Describe the sources of Muslim Law in detail.
Category : Family Law – II
Muslim Law in India means, “that portion of Islamic Civil Law which is applied to Muslims as a Personal Law. It consists of the injunctions of Quran of the traditions introduced by practice of the Prophet of the common opinion of the jurists of the analogical deductions of these three Qiyas. Muslim mean who believes in Islam and Islam means, “submission to the will of God.” A person born as Muslim continues to be a Muslim until he renounces Islam after attaining majority. Any person who professes the Mohemadan religion is Muslim that he acknowledges that, there is one God and the Mohamed is his prophet.
“Queen Empress v/s Ramzan and Abraham v/s Abraham: It was held that a person may be a Muslim by birth or by conversion. If one the parents of child are Muslim the child is deemed as Muslim. If Parents turned to some other religion the child is Mohemadan.
The following are the sources of Muslim Law:-
- QURAN : The Quran is the primary source of Muslim Law in point of time as well as in importance. Quran is the first source of Muslim Law. The Islamic religion and Islamic society owes its birth to the word of Quran. It is the paramount source of Muslim Law in point of Important because it contains the very words of God and it is the foundation upon which the very structure of Islam rests. Quran regulates individual, social, secular and spiritual life of Muslims. It contains the very words of God as communicated to Prophet Mohammad through angel Gabriel. The Quran has now been codified. Quran is devided into 114 chapter and 6666 Ayats.
- Sunnat or Ahadis: Sunnat has three classes :
- Sunnat-ul-fail: This is being done by Prophet himself.
- Sunnat-ul-qual: Which Prophet enjoyed by words.
III. Sunnat-ul-tuqrir: Things done in his presence without his disapproval.
Ahadis has also three classes:
- Ahadis-i-muturatir: Traditions are of public & Universal property & held as absolutely authentic.
- Ahadis-i-mashorora: Though known to a majority of people do not possess the character of universal propriety.
III. Ahadis-e wahid: which depend on isolated individuals?
When Quran is silent on any one of the subject and then that problem is solved by Ahadis and Sunnat. But while giving the solution to a problem it must be kept in mind that solution is not adverse to the basics of Quran. Thus such type of acts which the Prophet himself did or supported it, they came to be known as Adades and Sumat.
- IJMAA:- It is third important source of Muslim Law. The origin of IJMAA although Quran, Sunnat and Ahades had developed as the source of Muslim Law. It takes place when new problem stated arising with the development of society which were not possible to be solved by Quran. The principle of IJMAA based upon the text, “That God will not allow His people to agree on an error and whatever Muslims hold to be good is good before God.”
Kinds of IJMAA: -i) IJMAA of Jurists. ii) IJMAA of companions of the Prophet:- It is universally accepted. iii) IJMAA of People:- This kind of IJMAA has not much importance.
- The Qiyas (Analogical deduction):-It is originated source of Muslim Law, when any problem or question could not be solved by Quran, Sunnat, Ahades and Ijmaa. Qiyas in the light of Holy Quran which says that spend out of your good things because as you dislike taking back bad things others also may dislike.” In such situations the problem are being solved by comparative study of the above three sources.
- i)It is the last primary source.
- ii)Qiyas means reasoning by analogy.
iii) Qiyas does not purport to create new law but merely to apply old established principles to the new circumstances.
- iv)Hanbals shias & shafis do not accept Qiyas.
While solving problem through Qiyas it has to be considered that such things shall not be adverse to basics of Quran, sunnat, ahades and Ijmma.
- Urf or Custom: Custom never recognised as source of Muslim Law but sometimes referred as supplementing the law. Muslim Law includes many rules of pre-Islamic customary law, which have been embodied in it by express or implied recognition.
Requirements of a valid custom:- i) Custom must be territorial. ii) it must be existing from memorable time i.e. ancient. iii) It must be continuous and certain and invariable. iv) Custom should not oppose the public policies. V)Custom must not in contravention of Quran & IJMAA.
Smt. Bibi v/s Smt. Ramkali-1982: It was held that the customs of case and sub case acquire it to be proved for their validity that they are ancient, definite and earnable.
- Judicial Decisions:- These includes the decisions of Privy Council, the Supreme Court & High Courts of India, Judges explain what law is. These decisions are regarded as precedents for future cases. It becomes a source of Law.Hammeera Bibee v/s Zubaida Bibi: In India interest on loan is not allowed, but in this case the Privy Council allowed interest on the amount unpaid dower.
- Legislation:– In India Muslims are also governed by various legislation passed either by Parliament or by state legislature e.g.:-i) Guardian & Wards Act, 1890. ii) The Shariat Act, 1937. iii) Muslim Woman Protection of Right & Divorce Act, 1986. iv) The Mussalman Waqf Act, 1923. V) The Dissolution of Muslim Marriage Act, 1939.
Justice, Equity & Good Conscience: It is also regarded as one of source.
- a)Abu Hanifa: Expounded principle that rule of law based on analogy. These principles are “Isihsan” or Jruistic equity. b) Maliki:- Ibn-Anasproposes the use of Istiah e. seeking peace or amending & he followed it up by distinct method of juristic interpretation known as Istidal. However the main sources are Quran, Ahadis and Ijmaa.
- Discuss the various Schools of Muslim Law and point out their differences.
INTRODUCTION:-There are two main schools of Muslim Law the Sunni and the Shia. In India the majority of the Muslims are of Sunnis and hence it is presumed that the parties to a suit are Sunnis unless proved otherwise.
Shia law has been applied to Shia since the decision of the Privy Council in Rajah Deedar Hossein v/s Ranee Zuhor-oon-Nissa-1841. The division between the Sunnis and the Shias originated in the dispute concerning the question of Imamat or the spiritual Leadership of Islam.
Schools of Muslim Law:- After the death of Prophet the question arose who would be his successor. On this point the Muslim community was divided into two factions. The Shias advocatd that the office should go by the right of succession and thus Imamat i.e. headship should be confined to Prophet’s own family as his prophet. Whereas on the other hand the Sunnis advocated the principle of election by the Jamat and chose out their Imam by means of votes.
The majority of Muslims suggested that there should be election to choose successor of the Prophet. This group was led by the youngest wife of the Prophet. Thus the difference between the two lies in political events.
1 Sunni 2 Shia 3 Motazila
1.1 Hanafis 2.1 Ithna-Asharia or Imamia (2.1.1) Akhbari (2.1.2) Usuli
1.2 Malikis 2.2 Ismailiyas—(2.2.1) Khoja (2.2.2) Bohra
1.3 Shafeis 2.3 Zaidais
(i) Hanafi: This school is the most famous school of Sunni Law. Abu Hanifa was the founder of this school, he recognised Qiyas, urf, Ijma.
(ii) Maliki: It was founded by Malik, leaned more upon traditions. He was not different from Hanifa’s.
(iii) Shafei: Imam Shafie was the founder of this school. He was the founder of doctrine of Qiyas based upon Quran, Ahadis or Ijma.
(iv) Hanbali:– It was founded by Ibn Hanbal who stressed on traditions and allowed very narrow margin to the doctrine of analogy.
SHIA SUB SCHOOLS: –
- I)Athana Asharia School:- This school is very orthodox. The supporter of this school is the followers of twelve Imams and regards them.
- II)Ismailia School: – The sixth Imam Jafar-us-Sadiq had two sons 1. Ismail and 2.Musa-ul-kazim. The followers of this school called Ismailas.
III) Zaidia School:-Zaid who was the son of fourth Imam, Imam Ali ashgar was the founder of this school.
CONCLUSION:- Where it is not alleged not shown that the parties are shias, there is a presumption that they are sunnies, to which sect the great majority of mohammedans of this country belong. Shia law is also the law of the land. In india shia law has been applied to shia since the decision of the privy council.