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Introduction to Muslim LawIn India, the personal law of the parties is applied even in the Courts in the matters relating to ‘personal matters’ of an individual like marriage, divorce, guardianship, etc. Family matters and property are also included in the personal laws. Thus, where the parties are ...

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Introduction to Muslim Law In India, the personal law of the parties is applied even in the Courts in the matters relating to ‘personal matters’ of an individual like marriage, divorce, guardianship, etc. Family matters and property are also included in the personal laws. Thus, where the parties are Muslims, the Court will apply their personal law. Muslim Law in India refers to that portion of Islamic Civil Law that is applied to Muslims as a personal law. It consists of injunctions of Quran and has been further supplemented by Legislation and judicial precedents of the Courts. Personal laws are not general in their application and wherever a person may be in India, his personal law will follow him. WHO IS A MUSLIM Muslim law can be defined as the branch of civil law that regulates the family matter of the Muslims.The word ‘Muslim’ is derived from Islam and refers to a person who has adopted or follows the faith of Islam. There is no statutory definition of a Muslim. The term ‘Islam’ means ‘submission to the will of God’. In legal terminology, Islam is a religion where it is believed that i) God (Allah) is the one and only God; and ii) Prophet Mohammad is His messenger (Rasool). Thus, anyone who believes in the above two principles will be a Muslim. As faith in Islam is a matter of heart and difficult to prove in Court, the Courts recognise the following as Muslims: 1. Muslim by Birth: If a person’s parents were both Muslims, he will be regarded as a Muslim by birth. Where only one parent is a Muslim, the child will be regarded as a Muslim if only he has been raised a Muslim as held in BHAIYA SHER BAHADUR V BHAIYA GANGA BAKSH SINGH (1914) 41 IA 1. A Muslim by birth will continue to be one unless on attaining majority, he renounces Islam through a public declaration. 2. Muslim by Conversion: Any person of sound mind and age of majority can convert in two ways – a) He may publicly declare that he has renounced his original religion and is now professing Islam. He should also believe that Allah is the one and only God and Prophet Mohammad is his messenger. b) Conversion through the ceremonies as prescribed in Islam itself. The person goes to the mosque where the Imam may ask him to read a Kalema and give him a Muslim name. The new name is then registered in the Imam’s register If a person formally professes Islam, he is a Muslim. This should not be a conversion based on fraud or to defeat any law; thus, if the person’s conduct and behaviour runs contrary to Islam, the presumption of conversion is rebutted. There exists no objective test for checking the sincerity of faith. But many a times, when the conversion is only to legalise an act that is illegal in other faiths, the Courts will hold the conversion mala fide. In SARLA MUDGAL V UNION OF INIDA (1995) 3 SCC 635, a Hindu husband converted to Islam to marry a Muslim girl without first divorcing his first wife (a Hindu). The court held that the

conversion was mala fide and declared the second marriage void while stating that “it is not the object of Islam or intention of the enlightened Muslim Community that Hindu husbands should be encouraged to become Muslims merely for the purpose of evading their own personal laws by marrying again.” The Supreme Court reinforced the same principle in LILY THOMAS V UNION OF INDIA A.I.R (2000) SC 1650. Feigning adoption of another faith for mere worldly gains is treated as religious bigotry. Once a Muslim, it is irrelevant whether he is a Muslim by birth or conversion. In 1937, the Shariat Act abolished all the customs that the converted Muslims used to follow from their original faith (except for those that are related to agricultural lands or matter not included in the Act). Apostasy If there is apostasy by a married person in a country where the law of the land is the Muslim law, the converted party has to offer Islam to the other partner. If the other party refuses, the marriage may be dissolved If the Muslim law is not the law of the land, the marriage is automatically dissolved after 3 months of the conversion. This is NOT the case in India. A suit for divorce has to be filed. An apostate will be dealt under his original religion at the time of the event or action even if he has converted to another religion. For example, if a Muslim couple is divorced after the husband’s conversion. It is the Muslim law that will apply because the marriage took place under the Muslim law. Application of Muslim Law The Courts apply Muslim law for personal matters or where authorised by law and legal principles. Legal Application of Muslim Law

The Principles of Equity, Justice and Good Conscience

Statutory Authority

The Khojas and the Cutchi Memons were Hindus 400 years ago who then converted In the absence of any The British applied Muslim to Islam. They are generally traders and enacted law, the Courts personal law for the Muslims had till recently retained certain Hindu apply the principles. in India so as to maintain succession and inheritance laws. There was an option for them to make a social stability for better For example, the Muslim trade opportunities. statutory declaration that they would be law of pre-emption has governed under Muslim law for all not been mentioned in Warren Hastings plan of 1772 purposes. any act and thus the brought in maulvis to help courts are under no expound the Muslim personal Now even that is not needed. They are obligation to implement law. Though the British were covered under the Hanafi school. The it. to enact general laws for all Shariat Act had applied the rules of the affairs of Indians despite Muslim law to intestate succession in Similarly Muslim law was their religion, they left these communities. In 1938, even applied in the case about personal laws alone. Acts like testamentary succession was brought into the agricultural lands on Shariat Act, The Oudh Laws the purview of Muslim law. Now, both the the principles of Equity. communities are governed by the Muslim Act, 1876 authorises the Indian courts to apply Muslim personal law except for those exceptions personal law. stated in the Shariat Act like agricultural lands, etc. The High courts are free The Shariat Act generally to apply the unrepealed regulates the application of Initially the wills of the Cutchi Memons Provisions of law before Muslim personal law. and the Khojas were constructed as per the Constitution Came the Hindu law, now the Muslim law into being on the basis of Section 2 allows for the applies. Thus, they can not give away Art. 225 application of Muslim law in more than 1/3rd of their property away through a will without the consent of their the following cases: heir(s). The Courts are also free to apply the local usages 1. Intestate Succession The Muslim Memons are followers of the 2. Special property of and enactments. the females Hanafi school and are divided into 3. Marriage Muslim law is not 4. Dissolution of applied to Muslims, if a) Halai Memons who are found in Marriage There is another law Bombay 5. Maintenance applying to the parties 6. Guardianship that they choose over b) The Cutchi Memons. 7. Gift the particular Muslim 8. Trust and Trust law provision in The Khojas are converted Muslims who till Properties existence dealing With 1937 were governed under the Hindu law 9. Wakf the same issue. with respect to certain matters. For example, Marriage under Special Marriage Act, 1954 or inheritance under the Indian Succession Act, 1925 are a few cases where Muslim law will not be applied even if both the Parties are Muslims.

A custom or usage contrary to Muslim law cannot be applied now.

Muslim law is applied even to non- Muslims, if the defendant is a Muslim and the other Party is either not a

Agricultural lands, charities and charitable endowments are expressly excluded from Section 2. Still the states can regulate through tenancy

The Mapillas are converted Muslims and were formerly regulated by their customary laws in the matters of succession that were against the Muslim Section 3 gives the choice to Law. But now they are compulsorily a Muslim to be governed by governed due to the present Acts. Still a Muslim law in matters other few areas like Tarvad and Tavazi are under than those enumerated the purview of customary law. there.

Law as per Islam

THE SHARIAT

THE FIQH

Shariat: The term literally means “road to the watering place” or “the path to be followed’.

Fiqh: It means intelligence. It refers to ‘law’ in the modern sense and literally it refers to the knowledge of law.

In Islam, law has a divine origin and God is the only true legislator.

It is used for regulating human conduct and is secular in nature. It is jurisprudential in nature.

The law is an order or hukm that is obtained through a communication from God, whether express or implied. There is either husn (good action) or kubh (evil action). The Shariat says what is husn must be done and that which is morally bad or kubh must be avoided. The Quran, Sunna of the Prophet, etc tell us what is husn or kubh. The that regulates all the spheres of a man’s life. It is a moral or spiritual code. The legal considerations are secondary. Thus, law is the direction given by God Some directions are obligatory and others are merely desirable. It has a wider scope as it includes all spiritual, moral and secular actions of a man. It also has an additional category of actions, namely,

It refers to the knowledge of one’s rights and obligations. It is generally deduced from the directions of God or traditions of the Prophet. It has been created through the power of reasoning by the Muslims Jurists in the absence of the word of God or the Prophet. It has narrower scope as it deals with only the legal actions. It deals with logical and scientific progress Human action is treated as lawful or unlawful and the punishment comes from the state It is comparable to the Hindu concept of Vidhi or Vyavhar. In the classical view, it is the knowledge of one’s rights and obligations derived from the Quran, Sunna (the traditions of the Prophet), Ijma (consensus of the learned) and the Qiyas

what is advised not to be done.

(analogical deductions).

It is taken before any other source. It is Muslim equivalent to the Hindu concept of Dharma. The Shariat includes farz (what is necessary) like daily prayers; haram (what is strictly prohibited) like wine; manruk (advised to refrain from) like specific kinds of fish; mandub (advised to do) like additional prayers and jaiz that to which the religion is indifferent like travelling by air.

The right phrase for the personal law of the Muslims is Islamic Law or Muslim law rather than Mohammedan law. ORIGIN OF ISLAM ORIGIN OF ISLAM Islamic history begins in Arabia in the 7th century with the emergence of the Prophet Muhammad. PRE-ISLAMIC SOCIETY The birthplace of Islam was a desert with a harsh life for the people. Accordingly, most Arabs were nomads. There were a few cities like Mecca and Medina with a settled way of life. There was no common religion and general belief was in the principles of courage, freedom and vengeance. There was no one government or administrative machinery as such. There were Caliphs (heads) of the tribes who were elected. They represented and controlled the tribesmen. Customary laws regulated relations within people of the same tribe and the relations between different tribes. Many of the customs can be called unreasonable with no restriction on marriage, no rights for the women etc. Women were not free agents and female infanticide was rampant. Still rights of adoption, to own property and transfer the same etc were recognised. The punishment was very harsh as it aimed to be deterrent. The Arabs in the pre-Islam Arabia had a rich literature. It was believed that manliness, bravery and hospitality were the traits of the true Arab. PROPHET MOHAMMAD

The Prophet was born to Abdullah and Amina. He was born soon after his father’s death and his mother too passed away when he was only six years old. Then he was brought up by his Grand father and later by his uncle called Abu Talib. When he was 13 years old, he joined his uncle in business. When he was 25 he was employed by Khadija, a rich widow to look after her business. Subsequently, they got married. After her death, the Prophet married other women who were also widows. Ayesha Begum, his fourth wife, was the exception. She was the wife of his disciple and friend Abu Bakr. They had 2 sons and 4 daughters but only the fourth daughter, Fatima, survived the Prophet. The Prophet used to often contemplate about God and needs of the society in the Hira caves, a lonely place in the mountains. It is believed that during the Ramzan moth of 609 Ad, the Prophet heard the voice of Angel Gabriel during his meditations in the cave. Angel Gabriel delivered the first revelation or Wahi that God had sent to the Prophet, “Read in the name of Allah, the creator of all things, who made man from a clot of blood. Read for thy Lord is most gracious, he who teaches the use of pen, teaches man what he does not know. After this, the Prophet received many a revelations from God on different occasions. Quran is a collection of these revelations and the basic principles of the religion can be read as: Report this ad a) God (Allah) is one and only one, and Mohamad is His messenger (Rasool); b) God is the supreme commander of all that exists in the world and all should submit to his will; and c) All the human beings are equal. Islam literally means ‘submission to the will of God’. It is a monotheistic religion. Khadija was amongst the first to believe these revelations and to follow them. Others eventually followed though the majority opposed the Prophet’s teachings. Then the Prophet left Mecca and went to Medina in 622 AD. This journey is referred to as Hejarat or the holy mission. Slowly and slowly the followers of the Prophet increased and he united them under a new faith and organised them into a powerful political group. By 632 AD when the Prophet died, he was the religious and socio-political head of a large Islamic commonwealth. HISTORICAL DEVELOPMENT The present Muslim law has come into existence due to many political and administrative developments that have taken place in the past 14 centuries. FIRST PERIOD (622-632 AD) This period starts with the Hejarat and ends with the death of the Prophet. Its main contribution is legislations. The Prophet had to spread the word about Islam. In Medina, the Prophet laid down the principles to govern the behaviour of people on the basis of the revelations already made to him at Mecca. The divine words were put down as the manifest law (which became the Quran later) and Zahir or implied laws were taken from the words, conduct and silence of the Prophet (became Sunna). Thus, the basic legal principles of Islam were defined and set out during this period.

SECOND PERIOD (632-661 AD) This is the period of the first four Caliphs or Khulfai-I-Rashdih (the rightly guided Caliphs) for they were very close companions of the Prophet. The word ‘Caliph’ refers to the successor. After the death of the Prophet, there was a disagreement as to who should be his successor as the spiritual and administrative head of the Muslim state. Majority of the people agreed on elections as a form and thus, Abu Bakr, the Prophet’s father-in-law and Ayesha Begum’s father, was elected the first Caliph. After his death, Omar was elected as the second Caliph who was assassinated after ten years in 644 A.D. Osman succeeded him and was assassinated by enemies in 656 AD. Then Ali, Fatima’s husband, was elected as the Caliph but he too was killed in 661 AD. The divine revelations given to the Prophet were scattered and it was during this period that the messages were collected and arranged subject-wise in the form of Quran. The first Quran was by Zaid, a close companion of the Prophet, during Abu Bakr’s rule. This collection was discarded after flaws and contradictions were spotted at many places. Osman, the third Caliph, asked Zaid to redo the compilation. Thus, the Quran and the traditions became the sources of Muslim law. Omar, the second Caliph, appointed the first Kazi to decide secular disputes and declared that the law is supreme and above all. THIRD PERIOD (661-900 AD) Ali was the last of the ‘rightly guided Caliphs’ and had two sons, Hasan and Hussain. After Ali’s demise, Hasan was made the Caliph but he voluntarily resigned in favour of Muavia of the Umaiyad family because he did not wish to get involved in administrative matters. Due to this, the seat of Caliphate shifted to Damscus from Medina and the office of Caliph became hereditary rather than elected. Muavia’ son Yezid took over as the next head of the Muslim commonwealth. At Yezid’s instigation, Hasan’ wife poisoned him even though he was not involved in the administration. Hussain revolted against Uezid but was killed at Karbala. As the Caliphate translated into a hereditary kingship, the development of law played a second fiddle to expansion of the empire. In 750 AD, Abbasids, the descendents of the Prophet’s Uncle Abbas, captured the Umaiyads dynasty. They proclaimed themselves as the spiritual heads of the commonwealth and the Baghdad was the centre of power. The development of law came from the efforts of scholars of Mecca, Medina and Kufa. But there were often contradictory opinions and interpretation. The sub-sects started forming with each scholar claiming to have the right interpretation. The traditions of the Prophet were collected and the authoritative ones were accepted as law. Collections by Bukhari and Malik-Ibn Malik are two of the collections. Similarly, where the law was not to be found in the Quran or the traditions, eminent jurists undertook a theoretical exposition. Ijma and Qiyas were discovered in this period. Thus, there existed a scientific and logical approach towards legislation and soon the principles of equity, reasoning and public welfare, etc followed too. THE FOURTH PERIOD (900-1924 AD) The Moghuls overthrew the Abbasids in 1258 A.D. after a rule that extended to five centuries. In 1261 A.D. Abdul Kasim Ahmed was made the Caliph and his dynasty ruled for two centuries. They did not have any administrative powers. In the beginning of the 16th century, the Caliphate was transferred to the Ottoman ruler Selim I. Hence, Constantinople replaced Cairo as the Dar-ul-Khilafat.

Subsequently, Mustafa Kamal Ataturk abolished the Sultanate of Turkey in 1922 and the National Assembly of Ankara abolished The Caliphate in 1924. In this period, the four Sunni schools were established. Otherwise there was not much progress in the legal sphere as there was no further exposition of law. No jurist was deemed competent for individual interpretation and Taqlid (imitation) was the new source. There were numerous exhaustive commentaries of the laws already laid out. The opinions of these writers were called Fatwas. FatwaiAlamgiri and Fatwai Qadi Khan are two of the important fatwas. THE FIFTH PERIOD (1924-TO PRESENT DAY) Since the Caliphate was abolished, there was no religious head to administer and execute the traditional Islamic law. It became essential that the Islamic law be separated from religion (Shariat). The actual laws were framed and codified in such a manner so that the present society could be governed with the core of the Shariat. Subject after subject was excluded from the purview of the traditional law like Criminal law and civil law. The Moghuls made the Muslim law the law of the land in all matters. The British changed all this. Their courts used Muslim law only in certain personal matters and otherwise the Acts of the Parliament or other enactments were followed. After independence, this dual system has been followed. For example the Shariat Act says that in matters of marriage, dower, maintenance, etc, the Muslim personal law shall apply with exceptions for agricultural lands, etc. But subsequently, the Parliament enacted legislations like Dissolution of Marriage Act, 1939 and Muslim Women (Protection of rights on divorce), 1986. Most of these legislations merely c...