What are the Main Sources of Muslim Law

in India?
By sources of any law, we mean the original materials where the contents of that law are to be
found and are made available to us. Study of these sources is necessary because without having
any knowledge of the origin of a particular law, its proper explanation and interpretation is not
possible. Sources of Muslim law may be classified into two categories:

(a) The primary sources, and

(b) Secondary sources.

Primary sources are those which the Prophet himself directed to be the sources of Muslim law.
There is an old tradition according to which once the Prophet asked Muadh, one of his
companions, as to what law he would apply in deciding a case?

The companion replied that first he would judge a case according to the words of God; failing
that, according to the traditions (precepts) of the Prophet and failing that too he would interpret
with his own reason. The Prophet approved these sources in the same order.

These sources are, therefore, of highest quality and importance in their respective order of merit.
The whole of Muslim personal law is based on the primary sources. They are also called the
formal sources of Muslim law.

Secondary sources explain or modify the primary sources of Muslim Personal Law according to
the changing needs of the Islamic society. To meet the requirements of the society, Muslim law
has been developed or modified also. By local customs, judicial decisions and the State.

Therefore, the rules of Muslim law are found also in the customs, legislations and the judicial
decisions. Local customs, legislation and judicial decisions are, therefore, the secondary sources
of Muslim law. Secondary sources are also called as extraneous sources.

The Primary Sources:

(1) Quran:

The word Quran is derived from the Arabic word “Qurra” and properly signifies, “the reading”
or “that which ought to be read”. It is believed that Quran is of divine origin and was revealed to
Prophet Mohammad for the benefit of mankind. Quran is the first source of Muslim law in point
of time as well as in importance. It is the first source in point of time because, before Quran there
was no Islamic society as it exists today.
As pointed out earlier, the first revelation (Wahi) came to the Prophet in 609 A.D. Since then the
revelations continued to come to the Prophet in fragments during a period of 23 years, till 632
A.D. when the Prophet expired.

The revelations were the communications of God and were made by angel Gabriel to the
Prophet. These communications or messages from God were conveyed to the society by the
Prophet through his preachings.

The Prophet from time to time used to deliver preachings to his followers saying that these were
the messages to them from God. The communications were in the form of verses and were
remembered by the followers of the Prophet. Some of them were also reduced to writing on
palm-leaves, camel hide or even on mud so that they may not be forgotten.

The communications were in scattered form and were not systematically revealed. After the
Prophet’s death, the revealed verses were collected, consolidated and systematically written
under the authority of Osman who was the third Caliph.

A peculiar feature of the verses of Quran is that they are believed to be the very words of God;
Prophet Muhammad was simply the messenger of God to the society. Quran is of divine origin,
therefore, in importance it is the first source of Muslim law.

Salient Features of Quran as Source of Law:

Salient features of Quran as a source of Muslim law, may be summarised as under

(i) Divine Origin:

Quran is of divine origin. It is believed in Islam that the words and the verses of this holy book
are made by Almighty God and not by any human being. The Prophet simply uttered these words
on behalf of God. Since Quran is compilation of the very words of God, its words are
unchangeable and its authority is unchallengeable.

(ii) First Source:

Quran is the first and fundamental source of Islam in point of time. The present Muslim religion
was bom with the words of Qurar. Any study of Islamic principles or the Muslim law must
therefore, begin with it.

(iii) Structure:

Quran is in the form of verses. Each verse is called ‘Ayat’. There are 6237 verses in Quran which
are contained in 114 Chapters. Each Chapter of Quran is called ‘Sura’. The various chapters are
arranged subject-wise and have their specific titles. The first ‘Sura’ of Quran is Surat-ul-Fatiha
which is an introduction to the holy book and consists of verses in the praise of Almighty God.
Similarly, other chapters contain generally the verses on the subject which justify their titles.
Some of the important chapters of Quran are, Surat-un-Nisa (rales relating to women), Surat-ul-
Talaq (rules relating to divorce), Surat-ul-Baqr (rules relating to religion and morality), Surat-ul-
Ikhlas (principle of absolute surrender to God) and, Surat-ul-Noor (rules relating to home-life).

(iv) Admixture of Religion, Law and Morality:

Quran is mixture of religion, law and morality. Religion, law and morality are, at some places,
mixed in such a manner that it is difficult to separate them. In holy books of other religions too,
we find the same peculiarity. For example, in Vedas and Smritis (the fundamental sources of
Hindu Law), the legal rales are mixed with the moral code of conduct.

It is believed that the verses of Quran pertaining to religion and morality were revealed at Mecca
and those pertaining to ‘law’ were revealed at Medina. The whole of Quran, therefore, may not
be treated as a source of law. Only the law-making Ayats, which are about 200 scattered in
different chapters, may be regarded as the fundamental source of Muslim law.

(v) Different Forms of Legal Rules:

The verses of Quran deal with law in different forms. Some of the verses have removed
objectionable and evil customs like child infanticide, unlimited polygamy, gambling, usuary
(charging very high interest in loans) etc.

Some of them have laid down specific law-making ‘rules’ to settle the question that actually
arose in day-to- day life. Quran contains also the general injunctions which have formed the
basis of important juristic inferences.

(vi) Unchangeable:

The words of Quran are the words of God; therefore, it is the most authoritative source of
Muslim law. If any specific meaning has been attributed to a particular verse of Quran, either by
Shia or by Sunni authorities then, the courts have no power to give any other meaning to that
verse.

(vii) Incompleteness:

Quran is not a complete code of Muslim personal law. It generally contains verses relating to the
philosophy of life and religion. Only about 200 verses deal with legal matters. Out of these, only
about 80 verses deal with personal law. Thus, only basic principles of Muslim personal law are
given in Quran.

(viii) Silence of Quran:

On many legal issues the Quran is found to be silent. For new problems of the society no legal
solutions were available in the apparent words of Quran.
We have seen that Quran is such a source of Muslim law which has came directly from God. It
was revealed to the Prophet for the socio-religious reform of the Arabian society of that time and
therefore we may find solutions to almost all the problems of that society.

But the religion of Islam spread so rapidly that within a short period the Islamic society became a
big Islamic Commonwealth. It was obvious that in such a progressive society new problems
arose day by day.

It was, therefore, necessary to explain and supplement the verses of Quran so that solution to
new problems could be found. Accordingly, as a source of law, Quran was supplemented by
another source called Sunna.

(2) Sunna or Ahadis (Traditions of the Prophet):

Sunna or Ahadis means the traditions of the Prophet. Whatever the Prophet said or did without
reference to God, is treated as his traditions and is the second source of Muslim law. Traditions
are the injunctions of God in the words of the Prophet.

Where the words of God could not supply an authority for a given rule of law, ‘Prophet’s own
words’ were treated as an authority because it is believed that even his own sayings derived
inspiration from God.

In Islam it is believed that the revelations were of two kinds, manifest (Zahir) and internal
(Batin). Manifest or express revelations were the very words of God and came to the Prophet
through angel Gabriel; such revelations, as pointed out earlier, formed part of Quran.

Internal or implied revelations on the other hand, were those which had been ‘Prophet’s own
words’ but the ideas contained in the slayings were inspired by God. Such internal revelations
formed part of Sunna. Tradition therefore differs from Quran in the sense that Quran contains the
very words of God whereas a Tradition is in the language of the Prophet.

What Constituted Sunna?

All the preachings and the practices of the Prophet (except when direct revelations from God
used to come) formed part of Sunna. What the Prophet said what he did and also his silence in a
question put before him, was all taken to be authoritative and become a precedent. Traditions as
a source of Muslim law consist of:

(i) Sunnat-ul-Qaul (words spoken) which means the utterances or the sayings of Prophet
Mohammad;

(ii) Sunnat-ul-Fail (conduct) which includes the doings of the Prophet i.e. his behaviour; and

(iii) Sunnat-ul-Taqrir (silence) which is the ‘silence of the Prophet’ in answer to a question
which was put before him for his decision. Silence amounted implied consent or approval of a
rule of law. Sunnat-ul-Taqrir also includes such pre-Islamic customs which were not disapproved
by the Prophet. He allowed the continuance of some customs in the society by his silent
approval.

Narrators of the Traditions:

The preachings and precepts could become an authoritative source of law when some competent
and qualified person called Narrator, had narrated it. In other words, the Narrator used to testify
that he heard the Prophet Saying it, or seen him doing it or has seen his silence over that matter.
If this narration was found to be reliable, it became Sunna.

As the narration of a tradition amounted to the creation of a new rule of law, the Narrator was
required to be a qualified person. According to Abdur Rahim a person must possess following
qualifications for being a competent Narrator: (i) he must have understanding (sane and adult),
(ii) he must possess the power of retention, (iii) he must be a Muslim, and (iv) he must be of
righteous conduct. Having these qualifications, following class of persons was recognised as
Narrators:

(a) Companions of the Prophet:

They were such Muslims who lived during the life-time of the Prophet and had the privilege of
being in his close contact. This narration was treated as most reliable.

(b) Successors of the Companions:

Those Muslims who did not live during the life of the Prophet but had the occasion of being in
contact with the Companions of the Prophet were called the Successors. Authority of the
narrations of the successors was second in priority.

(c) Successors of the Successors:

Such Muslims who neither lived during the life of the Prophet nor during the life of any of the
Prophet’s Companions, but were in contact with the Successors, were called the Successor of the
Successor of a Companion. Their narration was last to be relied upon. Thus we see that the
nearer was a Narrator to the Prophet, greater was the force of his narration.

Kinds of Traditions:

Recognition and acceptance of a tradition as a source of law depends upon its authority and, its
authority depends upon its proof given by the Narrators. From the point of view of their authority
and acceptance in the society, traditions may be classified as under:

(i) Ahadis-i-Mutwatir (Universally Accepted Traditions):

They are the traditions which have continuously been narrated by indefinite number of persons.
They are most authoritative because there is no doubt in their genuineness and certainty. These
traditions have universal acceptance and are followed by all the sects of Islam. Abdur Rahim
rightly observes that traditions of this class, like verse of the Quran, ensure absolute certainty as
to their authenticity and demand implicit belief.

(ii) Ahadis-i-Mashhoor (Popular Traditions):

Traditions, which have been narrated by some Companion of the Prophet but subsequently
accepted by majority of the people, are called Ahadis-i-Mashhoor or the well known traditions.
These traditions are not accepted unanimously by all Muslims but a great majority has always
recognised them as a source of law.

(iii) Ahadis-i-Ahad (Isolated Traditions):

Isolated traditions have neither been continuously followed nor followed by majority of the
people. Only a certain section of the society has accepted them as source of law. Where the
authenticity of any narration was doubtful, it was followed for some time only by few persons.
Such traditions are called isolated traditions because their acceptance and recognition is localised
one. Majority of the jurists do not recognise these traditions as a source of Muslim law.

Traditions are narrations of law and religion which were communicated from one generation to
another and thus became the practices in the society. They were for a long time neither written
nor systematically arranged.

For the first time, Abu-Ibn-Zuhri attempted to collect and write down the scattered traditions.
But Muvatta of Malik Ibn- Anas is regarded to be the first systematic collection of traditions,
arranged and classified according to subjects. Traditions are in a very large number. Ibn Hanbal
has collected about 80,000 traditions in his book Masnad.

Drawbacks of Traditions:

The importance of traditions as a source of Muslim law is unquestionable. But as source of law it
suffers from following drawbacks:

(1) There are many traditions of doubtful origin. On several occasions, the prevalent customs
were treated as a rule of law in the name of the practices of the Prophet. Narrators of such
traditions are unknown persons.

(2) There are several traditions which are contradictory to each other. There is, therefore, no
uniform and certain law on many issues.

(3) Traditions have laid down religious, moral and also the legal codes of conduct for the society.
Sometimes it is difficult to separate a religious or moral principle from a legal rule.

(4) Traditions got their authority from the narrators. After sometimes when successor of the
successor also died, the formation of this source of law was stopped. For any new situation,
therefore, traditions, as a source of law were not available.
Because of the above-mentioned reasons, some other source of law was necessitated for the
rapidly increasing Islamic society. The next source of Muslim law is Ijma, which is discussed
below.

(3) Ijma (Unanimous Decisions of Jurists):

When Quran and traditions could not supply any rule of law for a new problem, the ‘law-
knowing persons’ (jurists) used to agree unanimously and gave their common opinion over that
point. Persons having knowledge of law were called Mujtahids (Jurists).

Such consensus opinion or unanimous decision of the jurists was termed Ijma, and is the third
primary source of Muslim law. According to Abdur Rahim, Ijma may be defined as the
agreement of the jurists among the followers of the Prophet Mohammad in a particular age on a
particular question.

This source of Muslim law has played a very important role in the subsequent development of
Muslim law because; through Ijma it was possible to lay down new principles in accordance with
the changing needs of the Islamic society. Validity of Ijma as a source of Muslim law is based on
a tradition of the Prophet. In this ‘tradition’ he has said that, ‘God will not allow His people to
agree on an error.

Formation of Ijma:

When a new principle of law was required, the jurists (Mujtahids) used to give their concurrent
opinion and a new law was laid down. Every Muslim was not competent to participate in the
formation of Ijma. Only Mujtahids could take part in it.

Qualification for being a Mujtahid was that he must be a Muslim having adequate knowledge of
law and was also competent to give independent judgments. This process of formulating a law
through the consensus of the jurists was termed as Ijtihad which technically means exercise of
one’s own reasoning to deduce a new rule of law. But, the jurists were not free to give the
decisions without any basis. They had to justify their opinions in the light of some well settled
principles already given in Quran or the traditions. Public policy, ‘interest of the community’ and
equity were also taken into account as the basis for a new explanation of law.

Kinds of Ijma:

Authority of Ijma depended upon the merit of the participator in its formation. There were
different categories of the jurists. Better was the category of jurists, greater is the value of their
opinions. From the point of view of authority and importance, there are three kinds of Ijma:

(1) Ijma of the Companions:

The concurrent opinions of the Companions of the Prophet were taken to be most valuable and
reliable. It was presumed that the Companions were the best persons to act as jurists. Such Ijma,
being most authoritative, could not be overruled or modified by any subsequent Ijma. Hanbalis
recognise only this kind of Ijma.

(2) Ijma of the Jurists:

This was the unanimous decision of the jurists (other than Companions) over a point of law in a
particular age. In the absence of the opinions of the Companions of the Prophet, it was natural
that the opinion of other learned scholars of any age was taken to be the law. A great mass of
Hanafi rules of law have been formulated through this kind of Ijma.

(3) Ijma of the People:

The third category of Ijma is the opinions of the majority of the Muslims. Sometimes the general
agreement of the great majority of Muslims was also accepted as law. As a source of law, this
kind of Ijma has little value because of two reasons.

Firstly, it was not possible to have the concurrent opinion or even the absolute majority of the
community at large. Secondly, every Muslim cannot be supposed to be a learned scholar. Ijma of
this kind generally relates to religious practices such as the observance of fasts, Zakat, prayers,
etc.

Importance of Ijma:

New facts and new situations required new laws. Quran and traditions were adequate only for the
past and not for the future society. Fyzee rightly observes that, “Quran and Sunna look to the
past; consensus and qias deal with the future of Islamic jurisprudence”. In fact a major portion of
the positive Muslim law (fiqh) came through Ijma. As a source of law importance of Ijma is
twofold:

First, further explanation and clarification of Quran and traditions was possible through
consensus opinions of the jurists.

Secondly, new principles of law, not found in the words of Quran or the traditions were also
formulated according to the changing needs of the society.

Quran and Traditions being rigid, no change was possible in their words. But Ijma had opened
the doors for new interpretations of Islamic legal rules. Ijma has rightly been termed as a
‘movable element in law. It is movable element in law because it is flexible and not rigid like
Quran or Traditions.

According to J. Schacht, it is ‘living tradition’. Through Ijtihad (process of Ijma) rule of law may
be obtained for any society in any age. In this manner, it is a living source of legislation. Reform
in Muslim personal law is possible even to-day in the same manner as Ijma was being formed in
the past.

Defects of Ijma:
As a source of Mulsim law, Ijma had following defects:

(i) The consensus of opinion of the jurists was based on several grounds, such as Quran,
traditions, custom, public policy, equity etc. This led to differences in the approach of scholars in
arriving at a decision. The result was that different schools and sub-schools were formed and law
became complicated.

(ii) After sometime, it was doubted whether the consensus or unanimity in the opinions, was at
all necessary. Different views were expressed regarding the nature of consensus. According to
some, a unanimous decision was necessary but according to others, opinions of the majority were
sufficient to constitute the Ijma.

(iii) Except the Ijma of the Companions, other two kinds of Ijma could be modified or overruled
by a subsequent Ijma. There was, therefore, no certainty in law.

(iv) In a very short period, Islam spread to distant places. It became practically difficult to
consult all the jurists and obtain their opinions.

(v) Only learned scholars could take part in the formation of Ijma. By and by these scholars died
and it was felt that no jurists are available for its formation. The result was that about the 10th
century, Ijma had to be abandoned.

(4) Qiyas (Analogical Deduction):

In the Arabic language Qiyas means ‘measurement’. In other words, it means measuring or
comparing a thing in relation to a standard, or ‘to establish an analogy’. If there was any problem
before the society on which the texts (Quran, Sunna and Ijma) were silent then Qiyas was
applied to get the law.

It was a method of comparing the problem of society with a similar problem for which solution
was given in the texts. Wilson defines Qiyas as an analogical deduction from the reason of a text
to a case not actually covered by its language.

In obtaining a law through Qiyas, following method was applied by the jurists (Mujtahids):

(a) A similarity was established between the new problem (for which the law was required) and
an identical problem given in the text. For establishing similarity, ‘reason’ or the sense behind a
text was taken into account rather than the meaning of its apparent words. In this manner, the
‘common cause’ (Illat) of the two problems was found and analogy was established between the
given problem and a similar problem available in the text.

(b) After establishing the analogy, the solution of the problem given in the text was applied to the
new problem. Thus, the required law was directly deduced from the texts of Quran or Sunna or
the Ijma. It is significant to note that in this method new principles were not formulated. The law
was simply discovered from the spirit or the implied meaning of the text.
In drawing conclusion through Qiyas, unanimity among the jurists who used to establish the
analogy, was not necessary. Only following conditions were required:

(1) The person who established analogy was a Mujtahid (jurist) and that,

(2) He deduced the law from a definite text of Quran or Sunna or the Ijma.

Qiyas may be distinguished from other similar concepts namely, Istihsan and Istidlal.

Qiyas and Istihsan:

Istihsan means juristic equity. It is a principle of interpretation recognised only under Hanafi
School. Istihsan is a conclusion of law based upon the jurist’s own sense of justice without
reference to any text. Qiyas on the other hand, is a conclusion of law based on a definite text of
Quran, tradition or Ijma.

Qiyas and Istidlal:

Istidlal means infering a ‘thing’ from another ‘thing’. For example, if the statement is that a
particular thing is permitted then, the inference will be that the thing cannot be forbidden. The
basis of such reference is generally the welfare of the public.

This too is a rule of interpretation and, is recognised by Maliki and Shafei Schools only. Thus,
under the principle of Istidlal only an inference is drawn and analogy is not established whereas,
in Qiyas the rule of law is deduced by establishing analogy.

Primary Sources under Shia Law:

The primary sources under Shia law may be summarised as under:

(1) Quran.

(2) Traditions (only those which have come from the Prophet’s family).

(3) Ijma (only those which were confirmed by Imams).

(4) Reason (Aql).

It may be noted that Shia sect does not recognise Qiyas as a source of law. Traditions too are
recognised as source of law only if they have come from the Prophet’s family. But, besides such
Traditions of the Prophet, Shia law recognises also the ‘sayings and doings’ (conduct) of Imams
as source of law.

It is significant to note that in addition to Quran, other sources are recognised under Shia law
only where such sources have come through Imams. Generally, it is believed that whatever has
been laid down by Imams shall be accepted as law. Fyzee observes thus:
“The Imam is the law-giver himself, the speaking Quran; he may in a proper case even legislate,
make new laws and abrogate old ones; but as he is hidden…, the Mujtahids who are present at all
times are his agents, the recognised interpreters of the law.”

Secondary Sources:

(1) Custom (Urf or Taamul):

Before Islam, the Arabs were governed by customary laws. When Islam came into existence,
most of the customs were found by the Prophet to be evil and bad. Such bad customs were totally
abolished by him and he declared them to be un-Islamic. But there were certain pre-Islamic
customs (e.g. dower, talaq etc.) which were good and tolerable.

The Prophet did not abolish them, and they continued in the society because the Prophet
sanctioned them by his silent approval. In this manner some of the good customs became a part
of the traditions of the Prophet i.e. Sunnat-ul-taqrir.

Moreover, there were customs on the basis of which the jurists gave their unanimous decisions
on a given point of law and they formed part of Ijma. Thus, we see that custom is not any
independent source of Muslim law. A customary law exists in Islam either because it has got the
approval of the Prophet or, has been incorporated in Ijma.

Importance of Customs:

Although custom is not any formal source yet, its importance in Muslim law cannot be under-
estimated. In the absence of a rule of law in the texts of any of the four primary sources, the
customary practices have been regarded as law.

The four formal sources namely, Quran, Sunna, Ijma and Qiyas being fundamental sources,
could not include minute details in respect of certain matters. In such specific cases the customs
and usages became a rule in order to complete the law.

Therefore, the customary law has been used to supplement the four primary sources of Muslim
law. British courts in India had on several occasions recognised the legal force of customs and
usages. Those courts have made the maximum use of customary practices in respect of Muslim
law and recognised a custom even if it was opposed to a clear text of a primary source. For
example, in Abdul Hussein v. Sona Dero, the Privy Council observed that if proved, a custom
would prevail over a written text of law provided the custom was ancient and invariable.

The orthodox Muslims felt that by giving general application to this rule, the courts have
attempted to violate the original Muslim law (Shariat). They demanded that there should not be
any place for customs in the Muslim personal law as it was un-Islamic. Accordingly, the Muslim
Personal Law (Shariat) Application Act, 1937 was enacted and is still in force. Now, under this
Act, custom is not any independent source of Muslim personal law.

Present Position of Custom under Muslim Law:

The Shariat Act, 1937, which applies to Muslims all over India (except Jammu and Kashmir)
abolishes most of the customs from Muslim law. Section 2 of this Act provides that if the parties
are Muslim, only Muslim personal law (Shariat) will be applied to them in matters of
inheritance, special property of females, marriage, dower, divorce, maintenance, guardianship,
gift, waqf and trust. In respect of these ten matters, therefore, customs or usages cannot be
applied now.

But customs are still applicable to Muslims in the matters, relating to their (a) agricultural lands,
(b) charities, and (c) religious and charitable endowments, because these matters have not been
included in Section 2 of this Act.

Moreover, Section 3 of the Shariat Act provides that adoption, wills and legacies would be
regulated by customary law unless a Muslim had expressly declared that in these three additional
matters too his rule of law should be Muslim personal law (Shariat).

The result is that at present Muslims in India may still be governed by the customary law except
in the ten matters enumerated in Section 2 of the Shariat Act. In Jammu and Kashmir, where the
Shariat Act, 1937 is not applicable, the rules of Muslim law have always been subjected to
custom and usage. The custom of adoption by Muslims of this State is valid although under
Muslim personal law adoption is not possible.

(2) Judicial Decisions:

Judgment of a superior court becomes an authority for the courts subordinate to it. The
subordinate courts are bound to follow the law laid down in that decision. This is called the
principle of precedents and is followed in India on the pattern of the British courts.

Thus, a judicial decision of the Supreme Court of India is binding on all the High Courts in so far
as the law decided in that case is concerned. Similarly decision of a High Court is binding on the
subordinate courts. Muslim law is no exception to this judicial practice and therefore, a point of
law decided by the Supreme Court or a High Court of India becomes a ‘source of law’ for the
courts subordinate to them.

There is not much scope for the judicial decisions as source of Muslim law. But, in the absence
of any clear text of Muslim law, the courts may interpret a rule of law according to their own
concepts of justice. In such cases, the Muslim law becomes what the courts say.

For example, generally the taking of interest in a loan is prohibited in Islam, but the Privy
Council allowed simple interest on die amount of unpaid dower. Accordingly, the realisation of
interest on unpaid dower has now become a rule of Muslim law through precedent.

Similarly, in Katheessa Umma v. Narayanath Kunhamu the Supreme Court has held that a gift
by a husband to his minor wife above the age of fifteen years but under eighteen years is valid
even if the gift was accepted by any incompetent guardian under Muslim law. Although such a
gift is invalid under pure Mushm law but after this decision the law in India is that under the
given circumstances a gift is valid.
Judicial decisions have played an important role in laying down rules of Mushm law in
accordance with the socio-economic conditions of the Indian Muslims. The courts have given
some very important judicial decisions. In Begum Subanu v. Abdul Gafoor the Supreme Court
has held that despite the fact that a Muslim husband has legal right to contract second marriage,
if the first wife lives separately only on the ground of husband’s second marriage, she would be
entitled to get maintenance from husband. Section 2 of the Dissolution of Muslim Marriages Act,
1939 provides eight grounds on the basis of any one of which a wife may seek dissolution of her
marriage.

Clause (ix) of this Act provides ‘any other ground recognised under Muslim law’. Under this
clause the Indian courts used to pass decree of dissolution on ground of ‘false charge of adultery
by husband against wife’ (Lian) because this ground is not included specifically.

But, in Muhammad Usman v. Sainba Umma the Kerala High Court has held that Section 2(ix) is
a ‘residuary clause’ under which the court at its discretion may dissolve the marriage on any
ground if it is satisfied that the dissolution is necessary in the case. It may be noted that in this
case the ground on which wife wanted dissolution of marriage was her ‘hate towards her
husband’.

This was found a reasonable ground and the court dissolved the marriage under clause (ix) of the
Act. Law of pre-emption is a glaring example where judicial decisions have modified the rules of
pure Muslim law according to the changing needs of the Indian Muslims.

It may be concluded therefore, that to some extent, the courts in India have attempted to modify
the rules of Muslim personal law as applied in India. Unless overruled or negative by some
legislative enactment, these rules through the decisions, continue to be a source of Muslim law.

(3) Legislation:

In Islam it is generally believed that God alone is the Supreme Legislator and no other agency or
body on earth has authority to make laws. This belief is so deep-rooted that even today; any
legislative modification may be treated as an encroachment upon the traditional Islamic law. The
result is that as independent source of Muslim law, the legislative enactments are almost
insignificant.

However, there are certain Acts which modify or otherwise lay down principles of Muslim law,
and for the modern courts in India these enactments are the only source of law on the points
covered by them. Some important enactments on Muslim personal law are given below:

(i) The Mussalman Waqf Validating Act, 1913:

This Act re-establishes the validity of Waqf-al-al-aulad (family waqf). This enactment has not
changed the rule of pure Muslim law. It has simply re-established the law relating to family-
waqfs which was modified by the judicial decision.

(ii) The Child Marriage Restraint Act, 1929:

To some extent this Act modifies the Muslim law regarding the age of marriage. The Act, (as
amended by the Act of 1978) provides that the marriage of a boy under the age of 21 years and
of a girl less than 18 years is a ‘child marriage’ and is punishable. Under Muslim personal law
the age for the marriage is fifteen years. However a marriage against the provisions of this Act is
perfectly valid.

(iii) The Muslim Personal Law (Shariat) Application Act, 1937:

We have already seen that this enactment confirms the general principle of Muslim jurisprudence
that customs have no place in Muslim law. Thus, this enactment too has not made any significant
change in the pure Muslim law. It has simply established the rule of pure Muslim law that
custom is not to be taken as an independent source of Muslim personal law.

(iv) Dissolution of Muslim Marriages Act, 1939:

This is an enactment which may be said to have modified the pure Muslim law. Under this Act, a
Muslim wife is given a right of judicial divorce on any of the grounds mentioned in it. Under
pure Muslim law a wife had no independent right to seek divorce.

(v) Muslim Women (Protection of Rights on Divorce) Act, 1986:

Besides other provisions, this Act gives statutory recognition to the established rule of pure
Muslim law that a former husband is liable to pay maintenance to his divorced woman only up to
her period of Iddat.

In the controversial Shah Bano’s case the Supreme Court held that under Section 125 Cr. P.C.,
1973 a divorced Muslim woman is entitled to get maintenance from her former husband even
beyond the period of Iddat. Under pure Muslim law, a divorced Muslim woman is entitled to get
maintenance only upto the period of her Iddat which is normally three months.

It was argued that Section 125 of the Cr. P.C. was un-Islamic and was inapplicable to Muslim
women. But the Supreme Court held that Section 125 is not un-Islamic and is equally applicable
to Muslims as well. However, on demand of a section of the Muslim community, the Parliament
negatived the effect of Shah Bano’s case and passed this enactment. Besides other things, The
Muslim Women Act, 1986 now enacts the rule of pure Muslim law in respect of maintenance of
a divorced Muslim woman.

Besides these Acts, there are also enatcments which regulate the law of pre-emption and the law
of waqfs. For example, the Punjab Pre-emption Act, 1913, the Rewa State Pre-emption Act,
1946 etc. and the Mussalman Waqf Act, 1923 or the Waqfs Act of 1954.

The Pre-emption Acts do not lay down any new provision regarding the well-known right of pre-
emption under Muslim personal law; they simply provide that the right is available to all persons
within the jurisdiction of respective Act.
Similarly, the various Waqfs Acts provide generally the rules for the supervision and
administrative control of a waqf and waqf-properties. The Family Court Act, 1984 is applicable
also to Muslims. This Act too does not modify the substantive rules of Muslim personal law. It
generally deals with the procedure.

The Shariat Act, 1937, is Landmark

Legislation in the History of Muslim Law
Article shared by <="" div="">

The place of the different enactments authorising and regulating the application of Muslim law to
Muslims in the different States of India is now taken by the Muslim Personal Law (Shariat)
Application Act, 1937. The object of the Act is, as its Preamble states, “to make provision for the
application of the Muslim Personal Law (Shariat) to Muslims in India.” The Act came into force
on 7th October, 1937.

Under this Act, it is provided that, notwithstanding any custom or usage to the contrary, in all
questions (save questions relating to agricultural land) regarding intestate succession, special
property of females (including personal property inherited or obtained under contract or gift or
any other provision of personal law), marriage, dissolution of marriage, including talaq, ila,
zihar, Han, khula and mubara’at, maintenance, dower, guardianship, gifts, trust and trust
properties and wakfs (other than charities and religious endowments), Muslim personal law
(Shariat) is to apply to all cases where the parties are Muslims. (S. 2)

It will be seen that the matters enumerated above together constitute practically the whole branch
of personal law, and hence, the Act is called the Muslim Personal Law Application Act. The
scope and purpose of S. 2 of the Act (above) is to abrogate custom and usage in so far as they
have displaced the rules of Muhammadan law.

ADVERTISEMENTS:

Wills and legacies are dealt with in Section 3. As regards questions relating to pre-emption, the
old law is left untouched by the Act. By mentioning ila and Zihar amongst the modes of
dissolution of marriage, the Act apparently seeks revive these modes of divorce. Another
important point to note is that charitable and religious institutions are excluded from the scope of
the Act.

The Calcutta High Court has held that, as regards marriage and divorce, the Shariat Act
requires the Courts to apply Muslim law, only if both the parties are Muslims. If, therefore, only
one of them is a Muslim, the Act will not apply. (Noor Jahan v. E. Tiscenko, A.I.R. 1941 Cal.
582)

ADVERTISEMENTS:

The Bombay High Court has held that testamentary trusts and testamentary wakfs are covered by
S. 2 of the Act, and therefore in matters involving such trusts or wakfs, S. 3 of the Act (below) is
not applicable. (Ashrafalli v. Mohamedalli, A.I.R. 1947 Bom., 122)

Under S. 3 of the Act, any person who satisfies the prescribed authority:

(a) That he is a Muslim, and

(b) That he is competent to contract within the meaning of section 11 of the Indian Contract Act,
1872, and

ADVERTISEMENTS:

(c) That he is a Resident of India:

Can, by declaration in the prescribed form filed before the prescribed authority, declare that he
desires to obtain the benefit of this Act, and thereafter, the provisions of S. 2 apply to the
declarant and all his minor children and their descendants, as if, in addition to the matters
enumerated above, adoption wills and legacies were also specified.

Provision is also made for an appeal if the prescribed authority refuses to accept such a
declaration.

It will be seen that S. 3 refers to adoption, wills and legacies. The provisions of this section may
be called persuasive, unlike the provisions of S. 2, which are obviously coercive. Whereas the
purpose of S. 2 is to abrogate customs and usages, insofar as these have displaced the rules of
Muhammadan law, Section 3 does not invalidate the customs relating to adoptions, wills and
legacies. It only provides an option to any person affected by these customs to abandon them and
adopt Muhammadan law.

S. 4 of the Act then empowers the State Governments to make rules to carry out the purpose of
the Act, and S. 6 repeals certain Acts, to the extent that they permit inconsistent customs. (S. 5 of
the Act was repealed in 1939.)

What are the Different Schools of Muslim

Law?
Article shared by <="" div="">

Sunni and Shia Sects:

Prophet Mohammad was the universally acclaimed head of the Islamic Commonwealth. He was
absolute authority on law as well as the Chief administrator of the whole body of Muslims. After
his death, the immediate problem was to find out his successor.

A great majority of Muslims suggested that there should be an election for the successor of the
Prophet. This view was advocated by Ayesha Begum, the youngest wife of the Prophet. It was
argued by this group that since Prophet exercised absolute command over the Islamic
community, his successor too should be a person who could control the Muslims.

ADVERTISEMENTS:

This required the confidence of the people and therefore election was the only method to choose
the successor. This section of the Muslim-society pleaded for election as a method of finding out
the successor of the Prophet also because the Prophet himself had suggested election. The
Prophet’s suggestions or sayings are called his traditions (Sunnat).

They relied on this tradition of the Prophet. Accordingly, an election was held in which Abu
Bakr, who was father of Ayesha Begum, was elected and became the first Caliph. This group of
Muslims, with its leader Abu Bakr, formed the Sunni sect of Islam. They assumed the name
Ahle-Sunnat-wal-Jamat which means people of the ‘tradition and assembly’. They are popularly
known as Sunnis.

But there were Muslims (although in minority) who did not agree to the principle of election.
That group emphasised upon the spiritual headship of the Prophet rather than his administrative
control. This minority group was represented by Fatima, daughter of the Prophet. Their
contention was that the Prophet’s successor should be a spiritual leader of the community as
Prophet himself was.

They argued that this quality comes through the nobility of blood. Therefore, a person who is
related to Prophet Mohammad through blood or belongs to his family should be regarded as the
most competent person to succeed him. Thus, the group of Fatima rejected the election and relied
upon the principle of succession.

ADVERTISEMENTS:

Consequently Ali, who was son-in-law of the Prophet (Fatima’s husband) and was also his
cousin, was nominated as the first Imam by this group of Muslims. They dissociated themselves
from the majority and constituted a separate sect called Shia (literal meaning ‘faction’).

Thus we see that the split which divides the Muslims into two sects Shia and Sunni was due to
the difference of opinions among the Muslims as to how to find out the successor of the Prophet.
Therefore, division of Islam originated with political questions only but subsequently it resulted
in the separation on legal principles as well.

These two sects formed two major schools of the Muslim law. Later on, the Sunnis further
spitted into several sub-sects in themselves, each sect representing a distinct school of Sunni
Law. There was a similar split also among the Shias. The chart below gives a clear picture of the
different schools of Muslim law.

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.

ADVERTISEMENTS:

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 recognised 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. The followers of Musa
Kazim and others in that line upto Mohammad-al-Mantazar constitute the third and the last
school of Shias and are called Ithna Asharia or the Twelvers.

In this manner we see that mainly 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. A brief account of these
schools and sub-schools follows:

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 he 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 recognises “Muta” or a temporary marriage.

This school is further divided into two sub-sects, (1) Akhbari and the (2) Usuli. Akhbaris are
very orthodox because they follow rigidly the 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-ul- Islam 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 groups (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-lslam is an authoritative work on Ismailias doctrines.

The Zyadis School:

As pointed out earlier, 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
establishdd by Ata-al-Ghazzal during the reign of Mamun. Although they do not associate
themselves from any of the two existing sects yet, it is said that they were defectors from the
Shia community.

Ameer Ali observes that, “a careful comparison of the Motazilite doctrines will show that they
were either word for word the same as taught by the early Fatimides (Ismailia-Shias) or were
modifications of those doctrines induced by the requirements of a progressive society and partly
perhaps, by the study of Greek and Alexandrian philosophy’.

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.

During the third stage of the development of Muslim law (661-900 AD.), the rulers contributed
nothing to the development of law. Those ambitious kings were interested in the expansion of
their empire rather than the development of Muslim law. But the individual jurists did not sit
idle.

On their personal level they concentrated themselves to the further expansion of Muslim law by
giving juridical interpretations to Quran and the traditions. This personal study by the jurists
gave rise to different opinions about any given rule of law because of the differences in their
approach as to the source of that law.

Each jurist having his own interpretation, had followers and they constituted a distinct or
separate school. In this manner, the Sunni sect was divided further into four important schools.
But, the principles of these four schools are substantially the same and they differ from each
other merely in matters of detail. Besides these four schools, there had been certain other
‘personal schools’ of the Sunni Muslims. But, by 1300 A.D, only four schools, discussed below,
were given recognition.

The Hanifi School:

This school of the Sunni Muslims is named after its founder Abu Hanifa and is the most popular
school of Muslim law. Abu Hanifa was an eminent scholar of his time and was widely known for
his outstanding logical reasoning and technical legal thought. He was appointed as Qazi but he
refused to accept the post in the fear that he would be required to give judgments against his
conscience.

As a punishment for his refusal to accept the post, he was imprisoned. During his life Kufa, the
city where he was born and lived, had become an important centre of distinct thinking in Muslim
law. This school is therefore, also called as the “Kufa School”.

Abu Hanifa’s main contribution was that instead of accepting each and every tradition as law, he
tried to find out the law in the texts of Quran itself through analogical deductions. In this manner
he preferred scientifically concluded private judgments based on Quran over a blind reliance on
the traditions.

According to him the law must be formulated in accordance with the changing needs of the
society. In the absence of a law in Quran it may also be obtained by the unanimous decisions of
the jurists. He further suggested that if justice could not be done under the law then the principle
of juristic equity (Istihsan) may be applied in interpreting that law.

He is therefore, rightly called the ‘upholder of private judgments and the founder of Muslim
jurisprudence. With certain modifications, his doctrines were further developed by his two
disciples Abu Yusuf and Imam Mohammad.

Characteristics of this school may now be summarised in the following lines. Out of a large
number of traditions, the Hanafi School recognises only those traditions which have passed
through the severe test regarding their originality. Those traditions which are not authentic are
not to be accepted as law. Abu Hanifa is said to have relied upon eighteen traditions only.

On the other hand Qiyas and Ijma as sources of law have been given prominence under this
school. Several important principles of Hanafi law were obtained through Qiyas. As regards
Ijma, this school does not confine to the Ijma of the Companions.

According to Hanafi School Ijma may be formed by the jurists of any age and may be used as a
source of a law. It was for the first time under this school that the doctrine of Istihsan (juristic
equity) was used in interpreting the texts of Quran and traditions. Similarly, customs and usages,
provided they were not against the texts of Quran, were recognised as proof of the practices of
society.
The doctrines of this school being practical and most suitable to the changing conditions of the
society have always been favoured by Caliphs and the emperors. Some of the important books on
Hanafi law are Radd-Al-Makhtar, Durr-ul-Mukhtar, al-Hidyaya and Fatwai Alamgiri.

This school has been popular since its very beginning and a large number of Muslims are its
followers. From Iraq, the home of this school, it spread over to other countries inhabited by
Muslims such as, Egypt, Israel, Jordan, Turkey, Afganistan, China and India etc. Majority of the
Muslims in India and Pakistan belong to this school.

The Maliki School:

This School was established by Malik-ibn-Anas of Medina. He was a great scholar and is
regarded to be an authority on traditions. Imam Mohammad, who was the Hanafi jurists, was
Malik’s favourite student. Unlike Hanafis this school emphasises the importance of traditions as
a ‘source of law’. It recognises the traditions of the Companions, and of successors of the
Companions. According to Maliki School, as far as possible, the new rules should be obtained
exclusively from the traditions.

If it is not possible then only Qiyas and Ijma may be taken into consideration. But this school
recognises Ijma of only such jurists who lived in Medina. The scope of Ijma as a source of law is
therefore limited under this school. Malik and the subsequent jurists of this school had the
privilege of being judges and as such they had to solve day-to-day problems of the public.

This made their approach to law more practical than that of the Hanafis. Because of this fact, in
interpreting a rule of law, a new element called Istidlal (inferring a thing from another thing for
public welfare), was introduced by the Maliki jurists. Another point which is peculiar to the
Maliki doctrine is that it recognises the importance of customs (of Medina) more than any other
school. In addition to Quran, Traditions, Ijma and Qiyas.

The Maliki School accepts also the customs and Istidlal as additional sources of law. A
noticeable feature of this school is that it is the only school in which a married woman and her
properties are always supposed to be under the control of her husband. A Maliki woman cannot
deal with her own properties without the consent of her husband.

Malik has written an exhaustive book namely, Kitab-al-Muwatta which is an authority on the
Maliki doctrines. His compilation of the traditions, ‘Muwatta’ is available even to-day. Khalil-
ibn-Ishaq’s ‘al-Mukhtasar’ is another important work containing Maliki principles. The
principles of this school spread over to the Central and West Africa, Spain, Kuwait, and Bahrain.
There are no Malikis in India.

The Shafei School:

Founder of this School, Ash Shafei was an eminent scholar of Islamic jurisprudence. He was a
pupil of Malik-ibn-Anas and was related to the Prophet. He developed his doctrines at Baghdad
and Cairo. Ash Shafei also relied upon the traditions of the Prophet. But his reliance on the
traditions was more critical than that of Malik.
He examined the traditions in the light of legal reasoning and logic in order to get a very
balanced and systematic rule of law. Throughout his life he endeavoured to systematise the
traditions. Joseph Schacht rightly observes that his legal theory is the achievement of a powerful
individual mind, and at the same time a logical outcome of a process which started when
traditions from the Prophet were first adduced as arguments in law.

According to Ash Shafei, there was not a single problem of human life which could not be
solved by Quran or the traditions of the Prophet. Such solutions may be obtained either directly
in these texts or from analogical deductions.

He made the greatest use of ‘Qiyas’ and had fully established it as a source of law. But according
to him Qiyas is to be considered only after considering Quran, Traditions and Ijtna. He not only
approved Ijma as a source of new law but also enlarged its scope. Besides these four sources, the
Shafei jurists recognise also the custom and the Malik’s principle of Istadlal (public welfare).

But Abu Hanifa’s principle of juristic equity (Istihsan) is not acceptable to this school. One of
the important characteristics of the Shafei School is that a woman is never regarded to be a free
agent in her marriage. Even if she is adult, the consent of her guardian is necessary to validate
the marriage.

It was Ash Shafei who for the first time incorporated usul or principles of law in his book Kitab-
ul-umm. His ‘Risala’ too contains the principles and method of jurisprudence. Other important
works on Shafei doctrines are Tuhfat-al-Muhtaj by Hajar, Nihojat-al- Muhtaj by Ramli and Al-
Wajiz by Ghazzali. From Cairo the Shafei principles spread in the lower parts of Egypt, Hejaz,
Indonesia, Malaysia and South-East Asia. Some of the Muslims in the Western Coast of India
are followers of this school.

The Hanbali School:

The fourth and the latest school of the Sunni sect was established by Ibn Hanbal. He studied
under several scholars of eminence, including Ash Shafei. His peculiar feature was that he
rigidly adhered to the traditions of the Prophet. It is therefore said that Hanbal was traditionist
rather than a jurist. He relied so much upon the traditions that other sources of law namely Ijma
and Qiyas were neglected by him.

He recognised Ijma only of the Companions of the Prophet. Under this school therefore, there is
no scope for private judgments and human reasoning. The result is that the doctrines of this
school are rigid and uncompromising. Because of this, Ibn Hanbal and his followers were always
regarded as reactionaries and were harassed by the authorities from time to time.

Musnad-ul-bnam Hanbal, is an important book on Hanbali law. It is a collection of about fifty

thousand traditions by Ibn Hanbal. Other books by him are Kitab-ul-Mashaekh and Kitab-ul-
Alal. At present very few Muslims are the followers of this school. Generally the Hanbalis are in
Saudi Arabia and Qatar.
Family Law : Problems & Solutions - 6
1) A Mohammedan, agrees to live in his father-in-law's house and to pay his wife Rs. 700/- if he
does not do so and deserts his wife. It is also stipulated that if he fails to pay Rs.700/- according
to this agreement the wife shall have the right to seek dissolution of the marriage. The wife
accordingly files a suit for dissolution of marriage. Decided.

Solution -.
                    Under the Mohammedan law an ante-nuptial agreement by which the husband agrees to live
with his father-in-law is not valid. The husband's house. Such an agreement, however, is valid by custom in
Kashmir. The institution of Khana Damad in Kashmir provides for the residence of the husband with his wife
in her parents house and is valid.

  The further question is whether the stipulation for dissolution of marriage in the contingency of default by
the husband is enforceable. It was held in MD. Khan's case, that such a stipulation is not opposed to public
policy and is enforceable. The suit for dissolution of marriage brought by the wife was accordingly decreed.
Such a divorce may be regarded as Talaq by delegation. Muslim law allows the husband to delegate to the
wife the power to divorce in stipulated contingencies. In this case that is the situation and consequently the
suit for divorce in maintainable.

2) A, a Mohammedan woman, lived with her husband for a month and then went to her parents.
After two years she died for dissolution of marriage on ground that she was not maintained by
the husband for two years.

Solution -
                   These are the facts of A. Yousuf v. Sowramma, the husband's plea is that since his wife had
wrongfully left him he was not bound to maintain her. When there is a good cause to refuse maintenance
can the wife avail herself of the statutory ground for divorce? Krishna Iyer, j., held that the petitioner (wife)
was entitled to divorce under the Act since she had not been maintained for two years and it was not
material to consider whether there was any legal justification for failing to maintain the wife.

3) A Mohammedan marries A minor girl who has not yet attained puberty. He sue to recover
custody of the minor from her mother

Solution -
                   On marriage, it is the husband that becomes the guardian of the minor wife, but under
Mohammedan law the husband has no right to the custody of the wife till she has attained puberty. So
under the Guardian and wards Act, 1890 the court would regard the husband as unfit to be appointed as
guardian of the person of the child wife. When the husband is regarded as unfit, any other qualified person
having regard to the personal law applicable to the minor, may be appointed by the court as such guardian.
So it is the mother that will be appointed as guardian of the minor girl and not the husband till the girl
attains puberty.

The Legal Consequences / Effects of the Marriage : Muslim Law

1) If A  Muslim youth marries his wife's niece

Legal Effect : The marriage is irregular. The vitiating factor is the bar of unlawful conjunction.

(Irregular marriage : An irregular marriage is one , which falls short of a valid marriage only because of 
the presence of certain temporary disqualifications peculiar to Mahomedan Law.  )

2) If A Muslim marries his wife's widowed stepmother.

Legal Effect : The marriage is void. This is prohibited relationship on ground of affinity.

(Void Marriage : A void marriage is really no marriage at all but mere concubinage. The issues of such a
relationship are illegitimate. When there is no contractual capacity or there is no marriage contract or when
the parties stand to each other in prohibited degrees of relationships the marriage is void. 

3)  If A Muslim youth marries his wife's sister.

Legal Effect : The marriage is irregular on the ground of unlawful conjunction.

4) If A Shia woman marries a Christian.

Legal Effect : Among Shias the marriage of a Muslim female with a non-Muslim is void. Among Sunnis such
a marriage would be valid as a Christian is a kitabia (i.e. one having a sacred book)

5) If A shia male marries a Brahma Samaj woman for 10 years.

Legal Effect : Brahma Samajists may not be idolators or fire worshippers but they would be non-kitabias
for they have no kitab I.e, book by which is meant holy book of revealed religion. Among Shias marriage
with a non-kitabia is void. Among Sunnis such a marriage would be only irregular and not a void.

6)  If A Shia male marries a Christian woman for 10 years.

Legal Effect : This is a valid Muta marriage for a shia can have a Muta marriage with a non-Muslim kitabia.

7) If A marries B, a woman undergoing iddat at that time. Subsequently A dies. B claims A's
property as his wife.

Legal Effect : The marriage is irregular. So there is no reciprocal right or heirship as between husband and
wife. B's claim is not tenable.
8) If A , a shia woman, marries a Christian male. Is the marriage valid? Will it make any
difference if A is a Sunni woman?

Legal Effect : Among Shias marriage with a non-Muslim is void. If A is a Sunni woman, the marriage would
be irregular.

Grounds for Divorce under the Dissolution of Muslim Marriages

Act,1939
         Divorce is a dissolution of marital tie. It puts an end of the relationship of husband and wife. It can
obtained only by means of a decree of Court.      
         The dissolution of Muslim Marriage Act 1939 has improved the position of women by recognising
certain new grounds of divorce. Section 2 of dissolution of Muslim Marriage Act of 1939 provides grounds for
dissolution of marriage.

Grounds for decree for dissolution of marriage :

           A woman married under Muslim Law shall be entitled to obtain a decree for the dissolution of her
marriage on any one or more of the following grounds, namely:

(i) that the whereabouts of the husband have not been known for a period of four years;

(ii) that the husband has neglected or has filed to provide for her maintenance for a period of two years;

(ii-A) that the husband has taken an additional wife in contravention of the provisions of the Muslim Family
Laws Ordinance, 1961;

(iii) that the husband has been sentenced to imprisonment for a period of seven years or upwards;

(iv) that the husband has failed to perform, without reasonable cause, his marital obligations for a period of
three years;

(v) that the husband was impotent at the time of the marriage and continues to be so;

(vi) that the husband has been insane for a period of two years or is suffering from leprosy or a virulent
venereal disease;

(vii) that she, having been given in marriage by her father or other guardian before she attained the age of
sixteen years, repudiated the marriage before attaining the age of eighteen years:

Provided that the marriage has not been consumated;

(viii) that the husband treats her with cruelty, that is to say,

(a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not
amount to physical ill-treatment, or
(b) associates with women of evil repute of leads an infamous life, or

(c) attempts to force her to lead an immoral life, or

(d) disposes of her property or prevents her exercising her legal rights over it, or

(e) obstructs her in the observance of her religious profession or practice, or

(f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the
Quran,

(ix) on any other ground which is recognized as valid for the dissolution of marriages under Muslim Law,

Provided that:

(a) no decree passed on ground (i) shall take effect for a period of six months from the date of such decree,
and if the husband appears either in person or through an authorised agent within that period and satisfies
the Court he is prepared to perform his conjugal duties the Court shall set aside the said decree; and

(b) before passing a decree on ground (v) the Court shall, on application by the husband, make an order
requiring the husband to satisfy the Court within a period of one year from the date of such order that he
has ceased to be impotent, and if the husband so satisfied the Court within such period, no decree shall be
passed on the said ground.

Pre-emption (Shuffa) under Muslim Law

– Concept, Rights and Effect
March 27, 2018

The word pre-emption is a right of substitution conferred on someone either by statute, custom or
contract. The right is to step into the shoes of the vendee preferentially, on the terms of sale
already settled between the vendor and vendee. [Vijayalakshmi vs. B. Himantharaja Chetty,
(1996) 9 SCC 376] In the words of Mulla, “The right of Shuffa or Pre-emption is a right which
the owner of the immovable property possesses to acquire by purchase another immovable
property which has been sold to another person.” The Muslim law of pre-emption is to be looked
at in the light of the Muslim law of succession.

Under Muslim law, the death of a person results in the division of his property into fractions. If
an heir is allowed to dispose of his share without offering it to the co-heirs, then it is likely to
 lead to the introduction of strangers into a part of the estate with resultant difficulties and
inconveniences. In view of this, the law of pre-emption imposes a limitation or disability upon
the ownership of the property to the extent that it restricts the owner’s unfettered right to transfer
of property and compels him to sell it to his co-heir or neighbor, as the case may be.

Who can Pre-empt or the Classification of Pre-emptors

1. The shafi-i-sharik or a co-owner in the property.

2. The shafi-i-khalit or a participator in appendages. This expression means a person who is entitled to such
easements as a right of way, or discharge of water. 

3. The shafi-i-jar or owner of an adjoining property.

The right of pre-emption arises from full ownership, and it is immaterial that a pre-emptor is not
in possession of his property. It is the ownership and not possession which gives rise to the right
of pre-emption.

When does the Right of Pre-emption Arise

The right of pre-emption arises only in two types of transfer of property – sale, and exchange.
When it arises in respect of a sale, then the sale must be complete, bonafide and valid. [Najam-
un-nissa vs. Ajaib Ali, (1900) 22 All 342] Similarly, the right of pre-emption arises in respect of
exchange when it is complete, bonafide and valid.

The right of pre-emption does not exist in respect of a gift, sadaqah, wakf, inheritance or lease. It
does not apply to a mortgage also, but if a mortgage is foreclosed, then the right of pre-emption
arises.

It has been held in various cases that the court should look into the real nature of the transaction.
A deed which is called a gift, if it is, in fact, a sale, then the right of pre-emption will arise.
[Bhagwan Dutt vs. Brij, 1938 Oudh 27]

The right of Pre-emption when parties belong to different sects or

schools and when some of the parties are non-Muslims
Pre-emption involves three parties: the pre-emptor, the vendor, and the vendee. When all of the
parties belong to same sect or school no difficulty arises. But difficulties crop up when parties
belong to different schools or to different religions. It appears to be established that the right of
pre-emption can be claimed only if the law applicable to the vendor recognizes pre-emption. [Pir
Khan vs. Fyizaz Hussain, (1914) 36 All 488]

Under Shia law, the right of pre-emption cannot be claimed by a non-Muslim pre-emptor where
the vendor and vendee are Muslims. Also, where the law of pre-emption is lex loci, or arises by
custom, or is created by contract, then it is immaterial that some of the parties are non-Muslims.  

Formalities Necessary for the Exercise of the Right of Pre-emption

The Muhammedan law of pre-emption is a law of technicality, and the existence of the right
depends upon the full and complete observance of formalities. Non-observance of any of the
formalities will be fatal to the suit of pre-emption. The two essential formalities are called “two
demands”. Fyzee says that there are three demands, though admits that the “third demand” is not
really a demand.  

First demand or talab-i-muwasibat

This requirement lays down that the pre-emptor asserts his claim immediately on hearing of the
sale, but not before. This is called talab-i-muwasibat or the first demand. No specific form of
asserting this demand has been laid down. It is imperative that the first demand must be made as
soon as the fact of sale becomes known to the pre-emptor. Any improper or unreasonable delay
will imply an election not to exercise the right of pre-emption. [Baijnath vs. Ramdhari, (1908)
35 Cal 402]

 The first demand need not be made in the presence of witnesses. The first demand to be valid
must be made when the sale has been completed. If a demand is made before the completion of
the sale, it is totally ineffective.

Second demand or talab-i-ishhad

The pre-emptor should, as soon as practicable, affirm the intention of asserting his right by
making the second demand wherein he refers to the fact that he had already made the right
demand. This is called the second demand. No specific form of asserting this demand has been
laid down.

It is imperative that the second demand should be made in the presence of two witnesses and in
the presence of the vendor (if he is still in possession of the property), or in the presence of the
buyer.

Third demand or talab-i-tamlik

The occasion of talab-i-tamlik will arise only if the claim is not conceded, and, therefore, the pre-
emptor files a suit to enforce his right. Thus, the third demand is not an essential formality.

When the right of Pre-emption is lost

The right of pre-emption may be lost in the following cases: a) by acquiescence or waiver, b) by
the death of the pre-emptor, c) by misjoinder, and d) by release.

By acquiescence or waiver – Acquiescence takes place when a pre-emptor fails to observe

necessary formalities, such as making of demands. The right of pre-emption is also lost when the
pre-emptor enters into a compromise with the buyer, such as when he agrees to cultivate the land
(subject matter of pre-emption) with the vendee.

By the death of the pre-emptor – If the pre-emptor dies after making both the demands but
before the filing of the suit, the right of pre-emption is lost. And his legal representative cannot
file the suit.

By misjoinder – If the pre-emptor joins himself as a co-plaintiff with a person who is not
entitled to claim pre-emption, then the right is lost and the suit must be dismissed.

By release – The right of pre-emption is lost if the pre-emptor releases the property for
consideration to be paid to him. However, the right of pre-emption will not be extinguished, if,
before the completion of the sale, the property was offered to the pre-emptor, but he refused to
buy it since the right of pre-emption accrues only after the completion of the sale.   

Effect of Pre-emption
 Once a suit for pre-emption is decreed, the pre-emptor stands the pre-emptor stands in the shoes
of the vendee and take the property subject to all existing equities. However, the original vendee
is entitled to mesne profits, such as rents and profits, of the property between the date of the first
sale and the date of transfer to the pre-emptor.

The right of pre-emption cannot be defeated, or affected by any disposition made by the vendee,
nor can it be defeated by the death of the vendee.

 A decree of pre-emption cannot be transferred by the pre-emptor. If the pre-emptor transfers the
decree, then the transferee of the decree is not entitled to take possession of the pre-empted
property. [Mehr Khan vs. Ghulam, 1922 Lah 308]   

Who is a Minor under Muslim Law?

July 3, 2017

Under Muslim law, the age of majority is regulated by two system:

 The Classical Muslim Law:

Under classic Muslim law a person is said to be minor if he or she has not attained the age of
puberty. The age of puberty is   15 years. But, as already discussed, fifteen year is the age of
majority only for marriage, dower and divorce. Thus for purpose of marriage, dower   and
divorce, a Muslim who has not attained the age of puberty is minor.

 Statutory law:
Statutory rules which regulates the age of majority of the Muslim, are given below:For purpose
other than marriage, dower and divorce, the age of majority is governed by the Indian Majority
Act, 1875. Under this Act the age of majority is eighteen years. A Muslim who has not attained
the age of eighteen years, is a minor in respect of all the matters except marriage, dower and
divorce.

Where a Muslim is within the supervision of a guardian appointed by the court of law, or is a
Muslim whose property has been under the supervision of the Court of Wards, the age of
majority for such Muslims is Twenty-one years. Therefore, except in matter of marriage, dower
and divorce, a Muslim who is in the supervision of a guardian appointed by the court or is under
protection of Court of Law, remains a minor so long as he or she not attained the age of twenty
one years.

Conclusion

For purpose of marriage, dower and divorce, a Muslim become adult after attaining the age of
puberty. But for filling a suit in a court of law, the minimum age is eighteen years even if the suit
may relate to marriage, dower and divorce. A minor can’t file any suit relating to his marriage
without the ‘next friend’.

DEFERRED DOWER
Deferred dower is payable only on the dissolution of the marriage or on the death of
the husband. But if there is any agreement as to the payment of deferred dower earlier
than the dissolution of marriage, such agreement would be valid and binding.Since,
the husband can divorce his wife at any point of time without assigning any reasons,
the deferred dower acts as a security to the wife and is usually very hih.

If there is no divorce, then the deferred dower becomes payable only on the death of
the husband.

Immediately on the death of the husband. the deferred dower becomes a debt, which is
recoverable within a period of three years subject to the Law of Limitation.

Proper Dower or Customary Dower:

In the case of dower not fixed by the parties to the marriage before the marriage or if
there is a condition that the wife should not claim for any dower amount, still the wife
got a right to claim dower. Such dower is called ‘Proper Dower’ or ‘Customary
Dower’.

It is determined after considering the personal qualifications of wife such as age,

social position of her family, economy condition of her husband, etc.

Remedies for a divorced woman or widow to enforce the

dower debt
IN THE CASE OF DIVORCE
If the husband is alive and if the wife is not yet divorced, the prompt dower is
immediately payable on demand by the wife. However, the deferred dower becomes
payable only after divorce by the husband.

The dower debt is an unsecured debt and so it is an actionable claim and ranks with
the other unsecured debts of the deceased husband.

The limitation period is three years as in case of a general debt.

If the wife is in possession of her husband’s property after the divorce, she can utilise
the property to satisfy her debt. There is no limitation period for this.

IN THE CASE OF DEATH OF HUSBAND

When there is no divorce, the deferred dower becomes payable only after the
husband’s death.

If the prompt dower is not demanded by the wife during the husband’s lifetime, then it
becomes payabe only after the husband’s death.

Maina Bibi vs. Chaudary Vakil Ahmed

Muinuddin died leaving his widow Maina Bibi. He had left immovable property
which was retained possession by Maina Bibi until dower was paid.

The respondents instituted a suit against the widow for the immediate possession of
their shares of the estate, for which the widow defended that she is entitled to the
possession of the estate till payment of dower. The Trial Court held that the
respondents were entitled to possession on the condition that they paid to the widow
Rs.25,357/- within 6 months, and in default of payment, the suit shall be dismissed.
The widow continued to be in possession,  since the respondents did not pay the
money.
After some years, Maina Bibi executed absolute gifts of her husband’s estate in favour
of some donees and gave absolute title and possession to them. The respondents filed
a suit against the widow and her alienees, that the widow had only right of retention
until payment of dower and could not transfer the properties.

Judgment:

The Privacy Council held that the possession of the property once peacefully and
lawfully acquired, the widow gets the right till the dower is paid and such right is
conferred by Muslim Law. She has no right to alienate the property by sale, mortgage,
gift etc.