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Family Law - I

Mohammedan Law: Sources of Muslim Personal Law

Islam is one of the oldest major religions in the world. Although it originates from Arabia, people from all countries of the world follow it now. Due to its largely uncodified nature, we must look at the sources of Muslim personal law to understand it. This also helps in understanding various customs of Islam relating to marriage, divorce, succession, etc.

 

Muslim Personal Law

Muslim Personal Laws

Unlike the personal laws of other religions, Muslim personal law in India is largely uncodified. This basically means that it is not based on laws made by the legislature. Instead, it originates from several other sources of traditional law dating back several years.

Since Prophet Mohammed had proclaimed Muslim law to be the commandment of God, most Muslims adhere to it strictly. It dictates several spiritual, religious, social and even legal activities of many Muslims in India. This is also probably why the legislature did not draft separate personal laws for followers of Islam in India.

The personal laws of Muslims provide guidance in matters of marriage, divorce, succession, inheritance and even adoption. They are highly nuanced and even sometimes apply differently to different factions of Muslims. For example, the Islamic law of divorce is slightly different for Shias and Sunnis.

As we saw above, Islamic law is based on various traditional sources. These sources may be either primary or secondary.

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Primary Sources of Muslim Law in India

1) The Quran

The Quran, which all Muslims consider to be their holy book, contains direct revelations of God through Prophet Mohammed. It is due to this reason that it is the foundation of all Islamic laws. All tenets, teachings, principles, and practices of Islam originate from the Quran.

It contains verses of religious nature as well as teachings regulating human conduct. Due to its stature as Islam’s holy book, it is the final authority on Muslim law.

2) Sunna of Hadis

Sunna basically translates to ‘path’ and means the practices, traditions, and precedents of Prophet Mohammed. Whenever the Quran did not explain something, the Prophet’s actions and words became the authority.

This is because people believe that even his sayings and actions derive inspiration from God. These precedents of the Prophet are Hadis and their legal deductions are Sunna.

3) Ijma

After Prophet Mohammed’s demise, there was a consensus in the Muslim world that opinions of religious jurists will prevail. In other words, the Mujtahids (jurists with knowledge of Islam) will interpret the Quran, Sunna, and Hadis.

The common opinions of the jurists on aspects that the Quran did not explain became Ijma. This source of law is very expansive and covers many topics. In fact, it gets almost as much importance as the Quran and the Sunna themselves.

4) Qiya

The term ‘Qiya’ basically means an analogical deduction from the existing sources. Whenever the other sources do not explain something, Qiya helps in deducting interpretations that seem to be the most obvious.

Qiya, however, can only explain or interpret the law but it cannot change the law or its essence. This source of Muslim personal law ranks below other sources because of its deductive nature.

Secondary Sources of Muslim Law in India

Apart from the primary sources we saw above, the following secondary sources also govern Muslim law to a limited extent:

1) Legislation

Although Muslim law in India is uncodified, the Parliament has made some laws to regulate some Islamic practices. For example, the Muslim Personal Law (Shariat) Application Act, 1937 governs marriage, succession, and inheritance. The Dissolution of Muslim Marriages Act, 1939 is another law regulating certain divorce cases amongst Muslims.

2) Judicial decisions

Courts in India have at several instances interpreted Muslim law in many cases. All these interpretations generally rely on primary sources, legislation and opinions of jurists. Courts have settled many important legal anomalies using judicial interpretations.

3) Customs

Customs are basically practices that people follow continuously for a long period of time. In fact, they follow them for so long that they obtain the status of law in some cases. Muslim law contains various customs regulating practices of people.

Questions on Sources of Muslim Personal Law

Question: Read the following characteristics and name the sources of Muslim personal law they relate to.

(a) People consider this source to be the primary authority of Muslim law.

(b) The Mujtahids are responsible for creating this source.

(c) This source relies on precedents of Prophet Mohammed.

(d) This is the least important primary source.

Answers:          (a) Quran          (b) Ijma          (c) Sunna or Hadis          (d) Qiya

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