UNIT 1

Introduction:
In religious sense Islam means ‘Submission to the will of God’ and in secular sense Islam
means the ‘establishment of peace’. Muslim law in India means “that portion of Islamic
civil law which is applied to Muslims as a personal law” (Fyzee). Muslim law is founded
upon ‘Al-Quran’ which is believed by the Musalmans to have existed from eternity,
subsisting in the very essence of god. There are mainly two different conceptions of
Muslim Law, one of divine origin as in the case with the Hindu law and another man made.
Muslim law is founded upon revelation and is blend with religion.

- Hindu law prevailed over all aspects of individual during ancient period. During muslim
rule except personal law, every individual is governed by Mohammadan Law, when
Britishers came that time also freedom in personal laws continued. –
- In India, whenever personal matters come before a court of law, the first question that
arises is : which law applies to the parties to litigation? If the parties are Hindus, then
Hindu Law and so on. Hence it is necessary to see who is a Muslim in India?

Who is a Muslim: application of Muslim law –

- Muslim law or Mohammadan Law means –that portion of Islamic law which governs the
Indian Muslims in their personal matters.

Who is Muslim :
Muslims, for the purpose of the application of Muslim Law falls into the two categories
a. Muslims by birth or origin and
b. Muslims by religion or conversion (Persons who profess Islam or persons who undergo
the formal ceremony of conversion).
a. By birth or origin: when both parents are Muslims the child will be Muslims according
to Shariat Act even if one of the parents is a Muslim, the child will be Muslim. It has been
seen that under Hindu Law if one of the parents is Hindu and other is Muslim and if the
child is brought up as a Hindu the child will be Hindu. The rule of Muslim law, it is
submitted will be subject to this rule of Hindu Law.
b. By religion or conversion : A convert is a person who renounces his faith and adopts
another. When a person declares that he is a follower of Muslim faith and undergoes a
formal ceremony of conversion prescribed by the caste or community to which he
converts. If such a conversion is bonafide and not made with any ulterior motive or
intention it amounts to his having accepted the Muslim approach of God.
Case Laws:
In Sarla Mudgal v. Union of India (Air 1995 SC 1531). The husband already married.
Under Hinu law embraced Islam and solemnized a second marriage under Muslim Law.
The court held that the second marriage of a Hidnu husband after conversion to Islam
without having his first marriage dissolved under law would be invalid.
In Lily Thomas v. Union of India (Air 2000 SC 1650) one personal law can not be used to
defeat the spirit or purpose of another personal law. Supreme Court held that the husband
is guilty of the offence of Supreme Court held that bigamy u/s 494 IPC.

Effect of conversion to Islam:

The rights and the status of the convert become subject to the Mohammendan Law. In the
absence of a custom to the contrary in case of a Hindu converts to Islam succession and
inheritance are governed by Mohammedan Law and not by Hindu Law.
Even one of the parents is Muslim, their child is Muslim but general law in India is that a
child carries religion of father. Muslim law can’t be modified by customs.

Effect of Apostasy (renunciation) of Islam on marriage:

Marriage of a Muslim husband with a Muslim wife is dissolved ispo facto (it self) on the
renunciation of the husband of Islamic religion. The renunciation of Islam by a married
Muslim woman does not by itself dissolve her marriage. But where a woman converted to
Islam from some other faith re-embraces her former faith her marriage with the Muslim
husband stands dissolved.

Sources and School of Muslim Law:

I - Primary Sources
1. The Quran:- 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. 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 the Muslims.

The contents of Quran may be classified under the four heads:-

(a) Metaphysical and abstract
(b) Theological
(c) Ethical and mystical
(d) Rituals and legal

We are here concerned with the legal aspect only. The Quran has influenced the creation
of Islamic legal system in following ways:-
(1) The prophet faced legal problems and so did his companions and the Quran provided
guidance. It gave such texts which possesses definite legal element.
(2) Non-legal texts in the Quran moral exhortations and Divine promises have been
construed by reasoning to afford legal rules. The texts proclaiming that God will not punish
any one Save for one’s own sins have been applied to debts which a person leaves unpaid
at his death with for reaching results in the law of administration of assests.
(3) By pointing out that the previous revelations have been corrupted, the Quran declared
the legal material with the people of the book unreliable and called people to abandon the
customs of their ancestors which are outside the sphere of the Book and Sunnah.

2. The Sunna :- Sunna means the model behaviour of the Prophet. The narrations of “What
prophet said, did or tacitly allowed” is called Hadis or Traditions. The traditions were not
reduced to writing during the lifetime of Mohammad but preserved from generation to
generation so a mintue inquiry is necessary to accept a Hadis.
The Sunna is the second most important source of Islamic law. It comprises the
practices and precedents set by the Prophet Muhammad himself. The authority of the
Sunna is derived from the text of the Quran. Because the circumstances of each revelation
were thought necessary to correct interpretation, it was imperative to gather as many
traditions as possible about the actions of the Prophet to fully understand the Quran. The
Sunna clarifies the ambiguities of the Quran. The Quranic injunction is sometimes
implicit; the Sunnah makes it explicit by providing essential ingredients and details. The
details of the acts of prayer, fasting, alms-giving and pilgrimage were all illustrated by the
Sunna of the Prophet. Again, it was established by the Sunna that a killer cannot inherit
from the property of his victim. Thus, for answers to many problems to which the Quran
offers no solution jurists turn to the second source of Islamic Law. For, according to the
Quran itself, Prophet Muhammad was not only in possessions of the Book; he was also
endowed with Wisdom. But the wide legislative role of the Sunna cannot overcome that
of the Quran because it lacks originality in itself; rather it is just the elaborations of the
Quran put into the practice by the Prophet.
The Words of the “Quran” are of “divine” origin while the words of the “Hadith” are words
of the “Prophet” reported by people. And it is obvious that divine words have the utmost
precedence. Secondly, after the death of the Prophet, it was not earlier than two and a half
centuries that the written hadith compilation from religious scholars came onto the scene
and a lot of fabrication took place into that period. But Quran is the only book of Allah
which has not been distorted and thus it is the only reliable source of Islamic law.

3. The Ijma:- Ijma has been defined by sir Abdul Rahim as “agreement of the jurists among
the followers of Prophet Mohammad in a particular age on a particular question of law”.
According to classical theory, failing of Quran and traditions the consensus of opinion
amongst the companions of the prophet is recognised as the best guide of law. The
authority of Ijma as a source of Muslim law is also founded on Quran and Traditions. With
the march of time, development of civilization and expansion of the Islamic influence
numerous problems arose which could not be decided by reference to only Quran and
traditions. For this purpose. The jurists evolved the principle of Ijma so legislator has
delegated power to lay down rules by the resolution of those men in the community who
are competent in that behalf.

4. The Qiyas:- This is the last primary source of Muslim Law. Qiyas means reasoning by
analogy from the above three sources i.e. Quran, the Sunnat and the Ijma. In Qiyas rules
are deduced by the exercise of reason. Qiyas does not purport to create new law, but merely
to apply old established principles to new circumstances.
This source namely is of no value to persons belonging to the school
of Ahmad Ibn Hanval the great traditionalist. The shias also do not accept Qiyas because
they are of the opinion that if law need to be enlarged it must be by the Imam and none
else. Qiyas is a weak source of law, reason is that with respect to analogical deductions
one can not be certain that they are what the law giver intended.

Secondary Sources:
1. Urf or Custom:-Custom was never formally recognised as a source of Muslim law,
though it has been occasionally to as supplementing the law. Customs does not command
any spiritual authority but a transaction sanctioned by custom is legally operative, even if
it be in violation of a rule of law derived from analogy; it must not, however, be opposed
to a clear test of the ‘Quran’ or of any authentic tradition.
The requirements of a valid custom are:-
(a) General prevalence in the country is necessary
(b) It must be territorial
(c) It need not be existing from the time of the Prophet’s companions. All that is necessary
is that it should be immemorial.
(d) It must be ancient
(e) It should not be opposed to public policy
Shariat Act, 1937, aims at restoring the law of Islam to all Muslim communities residing
in India and abolishing customs contrary to the Shariat.

2. Judicial Decisions:- These includes the decisions of the Privy council, the supreme
court, as well as of the High courts of India. These decisions are regarded as precedents
for the future cases. Strictly speaking, judicial decisions only declare the law as it is and
as not a source of law but they undoubtedly supplement and modify the law. Muslim law
is no exception to this rule. The Muslim law has been supplemented on many points by
judicial decisions. On some points judicial decisions have modified the pure Muslim law.
Thus under the pure Muslim Law, no interest is allowed on a loan. But in Hammeera Bibi
v. Zubaida Bibi, the privy council allowed interest on the amount of unpaid dower.
3. Legislation:-In India, Muslims are also governed by various legislations passed either
by the parliament or by state legislature. The following are the instances of the legislation
in India. The usurious loan Act, 1918, freedom of religion Act, 1850, the guardians of
wards Act, 1929, the Shariat Act, 1937, and the Dissolution of Muslim Marriage Act, 1939
and many others Acts.

4. Justice, equity and good conscience:-Abu Hanifa, the founder of the Hanafi sect of
Sunni, expounded the principle that the rule of law based on analogy could be set aside at
the option of the judge on a liberal construction or juristic preference to meet the
requirements of a particular case. These principles of Muslim law are known as “juristic
equity”. The term “juristic preference” was used by the great jurist Abu Hanifa to express
the liberty that he assumed of laying down law, which in his discretion, the special
circumstances required rather than law which analogy indicated. The importance of
justice, equity and good conscience as a source of Muslim law can be well assessed by the
following observation of Ameer Ali, he says that “when the great expounders of Musalman
law have enunciated divergent doctrines or expressed different opinions the judge
administering Musalman law is to adopt the one most comfortable to equity and
requirements of the times”

III Sources of law according to Shias:- The following are the sources of law according to
shias:-
(a) The Quran
(b) Ahadis
(c) The Ijma
The Muslim Law is applicable by courts in India to Muslims not in all but in some matters
only. It has been held that as regards marriage and divorce the Shariat Act requires the
courts to apply Muslim Law only if both parties are Muslims. If therefore, only one of
them is Muslim the Act will not apply.

The following are some of the major schools of Muslim law:

1. Hanafi School
The Hanafi school, which is the most popular one amongst Muslims, derives its name from
its founder, Abu Hanafi. This school basically relies on customs and precedents of the
Muslim community as the traditions of Prophet Mohammed. This is because the Prophet had
disallowed codification of his words and sayings. Hence, whenever the Quran did not explain
something, this school relied on the Prophet’s traditions. The Hedaya is the most authoritative
book of this school. It covers topics like inheritance as well as succession amongst followers
of this school. Sirajiyya is also an important work in this regard. The Hanafi school is the
most followed school amongst all schools of Muslim law and the Muslims in India. Thus,
whenever courts have to interpret Islamic law principles, they generally rely first on this
school.

2. Maliki School
This school derives its name from its founder Imam Malik-bin-Anas. It originates almost to
the same period as the Hanafi school but it flourished first in the city of Madina. While the
Hanafi school relies on Ijma (interpretations of jurists), the Maliki school originates from
Sunna and Hadis. These two important sources give importance to the sayings, teachings,
customs and traditions of Prophet Mohammed. Imam Malik had personally collected
information on thousands of recorded traditions of the Prophet. Then he codified most of
them in a book, which is the most prominent Hadis today. Although there are very few
followers of this school, Indian laws have derived and codified some of their provisions.

3. Shafi School
This school originates from Muhammed bin Irdis Shafi, who was a student of both Imam
Malik and Imam Hanafi. The Muslim world considers him to be one of his most important
jurists. The Shafi school is basically a combination of the Maliki school and the Hanafi
school. Ijma, i.e. the interpretations of jurists is the most important source of law in the Shafi
school. It also relies on the customs of the Muslim people. The Qiya source of law, which
depends on analogical interpretations by people, originates from this school. The Shafi
school is largely prevalent in Egypt and some south-east Asian countries. In India, Muslims
from the Malabar region of Kerala generally follow this school.

4. Hanbali School
Ahmed bin Hanbal, a disciple of Imam Shafi, was the creator of this school. His theory
rejected the Shafi school for relying on Qiya, i.e. the personal analogical reasonings and
interpretations of the people. Instead, he insisted on going back to Sunna and Hadis to
interpret the Quran and other laws. This was because in his opinion the teachings and
traditions of Prophet Mohammed matter more than peoples’ interpretations. As a result,
Imam Hanbal collected thousands of Hadis and codified them in his book, Musnath. People
of Saudi Arabia, Syria and the surrounding regions generally follow the Hanbali school.

SHIA SCHOOLS
Ali was acknowledged to be the first Imam by the Shia community. He was accepted as the
temporal as well as the spiritual head of the community. After the death of Ali, his two sons
Hasan and Hussain became the second and the third Imam respectively. After Hussain's
death, his son Zain-ul Abdeen succeeded as the fourth Imam. Upto this stage the Shia
community remained united but afterwards there had been divisions and sub-divisions of this
sect. Zain-ul Abdeen had two sons, Zyad and Muhammad Baqir. First split took place after
the death of Zain-ul-Abdeen when some of the Shias acknowledged Zyad as their Imam but
the majority followed Muhammad Baqir. The followers of Zyad formed a separate sect called
Zaydis whereas Muhammad Baqir was accepted as the fifth Imam by the majority. This was
the first division of the Shia sect. After Mohammad Baqir's death his son Jafar Sadiq became
the sixth Imam of this majority group. Upon the death of Jafar Sadiq there took place the
second split in the Shia community. He had two sons Ismail and Musa Kazim. Here again,
one group recognized Ismail (the elder son) as the seventh Imam but to the majority of them
the younger son Musa Kazim was the seventh Imam. Followers of Ismail were called Ismailis
and constituted the second school of Shia sect. In the other section of Shia community headed
by Musa Kazim, there had been other Imams through succession. The twelfth Imam in this
line of succession was Askari's son who is said to have disappeared from the world and is
awaited in the near future. The twelfth Imam called Muhammad-al-Muntazar is the last
Imam. It. was the dispute over leadership of the Shia community in various stages of its
development which caused the formation of the three schools. There is no appreciable
difference between these schools in so far as the law is concerned. Qadri observes that, "the
main reason of the differences among the Shia sect and sub-sects lies not so much on the
interpretation of the law as upon the doctrinal points”.
The Ithna Asharia School
This school is also called as Imamia school. Majority of Shias are Ithna Asharia. The
followers of this school believe that starting from Ali there had been twelve Imams who
possessed spiritual powers. Everything that comes from the Imam is taken to be a law. It is
believed that the twelfth Imam who disappeared when was still a child, would reappear in
future. A characteristic feature of Ithna Asharia School is that this is the only school in the
Muslim world which recognizes "Muta" or a temporary marriage. This school is further
divided into two sub-sects, (1) Akhbari and the (2) Usuli. Akhbans are very orthodox because
they follow rigidly traditions of Imams. Usulis, on the other hand, interpret the texts of Quran
with reference to the practical problems of day to day life. The Ithna Asharias are found in
Iran, Iraq, Lebnon, Pakistan and India. Shari-ulIslam is an authoritative book of this school.
The Ismailia School
For some reasons Jafar Sadiq disinherited his eldest son Ismail. The majority of Shias
therefore did not accept him as their Imam. But there were some Shias, although in minority,
who acknowledge Ismail as the seventh Imam. The followers of Ismail are called Ismailias
or the Seveners because according to them there had been only seven Imams the Seventh
being Ismail. They believe that from him (Ismail) descended a series of concealed Imams
whose secret emissaries were constantly on the watch for a chance of striking at some weak
point in the large ill-cemented empire of orthodox Islam. The Ismailias therefore, hold that
Imams subsequent to Ismail are still alive but they have concealed their existence. In India,
they consist of two main gruops (i) Khojas and Bohras. Khojas were originally Hindus.
Bohras are also Ismailias and they separated from the other groups during the Fatimid
regime. Both of them are commercial communities from the very beginning. Ismailias are
found in the Central Asia, Syria, India and Pakistan etc. Ismailias of Bombay are either
Khojas or Bohras. Daimul-Islam is an authoritative work on Ismailias doctrines.
The Zyadis School
The founder of this school was Zyad, one of the sons of the fourth Imam. The Zyadis were
the first to defect from the general body of Shia Muslims. One of the peculiar features of this
school is that its doctrines incorporate some of the Sunni principles as well. The followers of
this school are not found in India: they are mostly in Yemen.
The Motazila Sect
The Motazila emerged as a separate sect of Islam around 9th Century A.D. This school was
established by Ata-al-Ghazzal during the reign of Mamun. The followers of this school
believe that Quran is the only basis for their doctrines. Most of the traditions have been
rejected by the Motazilas. One of the characteristic features of the Motazilas is that this is the
only school in Islam which practices strict monogamy. Marriage with more than one wife at
a time is unlawful under the Motazila principles. Another peculiarity is that there cannot be
any divorce without interference of a Judge. Divorce by Talaq is not recognised under this
School. At present the followers of Motazila sect are comparatively very less in number.

Points of difference between the Sunni and Shia School

Diff onthe Sunni Law Shia

point
1. Marriage (a) Muta marriage is unlawful
(b) It recognizes a long list of
guardians for marriage
(c) Presence of two male
witnesses at the time of
marriage is necessary but
not at the time of dissolution.
(d) Child will be presumed
legitimate only if born with
10 months from the
dissolution of marriage
Law
(a) Muta marriage is lawful
(b) Only father and grandfather
are guardians for marriage
(c) Presence of two witnesses at
the time of marriage is not
necessary but at the time of
dissolution
(d) Child born within 2 years of
the termination of marriage is
presumed to be legitimate

2. Dower
Minimum 10 Dirhams Maximum Minimum no limit Maximum 500
no limit dirhams
3. Divorce (a) may be effected orally or by a (a) Must be pronounced orally
written document unless husband is physically
incapable of pronouncing
orally then in writing
(b) Presence of witnesses not
necessary (b) Presence of two witnesses
is necessary.

(c) Does not recognise divorce

(c) Words of divorce used by
under such circumstances
husbandunder compulsion or
voluntary intoxication is valid
divorce
4. Maternity
(a) fixed with woman who gave
birth to the child whether
from adulterous act or valid
marriage
(b) child has got the right of
inheritance from the mother
(a) fixed with woman who gave
birth to the child only from
valid marriage
(b) does not permit mutual rights
of inheritance between the
mother and her illegitimate
child

5.Guardian- mother is entitled to custody of a mother is entitled to custody of a

ship boy until he has completed the boy until he attains the age of 2
age of 7 years and girl until she years and girl until attains the
attains puberty age of 7 years

6.Maintena liability on children to maintain not obligatory to maintain father

- nce father even if the father is earning if father is earning

7. Gift Gift of undivided share in a gift of undivided share in

property capable of division is property capable of partition is
irregular unless special valid.
conditions satisfied

8. Waqf A waqf inter vivos is completed A waqf inter vivios can not be
by mere declaration of created by a declaration there
endowment by the owner must be delivery of possession

9. Pre-
empti Recognises three classes of pre- Recognises only one class of
on emption pre- emption that too when only
two co- owners not more

10. Wills (a) If the bequeath does not

A person can not bequeath
exceed 1/3 no consent
anything in favour of an heir
necessary
except with the consent of others
(b) If exceeds 1/3 consent may
 heirs after the testator’s death be given even during the life-
time of testator

(a) Three classes of heirs- (a) two classes of heirs-

11.
Inheritance (i) sharers,(ii) residuaries, (iii) (i) sharers (ii) residuaries
distant kinderd (b) recognises it to some extent
(b) Does not recognise any right (c) it is the cardinal
of primogeniture principle of
(c) Restricts the doctrine succession
of representation of a few (d) it is bar only if it is intentional
limited cases (e) only husband is entitled to

(d) Homicide is a bar to succession return not the wife

(e) Both husband and wife can (f) it applies only to the
take by return i.e where there daughter and sister among
is residue shias
(f) The doctrine of increase
extends to all shares alike