Laws may be either territorial or personal based on its application upon persons. A territorial law is that branch of law which is applied in a particular territory and is applicable upon of all communities living in that territory. Indian Penal Code or the Indian Contract Act applies on all persons living in India. On the other hand a personal law is that branch of civil law which applies on the person of a particular religious community. Mohammedan law applies upon the Muslims and the Hindu Law applies on the Hindus. Muslim Law in India means that portion of civil law which is applied to Muslims as a personal law. It consists of the injunctions of Quran, traditions introduced by the Prophet, common opinion of the Jurists, analogical deductions of all these three, and pre-Islamic customs that are not abrogated by Prophet Mohammed. It is even supplemented by the juristic preference, public policy, precedents, and independent interpretation. Modification is even made by State Legislation, and modern judicial precedents of High Courts and the Supreme Courts and also of the Privy Council.
Sources under Muslim Law can be divided into – Primary Sources and Secondary Sources.
- Primary Sources
The word Quran is the divine communication and revelation to the Prophet of Islam through angel Gabriel. It embodies the very words of Quran that were communicated to Quran. The Quran is divided into 114 Chapters and consists of 6666 verses. It is neither arranged in chronological order nor by oversight but as commanded by the Prophet. Quran regulates the individual, social, secular and spiritual life of Muslims. It was given to the world in fragmentary forms, extending over a period of twenty three years.
It originally had the object of repealing objectionable customs, such as usury, unlimited polygamy and gambling etc, and effecting social reforms such as raising the legal status of women and equitable distribution of the matters of inheritance and succession.
Sunnat and Ahadis
Sometimes it happened that no direct revelation came to Prophet and in the meantime some questions had to be answered. In such circumstances, the Prophet exercised his own judgement and frequently consulted his companions. What was said or done or upheld in silence by the Prophet becomes a primary source in Muslim Law, second in point of time and authority, only to pious Quran and is technically known as Sunnat. Sunna means the model behavior of the Prophet. The narrations of what the Prophet said, did or tacitly allowed, is called Hadis or traditions.
Ijma (Consensus of Opinion)
Ijma is an arrangement of jurists among the followers of Prophet Mohammed in a particular age on a particular question of law. Under this collective name are included the explanations, elucidations, and decisions of the disciples of the Prophet. According to the classical theory, failing Qurans and traditions, the consensus of opinions among the companions of the Prophet is recognized as the best guide of law and is the third source of law both in time and importance.
Qiyas (Analogical Deductions)
Qiyas means reasoning by analogy from the above three sources i.e. Quran, Sunnat and Ijma. In Qiyas the rules are deduced by the exercise of reason. Qiyas can be defined as a process of deduction by which the law of the text is applied to cases, which though not covered by the language are governed by the reason of the text. Qiyas does not purpot to create new law, but merely to apply old established principles to new circumstances.
- Secondary Sources
In addition to four principle sources of Muslim Law, law was occasionally supplemented by local usage or custom (Urf), judicial decisions, legislations, justice, equity and good conscience which are conveniently called the secondary sources of Muslim Law.
The Muslim Law includes many rules of pre-Islamic customary law, which have been embodied in it by express or implied recognition.
The requirements of valid Custom are –
- General prevalence in the country is necessary. The practice of a limited number of individuals cannot be recognized as a custom;
- It must be territorial;
- Customs springing up with living memory, will be enforced if prevalent among the Muslims of the country in which the question of their validity arises;
- It must be ancient and invariable;
- It should not be opposed to public policy;
These include the decisions of the Privy Council, the Supreme Court as well as High Courts of India. In deciding particular cases the judges enunciate what the law is. These decisions are regarded as precedents for future cases. A precedent is not merely an evidence of law but a source of it and courts are bound to follow the precedents. Decisions of Supreme Court are binding upon all the Courts of India and decisions of the High Courts are binding upon the Supreme Courts.
Muslims are governed by the various Legislation passed by either Parliament or by State Legislature. Muslim Women (Protection of Rights on Divorce) Act, 1986, the Waqf Act, 1995, the Waqf (Amendment) Act, 2013, the Prohibition of Child Marriage Act, 2006 and the Muslim Women (Protection of Rights on Marriage) Act, 2019 are some of the recent legislatures passed by the Parliament to govern various aspects of life of a Muslim in India.
Justice, Equity and God Conscience
Under Muslim Law principles of justice, equity and good conscience can also be regarded as one of the source. Hanafi, the founder of Hanafi sect propounded the principle that the rule of law based on analogy could be set aside at the option of the Judge on a liberal construction or juristic preference to meet the requirements of a particular case.
All the four primary source of Muslim Law (Quran, Sunna, Ijma and Qiyas) survive till today with the same force and vigour. Muslim law claims transcendental origin and recognise king only as a magisterial officer and not as a legislative head. Muslim law claims on a historical personage, i.e. Prophet Mohammed. Secondary Sources are intended to meet the changing need of society. They have a legal sanction behind it. Both the kinds of sources play a vital role under the Mohammedan Law.
Prof. Iqbal Ali Khan, “Moammedan Law” (Central Law Agency, 2021 edn.) 15
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