In applying the rules of Muslim law, policy of the courts is that where the parties to a suit differ in religion or do not belong to the same school of Muhammadan law the law of the defendant is applied. It means that if one party to a suit is a Muslim but the other is a non-Muslim, Muslim law is applied if the defendant is a Muslim.
This may amount to subjecting a non-Muslim to the rules of Muslim law. This is however, only a general policy and in some cases the courts have refused to apply Muslim law where both the parties are non-Muslims. But in certain cases the rules of Muslim law is undoubtedly applied to a non-Muslim. A married woman who renounces Islam and converts to any other religion ceases to be a Muslim.
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But, under Section 4 of the Dissolution of Muslim Marriages Act, 1939, such a woman (even after conversion to another religion) may obtain a decree for the dissolution of her marriage on any of the grounds mentioned in Section 2 of this Act.
In this case we find that rules of Muslim law are being invoked by a non-Muslim wife. Another example of the application of Muslim law to a non-Muslim is the availability of the right of pre-emption to a non-Muslim.
The right of pre-emption’ is available, by custom, to those Hindus who are domiciled in Bihar, Sylhet and certain parts of Gujarat. Moreover, in certain parts of India, the law of pre-emption is regulated by special Acts which apply to Muslims as well as to non-Muslims of these areas.
“It, thus, appears that in some cases the courts may have to apply Muslim law (though not necessarily under the obligation imposed on them in that behalf by the Shariat Act) even to case only one party to which is a Muslim”.