Muslim law in India is usually presented as a closed system of revealed and derived sources — the Quran, the Sunna, Ijma and Qiyas. Yet for large communities of Indian Muslims, the rule that actually governed inheritance, marriage and property for centuries was not Quranic at all but customary. Converts carried their pre-conversion usages into Islam; trading communities such as the Khojas and Cutchi Memons succeeded to property by Hindu rules; and Punjabi and Jat agriculturists excluded daughters by tribal custom. The Muslim Personal Law (Shariat) Application Act, 1937 was a deliberate legislative attempt to sweep this custom away and restore Shariat. This chapter traces the ambivalent status of custom as a source of Muslim law — how classical jurisprudence treated urf and ta'amul, how Anglo-Muhammadan courts enforced proven customs, and how the 1937 Act abrogated them in most matters while leaving important survivals.
Custom in Classical Muslim Jurisprudence: Urf and Ta'amul
Orthodox Muslim jurisprudence does not recognise custom as a primary, independent source of law. The four classical sources are the Quran (the revealed text), the Sunna (traditions of the Prophet), Ijma (consensus of jurists) and Qiyas (analogical deduction). Custom — urf (usage) or ta'amul (continuous practice) — is, in classical theory, at best a subsidiary or supplementary aid that the jurist may resort to where the primary sources are silent or where a text itself presupposes prevailing usage. The Hanafi school in particular, which governs the bulk of Indian Sunni Muslims, gave custom a respectable interpretive role: where the law was indifferent, the established usage of a people (urf) could fix the content of a transaction, much as commercial usage fills gaps in contract.
But this is a far cry from saying that custom can override clear Quranic injunctions. No custom can validly displace an express rule of the sacred law — a usage permitting, say, the total exclusion of daughters from inheritance contradicts the Quranic shares and is, in classical theory, void. The Indian story of custom as a source of Muslim law is therefore largely the story of how Anglo-Muhammadan courts, applying the language of British-Indian statutes, enforced customs that classical jurists would have rejected, and how the legislature eventually intervened. For the broader theoretical frame, see our note on the definition and nature of custom and the customary law hub.
Why Custom Mattered: Converts and the Indian Reality
The reason custom loomed so large in Indian Muslim law is sociological rather than doctrinal. Islam in the subcontinent spread overwhelmingly by conversion. When a Hindu individual, family or whole caste embraced Islam, they did not instantly shed the social and proprietary usages of generations. Inheritance patterns, the position of women, modes of succession to headship and tenure of agricultural land frequently continued unchanged. British-Indian courts, faced with the practical question of which rule to apply, repeatedly held that a convert and his descendants retained their old customary law of succession unless it was shown that they had adopted Muslim law.
This produced the striking situation that two Muslims, identical in faith, could be governed by entirely different rules of inheritance depending on the custom of their community. The classic judicial statement is the Privy Council's decision in Mitar Sen Singh v. Maqbul Hasan Khan (1930), arising from Oudh, where the Board affirmed that the succession of a Hindu convert to Islam — and of his descendants — turned on their personal law and proven family custom, and that the Caste Disabilities Removal Act, 1850 protected only the actual convert's own property rights, not the rights of his collaterals. The decision shows how deeply custom and pre-conversion usage were embedded in the inheritance of converted Muslim families.
The practical consequence of this convert-centred jurisprudence was that the courts treated the continuance of the pre-conversion law as the presumption and conversion to Muslim law as the matter requiring proof. A community that had embraced Islam but retained its ancestral usages was governed by those usages until a deliberate adoption of Shariat — by abandonment of the custom or by some recognisable act of submission to Muslim law — was demonstrated. This inversion of the natural expectation (that a Muslim is governed by Muslim law) is precisely what made custom so potent a source in pre-1937 India, and precisely what the reformers found intolerable, since the usages most tenaciously retained were almost always those that disadvantaged women.
Communities Governed by Custom: Khojas, Cutchi Memons and Others
Three groups illustrate the dominance of custom before 1937. The Khojas and Cutchi Memons of the Bombay Presidency were Sunni Muslim trading communities descended from Hindu converts. In matters of succession and inheritance they were, by long-established usage, governed not by Muslim law but by Hindu law. Among Khojas, intestate succession broadly followed Mitakshara-style principles: sons inherited to the exclusion of daughters, and a widow took only a limited estate akin to that of a Hindu widow. Both communities had also acquired, by custom, the power to dispose of the whole of their property by will — a sharp departure from the Hanafi rule confining testamentary power to one-third of the estate.
A third illustration comes from the agriculturist tribes of the Punjab and parts of North-West India, where Muslim Jats, Rajputs and others followed tribal custom that typically excluded daughters and sometimes widows from succession to ancestral and agricultural land, vesting it in agnatic male heirs. These customs were recorded in village administration papers (wajib-ul-arz and riwaj-i-am) and enforced by the courts. The result, by the early twentieth century, was a patchwork in which Quranic inheritance frequently yielded to local usage, and Muslim women in particular were systematically deprived of the shares the Shariat would otherwise give them.
It is worth stressing how comprehensively custom had colonised Muslim succession in these communities. It was not merely a question of one or two anomalous rules: entire schemes of devolution, the quantum of a widow's interest, the testamentary power of the propositus and the very identity of the heirs could all be fixed by custom rather than by the Quran. A Khoja's estate might pass exactly as a Hindu's would; a Punjabi agriculturist's land might bypass his daughters entirely. The legislature of 1937 was therefore not tinkering at the margins but confronting a situation in which, for millions of Indian Muslims, "Muslim law" in the courtroom often meant the law of the village, the caste or the clan. For the wider taxonomy of such usages, see kinds of custom.
Proof of Custom: The Evidentiary Standard
Because custom displaced the ordinary law, the burden lay on the party asserting it, and the courts developed a workable standard of proof. The leading authority is the Privy Council's decision in Abdul Hussein Khan v. Bibi Sona Dero (1917), concerning the Talpur Mirs of Sind — a Baluchi Muslim family. The Board laid down that a custom must be established by clear and satisfactory evidence, but that the courts in India should not insist on the rigorous and technical rules of proof applicable in England. Custom is essentially a question of fact, to be proved by instances showing a uniform, continuous and certain usage; once a custom is well established by sufficient instances, it need not be re-proved in every subsequent case.
The same essentials that govern custom generally apply here. Following the classic Privy Council formulation in Hurpurshad v. Sheo Dayal (1876), a custom to have the force of law must be ancient, certain and reasonable, and must not be immoral, opposed to public policy, or expressly forbidden by statute. A village record such as a wajib-ul-arz raises a presumption of correctness in support of the custom it records, which prevails unless rebutted. These requirements are developed fully in our note on the essentials of a valid custom.
The Limit: Custom Cannot Override Express Law
However liberally Anglo-Muhammadan courts enforced custom, two limits were firmly maintained. First, a custom contrary to an express text of the Quran or to a settled rule of Muslim law could be enforced only where it was independently established as the governing law of the parties (typically as a pre-conversion or family usage) — it could not be invoked simply to defeat the Shariat at will. Second, a custom that was unreasonable, immoral or opposed to public policy was void regardless of its antiquity. A usage sanctioning, for instance, a practice repugnant to justice and good conscience would not be recognised.
This is why custom in Indian Muslim law is best understood not as a free-standing source competing on equal terms with the Quran, but as a fact-based exception that the courts tolerated where a community had demonstrably lived by it. The very breadth of that tolerance — and its tendency to disinherit Muslim women — became the principal grievance that drove the reform legislation of 1937. The contrast with Hindu law, where custom enjoys a more settled and recognised place, is instructive; compare our note on custom as a source of Hindu law.
The Shariat Act 1937: Genesis and Object
The reform was driven by an alliance of the ulama, Muslim reformers and women's organisations who saw the prevailing customary regimes as un-Islamic and as instruments for depriving Muslim women of their Quranic rights. The object of the Muslim Personal Law (Shariat) Application Act, 1937 (Act XXVI of 1937), as its preamble records, was to make provision for the application of Muslim Personal Law (Shariat) to Muslims, displacing the contrary customs and usages that had grown up.
The Act's mechanism was straightforward but powerful: in the matters it enumerated, Shariat was to be the rule of decision for Muslims, notwithstanding any custom or usage to the contrary. The phrase is the legal heart of the statute. By that single clause, the legislature reversed the prior position — under which custom prevailed and Shariat applied only in default — and substituted a regime in which Shariat prevailed and custom was abrogated. The Act extended originally to British India and has been continued and applied across independent India.
Section 2: The Operative Abrogation of Custom
Section 2 is the operative provision. It declares that, 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), where the parties are Muslims, the rule of decision shall be the Muslim Personal Law (Shariat).
Two features of Section 2 are critical for examinations. First, the enumeration is a closed list: only the matters listed are taken out of the reach of custom. Conspicuously absent are wills (testamentary succession), legacies and adoption — these were deliberately left to the optional declaration under Section 3. Second, agricultural land is expressly excepted. The exclusion was a concession to provincial legislatures, since agrarian tenures were politically sensitive and governed by local tenancy and land-revenue laws. The immediate effect of Section 2 was to abolish, at one stroke, the Hindu-based inheritance customs of the Khojas and Cutchi Memons in intestacy, restoring Quranic shares — so that from 1937 daughters and widows in those communities took their Shariat entitlements.
Section 3: Optional Extension to Wills, Legacies and Adoption
Section 3 supplies the mechanism for the matters Section 2 left untouched. Any person who satisfies the prescribed authority that he is a Muslim and that he is competent to contract within the meaning of Section 11 of the Indian Contract Act, 1872, and a resident of the territory to which the Act extends, may by declaration in the prescribed form make a binding statement that he desires to obtain the benefit of the provisions of the section. The effect of a valid declaration is that, as regards the declarant and his minor children and their descendants, Muslim Personal Law (Shariat) is then applied in addition to the Section 2 matters in respect of adoption, wills and legacies.
The architecture is deliberate. The framers recognised that to compel, for example, the Khojas and Cutchi Memons to surrender their cherished customary power of bequeathing the whole estate would have provoked resistance; so testamentary matters were made opt-in rather than mandatory. The consequence is that, absent a Section 3 declaration, the old custom governing wills, legacies and adoption survives. A Cutchi Memon who makes no declaration may still, under custom, will away his entire property; one who declares is bound by the Hanafi one-third rule. Section 3 thus preserves a residual but real field for custom within the otherwise Shariat-restoring scheme.
The Agricultural Land Exception and State Amendments
The most important surviving domain of custom under the 1937 Act is agricultural land, excluded from Section 2 by the words "save questions relating to agricultural land." In consequence, in States where no contrary provision was made, succession to agricultural holdings continued to be governed by local tenancy legislation or by tribal and territorial custom — preserving, for example, the Punjab agriculturists' custom of excluding daughters. This carve-out has been criticised precisely because it kept alive the very anti-women customs the Act set out to abolish, but only for the most valuable class of property in an agrarian society.
Several States subsequently legislated to close the gap. The Muslim Personal Law (Shariat) Application (Tamil Nadu Amendment) Act, 1949, for instance, amended Section 2 in its application to that State by deleting the agricultural-land exception and by extending Shariat to wills as well, so that Muslims in Tamil Nadu are governed by Shariat even in respect of agricultural land. Comparable amendments were made in some other States. Where such an amendment operates, custom is displaced even as to agricultural land; where it does not, the exception — and the custom it shelters — remains. This is a frequently tested point: the abrogation of custom by the 1937 Act is not uniform across India for agricultural land.
Repeals and Related Provisions: Sections 5 and 6
Two further provisions complete the scheme. Section 5 of the Act as originally enacted dealt with the dissolution of marriage by women married under Muslim law; this subject was shortly afterwards taken over and comprehensively dealt with by the Dissolution of Muslim Marriages Act, 1939, and Section 5 was correspondingly repealed. Section 6 repealed the inconsistent provisions of a range of pre-existing colonial enactments and regulations — among them provisions from the Bombay, Madras, Oudh, Punjab, Central Provinces and Ajmer regimes — that had previously authorised or recognised the application of custom to Muslims. The repeal of these provisions was the necessary corollary of Section 2: having declared Shariat to prevail over custom, the legislature swept away the statutory hooks on which the older customary application had hung.
Separately, the customary testamentary powers of the Khojas and Cutchi Memons had already been the subject of earlier special legislation — notably the Cutchi Memons Act, 1938 and earlier measures — reflecting how persistently these communities' Hindu-derived customs had to be addressed. Read together, Sections 2, 3, 5 and 6 show a calibrated structure: mandatory restoration of Shariat in core personal matters, optional extension to testamentary matters, and the clearing away of the colonial statutory scaffolding that had sustained custom.
Judicial Treatment of Custom After 1937
After 1937 the courts had to police the boundary between abrogated and surviving custom. The governing approach is that custom is abolished only in the precise matters listed in Section 2; outside that list — for wills and adoption absent a Section 3 declaration, and for agricultural land in non-amended States — custom continues to be a question of fact, provable on the Abdul Hussein Khan standard. The pre-1937 jurisprudence on converts, exemplified by Mitar Sen Singh v. Maqbul Hasan Khan, retains relevance for transactions and successions that opened before the Act, since the Act is generally prospective and does not reopen vested rights settled under the earlier customary regime.
The courts have also been astute to confine custom strictly. A party seeking to rely on a surviving custom — for example, to claim a Cutchi Memon's full testamentary freedom — must plead and prove the custom with particularity; vague assertions of communal practice will not do. Equally, once the 1937 Act applies, a litigant cannot resurrect an abrogated custom in a Section 2 matter merely by leading evidence of past usage: the statute has displaced it. The post-Act position is therefore best summarised as custom abolished where the Act speaks, custom surviving (and provable) where the Act is silent.
A recurring examination trap lies in the temporal operation of the Act. Because the 1937 Act is prospective and does not disturb rights that vested before it came into force, a succession that opened before the Act — say, on a death in the 1920s — is still adjudicated by the customary law then governing the parties, even if the dispute is litigated decades later. Conversely, a death after the Act in a Section 2 matter is governed by Shariat irrespective of any contrary custom the family may historically have followed. The careful student therefore always fixes two things before answering: which matter is in issue (and whether it falls within Section 2's closed list), and when the relevant right accrued.
Custom, Constitutional Values and the Reform Trajectory
The 1937 Act sits within a longer reform trajectory in which both custom and uncodified personal law have been measured against constitutional values, especially gender justice under Articles 14 and 15. Just as the Act displaced custom to restore Quranic shares to Muslim women, later jurisprudence has scrutinised aspects of Muslim personal law itself. The Supreme Court's invalidation of instantaneous triple talaq in Shayara Bano v. Union of India (2017) is the most prominent modern instance of judicial reform of Muslim personal law, though it concerned a practice within Shariat rather than a custom abrogated by the 1937 Act.
For the student, the doctrinal takeaway is precise. Custom was historically a powerful, court-enforced source of Muslim law in India, dominant for converted and agriculturist communities; the 1937 Act deliberately demoted it, making Shariat the rule of decision "notwithstanding any custom or usage to the contrary" in the enumerated matters, while leaving wills, adoption (absent declaration) and agricultural land (absent State amendment) as residual fields where custom may still govern. The persistence of these survivals — and the constitutional debate over a Uniform Civil Code — keeps the relationship between custom and Muslim personal law a live question. See also our overview in the introduction to customary law and the discussion of tribal customary laws and constitutional recognition.
Frequently asked questions
Is custom a primary source of Muslim law?
No. In classical Muslim jurisprudence the primary sources are the Quran, Sunna, Ijma and Qiyas. Custom (urf or ta'amul) is at most a subsidiary aid where the primary sources are silent, and it can never override an express text of the Quran. Its prominence in India was a product of British-Indian courts enforcing the proven usages of converted and agriculturist communities, not of classical doctrine.
Which communities were governed by custom rather than Shariat before 1937?
Most notably the Khojas and Cutchi Memons of the Bombay Presidency, who followed Hindu-based rules of intestate succession (sons excluding daughters, limited widow's estate) and had a customary power to will away their entire property. Punjabi and other agriculturist Muslim tribes also followed tribal custom excluding daughters from ancestral and agricultural land. Converts generally retained their pre-conversion customary law, as recognised in Mitar Sen Singh v. Maqbul Hasan Khan (1930).
What did Section 2 of the Shariat Act 1937 do to custom?
Section 2 made Muslim Personal Law (Shariat) the rule of decision "notwithstanding any custom or usage to the contrary" in a closed list of matters — intestate succession, special property of females, marriage, dissolution of marriage, maintenance, dower, guardianship, gifts, trusts and wakfs — except questions relating to agricultural land. It thereby abrogated the contrary customs in those matters, restoring Quranic shares to Muslim women.
Why are wills and adoption treated differently under the Act?
Section 2 deliberately omitted wills, legacies and adoption from its mandatory list. These are covered only by an optional declaration under Section 3, which a competent adult Muslim may make to extend Shariat to them. Absent such a declaration, the old custom governing wills and adoption survives — so a Cutchi Memon who makes no declaration may still bequeath his whole estate under custom, contrary to the Hanafi one-third rule.
Does custom still govern agricultural land for Muslims?
It can. Section 2 expressly excepts "questions relating to agricultural land," so in States that made no contrary provision, succession to agricultural holdings continued under local tenancy law or tribal custom. Some States closed this gap — for example the Tamil Nadu Amendment Act, 1949 extended Shariat to agricultural land (and wills). Where no such amendment operates, custom over agricultural land survives, which is a frequently tested exception.
How is a custom proved in Muslim law cases?
Custom is a question of fact and must be established by clear and satisfactory evidence of a uniform, continuous and certain usage, as the Privy Council held in Abdul Hussein Khan v. Bibi Sona Dero (1917) — without applying the rigorous technical rules of English law. Following Hurpurshad v. Sheo Dayal (1876), the custom must also be ancient, certain and reasonable, and not immoral or opposed to public policy. Village records such as a wajib-ul-arz raise a rebuttable presumption in support of the recorded custom.