Family Law-II Unit 1 (Sources of Muslim Law)

Family Law-II Unit 1 (Sources of Muslim Law)

1. Sources of Muslim Law. UNIT - I

2. Sources of Muslim Law It is broadly divided into two groups - Sunni - Primary Sources / Formal Sources: Quran Sunna Ijma Qiyas (They are recognised by Prophet during his lifetime, directly/indirectly. It is followed in the order of priority. ) Secondary Sources / Extraneous Sources: Custom Precedent Legislation Justice, Equity and Good conscience Shia – Quran Sunna

3. Quran Derived from Arabic word “ Qurra ” – means reading that which ought to be read. 609 AD – Prophet used to meditate at Hira – received divine messages – Wahi – until his death in 632 AD. These messages were compiled by Zaid in Abu Bakr’s period – first written version of Quran was made. It was revised by Zaid in Osman’s period. Features of Quran – Divine Source – Wahi : divine messages. First and Fundamental source – only if Quran doesn’t provide a solution, one goes to the next source. But, solutions provided by other sources shouldn’t be contradictory to the Quran.

4. Quran Structure :– It is in the form of verses – divided into 6237 verses called Ayat – there are 114 chapters – chapters are called Sura . Eg – Surat-un- nisa : rules relating to women; Surat- ul -Bakr : rules relating to religion and morality; Surat- ul - Talaq : rules relating to divorce. A mixture of law, religion and morality. Out of 6237 Ayat (verses) only 200 deals with legal rules. Out of this 200, only 80 deals with personal matters. Different forms of legal rules are present – Quran abolished civil customs such as unlimited polygamy, infanticide, gambling. Quran is unchangeable – cannot be amended because it is the collection of divine messages. It is incomplete text/code as far a law is concerned Silent on many issues. Hence Prophet came up with new source of law - Ahadis Drawbacks

5. Sunna / Ahadis / Hadis / Tradition Whatever was told or done by the Prophet became this source of law. What constitutes Sunna ? Sunnat-ul-Qaul - told by the Prophet Sunnat - ul -Fail - deeds of the Prophet Sunnat-ul-Taqrir - silence of the Prophet. Eg . : Talaq , dower etc. Silence was taken as acceptance. Qualified Narrators in the society narrated the traditions of the Prophet which also became a source of law. Abdul Rahim (a scholar) laid down certain qualifications to be a Narrator : Muslim Adult and sane Should have power of retention Good conduct.

6. Sunna / Ahadis / Hadis / Tradition Kinds of Narrators – Companions of Prophet Successors of the Companions Successors of the successors Kinds of Traditions - Ahadis-i-Mutwatir – universally accepted traditions (majority narrated the same). Ahadis-i-Mashoor – popular traditions (though it was narrated by only a few narrators, it was widely accepted by all as it became popular). Ahadis-i-Ahad – isolated traditions (it is narrated by a few and accepted by a few).

7. Sunna / Ahadis / Hadis / Tradition Drawbacks of Traditions – There are many traditions of doubtful origin – because there was no proof. Some traditions were contradictory to each other. It is difficult to separate law, religion and moral issues. After the end of the 3 rd gen., the tradition came to an end. First systematic collection of traditions was by Malik (founder of Maliki School) in his book “ Muvatta ”. A better version of traditions was made by Hanbal (founder of Hanbali school) in his book “ Masnad ” – he had collected over 80,000 traditions.

8. Ijma When the Quran and Sunna could not cover/provide rule of law to the new problems of society, jurists collectively agreed and this collective opinion of jurists is called Ijma . Collective opinion can be given by Mujtahid (scholar) and the process of giving Ijma is called Ijtihad (i.e., independent reasoning). Acc. to Fyzee “Quran and Sunna look to the past while Ijma deals with the future of Islamic Jurisprudence.” Ijma should not be contradictory to Quran and Sunna, otherwise it has no value. Kinds of Ijma – 1. Ijma of Companion – given my companions of Prophet – most valuable and authoritative Ijma – cannot be modified by the jurists.

9. Ijma 2. Ijma of Jurists – given by Mujtahids – but can be modified by the next generation of jurists. 3. Ijma of the people – given by the people when they agree to a particular opinion on an issue – it can be modified. Drawbacks of Ijma – Difference in approach by people Doubtful regarding the origin and consensus Practically impossible to get the opinion of jurists all over the world Except the Ijma of Companion, other two can be easily modified. When anything can be easily modified, it cannot be considered as a source of law by the next generation. Ijma came to an end in the 10 th century.

10. Qiyas It is an Arabic word which means comparison or measurement. Mujtahids compare a present problem/issue to a similar issue for which the solution is provided in the Quran or Sunnas or Ijma , and the same solution is applied. They give an implied meaning to the Quran/ Sunnas because they find the solution directly or indirectly. Qiyas is accepted or admitted by Shafei and Malikis . It is their main source of law. It is a weak Ijtihad or Ijma .

11. Urf / Taamul / Customs Secondary sources explain or modify the Primary sources according to the changing needs of the society. Customs are any tradition/practice/usage recognised by law. The Prophet through his silence allowed certain customs to be followed. Commercial customs of Mecca, customary agricultural laws of Medina, marriage, dower, divorce ( nikah and talaq ) etc are some of the customs which are followed. Essentials of Customs – Custom must be of regular occurrence – continuous. Custom must be certain Custom must be universal Custom should not be against the text (Quran, tradition, Ijma ) Custom need not be ancient.

12. Urf / Taamul / Customs Shafei and Hanbali do not consider customs as a major source. Punjabi Muslims – Kutchi Memoms , Khoja, Bohra who are converted Muslims (Hindu by origin) are governed by Hindu law regarding succession and inheritance. As per Shariat Act (1937), customs are not an independent source of law. ( Shariat is derived from an Arabic word “ Shariah ” which means commands of God.) Sec. 2 - Application of Personal Law to Muslims : Intestate succession, special property of females, marriage, dissolution of marriage including talaq , ila , zihar , lian , khula and mubaraat , maintenance, dower, guardianship, gifts, trusts and trust properties, and waqfs . Sec. 3 - Power to make a declaration : A Muslim, competent to contract u/s 11, ICA and is a resident, has an option to make a declaration that he would either be governed by personal or customary law for 3 matters – Wills Legacy (any form of transfer of property) Adoption

13. Legislation Some of the enactments for the Muslims - Shariat Act, 1937 Dissolution of Muslim Marriages Act, 1939 Muslim Women (Protection of Rights on Divorce) Act, 1986 Wakf Act, 1954 Mussalman Waqf Validating Act, 1913 General Laws are – Caste Disability Removal Act, 1850 Indian Evidence Act, 1872 Child Marriage Restraint Act, 1929 - amended in 1978 Indian Majority Act, 1875 Criminal Procedure Code, 1773 Family Court Act, 1984

14. Precedent Judicial decisions of higher courts which are binding on lower courts. Hameera Bibi v. Zubaida Bibi - According to Islam one should not impose interest on any loan given – Court decided : unpaid Mahr /dower is a debt (dower – husband promises to pay something to the wife as a token of respect) – Privy Council held that wife can claim interest on unpaid dower though it is against Islam. Begum Subanu v. Abdul Gafor - Husband had one wife – he married again – 1 st wife got separated from her husband on the ground that husband married again – she claimed for maintenance – husband claimed that Islam permits 2 nd marriage and she separated from him, hence he does not have to pay maintenance – Court held that the husband has to pay maintenance for her.

15. Precedent Maina Bibi v. Choudhary Vakhil Ahmad Held : In unpaid dower, wife has the right to retain property of the husband. Bai Tahira v. Ali Hussain Held : Although Muslim woman has received maintenance under personal law, she is entitled to maintenance under Cr.P.C (because under Muslim law, maintenance provided is not sufficient).

16. Justice, Equity and Good Conscience Whatever is just, reasonable to the judge, then that is considered as a source of law.