SOURCE OF MUSLIM LAW Dr. Md Azam Ghause (Assit.

Professor of Law)

Muslim law is a personal law which is applied only on Muslims. It is applied by courts in India to mohamedans not
in all, but in some matters only. Muslin law in India means that portion of Islamic civil law which is applied to
Muslims as a personal law. Muslim law is the body of law which is derived from the Quran and other recorded
saying of the Muslims prophet Muhammad. However Islamic law talked about man's duties rather than his rights. In
the religious sense Islam means submission to the will of god' & in secular sense Islam means the establishment of
peace.

The origin of Muslim law is Arabia where Mohammad enunciated Islam. The object of Islam is to create a
sense of obedience and submission to Allah. His ordinances and thereby to walk on right path. Those who follow
this path are Muslim. According to Amir Ali Muslim is any person who professes the religion of Islam, in other
words accepts the unity of god and prophetic character of Mohammad. Thus to be a Muslim only two things is
required- one is that Allah is one and the second is the prophet hood of Mohammad. Islamic law is a branch of
Muslim theology, giving practical expression to the faith, which lays down how Muslim should conduct himself
through his religion, both towards god and towards other men

Sources
Sources of Muslim law is classify into two categories that is primary sources and secondary sources.

Primary Sources
Primary sources are those on which Muslim law relied on. These sources are the foundation of Muslim law. Primary
sources of Muslim law are:

 Quran
 Sunnat
 Ijma
 Qiya

1. Quran
Muslim law is founded upon Al-Quran which is believed by the muslamans to have existed from eternity, subsisting
in very essence of god. The word Quran has been derived from the Arabic word Quarra which means to read. The
Quran is, Al-furqan i.e., one showing truth from falsehood and right from wrong. The word Quran which is the
‘divine communication' and revelation to the prophet of Islam is the first source of Muslim law.
t is the original or primary source of Muslim Law. It is the name of the holy book of the Muslims containing the
direct revelations from God through Prophet. The direct express or manifest revelations consist of the
communications which were made by the angel, Gabriel, under directions from God, to Mohammed, either in the
very words of God or by hints and of such knowledge which the Prophet has acquired through the inspiration
(Ilham) of God. All the principles, ordinances, teachings and the practices of Islam are drawn from Quran. The
contents of Quran were not written during the lifetime of the Prophet, but these were presented during the lifetime of
Prophet, in the memories of the companions.

There is no systematic arrangement of the verses in the Quran but they are scattered throughout the text. It contains
the fundamental principles which regulate the human life. The major portion of the Quran deals with theological and
moral reflections. The Quran consists of communications of God; it is believed to be of divine origin having no
earthly source. It is the first and the original legislative code of Islam. It is the final and supreme authority.

Sunna (Traditions or Ahadis)

The literal meaning of the term ‘Sunna’ is ‘the trodden path.’ It denotes some practice and precedents of the Prophet,
whatever the Prophet said or did without reference to God, and is treated as his traditions. It is the second source of
Muslim law. Traditions are injunctions of Allah in the words of the prophet. Where the words of Allah could not
supply an authority for a given rule of law, Prophet’s words were treated as an authority because it is believed that
even his sayings derived inspiration from Allah.
According to Muslim law, there are two types of revelations i.e. manifest (Zahir) and internal (Batin). Manifest or
express revelations were the very words of Allah and came to the Prophet through the angel Gabriel. Such
revelations became part of the Quran. On the other hand, the internal revelations were those which were the
‘Prophet’s words’ & did not come through Gabriel, but Allah inspired the ideas in his sayings. Such internal
revelations formed part of Sunna. Traditions, therefore, differ from Quran in the sense that Quran consists of the
very words of God whereas a Sunna is in the language of Prophet.

Kinds Of Traditions: The Traditions Are Of Two Kinds:

1. Sunnat
2. Ahadis
These two have been classified into the following three classes on the basis of mode or manner in which it has
actually originated:

 Sunnat-ul-fail i.e., Traditions about which prophet did himself.

 Sunnat-ul-qaul i.e., Traditions about which he enjoined by words.
 Sunnat –ul-tuqrir i.e., The things done in his presence without his disapproval.

Thus two sources, namely, the Quran and Sunna may thus be said to form the fundamental roots of Islamic law .

Ijma (Consensus)
With the death of the prophet, the original law-making process ended, so the questions, which could not be solved
either by the principles of the Quran or the Sunna, were decided by the Jurists with the introduction of the institution
of Ijma. Ijma means agreement of the Muslim Jurists of a particular age on a particular question of law, in other
words, it is the consensus of Jurist’s opinion.

Those persons who had knowledge of law were called Mujtahids (Jurists). When Quran and traditions could not
supply any rule of law for a fresh problem, the jurists unanimously gave their common opinion or a unanimous
decision and it was termed as Ijma. Not each and every Muslim was competent to participate in the formation of
Ijma, but only Mujtahids could take part in it.

There are three kinds of Ijma:

 Ijma of Companions: The concurrent opinion of the companions of Prophet was considered most
authoritative and could not be overruled or modified.
 Ijma of the Jurists: This was the unanimous decision of the jurists (other than companion).
 Ijma of the people or masses: It is the opinion of the majority of the Muslims which was accepted as law.
But this kind of Ijma has little value.
 Once a valid Ijma is constituted, it is regarded equal to Quranic verse i.e. it is equally binding on people. Without
Ijma, these rules of Islamic law would have been diffused and incomplete. Its principles cover the vast subject.
Ijma authenticated the right interpretation of the Quran and the Sunna.
Qiyas (Analogical deductions)
The word Qiyas was derived from term ‘Hiaqish’ which means ‘beat together.’ In Arabic Qiyas means
‘measurement, accord, and equality.’ In other words, it means measuring or comparing a thing to a certain standard,
or to ‘establish an analogy.’ If the matters which have not been covered by Quran, Sunna or Ijma, the law may be
deducted from what has been already laid down by these three authorities by the process of analogy (Qiyas).

The Qiyas is a process of deduction, which helps in discovering law and not to establish a new law. Its main function
is to extend the law of the text, to cases which do not fall within the purview of the text. For valid Qiyas, the
following conditions must be fulfilled:

 The process of the Qiyas can be applied only to those texts which are capable of being extended. The
texts should not be confined to a particular state of facts or rules having a specific reference.
 The analogy deduced should not be inconsistent with the dictates of the Quran and authority of Sunna.
 The Qiyas should be applied to discover a point of law and not to determine the meanings of the words used
in the text.
 It must not bring a change in the law embodied.

Secondary sources of Muslim Law

Judicial decision – (Precedent)
Judicial precedent refers to the procedure by which judges follow earlier decisions in cases with relatively
similar facts. The idea of judicial precedent is based on the principle of stare decisis, or conforming to what has
already been declared. In reality, this implies that lower courts must follow the procedural rules established by
higher courts in previous decisions. This ensures that the law is satisfactory to both parties. However, it is to be
considered that the concept of “precedent” is not covered under Muslim law. Kazis’ judgments were never
regarded as precedents under English law. ‘Fatwas,’ which have both moral and legal authority, are the closest
approach to this theory in Muslim law. But while a Mufti would declare Fatwa on a scholar, the Kazi was not
obligated by it. Several Fatwa compilations exist, the most notable of which is Fatwa-al-alam-giriyya. Many gift
and Wakf practices have been altered to safeguard women, and there is a cluster of precedent under Muslim law.
Today, the doctrine of stare decisis is incorporated into Muslim law.
Custom
Hindus recognized that a custom, if otherwise legitimate, supersedes a provision of sacred law as early as 1868. In
the instance of Muslim law, the Privy Council conveyed the same sentiment concerning conversions who prefer to
adopt Islam but keep their rules, but the Orthodox refused this viewpoint, and the Shariat Act of 1937 was enacted.
Despite the fact that all schools trust in the Four Ancient Sources, they do not reject the concept of Customs. The
Prophet also kept existing Arabian customs, as long as they did not contradict Muslim law. Customs are recognised
as an addition to Muslim law. Since there was no Islamic law code at the time, the Prophet and his followers had to
rely on conventions to resolve some issues. For example, foster mother remuneration, civil wrongs recompense, and
so on. According to Muslim jurists, a legitimate Custom must meet four characteristics which are mentioned below:

1. A custom must be repeated regularly, i.e. it must be continuous and noticeable.

2. It should be applicable to everyone and should be rational.
3. It must not contradict any implied text of the Quran or the Sunnah.
4. It does not have to be very old.
Legislation
Legislation as per Cambridge Dictionary has been defined as “a law or set of laws suggested by a government
and made official by a parliament.”The importance of legislation may be seen in the fact that, on the one hand, it
establishes rules and procedures through the parliament, while on the other hand, it has state-level
authority. Some parts of the legislation were approved by the Hanbali school under the names Nizam
(Ordinance/Decree), Farmans, and dastarul amals, but they were not connected to personal laws. The British
were never allowed to interfere with personal laws, Muslim law suffered greatly as a result of the lack of
effective regulatory frameworks. There were just a few laws in this area, including the Shariat Act of 1937 and
the Mussalman Wakf Validating Act of 1913. The Dissolution of Muslim Marriage Act of 1939 was a
breakthrough in Muslim law since it granted a Muslim wife the right to a judicial divorce on particular
conditions. Following independence, in 1963, a motion to change Muslim personal law was introduced in
Parliament, sponsored by progressive Muslims but opposed by the orthodox, resulting in few modifications in
this area.

Equity, justice and conscience

One of the origins of Muslim law is the idea of fairness, justice, equity, and excellent conciseness. These Islamic
legal doctrines are known as ‘Istihsan’ or ‘Juristic Equity.’ Istihsan means “liberal construction” or “juristic choice,”
or what we now refer to as “equity law.” To respond to various conditions in India, a number of Muslim provinces
have been transformed. Although the British originated this notion of equity, it has been adopted by various Muslim
law schools. This notion of equity was used in most of the matters handled by British courts under Muslim law.

Chand Patel v. Bismillah Begum, 2008

In Chand Patel v. Bismillah Begum (2008) the following were the issues that court considered adjudicating upon:

1. Whether marriage in Islam with a wife’s sister will be considered void?

2. Another issue found was whether the wife will be entitled to maintenance even after marriage with her
sister is void or irregular?

Supreme Court judgment

The Supreme Court ruled that if a Muslim man is married to his wife’s sister while still married to his first wife, the
marriage will be considered irregular, not unlawful or void. The Supreme Court validated the lower court’s verdict,
ruling that the illegal marriage would continue to exist and that the Muslim man would be obligated to support his
wife until his marriage was pronounced void by a court of competent jurisdiction. Chand Patel was directed by the
court to pay maintenance within six months of the date of the judgement, as well as the respondent’s legal fees for
arguing the case and setting up a landmark judgment.

Shayara Bano v. Union of India, 2017

In Shayara Bano v. Union of India (2017), Rizwan Ahmed and Shayara Bano were a married couple and they were
living together for 15 years. In 2016, Shayara Bano was divorced through immediate triple talaq (talaq -e biddat) in
response to this she filed a writ petition in the Hon’ble Supreme Court of India praying for holding 3 practices talaq-
e-biddat, polygamy, nikah-halala as unconstitutional as they infringe Articles 14, 15, 21, 25 of the Constitution. The
practice of talaq-e-bidat allows a man to leave his wife by saying ‘talaq’ three times in one sitting without his wife’s
agreement. Nikah Halala is a Muslim custom in which a divorced woman who wishes to remarry her spouse must
first marry and divorce a second husband before returning to her first husband. Polygamy, on the other hand, is a
practice that allows Muslim men to have many wives. On February 16, 2017, the Court requested detailed responses
from Shayara Bano, the Union of India, several women’s rights organisations, and the All India Muslim Personal
Law Board (AIMPLB) on the issues of talaq-e-bidat, nikah-halala, and polygamy. Ms Bano’s claim that these
practises are unlawful was recognized by the Union of India and women’s rights organisations such as Bebaak
Collective and Bhartiya Muslim Mahila Andolan (BMMA). The AIMPLB has maintained that uncodified Muslim
personal law is not available for judicial examination under the Constitution and that these are vital Islamic religious
traditions safeguarded under Article 25 of the Constitution. The Supreme Court’s 5 Judge Bench issued its verdict in
the Triple Talaq Case on August 22, 2017, ruling the system unlawful by a 3:2 majority.