Subject –FAMILY LAW II

TOPIC – analyze the importance of custom/urf

as secondary source of muslim

Supervised By:Ms. Bandita Sengupta

NAME: Silpi Basu

ROLL NO.: (Admit card No.) – 102/LLBG/18028

(Class Roll.No.) –21

SEC- A

COURSE:BA,LL.B

SEM- IV

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 ACKNOWLEDGEMENT
With profound gratitude and sense of indebtedness I place on record my sincerest

thanks to Ms.Bandita Sengupta, Asst. Prof. of law, Indian Institute of

Legal Studies, for her invaluable guidance, sound advice and affectionate attitude

during the course of my studies.

I have no hesitation in saying that she molded raw clay into whatever I am

through her incessant efforts and keen interest shown throughout my academic

pursuit. It is due to her patient guidance that I have been able to complete the

task.

I would also thank the Indian institute of Legal Studies Library for the wealth of

information therein. I also express my regards to the Library staff for cooperating

and making available the books for this project research paper.

Finally, I thank my beloved parents for supporting me morally and guiding me

throughout the project work.

Date: 17.05.2019 SILPI BASU

NAME

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 Research methodology

Aims and objectives

The main aims and objectives of my project is to understand the gist of my
topic as analyze the importance of custom/URF as secondary source of Muslim .
The main aim is to know about the technical meaning and the objective is to
understand the techniques to know how it is emerged.

STATEMENT OF PROBLEM
We have many type of law and rule regulation regarding the source of
Muslim Law and its various methods but we are still in dark about the said topic
and we are unaware of the fact that what the basic terminology means.

Research methodology
The research methodology adopted for this project is doctrinal.

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 CONTENTS

CHAPTER NUMBER CHAPTER NAME PAGE NUMBER

1 INTRODUCTION 5-5

2 TYPES OF SOURCES 6-6

3 CUSTOM/URF ASA A 7-8

SOURCE OF LAW

4 DIFFERENT TYPES 9-10

OF CUSTOM

5 REQUISITES OF A 11-11
VALID CUSTOM

6 CONCLUSION 12-12

* REFERENCES 13-13

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 CHAPTER 1

INTRODUCTION

Various sources of Islamic law are used by Islamic jurisprudence to elucidate the
Sharia, the body of Islamic law. The primary sources, accepted universally by all
Muslims, are the Qur'an and Sunnah. The Qur'an is the holy scripture of Islam,
believed by Muslims to be the direct and unaltered word of Allah. The Sunnah
consists of the religious actions and quotations of the Islamic Prophet Muhammad
and narrated through his Companions and Shia Imams. However, some schools of
jurisprudence use different methods to judge the source's level of authenticity.

As Islamic regulations stated in the primary sources do not explicitly deal with
every conceivable eventuality, jurisprudence must refer to resources and authentic
documents to find the correct course of action. According to Sunni schools of law,
secondary sources of Islamic law are consensus among Muslims jurists, analogical
deduction, al-Ra'y; independent reasoning, benefit for the Community and Custom.
Hanafi school frequently relies on analogical deduction and independent reasoning,
and Maliki and Hanbali generally use the Hadith instead. Shafi'i school uses
Sunnah more than Hanafi and analogy more than two others. Among Shia, Usuli
school of Ja'fari jurisprudence uses four sources, which are Qur'an, Sunnah,
consensus and aql. They use ijma under special conditions and rely on aql
(intellect) to find general principles based on the Qur'an and Sunnah, and use usul
al-fiqh as methodology to interpret the Qur'an and Sunnah in different
circumstances, and Akhbari Jafaris rely more on Hadith and reject ijtihad.
According to Momen, despite considerable differences in the principles of
jurisprudence between Shia and the four Sunni schools of law, there are fewer
differences in the practical application of jurisprudence to ritual observances and
social transactions

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 CHAPTER 2

TYPES OF SOURCES

Primary sources

The Qur'an is the first and most important source of Islamic law. Believed to be the
direct word of God as revealed to Muhammad through angel Gabriel in Mecca and
Medina, the scripture specifies the moral, philosophical, social, political and
economic basis on which a society should be constructed. The verses revealed in
Mecca deal with philosophical and theological issues, whereas those revealed in
Medina are concerned with socio-economic laws. The Qur'an was written and
preserved during the life of Muhammad, and compiled soon after his death.

Muslim jurists agree that the Qur'an in its entirety is not a legal code (used in the
modern sense); rather its purpose is to lay down a way of life which regulates
man's relationship with others and God. The verses of the Qur'an are categorized
into three fields: "science of speculative theology", "ethical principles" and "rules
of human conduct". The third category is directly concerned with Islamic legal
matters which contains about five hundred verses or one thirteenth of it. The task
of interpreting the Qur'an has led to various opinions and judgments. The
interpretations of the verses by Muhammad's companions for Sunnis and Imams
for Shias are considered the most authentic, since they knew why, where and on
what occasion each verse was revealed.

Secondary sources
All medieval Muslim jurists rejected arbitrary opinion, and instead developed
various secondary sources, also known as juristic principles or doctrines to follow
in case the primary sources (i.e. the Qur'an and Sunnah) are silent on the issue.

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 CHAPTER 3

CUSTOM/urf AS A SOURCE OF LAW

Custom is that which is established in a woman’s mind by virtue of logic and the
sound mind accepts it. .In Islamic Law however customs (adat) are not a
recognized source of law although it an important source of law. But nevertheless
some jurists such as The Hanafis, The Malikis referred to customs as a source of
law and they have even taken steps towards recognizing customs. Even the Prophet
recognized the force of customary law. His companions however denied some
customs on the ground that they were not according to the ideals of Islamic Faith.
However customs are now regarded as a legitimate source of law, but they are
considered inferior in position hierarchally after QURAN, HADITS, IJMA, but
however it was superior to Qiyas. There were also a few requisites for validity of a
custom, failing which the practice wasn’t considered a valid custom. .

Customs can be described as a cultural idea that defines a regular pattern of

behaviour, which is considered a characteristic of life in a social system. They are one
of the earliest sources of law. Customs are important for maintaining balance and
peace in a society. Even today, customs are a basis of a large number of laws.

The modern law that is used in courts has originated from various sources. All these
sources of law fall under two important heads, namely

 Principle Sources of Law

 Secondary Sources of Law

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Principal Sources of Law – Customs

Studies on ancient societies show that the lives of the primitives were dictated by the
customs which developed during that time period because of the circumstances.
When a certain activity is performed in a certain way, many many times, it becomes
a custom. Customs have played a major role in forming ancient Hindu Law.

Islamic law makes occasional references to usages. Such custom must not be
opposed to the policy of Muslim Law. In Muslim Law custom holds the same rank as
Ijma. But, it must not be opposed to clear text of the Quran or of an ethnic tradition
( Sunna) . the practice of a few individuals or of limited class of men will not become
custom.

In view of Shariat Act of 1937 the Courts can not recognize the customs contraryto
the rules of the Muslim Law. Therefore, Customs are applicable in matters arising
from agricultural lands, charities and religions and charitable endowments as these
are matters excluded in the Shariat Act.

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 CHAPTER 4

DIFFERENT TYPES OF CUSTOM

Customs can be broadly classified into :

 Without sanctions

Customs without sanctions are those which are not obligatory and are followed due
to the pressure of the society. It is referred to as ‘positive morality’

 With sanctions

Customs which have sanctions are those which are enforced by the ruling body. It is
these customs that we will be dealing with in the law. These are again divided into
two types –

1. Legal Customs
Legal Customs act as strict rules that are meant to be followed by everyone and
action is taken against anyone who breaks them. They are recognised by the courts
and are part of the law. Again, there are two aspects to legal customs, which are :

Local Customs – Local customs are those types of customs which exist in a certain
geographical locality and are thus part of that place’s culture. It is specific to that
place alone. However, when certain communities migrate, they take their customs
with them. And so, local customs are then further divided into two parts –
geographical local customs and personal local customs.

General Customs – A general custom is a custom that is not specific to a single

locality, but rather it is followed by the whole nation or country. They are also part of
the law.

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2. Conventional Customs
A conventional custom is an established ‘usage’ which is considered legally binding
because it has been incorporated in an expressly stated or implied contract. Before a
court of law treats a conventional custom as legally binding, certain prerequisites
have to be fulfilled. Those are :

 It must be shown that the convention is clearly established and also that the
contracting parties are fully aware of it. There is no fixed period before which
a convention must be observed before it is recognised as binding.

 The convention cannot alter the general law of the land.

 It must be reasonable.
Similar to legal customs, conventional customs can be divided into genral or local
conventional customs.

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 CHAPTER 5

REQUISITES OF A VALID CUSTOM

A custom will only be considered a valid law with a binding force if these
requirements are fulfilled :

 Immemorial (Antiquity) – A custom must be ancient or immemorial so that it

may be considered as a valid binding custom.

 Certainty – The custom has to clearly defined, it cannot be vague and

confusing.

 Reasonable – A custom must be within bounds of reason for it to be

considered legally binding. Therefore, custom would be considered
unreasonable if it opposes principles of justice, equality and good conscience.

 Compulsory Observance – For a custom to be considered valid, it must have

been observed since ancient times without any interruptions and must be
considered by the people following it as a binding rule of law.

 Conformity with Law and public morality – A custom must not go against
public policy and law of the land. If the law makes it forbidden, it will not be
considered a valid custom.

 The unanimity of Opinion – Only a universally accepted custom will be

considered valid.

 Peaceable Enjoyment – When everyone follows and enjoys the custom in a

peaceful manner, only then will it be considered valid.

 Consistency – There should be consistency between customs. Two customs

that have opposing viewpoints cannot be considered valid.

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 CHAPTER 6

CONCLUSION

Hence for final analysis, we can say that, Custom is a course of action that
characteristically is repeated in like circumstances. The status of pre-Islamic
custom is so hideous that it becomes essential of Allah subhana-o-Tallah to sent his
Last Prophet Muhammad (SAW) on Earth and teach them what Allah says , and
show them the light and preach them how to live with peace. Prophet (SAW) , in
his last khutba-e-hajatul wida said, “ O people! Verily you Allah is one sand you
father is one. He created Adam with clay. There is no superiority for an Arab over
a non-Arab or for white over the black or for the black or for the black over the
whihte except tauheed. Verily, the noblest among you is he who is the most pious ”

In pre-Islamic period, darkness and ignorance prevailed over the entire Arabic
region. The Arabic society was based on those customs and usages, which were, in
fact, mirror of darkness and ignorance. In Arab Society the constitutional was
tribal in nature. The Chief of certain tribe was all in all in his personality m, and
was sovereign for his tribe. Every type (kind) of disputes were settled by him.
There was a saw of “Might is right” and “Tit for tat”. The Arabs were so ignorant
that they used to follow such customs and usages, which deteriorated their society.
Following are the customs which were absolutely wrong and hateful.

(i) Divorce

(ii) Marriage

(iii) Law of Justice

(iv) Dower etc.

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 REFERENCES

Website
1. http://www.legalserviceindia.com/article/l302-Sources-of-Islamic-
Law.html
2. http://www.legalservicesindia.com/article/521/Role-of-Customs-in-
Islamic-Law.html
3. http://thelawstudy.blogspot.com/2014/06/custom-as-source-of-law-in-
islam.html
4. https://www.jstor.org/stable/3399492

books
1. SRA, Rosedar, Family law 1, LexisNexis, 2nd edition, 2016
2. Khan, Prof. I. A. ,Mohammedan Law, Central Law Agency, 25 th edition
(reprint),2015

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