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Muslim Law, Sources, and Schools[1]

Table of Contents

QUESTION BANK

Q.1 What are the sources of Muslim law?

Q.2 Explain different schools of Muslim law.

SYNOPSIS

Introduction-

Who is a Muslim-?

(a) According to Amir Ali

(b) According to Agnes

i) Muslim by birth-
ii) Muslim by profession-

iii) Conversion by formal ceremonies-

Conversion to Islam and rights of inheritance-

Sources of Muslim Law-

1) The Koran (Quran)-

2) Sunna (The Sunnat)-

3) Ijma-

4) Qiyas

5) Customs-

6) Equity, Justice, and good conscience-

7) Precedent-

8) Legislation-

III. Schools of Muslim Law-

A) The Origin of Schools of Muslim law-

1) Sunni School-

a) Hanafi School-
b) Maliki School-
c) Shafei School-
d) HanHanbalihool-

2) Shia School-

a) Zaidya School-
b) Ismailya School-
c) Ithna Ashria Shcool–
B) Difference between ‘Shia’ and ‘Sunni’ Schools-
As to Traditions-
Validity of decisions-

iii. Spiritual and Political head-

Temporary Marriage-
Guardians in marriage-
Divorce under compulsion or threat-

vii. Custody of mother-

viii. Classes of heirs-

Conclusion-

I] Introduction:-

The terms “Mohammedan Law”, “Muslim Law”, “Mussalman Law”, and “Islamic Law” are synonymous. Islamic law in India is called “Mohammedan Law” or “Muslim Law”.

Religion (Fiqh) and Law (Shariah) are so connected in Islam that it is difficult to separate them. In India, “Mohammedan Law” means “that portion of the Islamic Civil Law which is applied in India to Muslims as a personal law.

Like Hindu law, Muslim law is also personal law, applicable to those who profess Islam or who are Muslims.

Who is a Muslim-?

(a) According to Amir Ali,

“Any person who professes the religion of Islam, in other words, accepts the unity of God and the prophetic character of Mohammad is a Muslim”.

(b) According to Aghnides,

a Muslim is (i) one who believes in the mission of Mohmmad as Prophet, (ii) one who says that there is one God and that Mohammad is “His Prophet”, or (iii) one who believes in a number of other essential beliefs in God and Mohammad.

Things essential for Islam are-

(i) There is one Allah, and

(ii) Mohammad is the prophet.

Islam depends on A person. A person may be Muslim under the following conditions-

i) Muslim by birth:-

One can be Muslim by birth, i.e. whose both parents are Muslims. However, according to Shariat, if one of the parents is Muslim, the child is to be treated as Muslim. However, in Indian Skinner v. Orde[2] it is held that the child is presumed to belong to the religion of the father. A similar principle is laid down in Bhaiya Sher Bhadur v. Bhaiya Ganga Buksha Singh[3].

A person born as a Muslim continues to be Muslim until he renounces Islam after attaining majority. Similarly, a man can be Muslim even by profession or by conversion.

ii) Muslim by professing Islam:-

A non-Muslim may become a Muslim by professing Islam, i.e. by acknowledging that there is only one God and Mohammed is his Prophet. A mere profession or belief is enough. Muslim by profession is a kind of conversion without any formality.

iii) Conversion by formal ceremonies:-

A non-Muslim may be converted to a Muslim by undergoing formal ceremonies prescribed under Islam.

Conversion to Islam and rights of inheritance:-

In Vohra Bai Khatiji Isabhai v. Vohra Karimbhai[4]

It is held that in the absence of a custom to the contrary, succession and inheritance are governed by Mohammedan law and not by Hindu law in the case of a Hindu convert to Islam.

Similarly, in Chandra Sekharappa v. Government of Mysore[5]

Facts- A Hindu who had children embraced Islam and married a Muslim woman and had children with her.

Issue– to whom did his property pass after his death?

Held– His property would pass on his birth to a Muslim wife and her children and not to a Hindu wife and her children.

Law– Under Muslim law, a non-Muslim cannot succeed in the estate of a Muinim.

II. Sources of Muslim Law:-

The following are the sources of Muslim Law-

1) The Koran (Quran):-

The Koran or Quran is the primary and fundamental source of Muslim law. The word ‘Quran’ is derived from the word “Qure”, which means ‘to read,’. God revealed the Quran to Prophet Mohammad through the agency of the angel Gabriel. The Quran is the outcome of divine communication and revelation to Prophet Mohammad. The Quran is believed to distinguish truth from falsehood and shows the right path for human beings.

The Quran regulates the individual, social, secular, and spiritual life of Muslims. It contains 6,000 verses divided into 30 parts and 114 chapters. Out of 6,000 verses, 200 verses deal with the rules and principles of law. Of these 200 verses, 80 relate to Law, and the rest deal with the state and contain spiritual values. Therefore, it cannot be changed or modified.

2) Sunna (The Sunnat)[6]:-

The term ‘SuSunnatrodden path, a procedure, and a way of action”. It means Sunna is some practice and precedent. In fact, ‘Sunna’ are utterances and practices of the Prophet Mohammed, which works as a guiding light after the Koran. The Koran is said to contain the very words of God, whereas the Sunna embodies the practices, deeds, actions, actions and approvals of Prophet Mohammad. It is accepted as the second source of Muslim law, binding on Muslims of all sects.

3) Ijma[7]:-

The third source of Muslim law, both in terms of time and importance, is Ijma. The term “Ijma” denotes the opinion of the Prophet’s companions or even highly qualified legal scholars. It is presumed to be valid until it does not oppose the Quran or the Sunna.

Ijma derives its authority from the saying of Prophet Mohammad that “God will not allow his people to agree on an error”.

4) Qiyas[8]:-

Qiyas means ‘analogical deductions, measuring accord or equality’. In other words, ‘Qiyas’ means to extract a new statement by comparing two existing statements. Shias do not recognise ‘Qiyas’ as a source of Muslim law. It is deduced by applying analogy to athe bove three sources of Muslim law.

5) Customs[9]:-

Customs had a great role in pre-Islamic law in Arabia. A custom is a tradition passed on from generation to generation that governs human conduct and has obtained the force of law in a particular locality. Custom is a natural source of law.

Pre-Islamic customs are still followed in areas not covered under earlier sources. In India, large-scale conversion took place during the Muslim ruler’s time, and Khojas, Sunnis and Bohras were converted from Hindus to Muslims. However, until recently, they were governed by their Hindu customs. Indian Parliament passed the Shariat Act in 1937, making Muslim law applicable despite any custom. Thus, the customary practices were abolished, and Muslim law rules full scale made applicable to all convert’s practice customs. But still, in some respects, the option of parties’ customs is being applied.

6) Equity, Justice and good conscience[10]:-

Sometimes “Qiyas”, i.e. analogical dedication, fails to satisfy judges to arrive at justice; in such circumstances, according to the Abu Hanifa, a jurist could use good conscience also to arrive at justice. This principle of Muslim law is known as ‘Istihasan’ or ‘Juristic Equity’.

7) Precedent[11]:-

Precedents or judicial decisions are also important sources of Muslim law. Muslim law has been explained and clarified in several judicial decisions. The Courts usually quote Quranic verses and Hadis to substantiate their decisions. By the rule of precedent, the decisions of the Supreme Court and High Courts are binding on the lower judiciary. Thus, Precedent acts as an important source of Muslim law.

8) Legislation:-

Legislation is modern and an important source of Muslim law. Since British rule, a number of laws have been passed codifying important aspects of Muslim practices. Some important pieces of legislation are –

a) The Kazi Act, 1880;
b) The Guardian and Wards Act, 1890;
c) The Mussalman Wakf Validating Act, 1923;
d) The Muslim Personal Law (Shariat) Application Act, 1937;
e) The Dissolution of Muslim Marriage Act. 1939;
f) The Muslim Women (Protection of Rights on Divorce) Act. 1986. Etc.

Thus, the above are sources of Muslim law. The first ancient sources of Muslim law while remaining are modern sources of Muslim law.

III. Schools of Muslim Law:-

A) The Origin of Schools of Muslim Law:-

There were no schools for Muslims during the lifetime of Prophet Mohammad. However, after the Prophet’s death, the question arose about who shall be the Head of Muslims. The question divided Muslims into two main groups viz. Sunnis favoured the election method and elected Abu Bakr as their spiritual (Imam) and political (Caliph) head. However, another group, Shias, favoured a succession method for the head; therefore, according to them, Ali (the first disciple, cousin and son-in-law of the Prophet) was the Head.

Thus, the division between Sunni and Shia is more of a political nature than an ideological one. These schools are further divided into a number of other sub-sects or schools. In India, the majority of Muslims are Sunnis. Therefore, it is presumed that the parties are Sunnis unless proved otherwise. We will discuss the Schools and sub-schools as follows-

1) Sunni School:-

The Sunni school is further divided into the following four schools-

a) Hanafi School:-

Abu Hanifa formed the School in the city of Kufa in Iraq in the eighth century AD. Therefore, it is also called “Kufa School”. In India, a large population of Sunni Muslims is Hanif; therefore, the ‘Sunni School’ is also called “Hanafi School”. The textbooks of this school are Hedaya, Durr-ul-Mukhtar, Radd-ul-Mukhtar, Al-Mukthar, and Fatwa-I-Alamgiri, compiled at the command of the Mughal emperor Aurangzeb.

The basic features of this school are-

i) The School places less reliance on traditions.
ii) The School places great reliance on Qiyas.

iii) The School also accepts Ijma as a source of Islamic law.

iv) The school allowed the application of Istehasan in special circumstances.

b) Maliki School:-

Malik-ibn-Ansa founded the Maliki School in the 8th Century at Medina in Saudi Arabia. Therefore, it is also called ‘Madina School’. He collected about three hundred traditions of the Prophet, recorded them in his book Kitab-ul-Mutwatta, and developed his legal system. He based his doctrine on the Quran and Hadees.

Main features of the School-

The School emphasized the Prophet’s traditions in interpreting the text and law. However, the school was not rigid and traditionalist.
At times of conflict between traditions, the school prefers Ijma to resolve the problem.

iii. The School developed the method of juristic dedication.

This school has followers in Spain, Morocco, Africa, and other places. It has no followers in India.

c) Shafei School:-

Muhammad Shafei formed the School in the ninth century.

The School developed the doctrine of Qiyas but restricted the analogy to the Quran, Hadees, and Ijma. It allowed the use of the Prophet’s traditions only.

The School prefers books like Tuhfat-al-Muhtaj, Al-Ghazzalis Al Wajiz, etc.

The School prevails in Egypt, Saudi Arabia, Africa, Iraq, Persia, Indonesia, and India.

d) Hanibali School:-

Imam Hanibal formed the School. The School strictly follows traditions and restricts Qiyas and Ijma.

The School is prevalent in Arabia, Syria, Palestine, etc., and it is the official School of Saudi Arabia.

2) Shia School:-

Shia do not accept tradition. The School gives much importance to the Imam. According to the School, the Imam is the final interpreter of law. The Shias are divided into subsects on the question of succession after the fourth imam, Ali Zainul Abidin. The School is divided after the fourth imam on the question of the Imam, his acceptance and non-acceptance.

The School has the following sub-schools or sects viz.

a) Zaidya School:-

Zayd was one of the Sons of the fourth Imam, Ali Zainul Abidin. A certain group accepted Zayd as their Imam, and the first school of Shia came into existence. The followers of this school are called Zaydis. The rest of the Shia followed Muhammad al-Baquir, Zayd’s brother, as Imam.

The school prevails in Yemen, South Arabia, etc., but it does not have followers in India.

b) Ismailya School:-

Muhammad al-Baquir, a fifth Imam, had a son, Jafar, who descended Imamat as a sixth Imam. After the sixth Imam, a question again arose about the seventh Imam. Out of two sons of Jafar, one group accepted Ismail, an elder son of Jafar, as their Imam, and therefore, the school is known as ‘Ismailis’ or ‘Seveners’ (i.e. who believe Ismail as their seventh Imam). The followers of this school kept Ismail hidden.

The followers of this school are found in Syria, Central Asia, Pakistan and India.

c) Ithna Ashria Shcool:-

After the death of Jafar, the sixth Imam, most Shias followed his younger son, Musa Kazim, as their Imam. The School believes in twelve Imams; therefore, they are called ‘Twelvers’ or ‘Ithna Ashria’. It is the largest School in Shias.

The School prevails in Iraq, Lebanon, Iran, Pakistan and India.

B) Difference between ‘Shia’ and ‘Sunni’ Schools:-

In fact, the difference between the two was mainly political; however, recently, some legal and doctrinal differences have also been assumed, viz.

i. As to Traditions-

Shia rejects all traditions not emanating from Ali or his immediate descendants. On the contrary, Sunni accepts traditions in their entirety.

ii. Validity of decisions-

Shia repudiates the validity of all decisions not passed by their own spiritual leaders. However, this is not so with Sunnis.

iii. Spiritual and Political head-

According to Shia, the religious and political powers are different. The School accepts an Imam as their religious head. According to Sunnis, the religious and state head is one whom they call Calipha.

iv. Temporary Marriage:-

In Shia Muta, temporary marriage is recognised. However, in Sunni Muta, temporary marriage is not recognised.

v. Guardians in marriage:-

In Shia, for the marriage of a minor, the father and grandfather are recognised as legal guardians for marriage. In contrast, Sunni recognises the father and father’s father how-high-so-ever as guardians for marriage.

vi. Divorce under compulsion or threat:-

In Shia school, divorce under compulsion, threat or intoxication is void; it is not void in Sunni School.

vii. Custody of mother:-

Under Shia school, the mother is entitled to the custody of a boy for up to two years and of a girl for up to seven years, whereas, under Sunni school, the mother is entitled to the custody of the boy for up to seven years and of a girl until she attains puberty.

viii. Classes of heirs:-

There are only two classes of hires, i.e. sharers and residuary, under the Shia school, whereas there are three classes of heirs, i.e. sharers, residuary and distant kindred, under the Sunni school.

Conclusion:-

Thus, in conclusion, we may say that the difference between these two schools is more political than spiritual. Both these schools give importance to Mohammad’s prophethood and accept the Koran as their spiritual book. They also give importance to some common sources of law and accept some chain of leaders emanating from the Prophet.

*****

[1] दत्तक घेणे [दत्तक ग्रहण ]

[2] (1871) 14 M.I.A 309

[3] (41 I.A.I)

[4] (AIR 1974 Guj 4)

[5] AIR 1953 Mys. 621

[6] मोहंम्मद पैगंबर यांचे आचरण [पैगंबर मुहम्मद का आचरण ]

[7] एखादे मुद्यावर मोहंम्मद पैगंबरांचे सहकार्यांचेतील अथवा विद्वानांचेतील एकमत [ एक बिंदु पर पैगंबर मुहम्मद के साथियों या विद्वानों के बीच आम सहमति ]

[8] पुर्विचे तीन स्तेात्राचां अभ्यास करून नविन विधान करने[sशोधन [नए कथन तैयार करने के लिए पिछले तीन श्लोकों का अध्ययन]

[9] चालीरीती[रूढ]

[10] समता, न्याय व सद्सद्विवेकबुध्दी [ मानता, न्याय और सामान्य ज्ञान ]

[11] न्यायनिवाडे [ निर्णय ]