ORIGIN AND DEVELOPMENT OF MUSLIM LAW (SOURCES AND SCHOOLS)

Pre-Islamic Arabia

We must now consider whether law or custom having the force of law existed in ancient Arabia,
In pre-Islamic times law proper, as we understand it today, was unknown. Tribes and chieftains
acted in accordance with tradition and convention. Abdur Rahim in his Muhammadan
Jurisprudence has examined a number of such customs and many of them are interesting from a
comparative point of view.. It will be observed how in many institutions, marriage for example,
there is a curious similarity between some pre-Islamic Arab customs and certain kinds of marital
relationship known among the ancient Hindus. Apart from this, we shall find many of these
customs adopted wholly or with modifications by the law of Islam. One striking example is the
principle of agnacy or ta'sib, which is fundamental in the Sunni law of inheritance.

At the time of the advent of Islam Arab society was generally nomadic. No settled form of
government or administration of law existed.

The population consisted of two classes, the desert nomads who led a more or less roving life
and were called Bedouins, and the town dwellers who to some extent led a more settled form of
existence.

The tribe was the principal unit and therefore the tribal chief exercised great power and
influence. Generally he was elected because of his nobility of birth, wisdom or courage.

There was no regular manner in which his behests were carried out: he relied mainly on the force
of his character and tribal opinion.

The commonest offences were tribal: for example, one member of tribe killing a member of
another tribe. In such circumstances the chief of the tribe that had suffered would call upon the
leader of the offender's tribe to surrender the criminal so that he might suffer the penalty of
death.

If the tribes were friendly, some sort of arrangement was arrived at: if not, there would be
guerrilla warfare between them.

In certain cases blood-money was fixed and the offender's tribe had to pay price in consonance
with the dead man's position.

Generally speaking two kinds of custom having the force of law-may be recognized inter-tribal
customs which regulated the relation of the individual to his own tribe, we are mostly concerned
with the latter class.

We have not much knowledge of the procedure followed in deciding cases. Generally the
plaintiff had to substantiate his claim. If he had no evidence the defendant, where he denied the
charge, would be given the oath: and on taking it he would be absolved from all liability.

Occasionally diviners would be consulted and torture was also resorted to. Oaths were held in
great reverence and were often used for settling disputes.

Among the most interesting of ancient Arabian customs were those that regulated the relations
between the sexes and the filiation of children. Side by side with the regular form of marriage
various other connections between members of the opposite sex were common.

Abdur Rahim, citing the Kash l-Ghummah, tells us of four types of Arab marriages,

A form of marriage similar to that sanctioned by Islam-a man would ask another for the hand of
his daughter or ward and then marry her by giving her a certain dower,

A man desiring noble offspring would ask his wife to send for a great chief and have intercourse
with him; during this period the husband would stay away but return to her after pregnancy was
well advanced

A number of men, less than ten, would be invited by a woman to have intercourse with her: if
she conceived and was delivered of a child she had the right to summon all the men and they
were bound to come. She would then say, 'O so and so, this is your son. This established
paternity conclusively and the man had no right to dis claim it.

Common prostitutes were well known. They used to have a definite number of visitors and their
tents had a special flag as a sign of their calling. If a woman of this class conceived the men who
frequented her house were assembled and the physiognomists decided to whom the child
belonged.

Mut'ah or temporary marriage was a common practice. From a study of Hadith it would seem
that legalized prostitution tolerated by the Prophet in the earlier days of Islam but later on
prohibited by him. It is to be noted that only one school of Muslim law, the Ithna Ashari, allows
such marriages today, Not only the Sunni schools but all the other Shias, notably the Ismailis and
Zaidis, consider such. Marriages illicit,"

Few of the conjugal relations described above can be called marriages in the modem acceptation
of the term. It is more appropriate today to consider them as forms of legalized prostitution or of
tribal sexual behaviour recognized by custom.

The second form of marriage mentioned by Abdur Rahim reminds us of the ancient Hindu
practice of Niyoga. Widely different peoples have, it seems, possessed in times past similar
institutions before coming to the modern and not merely the Christian-idea of marriage the
voluntary union for life of one man and one woman to the exclusion of all others.
Dower was one of the necessary conditions of marriage in the regular form But the amount was
paid more often to the guardian or the father than to the woman herself, and for this reason the
marriage contract was for all practical purposes a sale.

In Islam, however, mahr is a bridal gift and the idea of sale has disappeared almost entirely,
although the classical texts do contain vestiges of the original conception of marriage as being a
form of sale.

The husband could avoid his liability to pay dower in various ways. A man would give his
daughter or sister in marriage to another in consideration of the latter giving his daughter or sister
in marriage to the former. This was called shighar in this case no dower was paid.

Unchastity on the part of the wife was also a reason for debarring her claim for dower. A false
charge was, therefore, sometimes brought against her and her dower forfeited before divorce.

Woman was never a free agent in marriage. It was the father or other male guardian who gave
her in marriage, and her consent was of no meaning.

There was no limit to the number of wives a man could have.

Divorce was a matter of a few words and there were many forms of dissolution of marriage,
some of which have been adopted by Islam.

The Arab law of property has very little practical value now and therefore we shall pass on to
inheritance and succession.

An Arab could dispose of all his property by Will. He could in many instances cut off his nearest
relations.

In the law of inheritance the cardinal rule was that no female could take only the males inherited;
and even among males only agnates (When two persons are related to each other by blood or
adoption, but only through males.) such as son, father, grandfather, brother, cousin. etc. cognates
were entirely excluded. These constituted the first class of heirs.

The second class consisted of adopted sons and relations who stood on the same footing as
natural-born sons.

The third class consisted of heirs by contract. Two Arabs, for services rendered to each other or
for mutual affection, would enter into a contract that in the event of the death of the one the other
would succeed to his estate

This brief summary or pre-Islamic customs will suffice to show how far reaching and humane
were the reforms brought about by the Prophet and the religion he taught.

ISLAM, MUSLIMS AND MUSLIM LAW

Origin, Past and Present

Islam as a new religion which had appeared on the globe in the early years of 7th century AD in
the historic Arab city of Makkah now situate in Saudi Arabia.

It was Proclaimed by Prophet Muhammad PBUH (570-632 AD) posthomus child of Abdullah
son of Abdul Muttalib, hailing from the noblest Arab family of the time – the Quraish .

Islam is one of the largest religions on earth. Modern demographic sources put it as the
predominant faith of Asia and

Africa, having a large following also in Europe and North America.

The biggest muslim concentration on the globe is in the North Africa and the West, South and
Southeast Asia.

RELIGIOUS BELIEFS AND PRACTICES

Beliefs

Theologically, the two foremost and fundamental Muslim beliefs- are those contained in the
Kalema-e-Tayeba which reads in Arabic as La Ilaha illallah Muhammad-ur-rasulullah means
there is none to be worshipped but God and Muhammad is God’s Prophet.

These are Tawhid [belief in one Supreme God only to the exclusion of all other gods] and Risalat
[belief that Hazrat Muhammad was God’s prophet ].

In the Muslim faith tradition the Holy Quran is the last book and Prophet Muhammad is the last
prophet of God on earth – figuratively the Khatam-un-Nabiyan (Seal of Prophets).- after whom
no other Prophet has been, or will ever be, sent by God.

The Quran is a book of divine injunction in Arabic believed to have been gradually revealed by
God to Prophet Muhammad through archangel Jibreel (Gabriel) in a period of 23 years, which he
used to memorize and convey to his followers.

Hadith- The Prophet’s own sayings and conduct are believed to be divinely inspired and
therefore sacred.

These were initially narrated by his followers in successive generations and collected in the form
of books by scholars of eminence musch later, after thoroughly checking their authenticity.

Sahaeh-e-sitta (Authentic Six)- there are numerous Hadith collection six of which- Bukhari,
Muslim, Abu Daud, Ibn-e-Maja, Tirmizi, and Nasai – are together known as Sahaeh-e-sitta.

Practices

Muslim religion classifies all the actions and omissions which it talks about into various
categories -

 Farz - means wholly obligatory religious practices in Islam are Salat or Namaz, Saum or
Roza, Zakat and Haj.
  Wajib – means obligatory in the second degree

 Sunnat – as per Prophet’s practice and hence highly virtous

 Mustaheb – recommended

 Haram – abdolutely prohibited

 Makruh – better avoided

 Mubah – specifically permissible

 Jaez – not prohibited

Obligatory Religious Practices in Islam

Salat (namaz) is a form of ritual prayers to be offered in a series of fixed postures in each of
which prescribed words of invocation to God are to be uttered in Arabic.

Saum (roza) is obligatory in the month of Ramazan, the 9th month of the lunar Islamic calendar,
and means a month-long dawn to dusk fasting which requires total abstention from all kinds of
food, drinks and all sexual activity.

Zakat is an obligatory religious levy on anuual savings above a prescribed ceiling, to be given at
fixed rates for the benefit of the poor and the needy in the society.

Haj is the great anuual pilgrimage that takes place in and around the holy city of Makkah, the
birthplace of Islam, in the 12th month of Islamic calendar.
Development of Muslim Law – Sources of Muslim Law

1. Original sources

Quran

Hadith (Sunna)

2. Secondary sources-

 Ijtihad- Ijma (consensus of jurists) and Qiyas (Analogical Deduction of rules by

individual)

 Istehasan

 Istidlal

 Judicial decisions

 Legislations

 Justice, equity and Good conscience

1. QURAN

The Quran- the word of God- Purports to regulate the whole of a man's life; it is considered to be
the actual word of God revealed to the Prophet through the Angel Gabriel. It is clear that during
Prophet Muhammad's lifetime, it was used by him as the basis of legal settlement. The word
'Muslim' refers to submission to the religion of Islam and its concomitant obligations.

The Quran contains specific exhortations to pray, fast, give alms, and go an the Halj, divorce,
women, prayer and other similar moral obligation. These are the pillars (arkan) of the faith and
they exist alongside a number of legal rules. Most of the legal rules concern family law
(marriage, divorce and succession), are mention in the Quran.

There are 114 chapters or Suras in the Quran and each Sura is divided into a varying number of
verses or ayat. Out of these there are about 100 suras which can serve as a sort of preamble to a
code of conduct and which simply seek to reform the existing customary law.

Some verses are deemed to be the abrogating (nasikh) verses and some to be the abrogated
(Mansukh) ones. In other words, the earlier verses are deemed to be repealed by the later ones.
2. HADITH (SUNNA)

The second major formal source of Islamic law is the Hadith or Sunna. The two sources, Quran
and Sunnah are often called

nass (binding ordinance) and reptresent direct and indirect revelation.

This word means 'Practise', 'Tradition' or 'Precedent' and derives from stories that relate to the
behaviour of the Prophet Muhammad and of his companions.

These stories (known individually as Hadith, Plural Ahadith) record the minutiae and detail of
how the prophet and his Companions sought to live their lives in accordance with the newly -
promulgated religious order propounded by the Qur'an. Particularly important amongst these
stories are those which relate to the Prophet himself in which he is not infrequently being asked
to arbitrate disputes or decide questions of law.

In the Quran, the Sunna usually occurs in two connections. Sunnatawwalin and sunnat Allah. In
Hadis by sunna is commonly understood Mohammad's sunna comprising his deeds, utterances
and his unspoken approval. "Muhammad's sunna in the sense of his words, actions and silent
approval is fixed orally and in writing in the Hadis. In theory the conceptions of Sunna and Hadis
are different but in practice they often coincide.

The sunna or tradition is a real storehouse of material for the life of prophet and of Muslim
institutions. During his life- time the prophet had decided many questions from case to case and
his words and deeds and silent approval were reduced to writing and came to be termed as
'Sunna'. These traditions of what the Prophet said and did, "gradually laid the foundations of
what is now called Islam. And it is to tradition rather to the Quran that we must refer for
Mohammadan law.
3. Ijma (Consensus)

The third source of lslamic law is 'ijma' which means 'consensus'. The technical term 'ijma'
comes from a root jama'a, signifying "the totality", "everybody". The verb jama'a means "to
bring together" and in the fourth conjugation, jama'a "to agree together". Thus ijma means
literally 'unanimous agreement" or "total consensus". ljma also means consensus on rules of law
claimed to be derived from either the Quran or the Sunna. ljma may take one or two forms which
are analytically distinct.

The first connotation of ijma is ijma al umma, "consensus of the people". This refers to cases
where a customary rule is adopted by common consent, even though the rule is not to be found
either in the Quran or in the Sunna as transmitted in the Hadis reports.

The second type of ijma (of far greater practical importance once a systematic Islamic
jurisprudence began to develop) is ijma-al-ulama, "consensus of the scholars". This type of
consensus is rarely unanimous in practice; it really consists of an agreement to abide by the
majority view.

4. Qiyas (Analogical Deduction)

The fourth root of Islamic law is a system of logical reasoning called Qiyas. Although Qiyas
came to be called the fourth root only in the classical, post-Shafian period (Shafian himself
called Qiyas a "branch" rather than a "root" of jurisprudence), the term itself is pre-shafian.

Qiyas, "deduction by analogy" originally signified the derivation of rules of law by analogy with
earlier rulings found in the either Quran or the Sunna.

It is derived from the Jewish term haqqish, from an Arabic root meaning ‘to beat together’.

In Arabic usage the word means ‘measurement’ and there is well known their exact significance.

According to Schacht, ‘Individual reasoning in general is called ra’y, ‘opinion’. When it is

directed towards achieving systematic consistency and guided by the parallel of an existing
institution or decision it is called qiyas.
5. Istihsan

Istihsan is one of the secondary sources in Islamic law that is created from the principle of
maslahah. Islamic jurists define istihsan as leaving a designated law to a new law, in an event
with the acoount of Islamic primary sources and current relevance.

Istihsan literally means to deem or consider something good.

According al-Imam al-Karkhi, a Hanafi jurists: Istihsan is to depart from the existing precedent,
by taking decision in a certain case different from that on which similar case has been decided,
for a reason stronger than the one that is obtained in those cases.”

While quoting al-Karkhi’s definition, Al-Sarakhsi added: “the precedent that is set aside
by istihsan normally consists of an established analogy which may be abandoned in favour of
superior proofs, namely the Qur’an, Sunnah, necessity or stronger qiyas.”

6. Istidlal

Istidlal means infering a ‘thing’ from another ‘thing’. It is a form of ratiocination or legal
reasoning not covered by Qiyas.

Example-if the statement is that a particular thing is permitted then, then inference will be that
the thing cannot be forbidden.

The basis of such reference is generally the welfare of the public.

Istidlal allowed the jurists to avoid 'strict analogy' in a case where no clear precedent could be
found. In this case, public interest was distinguished as a basis for legislation.

7. Judicial decisions

In this decisions given by Privy council, Supreme Court of India and different High court’s
decisions included and these works as the source of muslim law.

While deriving the decisions on certain muslim issues, the courts enunciate muslim laws.

These decisions are regarded as precedents for future cases. Judicial decision is one of the
distinguish characteristic of English law. In India, the plan of Warren Hastings of 1772 made
provision that it was only judiciary which introduced new set rules in personal laws of Hindus
and Muslims.

There are number of judicial decisions which have given new dimension to Muslim law:

In Maini Bibi v. Choudhry Vakil Ahmad, the privy council held that a widow possesses the right
to retain the property of her husband till her dower money was paid

In Bai Tahira v. Ali Hussain, the Supreme Court gave a new line of approach to the law of
maintenance. The Supreme Court held that a woman will be entitled for maintenance under
section 125 of criminal procedure code even though she has received a lump-sum amount under
her customary law. A similar view also taken in Shah Bano's case.

It may be concluded therefore, that to some extent, the courts in India have tried 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.

8. Legislation

Legislations made by the Indian parliament also effect and amends the muslim law.

These legislations are –

 The Indian Evidence Act 1872

 Guardian and wards Act 1890

 Musalmaan Wakf Validating Act 1913

 The Child Marriage Restraint Act, 1929

 Musalmaan Wakf Act 1930

 Shariat Act 1937

 The Dissolution Of Muslim Marriagesact, 1939

 The Muslim Women (Protection Of Rights On Divorce) Act, 1986.

These acts have considerably affected, supplemented and modified the Muslim law. In 1986 an
act i.e. Muslim Woman (Protection of Rights on Divorce) Act, 1986 to provide separate law in
respect of divorced Muslim women was enacted by Indian parliament. According to the need of
time and circumstances Indian legislature enacted the law to fulfill the need.

9. Justice, equity and Good conscience

The doctrine of equity, justice & good conscience is regarded as one of the source of Muslim
law. Abu Hanifa, the founder of hanafi sect of Sunni, expounded the principle that 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.
SECTS AND SCHOOL OF LAW

Since the demise of the Prophet in 632 AD there have been two board divisions among the
followers of Islam, known as the Sunnis and the Shias.

The origin of these twin divisions is embedded in the difference of opinion that had been cropped
up among his followers as to who should be his temporal successor.

The majority favoured an open election among his Companions and Disciples, while a minority
insisted that the only rightful successor to the Prophet would be Ali ibn Abi Talib his paternal
cousin married to his youngest daughter Fatima (notably all male issues of the Prophet had died
during infancy).

Shia-Sunni Division

After the demise of the Prophet in 632AD, origin of two sects embedded in the difference of
opinion-

1. Shia

2. Sunni

Shias are in minority and the followers of Ali-ibn-abi Talib who was the son-in-law of Prophet

Sunnis are in majority and elected Abu Bakar-al-Siddiq as their first Caliph ruled two years.

Omar al-Faruq as the second Caliph who ruled over 12 years

Usman Zun-Nurain as the third Caliph who ruled over

Ali Ibn-abi-Talib as the fourth Caliph

These four ruled over 40 years and are called Khulafa-e-Rashidin (Righteous Caliphs )

Main difference between Shias and Sunnis

Shias recognized Ismat (Infallibility) of the successive Imams and rested both their theology and
law exclusively on their interpretation of the Quran and Hadith.

Sunnis based their theology and law on the interpretation and narration of those basic texts by the
Prophet’s companions and their disciples and descendant
Sunni Schools of Law

1. Hanafi school of Imam Abu Hanifa (699-767), Iraq

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 Muhammad . 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.

2. Shafei school of Imam Idris al-Shafei (767-820), Egypt

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 Qiyas source of law, which depends on analogical
interpretations by people, originates from this school.

3. Maliki school of Imam Malik bin-Anas (711-795), Madinah

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.

4. Hanbali school of Imam Ahmad bin-Hanbal (780-855), Iraq

Ahmed bin Hanbal, a disciple of Imam Shafi, was the creator of this school. His theory rejected
the Shafi school for relying on Qiyas, 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.

Among these four schools Hanafi is the dominant one

Shias School of Law

Ithna Ashari (Twelvers)- The people who follow the Ithna Asharis school believe that the last of
the Imams disappeared and to be returning as Mehdi(Messiah). he followers of these schools
are mostly found in Iraq and Iran. In India also there is the majority of the shia muslim who
follows the principles of the Ithna-Asharis School.

Ismaili - According to Ismailis school, in India there are two groups, the Khojas or Western
Ismailis represents the followers of the present Aga Khan, who they considered as the 49th Imam
in this line of Prophet, and the Bohoras i.e. the Western Ismailis are divided into Daudis and
Sulaymanis. The Bohoras and Khojas of Mumbai are considered as the followers of this school.
It is considered that the follower of these schools has special knowledge of religious doctrine.

Zaidi - The followers of this school are not found in India but are maximum in number in South
Arabia. This sect. of the shia school is the most dominant among all in Yemen. The followers of
these schools are considered as political activism. They often reject the twelver shia school
philosophies.

Among these three schools Ithna Ashari school is dominant one.

Muslim law at present

The muslim law in India is not a uniform body of legal rules.

By tradition, two broad versions of non-statutory Muslim Law have been, and remain, in force in
the country. i.e. Sunni law (Hanafi Law) and Shia Law (Ithna Ashari)

“If each sect has its own rule according to Mohammaden Law that rule should be followed with
reference to the lotigants of

that sects.” Deedar Hussain v Zuhoor-un-Nisa (1841) 2 Moo IA 441

Shafaei Sunni and Shia Ismaili Laws are not very well known in India except south India.

Recent Reforms and Codification

Once upon a time religion controlled the law everywhere on the globe. Times have changed and
now it is the law that determines the scope of religion, everywhere on the globe.

In the nation-states of the contemporary world the scope of all the religion –based laws of the
past is now determined by the national laws.

Islamic public law – consisting of constitutional, administrative, criminal and commercial law is
no more in force in its entirety anywhere in the Muslim world.

Some Muslim countries have still sticking or returned in recent years, to certain parts of Islamic
public law in the matters of criminal justice and judicial administration.

In the present-day world the term ‘Muslim Law’ is generally applied to Islamic private law,
mainly that of personal status, family relations and successions.

This law remains applicable to the Muslims in numerous countries which are either dominated
by the muslims or have huge muslim minority populations.

All Arab countries except Saudi Arab now have codified and reformed Muslim Law.

Legislation in the area of Muslim Law proper undertaken in India is mostly of a regulative,
administrative or procedural nature – substantive legislation in this area law has been scant.

The Muslim Law is to be applied in India subject to the provisions of all general family laws,
unless of course any such law wholly or partly exempts the Muslims from its application or
otherwise protects contrary provisions of Muslim Law.
Muslim Religion in India

India in Islamic Religion

India stands on a high pedestal in Islamic mythology. Prophet proclaimed that he smelt a
“Fragrance of sprituality” from India.

Three fold classification of countries under Islamic political theory

1. Dar-ul-Islam (house of Islam, country where muslims rule or dominate)

2. Dar-ul-Harb (house of war, country hostile to Islam)

3. Dar-ul-Aman (house of protection, country where Islam is safe)

India lie in the last one i.e. Dar-ul-Aman

Constitutional Framework

There is no state religion in India- All religion are equal in the eyes of law of State and Law,
Islam, or any other minority religion, has the same constitutional and legal status in India as the
majority Hindu faith. The constitution of India has adopted the ideal of secularism but the
concept of secularism developed here drastically differs from that prevailing in the west.

No US type “wall of separation” between religion and state in India, and the state can regulate by
law religious affairs of any community without exception, though generally religious neutrality
and non- interference in religious matters are part of the state policy.

Religious freedom as the fundamental right under part III of the constitution guaranteed in India.

Article 13- All laws in force in the territory of India immediately before the commencement of
this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the
extent of such inconsistency, be void.

Art 25- freedom of conscience and freedom of profess, practice and propagate religion

Art 26 protects the group rights of every religious denomination and sub community to establish
and maintain institutions for religious and charitable purposes

The courts have ruled in many cases that “Protection of non-essential religious practices would
be in the discretion of the state and cannot be claimed to be protected as FR”.

Ratilal pannachand Ghandhi v. State of Bombay AIR 1954 SC 388

Saifuddin v. State of Bombay AIR 1962 SC 853

Seshammal v. State of Tamil Nadu AIR 1972 SC 1586

Art 44- Uniform Civil Code

Article 44 of the Directive Principles in the Constitution says the “State shall endeavour to
provide for its citizens a

uniform civil code (UCC) throughout the territory of India.” The objective of this endeavour
should be to address the discrimination against vulnerable groups and harmonise diverse cultural
practices. The stand taken by B.R. Ambedkar in the Constituent Assembly debates has survived
the years. Dr. Ambedkar had said a UCC is desirable but for the moment should remain
voluntary.

The direction, notably, is not to “enact” such a code straight away but to make efforts to secure
possible uniformity in Civil

Laws.

In many cases the courts have reminded of this policy directive under the constitution but
have respected its non- justiceable nature and held that it does not affect continuance in force of
the various community-specific personal laws.

Pannalal v. State of Andhra Pradesh (1966) 2 SCC 498

AWAG v. Union of India (1997) 3 SCC 573

Lily Thomas v. Union of India (2000) 6 SCC 224

Concurrent List given in Schedule VII of the constition places within the jurisdiction of the
Union and State. “Personal matters like marriage and divorce, wills, infants and minors,
adoption, wills etc.; all matters in respect of which parties in judicial proceedings were
immediately before the commencement of this constitution subject to their personal law.”

Legislation on Religious Matters

Muslims in India are free to profess and practice their faith and follow all the essential beliefs
and practices as are essential parts of Islam obligatory according to its own injunctions. There is
no legislation in country that restrict Muslims in this regard but some of these beliefs and
practices have been subjects of judicial decisions.

Massive legislation relating to management of Muslim Wakfs in India and it applies also to
mosques which occupy a pivotal position in the Muslim religion.

Payment of the religious levy called Zakat, which is an essential and obligatorypractice for the
Muslims does not qualify in

India for any rebate under the taxation laws of the country.

The pilgrimage of Haj is managed by semi-official bodies created and working under
Parliamentary legislation.
Case Laws on Faith Issue

“In addition to the essential beliefs and practices in Islam the Muslims of India have adopted
many customs and rituals which those believing in puritan Islam regard as innovations and
superstitions. The supreme court had once in a case relating to the Ajmer Shrine cautioned
people against treating superstitions beliefs and unessential accreditations as integral part of the
Muslim faith.”- Dragah Committee v Syed Hussain AIR 1961 SC 1402

“No law in India defines Muslim faith or its essentials but since religious disputes among the
Muslims often reach the courts, they have sometimes to determine whether a particular belief or
practice is or is not mandatory in the Islamic faith, or whether a particular group or individual is
or is not a Muslim. Though closely connected with Islamic theology, the courts have faced and
answered such questions in several cases”.

“There has been a case decided by the Calcutta high court upholding the sanctity of the holy
Quran and it's due protection under the Indian law. Observing that the Quran which is the sacred
text of Mohammadans, occupies a unique position to the believers of that faith as Bible is to the
Christians and the Gita, Ramayana and Mahabharata to the Hindus. The court ruled that the
courts can not judge its position vis a vis the Indian law”. Chandanmal Chopra v State of West
Bengal AIR 1986 Cal 104

”The Calcutta High Court has also once observed that in Islam there is an absolute
injunction against any picture or representation of the Prophet, of which we must take judicial
notice”. Sikdar v Chief Election Commissioner AIR 1961 Cal 289

The Supreme Court of India has held that what is known in Muslim religion as Qarz e Husna
( loan given in good faith out of piety without interest) will not qualify for tax rebate under the
laws of India.- Commissioner of Wealth Tax v AH Mulla AIR 1988 SC 1417

The constitution of India contains a directive principle of state policy under Article 48 mandating
the state to take measures for the protection of the cow and its progeny (in view of its sanctity in
the Hindu religion, as acknowledged in a Supreme Court ruling). Laws banning cows slaughter
are now in force in the most parts of the country.

In addition to the in Islam the Muslims of India have adopted many customs and rituals which
those believing in puritan Islam regard as innovations and superstitions. The supreme court had
once in a case relating to the Ajmer Shrine cautioned people against treating superstitions beliefs
and unessential accreditations as integral part of the Muslim faith.
Meat traders in some parts of the country went to the courts alleging that the ban violated their
fundamental rights to freedom of trade and occupation, and to buttress their case, dragged
religion into the matter - as in the past cow has been among the cattle used for Qurbani (ritual
sacrifice) on the Baqrid festival. The SC has been examined the religious beliefs of the Muslims
in this matter and upheld the validity of ban. The judicial stand does not conflict with any
provision of Muslim religion as the cow is only among the permitted cattle for Qurbani and is
not enjoyed or even recommended for this purpose. on the contrary the Prophet had once
reportedly warned his people that cow milk had medical properties but its flesh could cause
disease.

Mohd Hanif Qureshi v. State of Bihar AIR 1958 SC 731

State of West Bengal v. Ashutosh Lahiri AIR 1955 SC 464

State of Gujrat v. MIrzapur Moti Kureshi Kassab Jamat (2005) 8 SCC 534

“There has been judicial decision on the true religious positions in Islam of the practices of
growing beard by Muslim men and wearing the veil by Muslim women ; and the courts have
found - rightly of course- that these practices are based on mandatory injunctions of Islam”.

Nirmal v. Chief Election Officer AIR 1961 Cal 289

Mohd Fasi 1985 KLT 185

Mojhtar Pasha 1986 MLJR 221

Section 1M Peeran Saheb v Collector, Punganur AIR 1988 AP 377

32 (1) of the Code of Criminal Procedure 1908 provides that “women who according to the
customs and manners of the country ought not to compelled to appear in public shall to exempt
from personal

appearance in court”.

Not specifically confined in its application to the muslims, it has been applied in several cases
involving Muslim Women. Sakina v Zainab AIR 1957 Raj 122