Application of Muslim Law : The entire Muslim Law is not applied
by the Indian Courts.law is applied which regulates the family-matters
or personal-matters of the Muslims. The enactment which authorises the Indian Courts to apply Muslim personal law is the Muslim Personal Law (Shariat) Application Act, 1937, popularly known as the Shariat Act, which literal meaning is "the path to be followed" by the human beings. Section 2 of this Act provides where both the parties are Muslims, Muslim Law shall be govern on them, involving any of the matters– (i) Inheritance (ii) special property to the females (iii) marriage (iv) divorce (v) maintenance (vi) dower (vii) guardianship (viii) gift (ix) wakf (x) trust. But there are certain cases in which even if both the parties are Muslims and the matter is one specified in the Shariat Act yet, Muslim law is not applied. Ex-1: If any marriage took place under the Special Marriage Act, 1954, the mutual rights of inheritance of the husband and wife are governed by the Indian Succession Act, 1925. Ex-2: The Child Marriage Restraint Act, 1929, restrains a boy under the age of 21 and a girl under the age of 18 years, for marriage. Inspite of all these provisions there are certain matters in which Muslim Law are applied even if both the parties are not Muslim, the law of the defendant is applied. Ex-1: A married women who renounces Islam and converts to any other religion ceases to be Muslim. But, under Section 4 of the dissolution of Muslim Marriage Act, 1939 such a women (even after conversion to another religion) may obtain a decree for the dissolution of her marriage on any grounds mentioned in Section 2 of this Act. Ex-2: The rule of defendant is available in the right of pre-emption. SOURCES OF MUSLIM LAW By sources of any law, we mean the original materials where the contents of that law are to be found and are made available to us. Study of these sources is necessary for having knowledge of the origin of a law and for its proper explanation and interpretation. Sources of Muslim Law may be classified into two categories– (i) The primary sources, and (ii) Secondary sources. Primary sources are those which the prophet himself directed to be the sources of Muslim Law. Secondary sources explain or modify the primary sources of Muslim Personal Law according to the changing needs of the Islamic society. The Primary Sources : 1. Quran : The word Quran is derived from the Arabic word "Qurra" and properly signifies, "the reading of that which ought to be read". The world Quran is the divine communication and revelation to the prophet of Islam for the benefit of mankind, through angel Gabriel. It is the first sources of Muslim Law in point of time because, before Quran there was no Islamic society as it exists tody. The Quran in its present form is a book, contained 6237 verses called Ayat and divided into 114 chapters called Sura. Not more than 200 verses, disclosed at Madina was concerned with legal principles and nearly about 80 verses were concerned with marriage, dower, -4- divorce and inheritance or deal with the philosophy of life and Islamic religion, disclosed at Mecca. It was given to world in fragments, during a period of 23 years (609 to 632 A.D.). Quran is the foundation upon which the very structure of Islam rests. It has retained its purity, without the least change, for the last one thousand and three hundred years. 2. Sunna or Ahadis (Tradition of the Prophet) : In Islam it is believed that revelations were of two kinds, manifest (Zahir) and internal (Batin). Manifest or express revelations were the very words of God contained in Quran. On the other hand internal or implied revelations, were those which had been 'Prophets own words' but the ideas contained in the sayings were inspired by God, formed part of Sunna. Any words used or act done by prophet is called Hadis, if this hadis is followed by a number of persons become Sunna which has been classified into three categories– (i) Sunnat-ul-Qaul (Words Spoken) : Traditions about which he enjoyed by words. (ii) Sunnat-ul-fail (Conduct) : Which the prophet did himself i.e. his behaviour, and (iii) Sunnat-ul-taqrir (Silence) : The things done in his presence without his disapproval, includes such pre-Islamic customs which were not disapproved by prophet. These traditions could become an authoritative source of law, if narrated by competent and qualified person called Narrator. According to Abdur Rahim, qualification for being a competent Narrator– (i) he must have understanding (sane and adult); (ii) he must possess the power of retention; (iii) he must be Muslim, and (iv) he must be of righteous conduct. Having such qualification following persons were recognised as narrators– (i) Companions of the Prophet : Such Muslims who had privilege of being in the close contact during the life-time of the prophet. These narrator were treated as most reliable. (ii) Successors of the Companions : Those who were not with the prophet but had the occasion of being contact with the companions of the prophet were called the successors. (iii) Successors of the Successors : Those Muslims who were neither with the prophet nor with the companions but were in contact with the successors, were called the successors of the successors of a companion. On the faith of these narrators Ahadis are classified as– (i) Ahadis-i-mutwatir (Universally Accepted Traditions) : These traditions have universal acceptance and are followed by all the sects of Islam. (ii) Ahadis-i-Mashhoor (Popular Traditions) : These traditions have no universal acceptance but a great majority has always recognised them as a source of law. (iii) Ahadis-i-Ahad (Isolated Tradition) : These traditions have neither been continuously followed nor followed by majority of the people. Only a certain section of society has accepted them. -5- 3. The Ijma (Unanimous Decisions of Jurists) : When Quran or Sunna could not supply any rule of law for a new problem, the law making person, called Mujtahids used to give their common opinion or unanimous decision over that point. Such decision of jurists was termed Ijma. Ijma is of three kinds– (i) Ijma of the Companions : It was presumed that the companions were the best persons to act as jurists. Such Ijma being most authoritative, could not be overruled or modified by any subsequent Ijma. Hanbalis recognise only this kind of Ijma. (ii) Ijma of the Jurists : In the absence of any Ijma of the companion, the unanimous decision of other jurists is recognised as most valuable and reliable. Hanafies recognise this kind of. (iii) Ijma of the People : Sometimes the general agreement of the great majority of Muslims was also accepted as law. This kind of Ijma has little value and generally relates to fundamental observances of Islam such as to prayers, fasting, pilgrimage, Zakat etc. 4. Qiyas (Analogical Deduction) : Qiyas means measuring or comparing by analogy with a similar problem for which solution was given in the texts. Ex– Wine is haram to Muslims, is cigrate also haram to Mulsims, does cigrate come within the preview of intoxication the answer of this question can be decided by analogical deduction. For qiyas two thing were required– (i) The person who established analogy was a Mujtahids and (ii) He deduced the law from a definite text of Quran, Sunna or Ijma. Secondary Sources : 1. Custom (Urf or Taamul) : Before Islam, the Arabs were governed by customary laws. On being introduced the Islam, many custom was abolished but those custom which were not expressly repealed during the life-time of the prophet, were held to have been sanctioned by the law giver by his silence. A customary law exists in Islam either because of Sunna or Ijma. Requirements of a valid custom are– (i) General prevalence in the country is necessary. (ii) It must be territorial. (iii) It should be immemorial. (iv) It must be ancient and invariable and (v) It should not be opposed to public policy. After passing the Shariat Act 1937, Section 2 of this act provides that all Muslims of India (except Jammu and Kashmir) will be governed by Shariat Act in 10 matters as inheritance, special property of female, marriage, dower, divorce, maintenance, guardianship, gift, walf and trust but according to Section 3 agricultural land, testamentary succession in certain communities and charities, other than wakfs are excluded. However, the states of Andhra Pradesh and Tamil Nadu have included also, the matter contained in Section 3, in Section 2 of the Shariat Act through their State Amendments. 2. Judicial Decisions : The decisions of the Privy Council, the Supreme Court, as well as of the High Courts of India, are regarded as precedents for future cases and become an authority for subsequent cases arising in subordinate courts. On some points judicial decision have modified the pure Muslim Law. -6- Ex– Hammeera Bibi V Zubaida Bibi2 The taking of interest in a loan is prohibited in Islam, but the Privy Council allowed simple interest on the amount of unpaid dower. 3. Legislation : According to Islam, the only power to make laws, vested in God and any legislative modification is treated as an encroachment upon the traditional Islamic law. In India, Muslims are also governed by the various legislations passed either by the Parliament or by State legislature as. The Guardians and Wards Act 1890, the Child Marriage Restraint Act, 1929, the Shariat Act, 1937, Dissolution of Muslim Marriage Act, 1939, Muslim Women (Protection of Rights on Divorce) Act, 1986 etc. 4. Justice, Equity and Good Conscience : Under Muslim Law this can also be regarded as a source. Abu Hanifa, explained that any rule made by Qiyas could be set aside at the option of the judge on any juristic preference of a particular case. These principles are known as Istihsan or Juristic equality.