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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,
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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.
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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.
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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.

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