Wills and legacies are dealt with in Section 3. As regards questions relating to pre-emption, the old law is left untouched by the Act. By mentioning ila and Zihar amongst the modes of dissolution of marriage, the Act apparently seeks revive these modes of divorce. Another important point to note is that charitable and religious institutions are excluded from the scope of the Act.
The Calcutta High Court has held that, as regards marriage and divorce, the Shariat Act requires the Courts to apply Muslim law, only if both the parties are Muslims. If, therefore, only one of them is a Muslim, the Act will not apply. (Noor Jahan v. E. Tiscenko, A.I.R. 1941 Cal. 582)
The Bombay High Court has held that testamentary trusts and testamentary wakfs are covered by S. 2 of the Act, and therefore in matters involving such trusts or wakfs, S. 3 of the Act (below) is not applicable. (Ashrafalli v. Mohamedalli, A.I.R. 1947 Bom., 122)
Under S. 3 of the Act, any person who satisfies the prescribed authority:
(a) That he is a Muslim, and
(b) That he is competent to contract within the meaning of section 11 of the Indian Contract Act, 1872, and
(c) That he is a Resident of India:
Can, by declaration in the prescribed form filed before the prescribed authority, declare that he desires to obtain the benefit of this Act, and thereafter, the provisions of S. 2 apply to the declarant and all his minor children and their descendants, as if, in addition to the matters enumerated above, adoption wills and legacies were also specified.
Provision is also made for an appeal if the prescribed authority refuses to accept such a declaration.
It will be seen that S. 3 refers to adoption, wills and legacies. The provisions of this section may be called persuasive, unlike the provisions of S. 2, which are obviously coercive. Whereas the purpose of S. 2 is to abrogate customs and usages, insofar as these have displaced the rules of Muhammadan law, Section 3 does not invalidate the customs relating to adoptions, wills and legacies. It only provides an option to any person affected by these customs to abandon them and adopt Muhammadan law.
S. 4 of the Act then empowers the State Governments to make rules to carry out the purpose of the Act, and S. 6 repeals certain Acts, to the extent that they permit inconsistent customs. (S. 5 of the Act was repealed in 1939.)