Application of Personal Law to Muslims
Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).
In plain English
What this section actually means
Section 2 is the heart of the Act and one of the most consequential single sentences in Indian civil law. It tells every Indian court, every Sub-Registrar, every Tehsildar and every Family Court Judge that — when both parties are Muslims — the rule of decision in the listed matters is the Muslim Personal Law (Shariat). Custom or usage, however ancient or however well-documented in a Gazetteer, is displaced.
The list of subject-matters is long and deliberate. It covers: intestate succession (i.e., where there is no will); the 'special property of females', including dower payments, gifts and inherited assets; marriage; dissolution of marriage, expressly including talaq, ila, zihar, lian, khula and mubaraat (each of which is a distinct mode of divorce under classical Hanafi law); maintenance; dower (mahr); guardianship of person and property; gifts (hiba); trusts and trust properties; and wakfs (the Muslim equivalent of a religious-cum-charitable endowment), but only private wakfs — charities and charitable / religious endowments are excluded.
Two important carve-outs. First, the explicit exclusion of 'questions relating to agricultural land' — agricultural inheritance is left to State revenue laws, which historically protected customary tenures. Second, the exclusion of charities and charitable institutions and charitable / religious endowments from the wakf coverage — those are governed by the Wakf Act, 1995 and equivalent statutes.
The opening words 'Notwithstanding any custom or usage to the contrary' are the most important. Before 1937, in many parts of India — especially Punjab, North-West Frontier Province and parts of South India — Muslim families followed Hindu-influenced customs in succession and gift. After 1937, those customs lose their legal force in the listed matters.
A notable State variant: Kerala (Act 42 of 1963) substituted a fresh Section 2 that drops the 'agricultural land' carve-out. So in Kerala, the Shariat governs even agricultural-land disputes between Muslims.
Defined terms
How the Act defines the words it uses
- Talaq§2
- Unilateral repudiation of marriage by the husband under classical Muslim personal law.
- Ila§2
- A husband's oath to abstain from sexual relations with his wife for at least four months; if maintained, it results in irrevocable divorce.
- Zihar§2
- A husband comparing his wife to a female relative within prohibited degrees of marriage; a form of constructive divorce unless expiation is performed.
- Lian§2
- Mutual imprecation — divorce proceedings where the husband accuses the wife of adultery and both swear oaths; leads to dissolution if confirmed by a court.
- Khula§2
- Dissolution of marriage at the wife's instance, typically in return for giving up dower; requires the husband's consent under classical Hanafi law (though Indian courts have liberalised this).
- Mubaraat§2
- Mutual divorce — dissolution by mutual consent of husband and wife, with no need for fault or expiation.
- Dower (mahr)§2
- A mandatory payment from husband to wife on marriage; the unpaid portion is recoverable by the wife as a debt and ranks above ordinary unsecured debts in the husband's estate.
- Wakf§2
- A permanent dedication of property for religious or charitable purposes by a Muslim under personal law. The 1937 Act covers only private (family) wakfs; public charitable wakfs are governed by the Wakf Act, 1995.
Step by step
How the procedure works
- 1
Court identifies the parties as Muslims
The first preliminary question — are both parties Muslim? If both are not Muslim, Section 2 cannot apply; the court turns to general law or the personal law of the non-Muslim party.
Actor: Court / Sub-Registrar / Tehsildar - 2
Identify the subject-matter
Is the dispute about marriage, divorce, dower, maintenance, guardianship, gift, trust, wakf or intestate succession? If yes, Section 2 is engaged. If it is about agricultural land, public wakf or testamentary succession (no §3 declaration), Section 2 steps aside.
Actor: CourtSection 2 - 3
Apply Shariat — not custom
Once both filters are satisfied, the rule of decision is the Shariat. Custom or local usage, however well documented, is irrelevant on the merits.
Actor: Court - 4
Identify the school (Hanafi / Shafi'i / Maliki / Hanbali / Shia)
Indian courts apply the school to which the party belongs. Most Indian Sunnis are Hanafi; Shias follow the Jafari (Ithna Ashari) or Ismaili schools. The court takes evidence on the parties' school where doubt exists.
Actor: Court
Visual
See how it flows
Old vs new
What Section 2 covers — and what it does not
The list is exhaustive: courts apply Shariat only to the listed subjects.
- Intestate succession (no will)Agricultural land (covered by State revenue law)
- Marriage and its dissolution (incl. talaq, khula, mubaraat)Testamentary succession unless opted in under §3
- Maintenance and dower (mahr)Adoption unless opted in under §3
- GuardianshipCharities and charitable endowments (Wakf Act, 1995)
- Gifts (hiba), trusts, private wakfsCriminal matters (BNS / BNSS apply)
- Special property of femalesPublic wakfs (Wakf Act, 1995)
Real life
What this looks like in real life
Punjab Muslim family follows Hindu-style coparcenary
Setup. A Muslim agricultural family in Punjab has, for generations, treated joint family land as coparcenary — sons taking by birth, daughters excluded. After 1937, the daughter of the deceased seeks her Shariat share in the non-agricultural assets.
What the law does. On the non-agricultural assets, Section 2 overrides the custom — the daughter takes her Shariat share (typically half of a son's share). On the agricultural land, Section 2 is silent because of the 'save questions relating to agricultural land' carve-out — the State revenue law applies and the custom may survive there.
Talaq pronounced in a fit of anger
Setup. A husband, during a quarrel, instantaneously pronounces 'talaq, talaq, talaq' and walks out. The wife approaches the court.
What the law does. Under Shayara Bano (2017) and the 2019 Act, talaq-e-biddat (instant triple talaq) is no part of Shariat. Section 2 does not validate it. The marriage subsists; the husband may also face criminal prosecution under the 2019 Act.
Conversion to escape Hindu Marriage Act
Setup. A Hindu husband, already married under the Hindu Marriage Act, 1955, converts to Islam and contracts a second marriage, relying on classical Sunni Hanafi permission of polygamy.
What the law does. Sarla Mudgal v. Union of India (1995) holds that the second marriage is void and the husband attracts bigamy under Section 494 IPC (now Section 82, BNS 2023). Section 2 of the 1937 Act does not validate a conversion-of-convenience that defrauds the first wife's rights.
Landmark cases
How the courts have read this
Shamim Ara v. State of Uttar Pradesh
Supreme Court of India · 2002 · (2002) 7 SCC 518
Section 2 makes Shariat applicable to dissolution of marriage. But talaq must be pronounced for reasonable cause, preceded by attempts at reconciliation between two arbiters from each side — a mere allegation in a written statement is not enough.
Shayara Bano v. Union of India
Supreme Court of India · 2017 · (2017) 9 SCC 1
Although talaq is listed in Section 2, the practice of talaq-e-biddat (instantaneous triple talaq) was held to be no part of Shariat. It is unconstitutional and is no longer the rule of decision under Section 2.
Mohd. Ahmed Khan v. Shah Bano Begum
Supreme Court of India · 1985 · (1985) 2 SCC 556
Section 2 lists 'maintenance', but a Muslim wife's right to maintenance under Section 125 CrPC (now Section 144 BNSS, 2023) is a parallel statutory remedy that survives Section 2 of this Act.
Danial Latifi v. Union of India
Supreme Court of India · 2001 · (2001) 7 SCC 740
Reading the 1986 Muslim Women (Protection of Rights on Divorce) Act harmoniously with Section 2 of the 1937 Act — a divorced Muslim wife is entitled to fair and reasonable provision and maintenance extending beyond iddat from her former husband.
Cross-references
Read this alongside
- Dissolution of Muslim Marriages Act, 1939§Section 2·Lists the statutory grounds on which a Muslim wife may obtain judicial divorce — complements Section 2 of the 1937 Act on khula.
- Muslim Women (Protection of Rights on Marriage) Act, 2019§Sections 3 and 4·Criminalised the pronouncement of talaq-e-biddat; reinforces the Shayara Bano ruling.
- Muslim Women (Protection of Rights on Divorce) Act, 1986§—·Read alongside Section 2 — governs maintenance of divorced Muslim women.
- Wakf Act, 1995§—·Governs public wakfs — outside the wakf coverage of Section 2.
- Indian Succession Act, 1925§Sections 57–58·Wills by Muslims are governed by personal law (or §3 declaration), not by Part VI of the Succession Act.
Frequently asked
Questions about Section 2
Open this section in the source PDF
Muslim Personal Law (Shariat) Act, 1937.pdf
Page 2 · opens in new tab