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FAMILY LAW

Question :- 1) Briefly state the various sources of Mohammaden law.? 2) ASunniMusl i m hasf ourwi ves.Hecont r act sfif t h mar r i ageI st hefif t hmar r i ageval i d? 3)Explain the various sources of Mohammaden law.?

4) Explain the various schools of Muslim Law.? I MPORTANT-REPEAT

Answer :Various sources of sharia are used by Islamic jurisprudence to elaborate the body of Islamic law.[1] The scriptural sources of traditional Sunni jurisprudence are the Qur'an, believed by Muslims to be the direct and unaltered word of God, and the Sunnah, consisting of words and actions attributed to the Islamic prophet MUHAMMAD (PBUH) (PBUH) in the hadith literature. Shi'ite jurisprudence extends the notion of Sunnah to include traditions of the Imams. Since legally relevant material found in Islamic scriptures did not directly address all the questions pertaining to sharia that arose in Muslim communities, Islamic jurists developed additional methods for deriving legal rulings. According to Sunni schools of law, secondary sources of Islamic law are consensus, the exact nature of which bears no consensus itself; analogical reason; seeking the public interest; juristic discretion; the rulings of the first generation of Muslims; and local customs. Hanafi school frequently relies on analogical deduction and independent reasoning, and Maliki and Hanbali generally use the Hadith instead. Shafi'i school uses Sunnah more than Hanafi and analogy more than two others. Among Shia, Usuli school of Ja'fari jurisprudence uses four sources, which are Qur'an, Sunnah, consensus and the intellect. They use consensus under special conditions and rely on the intellect to find general principles based on the Qur'an and Sunnah, and use the principles of jurisprudence as a methodology to interpret the Qur'an and Sunnah in different circumstances. Akhbari Ja'faris rely 1

more on scriptural sources and reject ijtihad. According to Momen, despite considerable differences in the principles of jurisprudence between Shia and the four Sunni schools of law, there are fewer differences in the practical application of jurisprudence to ritual observances and social transactions.

Primary sources Qur’an The Qur'an is the first and most important source of Islamic law. Believed to be the direct word of God as revealed to MUHAMMAD (PBUH) (PBUH) through angel Gabriel in Mecca and Medina, the scripture specifies the moral, philosophical, social, political and economic basis on which a society should be constructed. The verses revealed in Mecca deal with philosophical and theological issues, whereas those revealed in Medina are concerned with socio-economic laws. The Qur'an was written and preserved during the life of MUHAMMAD (PBUH), and compiled soon after his death.[6] The verses of the Qur'an are categorized into three fields: "science of speculative theology", "ethical principles" and "rules of human conduct". The third category is directly concerned with Islamic legal matters which contains about five hundred verses or one thirteenth of it. The task of interpreting the Qur'an has led to various opinions and judgments. The interpretations of the verses by MUHAMMAD (PBUH)'s(PBUH) companions for Sunnis and Imams for Shias are considered the most authentic, since they knew why, where and on what occasion each verse was revealed. Sunnah[edit] The Sunnah is the next important source, and is commonly defined as "the traditions and customs of MUHAMMAD (PBUH) (PBUH)" or "the words, actions and silent assertions of him". It includes the everyday sayings and utterances of MUHAMMAD (PBUH)(PBUH), his acts, his tacit consent, and acknowledgments of statements and activities. According to Shi'ite jurists, the sunnah also includes the words, deeds and acknowledgments of the twelve Imams and Fatimah, MUHAMMAD (PBUH)'s(PBUH) daughter, who are believed to be infallible. Justification for using the Sunnah as a source of law can be found in the Qur'an. The Qur'an commands Muslims to follow MUHAMMAD (PBUH) (PBUH)During his lifetime, MUHAMMAD (PBUH) (PBUH) made it clear that his traditions (along with the Qur'an) should be followed after his death. The overwhelming majority of Muslims consider the sunnah to be essential supplements to and clarifications of the Qur'an. In Islamic 2

jurisprudence, the Qur'an contains many rules for the behavior expected of Muslims but there are no specific Qur'anic rules on many religious and practical matters. Muslims believe that they can look at the way of life, or sunnah, of MUHAMMAD (PBUH)(PBUH) and his companions to discover what to imitate and what to avoid. Much of the sunnah is recorded in the Hadith. Initially, MUHAMMAD (PBUH) (PBUH) had instructed his followers not to write down his acts, so they may not confuse it with the Qur'an. However, he did ask his followers to disseminate his sayings orally. As long as he was alive, any doubtful record could be confirmed as true or false by simply asking him. His death, however, gave rise to confusion over MUHAMMAD (PBUH)'s conduct. Thus the Hadith were established. Due to problems of authenticity, the science of Hadith (Arabic: `Ulum al-hadith) is established. To establish the authenticity of a particular Hadith or report, it had to be checked by following the chain of transmission (isnad). Thus the reporters had to cite their reference, and their reference's reference all the way back to MUHAMMAD (PBUH). All the references in the chain had to have a reputation for honesty and possessing a good retentive memory. Thus biographical analysis (`ilm al-rijāl, lit. "science of people"), which contains details about the transmitter are scrutinized. This includes analyzing their date and place of birth; familial connections; teachers and students; religiosity; moral behaviour; literary output; their travels; as well as their date of death. Based upon these criteria, the reliability (thiqāt) of the transmitter is assessed. Also determined is whether the individual was actually able to transmit the report, which is deduced from their contemporaneity and geographical proximity with the other transmitters in the chain. Using this criterion, Hadith are classified into three categories: Undubitable (mutawatir), which are very widely known, and backed up by numerous references. 2. Widespread ( mashhur), which are widely known, but backed up with few original references. 3. Isolated or Single (wahid), which are backed up by too few and often discontinuous references. 1.

in a shariah court a qadi (judge ) hears a case, including witnesses and evidence, then the qadi makes a ruling . sometimes the qadi consults a mufti or scholar of law, for an opinion. Secondary sources All medieval Muslim jurists rejected arbitrary opinion, and instead developed various secondary sources, also known as juristic principles or doctrines[to 3

follow in case the primary sources (i.e. the Qur'an and Sunnah) are silent on the issue. a)Consensus The ijma' , or consensus amongst Muslim jurists on a particular legal issue, constitutes the third source of Islamic law. Muslim jurists provide many verses of the Qur'an that legitimize ijma' as a source of legislation.[14] [15] MUHAMMAD (PBUH) (PBUH)himself said: Amongst the Sunni jurists there is diversity on who is eligible to participate in ijma' , as shown in the following table: School of jurisprudence

Formation of ijma'

Rationale

Hanafi

through public agreement of Islamic jurists

the jurists are experts on legal matters

Shafi'i

through agreement of the entire community and public at large

the people cannot agree on anything erroneous

Maliki

through agreement amongst the residents of Medina, the first Islamic capital

Islamic tradition says "Medina expels bad people like the furnace expels impurities from iron"

Hanbali

through agreement and practice of MUHAMMAD (PBUH)'s Companions

they were the most knowledgeable on religious matters and rightly guided

Usuli

only the consensus of the ulama of the same period as the Prophet or Shia Imams is binding.

consensus is not genuinely binding in its own right, rather it is binding in as much as it is a means of discovering the Sunnah.

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b)Analogical reason Qiyas or analogical reason is the fourth source of the sharia for the majority of Sunni jurisprudence. It aims to draw analogies to a previously accepted decision. Analogical reason in Islam is the process of legal deduction according to which the jurist, confronted with an unprecedented case, bases his or her argument on the logic used in the Qur'an and Sunnah. Legally sound analogy must not be based on arbitrary judgment, but rather be firmly rooted in the primary sources.[20] Supporters of the practice of qiyas will often point to passages in the Qur'an that describe an application of a similar process by past Islamic communities. According to supporters of the practice, MUHAMMAD (PBUH)(PBUH) said: "Where there is no revealed injunction, I will judge amongst you according to reason." For example, wine is prohibited in Islam because of its intoxicating property. Thus qiyas leads to the conclusion that all intoxicants are forbidden.[20] c)Juristic preference Abu Hanifa developed a new source known as juristic preference.[24] Juristic preference is defined as:   

A means to seek ease and convenience, To adopt tolerance and moderation, To over-rule analogical reason, if necessary.[25]

The source, inspired by the principle of conscience, is a last resort if none of the widely accepted sources are applicable to a problem. It involves giving favor to rulings that dispel hardship and bring ease to people.[23] The doctrine was justified directly by the Qur'anic verse stating: "Allah desires you ease and good, not hardship". d)Public interest Malik developed a tertiary source called al-maslahah al-mursalah, which means that which is in the best interests of the general public. According to this source of Islamic law, rulings can be pronounced in accordance with the "underlying meaning of the revealed text in the light of public interest". In this case, the jurist uses his wisdom to pursue public interest. This source is rejected by the Shafi'ites, Hanbalites and Zahirites from Sunni jurisprudence.

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e)Inference Shafi'i accepted cases in which he had to be more flexible with the application of Qisas. Similar to Abu Hanifa and Malik, he developed a tertiary source of legislation. The Shafi'i school adopted istidlal or inference, a process of seeking guidance from the source. Inference allowed the jurists to avoid strict analogy in a case where no clear precedent could be found. In this case, public interest was distinguished as a basis for legislation. f)Reason Shi'ite jurists maintain that if a solution to a problem cannot be found from the primary sources, then aql or reason should be given free rein to deduce a proper response from the primary sources. The process, whereby rational efforts are made by the jurist to arrive at an appropriate ruling, when applied is called ijtihad (literally meaning "exerting oneself"). Shi'ite jurists maintain that qiyas is a specific type of ijtihad. The Sunni Shafi' school of thought, however, holds that both qiyas and ijtihad are the same.[28] g)Local custom The term urf, meaning "to know", refers to the customs and practices of a given society. Although this was not formally included in Islamic law,[31] the sharia recognizes customs that prevailed at the time of MUHAMMAD (PBUH) but were not abrogated by the Qur'an or the tradition (called "Divine silence"). Practices later innovated are also justified, since Islamic tradition says what the people, in general, consider good is also considered as such by God. According to some sources, urf holds as much authority as ijma (consensus), and more than qiyas (analogical deduction). Urf is the Islamic equivalent of "common law".

various schools of Muslim Law. Sunni and Shia are the two main sects in Islam. A minority known as Ibadi, who are neither Sunni nor Shia, are prevalent in some parts of Arabian sub continent. On matters concerning which no explicit command of Allah nor any authority of the Prophet to be found, when great scholars in different area decided on their own Quiyas, the usual differences of opinion and difference in the interpretation that each of them had their own explanation and reasons, they gave rise to different schools or codes of law. Muslim world universally accepted all schools as right path and come to the point that to follow any one school as all are in right paths. In all these schools 6

or codes of law there is no error or difference in law as to the meaning of Quran and Sunna. There is no difference as to the basic belief of Islam and Islamic way of life. They are not separate sects, parties or casts. One school is not higher or lower than the other and each school is respecting other schools. All are uniting in the matters of faith worship and prayer. It is like to choose one line to travel in four line traffic as we cannot drive through all lines at a time. There are four important schools of law among Sunni. They are Hanafi, Maliki, Shaffie and Hanbali. 1. Hanafi School. It is the first and most popular school in Muslim law. Earlier it was known as Koofa School. The city of Koofa in Iraq was then the capital Khilafath. Subsequently it become popular in the name Hanafee which derived from the name of Abu Haneefa who was the founder of this school. As the Prophet himself prohibited writing and preserving of his words and traditions, and on question where Qur-an does not provided explicit commands, the Hanafee method was to relay on customs and precedents of the Muslim community as the tradition of the Prophet. Thus Hanafee School was codifying the precedents which were prevalent among Muslim in that period. 2. Maliki School This school derived it name from Malik–bin- Anas who was the Mufthi of Madeena. His period was from AD 713 to 795 (Hijra 179). During this period the capital of Muslim Khaleefa was at Koofa where Imam Abu Hanifa and his disciples flourished with Hanafi School. When the disciples of Imam of Abu Haneefa codified their law based on Ijma’a and lsthihsan, Imam Malik at Madeena, the city of the Prophet codified Sunna and Hadis on the permission given by Khaleefa Umer-bin Abul Aziz. Imam Malik collected about 8000 traditions of the Prophet. He testified and compiled only about 2000 out of these traditions. He codified it in subject wise in his Book Mu-atha which was the first and most authoritative book of Hadis.

3. Shaffie School This school is known in the name of Muhammad (PBUH) bin Idris Shaffie whose period was from AD 767 to 820. He was a student of Imam Malik at Madeena and later he went to Koofa and worked with the disciples of Imam Abu Haneefa.

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His conceived the idea of harmonizing the two schools Hanafi and Maliki on a friendly manner. Imam Shaffie is considered as the greatest jurist of Islam. He is the creator of the classical theory of Islamic Jurisprudence. Shaffie established Ijma‘a as an important source of Muslim law and gave validity to custom of the people of Islam following more to the method of Hanafi school. Quiyas or analogy is the contribution of Imam Shaffie to Muslim law. 4. Hanbali School This is the last formed school of Sunni Muslim law. Ahmad bin Hanbal died in Hijra 241 (A D 855) was the founder of this school. He was a disciple of Imam Shaffie and strong supporter of Hadis. He opposed the method of Ijthihad (personal reasoning) explained by Imam Shaffie. And instead he formed a theory of tracing root (usool) of Sunna or Hadis to get the answer. His theory was to return to the Sunna of the Prophet. So he collected about 80,000 Hadis and codified them in his Book ‘Musnath’. It is said that when Imamm Shafie left Baghdad, he declared that he had not left behind him a better jurist and pious man than Ahmad bin Hanbal. The followers of Hanbali school found in Syria, Phalastine and Saudi Arabia. When religious reforms were made in Saudi Arabia in 18th century on the inspiration of Abdul Wahab, they accepted Hanbali school and now in Kingdom of Saudi Arabia (Mamlukiyathu ssuoodi al Arabiyya) where two Harams, Makka and Madeena situate, they are generally following Hanbali school of law. The three importance schools of law among Shia are Isna ashari, Ismaili and Zaidy. 1) Isna Ashari or Ja-afari :Ja ʿfari jurisprudence Jaʿfari school or Jaʿfari fiqh, is the school of jurisprudence(fiqh) in Twelver Shia Islam, named after the sixth Imam, Ja'far al-Sadiq.[1] In Iran, Ja'fari jurisprudence is enshrined in the constitution.[2] It differs from the predominant madhhabs of Sunni jurisprudence in its reliance on ijtihad, as well as on matters of inheritance, religious taxes, commerce, personal status, and the allowing of temporary marriage or mutʿa. 2. Ismaili :The Ismaili Muslims are a culturally diverse community living in over 25 countries around the world. They adhere to a 1,400 year tradition of Shi'a values that are expressed through a commitment to a search for knowledge for the betterment of self and society; embracing pluralism by building bridges of peace and understanding; and generously sharing of one's time, talents, and material resources to improve the quality of life of the community and those among whom they live. 8

3. Zaidy :Zaidiyyah or Zaidism (is one of the Shia sects closest in terms of theology to the Ibadhi and Mutazila schools. Zaidiyyah emerged in the eighth century out of Shi'a Islam.[1] Zaidis are named after Zayd ibn ʻAlī, the grandson of Husayn ibn ʻAlī and the son of their fourth Imam Ali ibn 'Husain.[1] Followers of the Zaydi Islamic jurisprudence are called Zaydi and make up about 50% of Muslims in Yemen, with the vast majority of Shia Muslims in the country being Zaydi.

Question :- 1)What are the essentials of a valid marriage under Mohammadan law.? 2) Define and distinguish between valid, void and irregular marriages under Mohammaden law. 3) Muta marriage (short note) 4) Define Marriage and Muta marriage. State the differences between the two. I MPORTANT-REPEAT

Answer :- definition A formal union and social and legal contract between two individuals that unites their lives legally, economically, and emotionally. In Muslim law marriages are of the nature of civil contract and there are three kinds of marriages –sahih i.e. valid, –fasid i.e. Irregular and –batil i.e. void. Requirements The solemnization of marriage requires adherence to certain forms and formulas. They are called the essentials of a valid marriage. If any of these requirements is not fulfilled the marriage becomes either void or irregular, as the case may be. 9

Thus the essentials are as follows: 1. Proposal and Acceptance 2. Competent parties 3. No legal Disability Procedure  Marriage like any other contract is constituted by ijab-o-qabool, that is by declaration and acceptance. One party to the marriage must make an offer (Ijab) to the other party. The marriage becomes complete only when the other party has accepted the offer.  According to Muslim Law it is absolutely necessary that a man or someone on his behalf and the woman or someone on her behalf should agree to the marriage at one meeting and the agreement should be witnessed by two adult witnesses.  The Words conveying proposal and acceptance must be uttered in each other's presence or in the presence of their agents, who are called Vakil's.  The other condition for a valid marriage is that the transaction must be completed at one meeting. A proposal made at one meeting and an acceptance at another meeting do not constitute a valid marriage.  There must be reciprocity between offer and acceptance. The acceptance must not be conditional Under the Sunni Law, the proposal and acceptance must be made in presence of two males or one male and two female witnesses who are sane, adult and Muslim. Under Shia Law, witnesses are not necessary at th...