Sources of Muslim Law in India

The sources of Muslim law can be classified into two categories, i.e. (a) Primary Sources and (b) Secondary Sources. Primary sources are those sources that are based on religious beliefs mentioned in holy scriptures or books. And here the legislatures and judiciary are the secondary sources.

Introduction

Islam is one of the most followed religions in the world. (According to a study in 2015, Islam has 1.8 billion adherents, making up about 24.1% of the world population. Source: Wikipedia) The religion entered India with the Delhi sultanate and remained intact. Today India is a secular country with more than 15% of the population being Muslims who regulate themselves according to their personal laws. This article aims to understand the sources of Muslim personal laws in India.

‘Source’ means the origin, a place from which a person or thing has emerged. Muslim law has emerged from several traditional sources and these sources are the governing pillars of this religion because even today, in the 21^st century, most of the Muslim personal laws are uncodified and some which are codified are not being followed because of conflict with their traditional sources.

Legally speaking, there can be only one source of law and that is the Indian parliament and the State legislatures which are the law-making body of our nation. Nevertheless, since personal laws are based on customs and practices of the religion, it is not possible to do away with them and frame laws completely adverse to religious beliefs. Hence, even the legislations base itself on certain aspects of traditional sources. The sources of Muslim law can be classified into two categories, i.e. (a) Primary Sources and (b) Secondary Sources.

I. Primary Sources of Muslim Law

Primary sources are those sources that are based on religious beliefs mentioned in holy scriptures or books. These sources are universally accepted as authentic and they are primary which means these sources shall be relied on before any other source.

It means that for any question relating to their personal life or family, the Muslims shall resort to these primary sources of law to understand the legal opinion in such situations. The known five primary sources of Muslim law are:

• Holy Quran

Every religion emanates from one person who is believed to be the child or messenger or incarnation of God sent from above to imbibe virtues in people. These founders of religion usually store all their teachings and preaching to be followed and adhered to in future in certain holy books written by themselves or through another. The Holy Quran is the holy book of Islam which is believed to contain the direct words of God as perceived by Prophet Muhammad.

The Quran is like a Constitution for the Muslims and it contains all principles to be used in personal laws including marriage, divorce, succession, etc. In case of any question with respect to personal laws of Islam, the Quran is the first source which needs to be looked into.

The book contains 6000 verses divided into 30 parts and 114 chapters. For instance, the book contains a chapter titled marriage and it contains verses on how to get married, the procedure of marriage (nikah), divorce, etc.

It is believed that Prophet Muhammad received the commandments of God from Angel Gabriel in two places; Mecca and Medina. The commandments revealed at Mecca mostly dealt with philosophical and theological issues, i.e. study about the religion, its origin and development. On the other hand, the messages received by the Prophet in Medina were mostly socio-economic in nature and dealt with the regulation of society and the people thereof.

All these preachings were compiled in the Holy Quran after the demise of the Prophet. The Quran is the final authority on any issue related to Muslim personal law. In a strict sense, the Quran cannot be called a legal code and Muslim jurists agree that it contains verses explaining the way of living and the morals of life and it is not a legal code backed by sanctions.

• Sunnah

Sunnah is another primary source of Muslim law but comes after the Quran. After the demise of Prophet Muhammad, the Muslims were divided into two sects on the issue of a worthy and competent successor; first being Shia Muslims and the second being Sunni Muslims.

One sect believed that the one elected by the people as the Caliph would be the successor of the Prophet while the other sect believed that only the descendants or relatives of the Prophet could be worthy successors. The division of the religion also led to several books and scriptures become sources of Muslim law. One such source is the Sunnah.

Sunnah is followed by the Shia Muslims in their day to day lives to comprehend answers to questions that they face. Sunnah is believed to be the customs and traditions followed by the Prophet Himself and his words, actions and assertions.

According to the Quran, the Prophet preached that his traditions and his actions should be followed even after his death and therefore, the actions of his daughter and the Shia Imams after the Prophet are also counted in the Sunnah.

The word Sunnah basically means ‘path’. It connotes that the path that the Prophet followed should be followed by his people after him. Sunnah is second in priority after the Quran. Therefore, whenever there is a situation where the Holy Quran is silent and the people are unable to make a decision, Sunnah, i.e. the actions of the Prophet are followed.

It means Sunnah teaches people what Prophet would have done himself if he was in a situation like this. Since people believe that his actions are motivated by God’s grace and his actions are those of God Himself, adherence to Sunnah became popular. The main difference between Quran and Sunnah is Quran is the words of Allah enumerated in a book whereas the Sunnah is practice and language of the Prophet.

• Hadith

Hadiths are the books containing the Sunnah. It means that Sunnah is the actions and words spoken by the Prophet and Hadith is the Scripture where these are recorded.

It is believed that the Prophet forbade his followers from writing his preaching and his actions. He believed that writing what was being done might cause confusion between his actions and the words of the Quran. Therefore, no hadith has been discovered from the time of the Prophet. Nevertheless, it is believed that after his death, the Sunnah were written down in several books and all compiled together are called the Hadiths.

The question, therefore, emerges that if Hadiths were written after the death of Prophet Muhammad, what is the authenticity of such documents. This question was also considered by the early Islam scholars who wrote the Hadiths. To ensure the authenticity of the books, the Muslim scholars wrote the Hadith with the reference of their source and the reference of the reference so that all the references link in some way to the Prophet or an Imam. All measures were taken to maintain the veracity of the wordings in the Hadiths.

Generally speaking, Hadiths are not different from Sunnah and therefore, there is no hierarchy between them. Sunnah is what is being followed while Hadith is the book containing the Sunnah like the texts contained in the textbook.

• Ijma

The term ijma means a consensus, i.e. the agreement between all on a particular point of fact or law. When all the judges in the Supreme Court unanimously agree to a point and pronounce judgment on that point, it becomes a precedent and a binding law. Similarly, Ijma is a concept of law made by consensus of all Islamic jurists or other persons of knowledge and skill.

There are three kinds of Ijma

1. Ijma of companions
2. Ijma of jurist
3. Ijma of people

It is based on the belief that when all the most revered persons of the society having maximum knowledge of the Quran have together taken a decision, it should be for the benefit of the Muslim community.

Like Sunnah were mostly founded and followed by Shia Muslims, Ijma is followed by the Sunni sect. Ijma comes after the Quran and Sunnah as a source of Islamic law. The Sunni Muslims believed that Ijma is as important as the Quran or the Sunna because it constitutes the united and congruent opinion of all Muslims. However, the Shia sect believed that the Ijmas are not free from errors and cannot be relied on.

• Qiyas

As Islam spread in different parts of the world, they rendezvous with several other communities such as Byzantines and Persians and with the passage of time new difficulties arose. The Holy Quran was not capable of dealing with new emerging difficulties arising from contact with the outside world.

To resolve this problem, the Muslim jurists commenced referring to Quran and Sunnah to compare the situations and deduce an answer to the problem on the basis of some analogy. When the answer is found and all the jurists together agree to it, it was called the Qiyas. Thus, Qiyas are Ijmas based on deductive logic. They are the analogical deductions from the existing sources. Qiyas can only explain or interpret the law but cannot change the law.

II. Secondary Sources of Muslim Law

Now, as aforementioned, the legislatures and judiciary ought to be the primary source of any law. Nevertheless, since Muslim personal law is a law based on religious ethics and principles, the legislature takes a back stand. The following are the secondary sources that have led to the development of Muslim personal law:

• Custom

Customs are basically practices that people follow continuously for a long period of time and because of that, it becomes a source of law.

So there are two important conditions of custom-

• Continuous
• Without any influence

In the case of Abdul Hussain v. Bibi Sona Dero (1918), 20 BOMLR 528 Plaintiff claimed property on the basis of the custom that in their family women were denied inheritance if married. The judges were convinced that the custom was prevalent and gave the judgment which preferred custom to the Islamic law of Inheritance.

• Legislations

Legislations mean statutes enacted by the Parliament or the State legislature for the regulation of human actions in a particular aspect. There have been several legislations enacted by the Parliament to lay the foundation of Muslim law in India. The first law that was passed was the Shariat Act, of 1937. In Islam, the entire body of law that governs their day-to-day personal laws, marriage, divorce, etc. are collectively called the Sharia.

Thus, based on Sharia and with the object to make it a complete body of Muslim laws, the Act was titled the Shariat Act. It contained only six provisions dealing mainly with:

1. Law relating to the succession of a Muslim person dying intestate. i.e. without a will or a testament.
2. Law relating to vesting of properties and gifts on females of the Sect.
3. Law relating to marriage, divorce, grounds of divorce, Mehr, guardianship and maintenance.
4. Law relating to wakfs i.e. any trust created for the Muslim religion.

The issue of divorce has been a major drawback in Muslim personal law because the Holy Quran gives the right to divorce a woman to her husband but is silent on divorce by a woman. This has led to struggle by a woman in an unhappy marriage and affected by domestic violence and cruelty.

In 1939, an attempt was made to allow the woman to divorce their husbands through the Dissolution of Muslim Marriage Act, 1939. The woman could divorce their husband on three main grounds, viz.

1. refusal from maintaining the wife, financially and emotionally,
2. ill-treatment in the matrimonial house, and
3. desertion by the husband.

Another issue that came after the divorce was the maintenance of the divorced wife. Since women in India are still fighting for their right to work and equal opportunity in employment, women needed certain financial security for their livelihood and their children’s well-being. Hence, the Muslim Women (Protection of Rights on Divorce) Act, 1986 was enacted that gave them the right to maintenance from their husband.

The most recent development in legislations has been the Triple Talaq Bill (The Muslim Women (Protection of Rights on Marriage) Bill, 2019) that prohibited any form of an oral or written declaration of divorce to be illegal unless it is executed with the due procedure of law.

• Judicial Pronouncements

It is said that the law protects only the vigilant. This is very much right in the case of Muslims in India. the development of Muslim law by the judiciary came to its full development in the 1980s because till then, Muslim men and women have been sleeping on their rights or were ignorant about their rights.

The first landmark judgment that deals with Muslim personal law was the 1986 judgment in Shah Bano Begum v. Md. Ahmed Khan[1]. In this case, the apex court held that Muslim women have a right to maintenance under Section 125 of the CrPC even if the Quran or their personal laws have provided for an alternate remedy. The same ratio was upheld by the apex court in Daniel Latifi v. Union of India[2].

Recently, in the leading case of Shayara Bano v. Union of India[3], the apex court held the system of instantaneous divorce by the utterance of the word ‘talaq’ thrice orally unconstitutional because the right to instantaneous divorce is only with the men and not women. Further, the system is arbitrary and hence, violative of Article 14. Therefore, the judiciary has assisted in the development of Muslim personal law.

• Equity justice and good conscience

If nothing works i.e. if the existing sources are not sufficient to solve the problem arising with the change and development in society then judges use their own reasoning and give judgment based on equity, justice, and good conscience.

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References

[1] Shah Bano Begum v. Md. Ahmed Khan, 1985 (2) SCC 556.

[2] Daniel Latifi v. Union of India, (2001) 7 SCC 740.

[3] Writ Petition (C) No. 118 of 2016

Bibliography

• Dinshaw Mulla, Mulla Principles of Mahomedan Law (21^st 2017).
• Paras Diwan, Muslim law in modern India, 2016.

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1. Historical Development of Muslim Law
2. Muslim Law: Case Laws, Notes And Study Material