Search
  • Legis Scriptor

Muslim Law and It’s Modern Sources


Authored by Triyasa Gope


Keywords:- Personal law, Sources of Muslim Law, Customs.


Abstract

This article is based on modern sources of Muslim Law. In this article, it is described what is Muslim Law, modern sources of Muslim Law India, the importance of customs in a law. Our country India is a land of various cultures and religions where people from different religions live in harmony. It is a country where everyone has the right to choose his religion without any restrictions being imposed on him. So the state also must treat them equally and give them the same opportunities without discriminating against them by sex. That’s why legislation made laws to empower Muslim women.


Introduction of Muslim Law

In India, individuals are governed by their laws even in the court of law in matters related to ‘personal issues' like marriage, divorce, guardianship, etc. The family dispute and property matters are also included there. Personal Law means those laws which are connected with the belief of a person. Those who are Muslim are governed by Muslim Law. Muslim Law is also a personal law because it is also connected with the belief of a Muslim person. It is mainly part of the Holy Quran and then supplemented by judicial decisions and legislation.


The Sharia part of Muslim Law is divine. As it is directly or indirectly from Almighty Allah and there is no human intervention and it cannot be changed by the human being. But the whole Muslim Law is not divine. There have laws made by Qis, Ijma as well as legislation and judicial decisions. Those laws are not divine. Its application is not general and this law is carried out wherever the person goes. The rules of Namaz, fasting, rituals are the same for a Muslim in India or UAE or the USA. That’s why Muslim Law is not a territorial law.


For example, if a person named Iqbal lived in India and after a few years, he went to live in the USA. That doesn’t mean his law is changed. His personal law would never change wherever he goes. But the legislative laws of one country do not apply to another country. For example, the Dissolution of Muslim Marriage Act, 1939 has been enacted by India. So it is applied only to the Muslims of India and not to the Muslims of any other countries of the world.


Sources of Muslim Law:- The sources of Muslim Law is divided into two parts. These are:-

i. Primary sources of Muslim Law and

ii. Secondary sources of Muslim Law.

Primary sources of Muslim Law:- These are original sources or traditional sources. These sources are Quran, Sunnah or Ahmadis, Ijma and Qyaas, etc. They believe that these sources are a divine source of law like how to pray and what are rules for fasting. Muslim marriage and divorce are also a subject of divine law.


Secondary Sources of Muslim Law:- These are not basic sources but they work like a supplement. The secondary sources of Muslim Law are:-

· Urf or custom

· Judicial Decisions

· Legislation

· Equity, Justice & Good Conscience.

Urf or Custom:- Before the development of Islam, customary laws governed the entire social life of Arabia. These laws control the religion, morality, trade, and commerce of Arabia. Then Prophet Muhammad abolished most of them because of their immoral ethics and these were also un-Islamic. But some of the customs were continued due to the Prophet's silent approval and also followed by Prophet Muhammad. Some of the customs were included in their rituals. Otherwise, some customs survived due to their incorporation in the Ijma.[i]


However, Muslim law is also based on customs. Custom plays a very important role in some topics.

These are:-

· Agricultural land,

· A testamentary succession of a certain community,

· Charities other than wakf.


The growth and development of Sharia law were developed by customs in several ways.

· Several texts, particularly traditions are based upon usages.

· A part of the sharia-based upon tacit or silent approval of the prophet comprises many of Arab customs.

· Imam Malik says that the customary conduct of the citizen of the medina was a sufficient ijma to be relied upon in the absence of other texts.[ii]


Conditions for Valid Custom:- Custom is considered as a valid custom if it fulfills some requisites. These are:-

· It should be followed from ancient times.

· It must be territorial.

· A custom must be reasonable and follows the doctrine of equity, justice, and good conscience.

· The custom is not contrary to the Quran or Sharia.


Importance of Urf or Custom:- Custom is not a prior source of Muslim Law but if rules are absent in texts then the custom will prevail as a law. The British Court in India decided that custom would prevail only if there had a proof that custom was immemorial and constant.

For example, if Muslims believe that woman has to wear a hijab when they go outside and if they follow the rule from the ancient times then it becomes law.

Judicial Decisions:- The decisions regarding Muslim laws were given by the Privy Council. These decisions are binding over the high courts and lower courts and also very much important for the supreme court. But this precedent is only applicable if the supreme court has not overruled the decision.


Judgments of the higher courts are binding on the lower courts and it becomes the law of the land. This is called precedent. Judgments that are given regarding Muslim Law are also applicable to Muslims. Law of succession, the validity of gifts, some divorce cases, and unpaid Mehr are issues where the court gave its order for the well being of the society.


There have some very important cases which change the dimension of Muslim Law.

Bai Tahira vs Ali Hussain,[1]in this case, Supreme Court held that a woman is entitled to get maintenance under section 125 of the Criminal Procedure Code, 1973 if she fulfills all the conditions of that section even though she gets a lump sum amount of maintenance according to their customary law.


Mohammad Ahmed vs Shah Banu and Anr[2]. in this case Supreme Court held that a Muslim wife is entitled to get maintenance after the iddat period also. But this judgment was overturned by parliament and made Muslim Women ( Protection of Rights on Divorce), 1986 and by this law, it is clear that the Muslim husband is not liable to give maintenance to his divorced wives after the iddat period.


Shayara Bano vs Union of India[3], it is a landmark case of Muslim law. In this case, the Apex Court held that the Triple Talaq is illegal and unconstitutional as it is a violation of Article 14, 19, and 21. This case is also known as the Triple Talaq case.

Legislation:- Allah is the superior legislature for Muslims but sometimes it is needed to change the law according to society. In India, Muslims are also governed by various acts which are made by parliament or state legislature. Some examples of legislation in India are –

· Dissolution of Muslim Marriage Act, 1939

· Muslim Women (Protection of Rights on Divorce), 1986

· The Caste Disability Removal Act, 1850

· The Shariat Act, 1959

These acts are used to modify the loopholes of Muslim Law. The Indian Parliament enacted laws as per the need of time and circumstances.


Equity, Justice, and Good Conscience:-

The doctrine of equity, justice, and good conscience is also a source of Muslim Law. Several areas of Muslim Laws are changed only for equity, justice, and good conscience. The Triple Talaq verdict is also an example of this doctrine.


Conclusion:-

The secondary sources of Muslim Law are not divine sources like the primary sources. These sources are based on social change. It is not necessary to abide by all the ancient customs. For example, in the present time, modern society does not believe the Parda System of Women. So it is ok if you are not wearing a hijab or burkha. These modern sources are made according to time and circumstances.

Foot Notes:


[1] 1979 SCR (2) 75 [2] 1985 SCR (3) 844

[3] 1985 (2) SCC 556

References:

[i] Sources of Muslim Law, (kanwarn) <https://kanwarn.wordpress.com/2010/08/24/sources-of-muslim-law/ > accessed 6 September. [ii] Kirti Pamar, Sources of Muslim Law, (legal service India) <http://www.legalserviceindia.com/legal/article-1876-sources-of-muslim-law.html > accessed 6 September.