Sources of Muslim Law

Author: Ayushi Verma, RMLNLU

Sources of Muslim Law

Our country India is a land of various cultures and religions where people from different cultures and religions live in harmony. It is a country where everyone has the right to choose his/her religion without any restrictions being imposed on them.

INTRODUCTION

Muslim Laws in India apply to the particular section of the society composed of people following Islam. The Law governs the personal matters of the Muslims in India including the institutions of marriage, adoption, divorce, succession, and the charity.

The word ‘Islam’ means ‘total surrender of oneself to God’. The religion of Islam is one of the oldest in the world and originates from Arabia. It entered India with the Delhi Sultanate and is still followed by the people. More than 15% of the population being Muslim reside in India and are governed by their personal laws. ‘Source’ means a place from where things originate.[1] Muslim law has emerged from various traditional sources and these sources are the governing pillars of Islam. Most of the Muslim Personal laws are uncodified and some which are codified are not followed because of the conflict with their traditional sources.

The sources of Muslim Law can be classified into two categories, i.e. Primary sources and Secondary sources.

PRIMARY SOURCES OF MUSLIM LAW

Primary sources are those sources that are based on religious beliefs mentioned in holy structures or books. These are universally accepted by the people and shall be relied on before any other source.

1. Holy Quran

The word Quran has been derived from the Arabic word ‘Quarra’ which means to read[2]. All the Muslims considered the Quran as their holy book. It is believed to contain. It is believed to contain the revelations from God as perceived by the Prophet Mohammad. Some years after the Prophet Muhammad’s death, the verses of the Quran were compiled into a written text, arranged in 114 surahs, generally in decreasing order of length, with each surah representing a chapter or division of the Book.[3] All the teachings, tenets, principles, and practices of Islam originate from the holy Quran. It is the final authority on any issue related to Muslim Personal Laws. It is the first and legislative code of Islam.

2. Sunna

The word ‘Sunna’ means ‘the trodden path’. It is the traditions, practices, and precedents of Prophet Mohammed. It is said that whenever the Quran does not explain any authority for a given rule of Law, the Prophet’s action and words became the authority as it is believed that his saying derived inspiration from Allah.

Sunna consists of:

• Sunnat-ul-Qual (Word spoken)
• Sunnat-ul-Fail (Conduct)
• Sunnat-ul-Tahrir (Silence)

3. Ijma

The meaning of the term Ijma is consensus i.e, the agreement between all on a particular point of fact or law. It is a concept of law made by consensus of all Islamic jurists or other persons of knowledge or skills. The person who knew the law was called Mujtahids(jurists). Ijma is followed by the Sunni sect whereas Sunnah was mostly followed and founded by Shia Muslims. There are three kinds of Ijma:

• Ijma of Companions: The opinions of the companions of Prophet was universally accepted and cannot be modified or overruled.
• Ijma of the Jurists: The opinions of the jurists is believed to be best after the opinions of the companions.
• Ijma of the people or masses: It is the opinion of the people of the Muslim population. It has little value.

4. Qiyas

It means analogical deduction from the existing sources. The Muslim jurists referred to the Quran and the Sunna to compare the situation and deduce an answer based on some analogy. Whenever the other sources failed to explain something, it helps in deducting interpretations. However, it can only explain or interpret the law but it cannot change the law. Qiyas is of lesser essence because of its deductive nature.

SECONDARY SOURCES OF MUSLIM LAW

The following are the secondary sources that have led to the development of Muslim Personal laws.

1. Legislation

The Muslim law in India is uncodified still the Parliament has made laws to regulate some of the Islamic practices. The first law that was passed was the Muslim Personal Law (Shariat) Application Act of 1937. It governs the Muslim personal laws, marriages, divorce, etc. The most recent development is the Triple Talaq Bill[4] (The Muslim Women (Protection of Rights on Marriage) Bill,2019). It criminalizes instant divorce unless it is executed with the due procedure of law.

2. Judicial Decisions

The Judiciary has tried to modify the Muslim Personal Laws up to some extent. The first landmark judgment which deals with the Muslim Personal Laws was the Shah Bano Begum v. Md. Ahmed Khan[5]. In this case, it was held by the apex court that the Muslim women have the right to maintenance under Section 125 of the CrPC even if the remedy is provided in their personal laws or the Quran.

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[1]  http://www.businessdictionary.com/definition/source.html

[2] https://legalserviceindia.com/legal/article-1876-sources-of-muslim-law.html

[3]  https://rlp.hds.harvard.edu/religions/islam/quran-word-god

[4] Shayara Bano v. Union of India and others (2017) 9 SCC 1

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