.

Subject - FAMILY LAW II

TOPIC – ANALYSE THE IMPORTANCE OF

CUSTOM/URF AS A SECONDARY SOURCE OF
MUSLIM

Research Asst. in Law

PEMA BHUTIA

NAME: AMIT SIKHWAL

ROLL NO:02
COURSE: Bcom LLB 4th semester
 ACKNOWLEDGEMENT

It’s a genuine pleasure to express my deep sense of thanks and gratitude to my FAMILY LAW II teacher
MISS.PEMA BHUTIA ASST.PROF. OF LAW. Her declaration and keen interest above all her
overwhelming attitude to help her students has been solely and mainly responsible for the completion of
my project, her timely advice, meticulous scrutiny, approach have helped me to a very great extent to
accomplish this task.

I thank profusely all the STAFFS of INDIAN INSTITUTE OF LEGAL STUDIES COLLEGE, SILIGURI
for their kind help and co-operation throughout my study period.

Lastly, I would like to thank all of those who helped me in any way in my project.

TEACHER’S SIGNATURE STUDENTS SIGNATURE

DATE: DATE:
 CONTENT
CHAPTER CHAPTER NAME

01 SYNOPSIS

02 INRODUCTION

03 THE PROOF OF URF

04 TYPES OF URF

05 CONDITION OF VALID URF

06 APPLICATION OF URF IN ISLAM

07 THE LEGAL MAXIM UNDER URF

08 CONCLUSION
 CHAPTER 1

SYNOPSIS

STATEMENT OF PROBLEM
How custom urf plays a very important role in muslim law as a secondary source.
RESEARCH OBJECTIVES
“The Shari’ah has, in principle, accredited approved custom as a valid ground in the
determination of its rules relating to halal and haram.” There is no explicit text in the Qur’an
and Sunnah which tells us that ‘urf is allowed to be used as proof in Islamic law, however, we do
have certain implications from the Prophet (pbuh) and his companions that show the
permissibility of its usage.
RESEARCH QUESTIONS
Urf as a secondary source of muslim law.
How important is it in muslam law?
HYPOTHESIS
Urf (Custom) is recognised as source of law in almost all legal systems, including Sharah. The
changing needs of a society are often reflected in its customs, which are in many ways the bus of
society‟s adjustment to new conditions. Custom is also a pointer at once of the people‟s needs,
and their acceptance to change. It is inherently active and open-ended, and always remains
susceptible to further refinement
RESEARCH METHOD
Doctrinal method is used in this project
SOURCES OF DATA
Primary:
Book:
MOHAMMEDAN LAW BY PROF. IQBAL ALI KHAN
Secondary:
https://www.researchgate.net/.../266072282_'Urf_-o-Adah_Custom_and_Usage_as_a_S...

https://www.jstor.org/stable/20847181

www.oxfordislamicstudies.com/article/opr/t125/e2438

https://thethinkingmuslim.com/2013/12/26/custom-islamic-law/

www.iosrjournals.org/iosr-jhss/papers/Vol.%2021%20Issue12/.../I2112074348.pdf
 CHAPTER 2

INTRODUCTION

Islamic law is primarily derived from the Qur’an and Sunnah according to the consensus of the
Muslim scholars. However, there is a difference of opinion among the scholars on how to
approach issues that are not explicitly and directly mentioned in these two sources. In other words,
there is no indication from the Qur’an and Sunnah on how to approach the issue. This opens the
door for ijtihaad, for a highly qualified group of scholars, to give rulings on these issues based on
principles derived from the two primary sources and to utilize secondary sources, as a form of tool,
in deriving Islamic law. The authority of these secondary sources in deriving Islamic law is
disputed among the scholars. Therefore, a scholar may reject a particular secondary source while
accepting another and so on. ‘Urf(Custom) is among these disputed secondary
sources. Mohammad Hashim Kamali defines ‘urf as “recurring practices that are acceptable to
people of sound nature.” Hence, this definition will exclude “recurring practices among some
people in which there is no benefit or which partake of prejudice and corruption.” One of the
reasons for the scholars’ hesitancy in accepting ‘urf1 as a proof is because of its instability. It can
change based on time and place at any given period. This means a ruling of Islamic law will not
be constant but changing based on time and place. However, the scholars, in general, have adopted
it in one form or another and have based rulings on it.

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 CHAPTER 3

THE PROOF OF URF

Mohammad Hashim Kamali states, “The Shari’ah has, in principle, accredited approved custom
as a valid ground in the determination of its rules relating to halal and haram.” There is no explicit
text in the Qur’an and Sunnah which tells us that ‘urf is allowed to be used as proof in Islamic law,
however, we do have certain implications from the Prophet (pbuh) and his companions that show
the permissibility of its usage. For example, some of the companions used to practice a type of
birth control popular in that period called ‘azl:

“We used to practice coitus interruptus (‘azl) during the lifetime of Allah’s Messenger (pbuh) while
the Qur’an was being revealed.”

This report signifies that the Prophet approved of this custom among those not wanting to have
children. For if it was wrong, Allah would have sent down a command through His Prophet
prohibiting this practice in Islam.

At other times, Islam allowed a custom to be practiced but put conditions on it in order to bring
“them into line with the principles of the Shari’ah.” Slavery is an example of such a
custom. Before Islam, slaves were treated like animals and there was no compassion or value for
them. When Islam came into the picture, it allowed the custom of slavery to continue, though
strongly encouraging to free them, but it put certain rules in place to regulate their treatment. For
example, the Prophet Muhammad (pbuh) is reported to have said, “It is essential to feed the slave,
clothe him (properly) and not burden him with work which is beyond his power.”

There were also times in which Islam wanted to completely eradicate a particular custom. In such
instances, either Allah would send down a verse from the Qur’an or the Prophet (pbuh) would state
a hadith prohibiting such custom. An example of this is when Allah commanded His Messenger
(pbuh) to marry the divorcee of his adopted son Zayd. In the Arabian culture at that time, an
adopted son was considered the same as a real son; hence, the father marrying his adopted son’s
ex-wife was inconceivable. However, Allah wanted to show that there is nothing wrong with this
practice because they are not their blood relatives through the example of His Messenger
(pbuh). So, Allah sent down the following:

When Zayd had no longer any need for her, We married her to you in order that there not be upon
the believers any discomfort concerning the wives of their adopted sons when they no longer have
need of them. (Qur’an 33:37)

What all of the above shows us is that “The basic principle with regard to customs is that they are
permissible, unless it is narrated in sharee’ah that they are forbidden” or regulated. And this is
rightly so because in general, asking people to go against the custom, which neither constitutes
oppression, corruption, lewdness, etc., is a form of hardship on them which is not one of the aims
of Shari’ah as Allah stated in the Qur’an, “Allah intends for you ease and does not intend for you
hardship.” (Qur’an 2:1852)

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 CHAPTER 4

TYPES OF URF

Types of ‘Urf

‘Urf is divided into several categories and subcategories.

The first two categories are the general divisions which cover all other subcategories:

Approved or Valid Custom (al-‘urf al-sahih)– “One which is observed by the people at large
without there being any indication in the Shari’ah that it contravenes any of its principles.”

Disapproved Custom (al-‘urf al-fasid) – “Also practiced by the people but there is evidence to
show that it is repugnant to the principles of Shari’ah.”

The approved custom category above is divided into two types:

Verbal (qawli) – “Consists of the general agreement of the people on the usage and meaning of
words deployed for purposes other than their literal meaning. As a result…the customary meaning
tends to become dominant…the original or literal meaning is reduced to the status of an exception.”
Examples of this are the words salah, zakah, hajj, etc. They are understood based on their custom
meanings and not their literal meanings.

Actual (fi’li) – “Consists of commonly recurrent practices that are accepted by the people.”

The two categories above are each subdivided into two types:

General ‘Urf (al-‘urf al-‘aam) – “One which is prevalent everywhere and on which the people
agree regardless of the passage of time.”

Special ‘Urf (al-‘urf al-khaas) – “[It] is prevalent in a particular locality, profession or trade…it is
not a requirement…that it be accepted by people everywhere.”
 CHAPTER 5

CONDITION OF A VALID URF

Conditions of Valid ‘Urf

Mohammad Hashim Kamali lists four requirements for a valid form of ‘Urf from which Islamic
law may be derived:3

1. Custom must be a common and recurrent occurrence. It must be dominant to the point that
it is upheld in most of the cases to which it applies, otherwise, it does not hold any authority.
Also, the practice of a few people in a large community is not sufficient; rather, it must be
a regular occurrence among the masses.
2. In contracts and commercial transactions, custom must still be in existence at the time of
the conclusion of the transaction.
3. Custom must not violate a clear stipulation of an agreement. Contractual agreements take
preference over custom. Latter will only be resorted to in absence of the former.
4. Custom must not go against the definitive principles (nass) of Islamic law. If it does so,
custom will be given no consideration. In case “the custom opposes only certain aspects
of the text, then custom is allowed to act as a limiting factor on the text.”

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 CHAPTER 6

APPLICATIONS OF URF IN ISLAMIC LAW

1) In the law of al-Nafaqh (maintenance or expenditures) it comprehends foods, clothes, and

lodging, it is a duty of a husband to maintain his wife or wives every day; in considering such
foods, clothes, and lodging, a custom of a country must be followed.4

2) In a divorce case, the mother is given preference over the father for the custody of the children,
but he is allowed to visit them in accordance with customary practice.

3) The taking of an oath is based on this principle, for urf, not the original or the literal meanings,
determines the meaning of the words used when taking an oath. For example, if a person swears
that he/she will not eat meat, he/she would not break his/her oath if he/she were to eat fish, because
people are not accustomed to applying the word lalm (meat) to fish. Despite the fact, the Qur‘n
considers fish to fall under this category. Which means” “And He it is who subjected to you, that
you may eat from the fresh tender meat.”

4) Kaffrah (expiation) for breaking ones oath. Here, one must feed ten poor people with the average
food that he/she provides to his/her family. What is “average food” depends upon the local
custom.Allh will not punish you for what is unintentional in your oaths, but He will punish you
for your deliberate oaths; for its expiation feed ten poor, on a scale of the Awsai of that with which
you feed your own families; or clothe them.

5) Tazīr punishments vary according to the circumstances. They change from time to time and
from place to place.

6) Doing good (Husnu Sulk( to your parents is obligatory (Wājib). However, what is meant by
doing well? Doing harm to your parents or making them angry is forbidden (arām). Nevertheless,
what is meant by causing harm? This will depend upon urf.

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7) Your neighbours have rights over you. However, how far is neighbourhood from your house
according to Shariah? (Some scholars say that up to 40 houses are your neighbourhoods). This will
depend upon urf.

In addition, this urf may be different at different places. For example, custom about the range of
neighbourhood in Abuja may be different from the Ñurf about range of neighborhood in Kuala
Lumpur that has many condominiums, which have many apartments.
 CHAPTER 7

LEGAL MAXIMS (AL-QAWA ID AL-FIQHIYYAH) UNDER URF

The legal maxims of fiqh (qawa’id kulliyya al-Fiqhiyya) are as a distinctive general of fiqh
literature side by side. There are some important legal maxims that are derived from the statement
of Ibn Masūd that “what the Muslims deem to be good is good in the sight of Allah”, Legal maxims
that is recorded by the Shafii jurist (al-Suyti), in his well-known work, „What is proven by urf is
like that what is proven by Shar’ah proof.‟ This legal maxim is also recorded by the Hanafi jurist
(al-Sarakhsi), and was subsequently adopted in the Ottoman Majallah, which provides that custom,
whether general or specific, is enforceable and constitutes a basis of judicial decisions. Therefore,
there are many legal maxims in fiqh formulated by the jurists that have described the role of urf
that can affect the decision on certain matters. However, the maxim, which read as (al-dah
Muakkamah) , is considered by al-Suyti, Ibn Nujaym and al-Zarq as the main maxim and all the
other maxims related to urf are regarded as branches of this main maxim. dah in this maxim means
the practices of the people whether in their doings or in their sayings, regardless of whether it is
the general practices of the people or the practices of certain groups of people. These practices
must be considered as authoritative and can specify a general matter (Takh al-mm) or restrict
unrestricted matter (Tuqayyd al-Mutlaq). For instance, a contract that does not specify whether the
delivery of the good is the responsibility of the purchaser or the seller. In this case, the prevailing
custom should be depended upon to specify and clarify this matter, which is not mentioned in the
beginning of contract. The word edah in this maxim also indicates the normal practices of people
in their daily transactions. If there is any argument among them in a particular contract, the normal
practice in that particular contract should be the authority to resolve the contradicts a stipulated
agreement between the parties involved, for example, expenditure of murib whether should be in
capital or not should be depend on the practice known as urf of that particular area. There are
several other maxims that can be considered as the branches of this main maxim. These branches
indicate the different types of urf and the conditions of a valid urf. 5

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 CHAPTER 8

CONCLUSION

Urf (Custom) is recognised as source of law in almost all legal systems, including Sharah. The
changing needs of a society are often reflected in its customs, which are in many ways the bus of
society‟s adjustment to new conditions. Custom is also a pointer at once of the people‟s needs,
and their acceptance to change. It is inherently active and open-ended, and always remains
susceptible to further refinement. The role that custom has played in the development has great
deal of what is known in the name of ijma (consensus of Jurists), maÎlaÍah (public good) and fatwa
(juristic opinion) often originates in the customs and living experience of the community. The
application of urf in Islamic Finance can be trace back as early as from the time of the Prophet
(s.a.w). This observed through the recognition of certain pre-Islamic practice of transaction by the
Prophet, for example approved of Bay al-Araya by prophet (s.a.w) because people were familiar
with it as their custom. This indicates that Islam has not totally abandoned the practices of the
jilliyyah, instead, it has taken into thought many of their practices which do not contradict the
principle of Islam. Furthermore, the companions have also taken urf into consideration in many
existing practice in their legal decisions. The jurists of Islamic law have also taken into
consideration many customs existing in practice in their making legal verdicts. Therefore, it is
important to recognize that one of the major functions of Islamic law is to reconsider the existing
practice.
 BIBLIOGRAPHY

https://www.researchgate.net/.../266072282_'Urf_-o-Adah_Custom_and_Usage_as_a_S...

https://www.jstor.org/stable/20847181

www.oxfordislamicstudies.com/article/opr/t125/e2438

https://thethinkingmuslim.com/2013/12/26/custom-islamic-law/

www.iosrjournals.org/iosr-jhss/papers/Vol.%2021%20Issue12/.../I2112074348.pdf

https://www.ssrn.com/abstract=2199354

www.studylecturenotes.com/.../law/412-secondary-sources-of-islamic-law-ijma-ijtehad...