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MOHD. AADIL KHAN MOYAL B.A.LLB. (HONS.

IJTIHAD
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INDEX:

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INTRODUCTION
The literal meaning of ijtihad is to strive with ones total ability and efforts to reach a goal which in this case is to endeavour to deduce the divine laws of sharia from the reliable sources and proofs. To reach the stage of Ijtihad therefore is the capacity to give an expert opinion in the matter of religion. It is wajib (obligatory) for Muslims to study everything which is necessary for the physical and spiritual well being and development of the Muslim community. The waajibaat is !nown as wajib e kifaii. This means that the obligation is on the community as a whole" but when an individual or a group of people endeavour to devote themselves to the re#uired sciences$ and then the obligation is lifted from the rest of the community. This applies to all fields of !nowledge. %ne of the most important sciences where experts are needed is the science of religion sharia. It is wajib for a group of people to devote themselves to the science of religion so as to provide guidance for the Muslim community. The ijtihad that is forbidden (haram) is that where a mujtahid gives a rule by his own personal judgement$ that is$ one based neither on the &uran nor on the 'unnah.

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There are many pre re#uisites of ijtihad(

)earning the *rabic language to the extent that is re#uired. +nowledge of the collo#uialism of *rabic and the language of the people to whom the &uran and the sunna was addressed to. ,ommentary (tafseer) of the &uran. )ogic (manti#). -very branch of learning in which reasoning is used needs logic (understanding). The study of *hadith. +nowledge of the transmitters of ahadith (rijal)$ to the extent where one is able to discern the validity of the ahadith. The study of the principles of fi#h (jurisprudence). Thorough research and study of the views of others. .eview of the verdicts and narrations of the *hlus 'unnah. 'triving to ma!e use of all of ones abilities in deducing the rules.

%nce these pre re#uisites have been met$ then to be able to derive the laws of 'haria a mujtahid uses the following four sources( /) The &uran( This is no doubt the first source for the laws and regulations of Islam. *pproximately one thirteenth of the &uran pertains to laws. 0) The 'unnah ( This means the words$ actions and assertions of the Masumeen. The study of the narrators is an important part in asserting the validity of the hadith. 1) Ijmaa (,onsensus) ( ,onsensus means the general agreement of the ulema of a particular period on a particular issue. ,onsensus in its own right is not binding$ and must be supported by the 'unnah.
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2owever$ the *hlus 'unnah believes that complete agreement of all the Muslims of one period on an issue is a divine revelation and it cannot be wrong. 3)*#l (.eason) ( 4hat is meant here is that sometimes a law of sharia is determined by the proof of reason

What is Taqleed?
Ta#leed means to comply with or subscribe to the edicts of a jurist regarding practical affairs of religion. These practical affairs are collectively referred to as 56uru e 7een5 or fundamentals of religion. 8ecessity of Ta#leed in Islamic practical laws Ta#leed becomes necessary largely due to the average Muslim5s inability to comprehend and derive Islamic laws all by himself. 9iven man5s hectic lifestyle$ it would ta!e a better part of his lifetime to study the &uran and traditions in order to formulate these laws and statutes. Ta#leed$ therefore$ affords the Muslim a more viable and logical option. 2owever$ one thing that must be borne in mind is that this compliance with (the jurist) is for practical tenets (6uru e 7een) only and not for one5s beliefs.

Ta#leed maybe broadly classified under four heads vi:.( (i) The unlearned following another unlearned. (ii) The learned following the unlearned. (iii) The learned following another learned. (iv) The unlearned following a learned.

The latter$ i.e. the unlearned conforming with the learned alone appeals to man5s rationale. Ta#leed$ as is observed from our lives$ is not restricted to Islamic practical laws alone. 4e visit doctors and comply with their advice and prescriptions. 4e consult lawyers and conform to their recommendations and

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strategies. It is inherent in man5s nature to resort to experts in fields wherein he lac!s expertise. *nd practical matters of the faith are no different. 4e therefore comply with an expert in the field of practical religious affairs too. This expert$ or to be more precise$ jurist$ directs us in religious fundamentals by issuing edicts and decrees. 2e is referred to as a 5Mujtahid5 and his edicts and decrees are collectively called as 5*h!aam5.

* Muslim is therefore faced with two options. 2e could either endeavour to become a jurisprudent (Mujtahid) or alternatively$ he could subscribe to a Mujtahid5s verdicts. * person who underta!es to be a Mujtahid must however$ excel in certain branches of !nowledge before he finally goes on to become a Mujtahid. The aspirant for this position should have considerable command over *rabic grammar and literature$ theology$ logic$ exegesis$ the !nowledge of narrators$ traditions$ etc.. Most of us (at some time or the other) have chanced upon the boo! compiled by a Mujtahid. This boo! commonly referred to as 5Tau:eehul Masail5$ is a compilation of the Mujtahid5s verdicts and decrees. These verdicts are termed as 56atwa5. The 5Tau:ihul Masail5 is a comprehensive compendium that guises years of painsta!ing research and toil. ,learly then$ becoming a Mujtahid is a no mean achievement. *s mentioned earlier$ Ta#leed$ is not permitted in the principles of religion$ i.e. 7ivine ;nity and <ustice$ =rophethood$ Imamate and the .esurrection. These five tenets of Islam are collectively !nown as >?e @Au*. or the principles of religion. These shall be explained in detail under the title$ 5.oots of .eligion.5 * Muslim is expected to subscribe to these beliefs not by referring to a Mujtahid$ but by applying his faculties of reasoning and intellect. Through his rationale and deduction alone he should testify to the belief in one 9od$ 2is =rophets$ the Imams (a.s.) and the 7ay of <udgement. 4e shall now learn about different aspects of the Mujtahid in a little more detail vi:. his fatwas$ the criteria and conditions necessary for the Mujtahid$ his fields of study$ etc. This will provide the reader with some invaluable insight as to who is a Mujtahid.

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Who is a Mujtahid?
.egarding the term 5Mujtahid5$ it finds its origin in the word 'Ijtahada' which means to strive$ to endeavour or to struggle. * Mujtahid is one who endeavours in the way of *llah to derive laws and decrees regarding the religious fundamentals. 2e endures all !inds of hardships and difficulties so as to be able to pronounce the 6atwa (verdict) in the light of &uran$ traditions of the infallibles (a.s.) and the principles of jurisprudence. 2istory bears witness to the fact that our Imams (a.s.) have encouraged such individuals who aspire to become Mujtahid.

C ite ia fo a Mujtahid
;narguably$ the most crucial criterion for a Mujtahid is !nowledge. This !nowledge must be comprehensive$ ranging over different fields. * Mujtahid is expected to master the following sciences( *rabic so that he can comprehend the meaning of &uran and traditions of 2oly =rophet ('*4') and 2oly Imams (a.s.) in order to infer and pronounce the fatwas.

-xegesis of &uran so that he can perceive the commands of *llah. To comprehend the traditions with respect to its context and condition this enables him to discern between bona fide and fabricated traditions. 2e should be well versed with )ogic and Theology as the principles of jurisprudence (;sool e 6i#h) are based on them.

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2e should !now branches of Mathematics li!e algebra$ geometry$ etc. so that he is able to determine the truth in matters of inheritance$ #iblah$ :a!at etc.. 2e should possess the !nowledge of the judgments of previous jurists so that he is aware of all the precedents. 2e must be able to reply all the reasonable #ueries of the people. In additions to above$ there are some other prere#uisites that a Mujtahid has to fulfill(

2e should be an adult (i.e. more than /B years of age). 2e should be sane. 2e should be a male. 2e should not be illegitimate. 2e should be just (i.e. should refrain from sins$ big and small in the open). 2e should be alive. 2e should be a 'hia Ithna *shari.

*part from the above$ he must possess certain other traits such as patience$ piety$ forbearance. etc.. 2owever as mentioned above$ the most important feature of an aspiring Mujtahid is !nowledge. *nd as per the principles of jurisprudence as well as traditions$ Ta#leed should be done of the most !nowledgeable (*alam) of the Mujahedeen. This gives us some insight about the importance Islam attaches to !nowledge. Imam <afer *s 'adi# (*.'.) is reported to have said(C....If there is anyone among the fu#aha who is in control over his own self$ protects his religion$ suppresses his evil desires$ and is obedient to the commands of his Master (*llah)$ then the people should follow him.D * Mujtahid therefore$ must also be a free man of legitimate birth who is past the age of puberty$ sane$ a 'hia Ithna asheri and adil (not only just but also one who obeys all the waajibaats and !eeps away from the muharramaat).
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C...But as to those amongst the fuqaha, who safeguards his soul, takes care of his deen, opposes his desires, and o e!s the commands of his "ord, then it is for the people to do his taqleed..# *imma (*.'.) *ccording to common sense$ anyone who has not attained the level of !nowledge that will enable himEher to deduce religious laws for himEherself must turn to a person who has specialised in this field. <ust as we voluntarily follow the advice of a doctor when we need medical attention$ and firmly believe that the advice will cure our illness and protect us from infection" the same way we follow the guidance of a Mujtahid who !nows the laws of sharia so that he may lead us correctly and save us from an erroneous way. It is this following which is termed ta#leed. The follower of a Mujtahid is !nown as a Mu#allid.

Ta#leed therefore is not imitation as an animal would do but a conscious decision by an individual to accept the opinions of a learned scholar. It is the mujtahid who ta!es the responsibility of expressing his opinion and not the followers. 2ow does an ordinary believer !now which mujtahid heEshe should followF There are three recognised ways(
i)

Gy hisEher own personal !nowledge and experience (assuming that one is oneself an aalim and able to identify a mujtahid). Gy the testimony of 0 aadil$ !nowledgeable persons who are religiously aware (people who are able to !now anothers !nowledge). Gy a degree of popularity which leaves no doubt as to a person being a mujtahid.

ii)

iii)

Most ulema maintain that we must follow a mujtahid who is H*lam the most learned in deriving the laws of sharia from the sources discussed. Marhum *yatullah 'yed *bul &asim *l +hui (*...) and *yatullah 'yed *li *l 2usayni 'eestani both confirm in their risalah that the #ualification of being H*lam is essential for a mujtahid whose ta#leed is to be done.

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The H*lam may be recognised in any of the 1 ways in which a mujtahid is recognised. It follows$ therefore that to recognise an *lam mujtahid$ one has to be fairly aware of the principles of 6i#h and its applications. This is why we are told to depend on *hlul +hibra those who are well versed and experienced. *hlul +hibra is a term used for groups of mujtahideen. 'ometimes$ it is difficult for the ;lema to distinguish whom among all the mujtahideen is the most learned$ and as a result a mu#allid may have to choose a Mujtahid from several ones.

Wh! is the e a diffe e"#e of o$i"io" a%o"&st diffe e"t %ujtahidee" o" a $a ti#ula subje#t?
6irstly$ it is important to !now that the differences in opinion are never contradictory. i.e. it is impossible to find a mujtahid who will say that one action is wajib and another saying it is haram. The existence of differences of opinions (not difference in principles) is not a sign of a defect in the #uest of !nowledge" it is rather a sign of progression in !nowledge towards perfection. 7ifferences of opinion are found in all sciences$ not just in fi#h$ ijtihad means to exert maximum effort to carry a heavy object. This meaning is heavily represented in its technical definition( to exert maximum effort to arrive to a conclusion in a matter related to the 'hariah. ,ompetent scholars carry out ijtihad only in the absence of no clear conclusion$ either due to the lac! of very clear textual evidence or no definite interpretation of a text. /. ,oncerning the latter$ both the lexical aspect and interpretation of early scholars comprising the ,ompanions and the immediate generations succeeding them$ until the time of the four imams are the two prime factors in evaluating whether the text is open to a different interpretation or not. If the early scholars unanimously agree on an interpretation$ it is not permissible to go against this
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as it would contravene well established texts forbidding this$ as well as common sense. 6or us to adopt a new interpretation would mean that all of the aforementioned scholars did not understand the religion and strayed from the truth. This implication further suggests that major Islamic fundamentals pertaining to tawhid$ prayer$ fasting etc. may be altered or obliterated as we may Hdiscover that the true interpretation is not what scholars throughout history unanimously used to believe and practiceI Is it conceivable that *llah commands us in the &uran to refer to them while 2e !nows that all of them will jointly stray from the truthF *llah says in the &uran$ H*nd whoever contradicts and opposes the Messenger after the right path has been shown clearly to him$ and follows a path other than the believers$ 4e shall !eep him in the path he has chosen$ and burn him in 2ell what an evil destination.

0. This verse clearly proves that going against the path of the believers is a condemned practice. The =rophet$ may *llah praise and send peace and blessings upon him$ also said$ H*llah safeguarded this nation JummahK from gathering together upon falsehood. 1. 4e should also remind ourselves of the numerous evidences that command Muslims to side with the greater body of Muslims$ not only physically but morally$ ideologically and spiritually. This serves as the philosophical meaning and bac!ground to legal consensus JijmaK.

)i!ewise$ if the overwhelming majority of scholars agree on something then it is also very unli!ely for them to err. *s such$ many scholars in effect e#uate the case of an overwhelming majority with a total consensus. 6ollowing consensus or an overwhelming majority is the surest safeguard against distortion$ innovation or novel interpretations that may lead one astray from the straight path of *llah. The emphasis given by *llah to remain with the body of Muslims JjamaahK is so great that some scholars regard this to be a fundamental tenet within Islam.

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Co"se"sus 's( te)tual e'ide"#e


To avoid any misconception it is important to explain the relationship of scriptural text to consensus. The ruling of any issue agreed by consensus or an overwhelming majority will without fail be supported by textual evidence. The absence of a corroborative text is not only impossible but has never occurred. It is true that conclusions may be derived through a complex process but this should not give the impression that such an agreement is not bac!ed by textual proof. Therefore$ to rely on consensus or the overwhelming majority in effect means to rely on textual proof as well as consensus as a stand alone proof. ;nli!e consensus$ a text may be subject to different interpretations so #uoting textual evidence may not be sufficient to convince or remove possible confusion. 6urthermore$ one who challenges your opinion may counter your textual proof by another one or may even counter your interpretation of the text by his. ,onsensus or an overwhelming majority cannot be countered by a second consensus or another interpretation. This explains the trend some jurists ta!e by citing consensus before textual evidence or preferring consensus to scriptural text. 'cholars and judges nevertheless often cite textual proofs in their verdicts and sermons to ma!e sure the masses remain attached to the sacred text.

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Ijtihad is only possible when the difference on an issue is more evident$ in that the opinions are voiced and argued by a considerable number of scholars. This means that scholars of later generations can research and prefer an existing opinion not invent a new one. 6ailure to adhere to this may lead to chaos and again implies that the truth was completely missing to the earlier generations. This of course causes no difficulty for a new matter that was not existent in the past" scholars will perform ijtihad and either agree on a ruling or differ leading to valid interpretations and positions.

*ow to deal with %atte s of Ijtihad? 4e often find ourselves perplexed when faced with an issue which seems to be contentious. *lthough the issue may seem confusing to many$ the approach to a solution is straightforward" if one contracts an illness and is prescribed a course of medicine by a doctor that is deemed harmful by another doctor$ would one remain insistent upon consuming that specific medicine and simply dismiss the matter as being one of disagreement or adopt what seems to be the easiest optionF 6or sure$ a person would exert his utmost in research and consultation before deciding to ta!e the medicine or not. 4e deem health and financial issues to be of paramount importance$ but unfortunately this is not replicated in our religious affairs$ especially when they can be more perilous as anything that might affect an individuals faith and religion could constitute a measure towards 2ell.

It is stated in the &uran$ H*nd they (i.e.$ the <ews) say$ $The %ire shall not touch us ut for a few num ered da!s.# 'ay (% Muhammad) to them$ C&ave !ou taken a covenant from 'llah, for 'llah will not reak &is (ovenant) *r is it that !ou sa! of 'llah what !ou know not)#.3 * simple study of this verse informs us that it is incorrect to assume that pursuing a Hdeceptively easy route in this life is acceptable by attempting to provide the excuse that *llah is the
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%ft 6orgiving. 'uch assumptions violate Islamic principles in that they attempt to disparage the notion of *llah testing man!ind.

The correct approach to adhere to when dealing with an issue of ijtihad is to realise there are two matters at hand( the first is the issue itself and the second concerns those who differ about the issue. There is a set methodology for interacting with both. The first matter discerns how we resolve issues pertaining to ijtihad. 2ere$ we apply the verse$ H% you who believeI %bey *llah and obey the Messenger$ and those in authority amongst you. *nd if you differ in anything amongst yourselves$ refer it to *llah and 2is Messenger$ if you believe in *llah and in the )ast 7ay. That is better and more suitable for a final determination.B *llah orders us to refer to 2im and 2is Messenger instead of opting for the easiest option of following our desires. In fact$ *llah strongly condemns those who follow their desires in many verses such as$ H&ave !ou seen him who has taken as his deit! his own desire) +ould !ou then e a disposer of his affairs or a watcher over him)L 'cholars mention that the fre#uent alignment of ones actions with ones desires could well be an indication of intentionally following desire$ #uite the opposite to the re#uired submission of ones will to *llahs$ may 2e be exaltedI The second matter informs us how to interact with those who hold a different view that is also valid within the realm of ijtihad. *ctions and opinions and their practitioners are respected and tolerated so long as the dispute is convincing and a result of valid ijtihad. %pinions are only to be acted upon with the intention to follow the truth. Thus$ when an issue is confirmed to be under the realm of ijtihad it does not permit an individual to opt for an opinion in accordance to ones whims and desires" this behaviour would lie outside the immense span of Islamic tolerance and would be censured. Mention of guidelines for dealing with such behaviour is beyond the scope of this discourse. ' question frequentl! posed is, wh! did 'llah allow such disputes to occur) %ur )ord declared this life to be a test for man!ind" we read in the &uran$ HIf your )ord had so willed$ 2e could have made man!ind one people( but they will not cease to dispute.M )egal disputes offer at minimal three types of tests( the first
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is to assess whether we will exert all our efforts in unearthing the truth and upholding it$ regardless of controversy or pressure$ *llah says in the &uran$ H*nd surely$ 4e shall try you till 4e test those who strive hard (for *llahs cause) and the patient ones$ and 4e shall test your facts (i.e.$ the one who is a liar and the one who is truthful).N The second reflects a reality of this life$ it underlines the fact that every human being errs$ even if he is a scholar. This test is crucial to assess whether we will follow scholars who are in error or see! the pleasure of *llah through the abandonment of our desires. The third test gauges whether we continue to remain steadfast and adhere to Islam in its entirety despite the presence and continuation of disputes. 'o$ issues subject to legal reasoning JijtihadK are identifiable by a number of factors( the dispute typically embodies strong arguments for and against" the number of scholars holding the different views is considerable throughout Islamic history" they are normally highly distinguished scholars representing by far the four major legal schools of thought" and are often based on compelling textual evidences. %ne of the crucial topics for discussion in the theory of Islamic )aw is the right to ijtihad$ loosely translated as Ointerpretation,, or more correctl!, ,working with the sources of dogma,. %f the four standard bases on which Islamic )aw is built$ threethe +oran$ the 'unna and the ijma5 are easy to identify. Gut the fourth has been identified by various terms with widely disparate meanings$ as #iyas$ raPy$ ijtihad and otherwise. In this disparity lies much of the dynamic of the debate in Islamic )aw. 9eneral opinion both among Muslim historians of )aw and 4estern scholars has been that the right to use an independent judgment on the sources of dogma was cut off in 'unni Islam sometime in the tenth century$ or perhaps one or two hundred years later. J/K This is covered in the term$ Othe closing of the door of ijtihadO. .ecent scholarship$ in particular by 4ael 2alla#$ but also by 4. Montgomery 4att$ has indicated that this is not true. J0K In fact$ the door was never fully closed$ the expression was only used as a majority view among Islamic scholars. There was also always a minority that claimed that the closing of the door is wrong$ and a properly #ualified scholar must have the right to perform ijtihad$ at all times$ not only up until the four schools of law were defined.
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The importance of this cannot be sufficiently emphasi:ed. It is clearly shown by the number of theorists who from different positions have demanded the OreopeningO over the last /BQ years. It has clearly been a standard point on the agenda of anyone wishing for a reform of Islamic thought in our age$ although some of the more conse#uent moderni:ers have rejected ijtihad as being to restrictive for a complete renewal of Islamic thin!ing re#uired for the modern period. J1KThe importance that ijtihad has in these modern debates$ stems from the possibility it may give to steer a new course for Islam and Islamic )aw$ a course that stays within the boundary of Islamic tradition$ but at the same time avoids the blindness of simply imitating earlier scholars$ without consideration of the changing conditions of society. In other words$ both for modernists and Islamists$ ijtihad is a prere#uisite for the survival of Islam in a modern world.

These views on ijtihad thus have a OutilitarianO aspect. They stem from the reali:ation that imitation$ ta#lid simply is no longer a viable option. Their major #uestion is$ of course$ li!e that posed by *bdullahi an 8a5im$ whether ijtihad allows enough room for reinterpretation for it to be useful for the insertion of Islamic )aw in a modern society. There is always the danger that if ijtihad in its traditional form is not sufficient for the needs re#uired$ it is broadened and changed into something rather looser than what 'uyuti and his age might recogni:e as ijtihad.

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+ TR+DITION ,OR I-TI*+D This point to the necessity for a further study of what is meant by ijtihad by the various authors and currents. It would also be useful to situate this discussion in a current that predates the modernistE-uropean inspired discussion$ to try to minimi:e the influences from outside the Islamic traditon itself. There is such a tradition that lends itself to such a study. %ne can trace a line of Islamic authors from the /Mth century down to Muhammad *bduh$ who put emphasis on this debate and claim that the gate to ijtihad could not be closed. * starting point for this line may be suggested with 'hah 4ali *llah al 7ihlawi$ and it might include authors li!e Muhammad b. 5*li al 'haw!ani$ Muhammad Ibn 5*bd al 4ahhab$ *hmad b. Idris$ Muhammad b. 5*li al 'anusi and their students. *ll of these claimed the right to ijtihad$ and all wrote boo!s on this subject$ as did several major students of some of them. These authors share some characteristics" the most stri!ing of which is their lin! to the peripheries of Islam$ either by being from faraway lands li!e India or Remen$ or by building movements in socially marginal desert areas li!e ,yrenaica and 8ajd. They also had a common point of contact in Mecca and the 2ija:$ and it can be easily demonstrated that they did belong to a common networ! of scholars with a 2ija:i Remeni centre.

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Gefore we posit that they did indeed form a joint tradition for ijtihad$ we must$ however$ demonstrate that their conceptions of ijtihad were similar. The mere fact that they did ma!e this claim$ and that they !new about each other and shared teachers$ and perhaps learned from each other$ can only be indications. Thus$ a study of the texts is re#uired$ and in particular a study of how these authors conceived of ijtihad$ how the various levels of freedom in interpretation was structured$ and exactly what !ind of ijtihad they claimed was possible and re#uired$ and which they claimed for themself. My own interest concerns one of the mentioned authors$ Muhammad b. 5*li al 'anusi. JBK My study of his writings of ijtihad is still only in its early stages$ and at this point I have only a general framewor! of the sorts of #uestions he included into the discussion of ijtihad. 4hat follows$ is thus mainly an overview that will have to be filled with real content as the study proceeds. It may however$ hopefully$ give an indication of what may follow.

.I./IO0R+1*2
4ebsites( S S S S S S www.mightylaws.in www.lawexpertsindia.com www.indian!anoon.org www.articles.metaassociates.com www.womenstudies.in www.lawyersupdate.co.in

Goo!s(
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S *!htar$ 'aleem. 'hah Gano <udgement in Islamic =erspective$ a 'ocio )egal 'tudy. 8ew 7elhi( +itab Ghavan$ /TT3.

S *wn$ =eter <. OIndian Islam( The 'hah Gano *ffair.O in <ohn 'tratton 2awley$ ed. 6undamentalism and 9ender. 8ew Ror! and %xford( %xford ;niversity =ress$ /TT3.

S Gaxamusa$ .amala M. * 2istoric =erspective on Muslim =ersonal )aw in India. Gombay( .esearch ;nit on 4omen5s 'tudies$ Uithaldas Uidya Uihar$ '87T 4omen5s ;niversity$ /TN3.

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