendente lite and Rs.2, 200 as litigation expenses. The husband
failed to comply with this order despite several notices over a period of two years.
The court observed: "Law is not that powerless as not to bring the husband to book. If
the husband has failed to make the payment of maintenance and litigation expenses to
wife, his defence be struck out." The verdict of the High Court in this case shows that
the purpose behind this is to ensure that a husband provides for the wife and children
while the litigation is on. If he fails to do so, his defence will be struck out and the
case will proceed.
In Sushila Viresh Chhawda v. Viresh Nagsi Chhawda, 10 the issue involved in
this case was whether the litigation expenses and interim maintenance under Section

7
Mulla, Principles of Hindu Law (ed. 19th, 2006, New Delhi), p. 565
8
1963 All. 564.
9
AIR 1964 P & H 175.
10
AIR 1996 Bom. 94.

14
 24 can be claimed, even when the main petition is for nullity of the marriage.
Husband filed a suit for nullity of marriage under the Hindu Marriage Act on the
ground of fraud. His allegation was that the wife suffering from a big ovarian tumour
which had to be surgically removed along with an ovary just eight days after th
marriage and this fact that the tumour was concealed at the time of marriage. The wife
filed an application for interim maintenance under Section 24 of Hindu marriage Act.
This was opposed by the husband on the ground that the marriage was void and the
view of the fraud committed by her, she was not entitled to interim maintenance. The
family court rejected the wife's application without even going into merits. Hence her
special leave petition under Article 227 of theconstitution. The High Court set aside
the order of the family court. It was held that the wording of Section 24 the Hindu
Marriage Act, 1955is very clear that an application for maintenance can be filed in
anyproceeding under the Act, "When a fact of marriage is acknowledged and a
proved, alimony follows subject, of course, to the discretion of the court in matter
having regard to the means of the parties and it would be no answer to the claim. That
the marriage was void ipso jure 11 or was voidable." The court further remarked; "The
direction of interim alimony and expenses of litigation under Section 24 is one of
urgency and it must be decided as soon as it is raised and the law take care that
nobody is disabled from prosecuting or defending the matrimonial case by starvation
or lack of funds". The purpose of Section 24 is to provide sustenance and financial
assistance for pursuing the litigation. The provision is available in case of any
proceeding under the Act and not confined to any particular proceeding.
5.1.3 Identification of Pitfalls
The Hindu marriage Act, 1955 is social welfare legislation. It was with this
end certain rights were conferred on Hindu women by the Act, Therefore, such a
piece of legislation should be constructed by adopting progressive and liberal
approach and not a narrow and pedantic approach. However, there is some judicial
pronouncement which shows the strict behaviour of Judiciary toward the aggrieved
spouse. In the matter of implementing the provisions of Act, the technicalities of the
provision must be left to some extent. This view was adopted by the High Court of
Calcutta in Sisir Kumar v. Sabita Rani.12“The word 'Wife' or 'Husband' in Section 25,
has been used as convenient terms to refer to the parties to a marriage whether or not

11
By the act of the law itself
12
AIR 1972 Cal.

15
 the marriage was valid or subsisting. Marriage had been used to include a purported
marriage which was void ab initio”.The point of discussion regarding the
identification as pitfalls in the application of the provisions of Hindu law is in
Ramesh Babu v. Usha.13 In the instant case, the husband denied the maintenance of
wife on the ground that the wife is entitled to free legal aid The Court refused the
argument of husband and awarded maintenance to wife. The court caught the trick of
husband and gave relief to wife.
5.1.4 Advocacy for Reforms and Improvements
It is a well known fact that Hindu Marriage Act, 1955 is social welfare
legislation. The judiciary must always while interpreting its provision, keep in
consideration its social welfare nature. A liberal approach must be adopted in the
interpretation of its provisions.
It is also necessary that the tricks of the spouses, for avoiding the charge to
maintenance must be noticed timely so as to implement the Act sharing the true
intention of legislature for its enactment. Right of a wife to maintenance where a
marriage is void had always been controversial. An amendment in law is in offing
where the simple fact of the parties having gone through a ceremony of marriage
would be enough to entitle the wife to maintenance.
The denial of maintenance under Section-25 of Hindu Marriage Act, 1955,
was due to the concealment of her epilepsy by the wife before marriage on the already
obtained annulment. Here I am not justifying "wrong", "misconduct" or "fraud" on the
part of any spouse but only indicating how subjective approach can lead to varying
interpretations in order to deny or granting a relief. Bakul Bai v. Ganga Ram 14 case
the fraud is serious but the victim is the wife only. Thus the court, while deciding this
type of matrimonial case, must always take into consideration that the aim of the
enactment should not be frustrated. To avoid the confusion regarding the maintenance
15
as has been discussed in Geeta Satish Gokarna v. Satish Gokarna, there must be
insertion of the provision by the legislature regarding the nullification of consent
agreement not to claim maintenance in future as the maintenance has been construed
as an integral part of right to life.

13
AIR 2003 Mad.
14
1988 1 Scale 188.
15
AIR 2004 Bom. 345

16
 The Hindu Law is social welfare legislation and beneficial in nature, it has
been enacted in comprehensive manner so, it would be unfair not to have the specific
provision regarding the place of filling of petition or jurisdiction of the court. There
must be some specific provision regarding that to face the problem raised in Sucheta
Dilip Ghate v. Dilip Shanta Ram Ghate.16 The insertion of the specific provision
regarding the place of filing suit will cause the great help in avoiding confusion and
will reduce the delay in deciding cases.
5.2 MAINTENANCE OF WIFE UNDER MUSLIM LAW

Maintenance is also termed as Nafaq in Muslim Law. The word Nafaq means food,
daily expenditure and lodging.

Maintenance under Muslim Personal Law: under Islamic law similar to the Christian
law, the wife is entitled to maintenance from the husband. But under the Hindu law and Parsi
law either spouse are entitled to maintenance. Under the Islamic law the duty to maintain the
wife arises as soon as she reaches puberty. The Islamic law differs in this aspect as compared
to other personal laws where maintenance is provided irrespective of the age of the claimant
i.e. the factor of puberty is not considered.

Under the Islamic law, wife loses the claim of maintenance if she is disobedient and
refuses to be accessible at all times. This is not so under the other personal laws. The wife
does not lose claim of maintenance by being disobedient. The wife under those personal laws
loses their claim by factors such as remarriage and unchastity. The wife is also entitled to
maintenance in accordance with the stipulations laid in the kabirnama. This aspect of Muslim
law is absent in other personal laws, where there is no provision of maintenance according to
any contract.

Maintenance under Muslim Women (Protection of Rights on Divorce) Act, 1986: A

divorced Muslim woman is entitled to claim maintenance under Muslim Women (Protection
of Rights on Divorce) Act, 1986 (MWA). The Muslim woman can claim for maintenance
from her husband only during the iddat period. However, the SC in the landmark case of
Daniel Latiffi v. Union of India 17, interpreted S.3 (1)(a)18 of MWA in such a manner that the

16
AIR 2003 Bom. 390
17
Writ Petition (civil) 868 of 1986
18
a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her
former husband;

17
husband has to make a reasonable and fair provision for maintenance during the iddat period
for the future of the divorced wife. After the iddat period if the divorced wife is unable to
maintain herself then she has to rely upon her consanguine relatives – children, parents and
other relatives who would be entitled to share from her property. This is another aspect in
which the Islamic law differs from the other personal laws – under Islamic law the obligation
of maintenance is not solely upon the husband, which is the case with the other personal laws,
but also upon the consanguine relatives.

If she has no such relatives or such relatives do not have the means to maintain her
and she is also not able to maintain herself, then the court can direct the State Wakf Board to
maintain her. The Maintenance of Women Act (MWA) after its enactment disallowed wife to
claim maintenance under CrPC. However the wife can claim maintenance under CrPC if both
the parties agree to be governed by CrPC, which is unlikely as S.3 of MWA is in favour of
the husband as compared to S.125 of CrPC.

18
 CHAPTER 6:

ADOPTION IN HINDU LAW AND MUSLIM LAW

The concept of adoption is not a new concept rather the custom and practice of
adoption is continuing from the past. The dictionary meaning of the term „adoption‟ is the act
of taking and rearing of the child of other‟s parents as one‟s own child. Attitudes and laws
regarding adoption vary greatly. Not all cultures have the concept of adoption. One of the
biggest examples is Muslim law where adoption is not recognised.

This paper deals with the motivation of the parents to adopt a child and various
aspects relating to adoption under the Hindu law and the Muslim law. Over the time steps
have been taken to improve the status of women but still there exist a significant difference.
In this paper, there is focus on this issue especially under Hindu law with the help of two
cases.

6.1 WHY TO ADOPT?

Adoption is the institutionalized practice through which an individual

belonging by birth to one kinship group acquires new kinship ties that are socially and legally
defines as equivalent to the congenital ties. These new ties supersede the old ones either
wholly or in part.

Child adoption in India has been a prevalent social practice from ancient times but
with a different perspective. Generally the view is that when an individual completely loses
his capability to conceive a child, then under that circumstance a child is being adopted.

In the past, a childless couple would „adopt‟ a child from one‟s own family. But now,
it‟s not like this; adoption is not limited to relatives‟ children.

The people who adopt, their motives vary. The primary consideration was the interest
of the childless adoptive parents, namely, the perpetuation of family name and lineage,
protection in old age, performance of death rites and salvation of the adoptive parents. Other
motivations to adopt could be a desire to give a home to a child who needs one, wanting a
child of the other gender, or for the welfare of the destitute and abandon child.

19
 The adoption should be considered as a specialised child welfare service which helps
in meeting the needs and promoting the “best interests” of the child without a permanent
home or family able to provide care.

Now, the trend is changing a lot. It is being noted that the single parent adoptions are
also being done in urban cities.

6.2 POSITION OF ADOPTION IN THE HINDU LAW

There was a lot of preference given to the males in the earlier times. Now with the
time, the perception is also changing and new laws are developing. In India adoption is now
regulated by the introduction of the Hindu Adoptions and Maintenance Act, 1956.

Various radical changes in the old Hindu law as to the persons who could be adopted
were brought in the new HAMA, 1956. Under the Hindu law, the adoption of child means
that the child is totally uprooted from the natural family and transplanted in the new family.

Prior to the Hindu Adoptions and Maintenance Act, 1956 only the adoption of son
was recognised but after the commencement of this Act, daughter‟s adoption is also legally
recognised. This has been considered the major change. Now, the more people are coming
forward to adopt a girl child. In 2004, more than 40,000 children were adopted worldwide.
Moreover, earlier only male Hindus had the right to adopt or to give in adoption. But now it
has been recognised that even Hindu women can also adopt or give in adoption.

At the same time, the Hindu law provides for very stringent conditions for adoption of
a child. Like adoption of the child of the same gender is not allowed where an adoptive father
or mother already have a child living at that time and also adoptive parents must not have a
Hindu son, a grandson or even a great-grandson alive. Likewise, a person who has a Hindu
daughter or son‟s daughter cannot adopt a daughter.

6.3 POSITION OF ADOPTION IN THE MUSLIM LAW

The biggest and the most important difference between the Hindu law and the Muslim
law is that the latter does not recognise adoption. Muslim Law takes into account the concept
of acknowledgement. The paternity of the child cannot be established by a Muslim if he
adopts a child of whom he is not the actual father. In Mohammed Allahabad Khan v.

20
Mohammad Ismail Khan, it was held that there is nothing in the Mohammedan Law similar
to adoption as recognized in the Hindu System and the acknowledgement of parentage is only
a substitute for adoption.

“Adoption is not prohibited, but it is an act towards which religion is indifferent.”

Before the Shariat Act, 1937, adoption among some Muslims was recognised by
customs. So, a Muslim never acknowledges another‟s child as his own and the child is
considered to be the direct descendent by legitimate means. If an adoption takes place, then
an adopted child retains his or her own biological family name (surname) and does not
change his or her name to match that of the adoptive family.

In all sense, unlike the Hindu law, adoptive parents are not given the status of the
natural parents.

21
 CHAPTER 7:
CONCLUSION

Personal laws are the laws that are applicable to a particular religion in common and
those laws which govern the religion. These can be the custom or the legislation that has been
followed for a long period of time and these are the laws from where these religions have also
derived their grundnorm (Basis) and the law on these have developed and evolved. The
people have been following these laws for a long period of time and these are prevalent to the
people of their religion. These laws have been established keeping in mind the various beliefs
and sentiments of the people.

22
 BIBLIOGRAPHY
BOOKS:
 Aqil Ahmad- “Mohammedan Law”, 21st edn. 2004, Central Law Agency,
Allahabad.
 B.M. Gandhi- “Hindu Law”, 3rd edn. 2008, Eastern Book Company,
Lucknow.
 Dr. Paras Diwan- “Muslim Law in Modern India”, 9th edn. 2005, Allahabad
Law Agency, Faridabad (Haryana).
 Dr. Paras Diwan on Hindu Law, 2nd edn. 2005, Orient Publishing Company,
Allahaabad.
WEBSITES:
 http://www.legalserviceindia.com/helpline/helpline_HOME.htm

 https://frontline.thehindu.com/the-nation/india-needs-codified-muslim-family-
law/article9834633.ece

 https://www.lawteacher.net/free-law-essays/family-law/adoption-in-hindu-law-
and-muslim-law-law-essay.php#ftn1

 https://www.hellocounsel.com/muslim-law-adoption/

 https://indiankanoon.org/doc/1056396/

 https://indiankanoon.org/doc/1933289/

 http://shodhganga.inflibnet.ac.in/bitstream/10603/40548/7/13_chapter4.pdf

23