The general rule for the applicability of Muslim personal law is that where both the parties are Muslims and the case involves any of the matters enumerated in Section 2 of the Shariat Act; the case must be decided by applying Muslim personal law. But there are exceptional cases in which even if both the parties are Muslims and the case involves one of the matters specified in the Shariat Act yet, Muslim law is not applied.
For example, if the Muslim husband and wife have contracted their marriage under the Special Marriage Act, 1954, instead of contracting it according to Muslim personal law, the Muslim law of marriage does not apply although both the parties are Muslims.
In a marriage contracted under the Special Marriage Act, 1954, the mutual rights of inheritance of the husband and wife are governed by the Indian Succession Act, 1925, and not according to the Muslim law of inheritance.
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Similarly, in determining the legitimacy of children the courts in India apply the provisions of Section 112 of the Indian Evidence Act rather than the Muslim law of legitimacy. Further, according to the Child Marriages Restraint Act. 1929, marriage of a boy under the age of 21 years and of girl under the age of 18 years is a “child-marriage” and has been regarded as a punishable offence.
But under Muslim law the marriage is not a child-marriage if boy and girl have attained the age of puberty (15 years). The Child Marriages Restraint Act is applicable also to Muslims. Again, according to Muslim law of maintenance a divorced wife is entitled to be maintained by her husband only during the period of Iddat i.e., a period of three months after divorce.
But Section 125 of the Criminal Procedure Code. 1973, provides that such a divorced wife is entitled to be maintained by her husband as along as she remains unmarried. Criminal Procedure Code, 1973 is applicable equally to the Muslims in India.
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Thus, we find that in the above-mentioned cases although both the parties are Muslims and the suits involve one of the matters expressly enumerated in the Shariat Act yet the provisions of Muslim law are not applicable.