This article is written by Sunidhi and Pranav Sethi and it has further been updated by Rachna Kumari. It discusses the sources of Muslim law and elaborates on Supreme Court precedents that have given Muslim law a new perspective. The article also explains how these sources helped in the development of Muslim law.

Introduction

Islamic jurisprudence draws on a variety of source materials of Islamic law to explain Sharia, meaning the framework of Islamic law. The Quran and Sunna (also referred to as ‘Sunnah’) are the fundamental sources, both of which are uniformly recognised by all Muslims. The Quran is Islam’s holy scripture, which Muslims consider to be Allah’s direct message. The Sunna is a collection of the Islamic Prophet Muhammad’s religious activities and quotes as recorded by his Followers and Shia Imams. Some schools of law, on the other hand, adopt alternative approaches to determine the validity of a source. 

The main sources do not address every possible scenario, jurisprudence must rely on sources and genuine texts to determine the appropriate course of action. Secondary sources of Muslim law as per Sunni schools of law are Muslim jurists’ customs, judicial decisions, legislation, equity, justice and conscience. The Hanafi school typically employs representational reasoning and logical reasoning, whereas Maliki and Hanbali tend to rely on Hadith. The Quran, Sunna, consensus, and aql (intellect) are the four sources used by the Usuli school of Ja’fari jurisprudence among Shia. They focus on aql to find broad concepts founded on the Quran and Sunna and employ usul al-fiqh as a method to understand the Quran and Sunna in various contexts, while Akhbari Jafaris depend more on Hadith and do not follow ijtihad. According to Muslim law, there are fewer differences in the actual application of jurisprudence to ceremonial traditions and social interactions between Shia and the four Sunni schools of law, despite crucial differences in jurisprudence foundations.

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Muslim personal law is based on Islam which originated in Arabia and it was introduced in India from there. In Arabia, Prophet Hazrat Mohammed, an Arab, established Islam and laid down the foundation of Islamic law. The main groundwork of Islamic legal system was nourished and developed by Arab-jurists, and the real fountainhead of Islamic Jurisprudence is to be found in the pre-Islamic Arabian customs and usages of the 7th century of the Common era.

Historical background of Muslim Law

Muslim Law, or Sharia, is a legal system that has originated from its primary sources, the Quran and Sunna. The evolution of Muslim law is interconnected with the history of Islam itself, beginning in the 7th century Arabian Peninsula and developed through subsequent centuries across different regions and cultures. For proper understanding of the development of Islamic law and religion, a brief reference to the conditions of Arabia in pre-Islamic days is paramount. 

Law in Pre-Islamic Arabia

The Pre-Islamic Arabians lived in a crude and primitive paganism. The law prevailing at that time was nothing but a mass of undigested and uncertain custom which in some cases were revoltingly bad. The Muslim Law was introduced by Prophet Muhammad mainly through the revelations of the Quran and through his own directions during his lifetime. It is apparent that the pre-Islamic customs form the groundwork of the Muslim law. Through the Quran, Prophet Muhammad provided clear guidelines on various aspects of life. It emphasised on justice, equality, etc. The Sunna, comprising the Hadith served as a guiding light for Muslims. It complemented the Quran by addressing specific issues such as conduct and legal matters. 

Islamic law was introduced in India through various means such as trade, migration and conquest. The first significant Muslim rule in India was established during the Mughal Empire which introduced Muslim law to the Indian community. 

Primary sources of Muslim Law

The Muslim law has been derived from various primary sources. These are classified as:

  1. Quran
  2. Sunna or Ahadis
  3. Ijma
  4. Qiyas

The Quran

The Quran is the fundamental source of Muslim law and is the holy book of Islam. It is believed to contain direct revelations from God delivered to the Prophet through the angel Gabriel. These revelations were under the direction of God either in the very words of God or by hints of the knowledge which the Prophet acquired through the inspiration (Ilham) of God. All the principles, ordinances, teachings and the practices of Islam are drawn from the Quran.  It is believed that the contents of the Quran were not written down in a single compiled book form during the lifetime of the Prophet, but these were presented to him over a period of approximately 23 years, and many of his companions memorise these revelations. After the Prophet’s demise, his companions compiled the written fragments and the memorised verses into a single book to ensure its preservation and accurate transmission in the upcoming future. 

The essential postulates of the Islamic faith are:

  1.  That there is but one God; and
  2.  That Muhammad is his prophet. 

The verses in the Quran are not arranged systematically but are scattered throughout the text. It outlines the fundamental principles that govern human life. The major portion of the Quran is dedicated to deal with theological and moral reflections. The Quran is believed to be of divine origin having no earthly source. It is the first and the original legislative code of Islam. It is deemed to be the final and supreme authority governing the Muslims all over the world.

Muslim law is so intimately connected with religion that it cannot be readily dissevered from it. The Quran reveals God’s will communicated to the Prophet by the angel Gabriel from the original text kept in the seventh heaven. The contents were treasured up in the memories of the faithful and were also committed to writing on palm leaves and skins. It was revised in the time of Usman in 13 A.H. It has been translated into many languages of the world. It is the root of not only Islamic religion but also of the Islamic law. It consists of a large number of communications addressed by God to the Prophet during the last twenty three years of his life. It deals with a variety of subjects. Many parts of the Quran focus on theological and moral reflections emphasising on the unity of God and condemnation of idolatry. The Medinese suras which form one-third of the contents of the Quran relate to the period of victory and power and are rich in legislative materials. They cover the institutions of public prayers, fasting, pilgrimage, prohibition of wine, marriage, divorce, adultery, inheritance, and many such more topics governing the life of the humans. Although the Quran is not in the form of any definite Code but in all matters with which it deals, it is the primary and final authority. 

Commentaries on Quran

Many scholars have done extensive research on the Quran and have tried to provide interpretation by a regular system of tafsir (explanation). A vast collection of ahadis ( traditions) as also sunna (acts of the Prophet) were used for the purpose. 

The most important commentaries on the Quran are of Tabari whose work extended to thirty volumes, Kashhaf of Zamakhsari who show a more progressive tendency and Fakhruddin-ar-razi. The other important commentaries are of Baidawi which is best known to Europe and of Ghazali. 

Sunna and Ahadis

The term ‘Sunna’ literally means ‘the trodden path.’ It refers to the practice and precedents set by the Prophet, encompassing whatever he said or did without reference to God, and is treated as his traditions. It is the second source of Muslim law. Traditions are injunctions of Allah in the words of the prophet. Where the words of Allah did not provide a basis for a given legal rule, the Prophet’s words served as authority as it is believed that even his sayings derived inspiration from Allah.

During his own time, when Prophet Muhammad sat as a judge among the primitive Muslim community of Medina, his own rulings were absolute. In matters, which did not require any change, he was guided by the local usage and customs of the Arabs. Many Quranic verses were revealed with reference to cases which actually arose for decision. In the absence of any revelation on any question which had to be decided, the prophet used to decide it by his own judgement in consultation with his companions. The decision was considered final unless it was altered by some subsequent revelations. After the death of Muhammad, the living source of inspiration terminated and a reference to him was no longer available. Hence, reliance was made on the provisions of the Quran by facts from the life of the Prophet and from his sayings. Stories of occurrences concerning the Prophet given by eye-witnesses are known as ahadis. 

According to Muslim law, there are two types of revelations i.e. manifest (Zahir) and internal (Batin). Manifest or express revelations were the very words of Allah and came to the Prophet through the angel Gabriel. Such revelations became part of the Quran. On the other hand, the internal revelations were those which were the ‘Prophet’s words’ & did not come through Gabriel, but Allah inspired the ideas in his sayings. Such internal revelations formed part of Sunna. Traditions, therefore, differ from the Quran in the sense that the Quran consists of the very words of God whereas a Sunna is in the language of the Prophet.

Sunna

Sunna along with ahadis is counted as a second source of law. Sunna is sometimes used in a very wide sense as including not only the decisions and precepts of the Prophet but also his conduct and practice. It is often extended to pre-Islamic customs which had received the approval of the Prophet. It is called sunna of Median (sunnat-ul-taqrir). 

Sunna is the practice of the Prophet. Ahadis and Sunna from the foundations of the law during the period of the first Caliphs who were the companions and relations of the Prophet. 

Sunna or traditions consists of:

  • Sunnat-ul-Qual (word spoken): Sunnat-ul-Qual refers to the saying and verbal instructions of the Prophet Muhammad. These spoken words, recorded as Hadiths, provide direct guidance on a wide range of topics, including ethical conduct, religious beliefs, legal rulings, etc. For example, the Prophet’s statement, “The best of you are those who learn the Quran and teach it.” This statement is considered Sunnat-ul-Qual. 
  • Sunnat-ul-Fail (conduct): Sunnat-ul-fail comprises the actions and behaviours of the Prophet Muhammad. It includes his day-to-day practices, habits and interactions with others. Observing the Prophet’s conduct helps Muslims idealise his character and apply his methods to their own lives. For example, the Prophet’s habit of praying five times a day, acts of charity etc. fall under Sunnat-ul-Fail.  When examples from the Prophet’s conduct were not available, people used to learn the attitude, conduct and saying of the companions of the Prophet because they had received the favour of visiting and consulting the Prophet. 
  • Sunnat-ul-Tahrir (silence): Sunnat-ul-Tahrir consists of the instances where Prophet Muhammad remained silent or refrained from commenting on certain actions or statements made by others, thereby implying his approval. This form of Sunna indicates consent and shows that the behaviour or statement in question is permissible in Islam. For example, if an act is performed in the presence of the Prophet and he did not object, it is considered as a silent endorsement making that act permissible in Islam. 

Collection of Ahadis

Ahadis is the plural form of the Arabic word hadith. Hadith refers to the sayings, actions, and approvals of the Prophet Muhammad. While hadith is singular, ahadis is the plural form. Both these terms are used interchangeably. 

The Quran is the manifest (zahir) revelation communicated by Gabriel under God’s directions, the opinions of the Prophet expressed by him from time to time were the internal (batin) revelations conveyed to the Prophet by angel Gabriel or occurred to his mind through inspiration. Considering the sanctity of the sayings of the Prophet, his immediate companions started to note or memorise everything said by him. Records of all his decisions started to be compiled. Many people made the collections of his sayings either in writing or in memory. Later on they were passed from generation to generation. 

Since there was no authoritative collection of the ahadis, a rise in false traditions was observed. Many traditions were forged. The growing knowledge about the increasing false traditions gave rise to the development of regular science of ahadis which devoted itself for the purpose of checking the authenticity and genuineness of the traditions which were in circulation. Efforts were made to determine the authority by reference to the chain of isnad (reporters) and only after vigorous examination were the ahadis finalised. Bukhari retained around 7,000 out of 6 lakh traditions and declared the rest to be entirely apocryphal. 

The authentic ahadis were noted to different authoritative collections. Some of them classified them according to isnad, each hadis being placed under the last testator into a chain of isnad ( e.g. Ayesha, Fatima, etc.). This kind of collection is called musnad (a collection of hadith). 

Several authoritative collections are recognised in the Muslim world for their authenticity and comprehensiveness. The most esteemed collections of Hadiths are:

  • Sahih al-Bukhari– This collection of traditions was made by Abuo-Ismail-al-Bukhari, a disciple of Hanbal (who passed away in A.D. 869). It is regarded as the most authentic collection of hadiths, covering various aspects of Islamic life and law. It includes over 7,000 hadiths which were collected by Al-Bukhari in a span of sixteen years. 
  • Sahih Muslim– It is an important work on traditions by Muslim Ibn-al-Hajjaj. It is considered the second most authentic collection of Hadith. It contains around 4,000 hadiths, selected for their strong chains of transmission and reliability. 
  • Sunan Abu Dawood– This collection by Abu Dawud al-Sijistani focuses on hadiths related to Islamic jurisprudence (Fiqh). It contains around 4,800 hadiths providing valuable insights into legal precedents and practices. 
  • Sunan al-Tirmidhi– It was compiled by Muhammad Ibn al-Tirmidhi and is known for its critical analysis of hadiths. It contains around 4,000 hadiths categorised based on their legal implications and authenticity. 
  • Sunan an-Nasa’i– It is compiled by Imam Ahmad an-Nasa’i. This compilation is one of the six canonical collections of hadiths. It comprises 5,700 hadiths emphasising on authenticity and practical application. 
  • Sunan Ibn Majah– It is a compilation by Imam Muhammad bin Yazid Majah al-Qazvini. It is generally recognised as the sixth book in the canonical collection of hadith, known as Kutub as-Sittah of the Sunna of the Prophet. It contains 4341 hadiths including some that are not found in the other major collections, thereby offering unique insights. 

Other than the aforementioned, there are many collections of hadiths such as Muwatta Imam Malik, Musnad Ahmad ibn Hanbal, Riyal as-Salihin, etc. that guide muslims in their daily lives, morality, spirituality and ethics. These collections form the core of Islamic jurisprudence providing essential guidance on religious, legal and ethical matters. 

Ijma (consensus)

The Quran and the traditions continued to have legislative effect but with changing times and the demise of the prophet, the original law-making process ended, so the questions, which could not be solved either by the principles of the Quran or the Sunna, were decided by the Jurists with the introduction of the institution of Ijma. Ijma means agreement of the Muslim Jurists of a particular age on a particular question of law, in other words, it is the consensus of Jurist’s opinion.

Those persons who had knowledge of law were called Mujtahids (Jurists). When the Quran and traditions could not supply any rule of law for a fresh problem, the jurists unanimously gave their common opinion or a unanimous decision and it was termed as Ijma. Not each and every Muslim was competent to participate in the formation of Ijma, but only Mujtahids could take part in it.

There are three kinds of Ijma:

  • Ijma of Companions: The concurring opinion of the companions of the Prophet was considered most authoritative and could not be overruled or modified. The iIjma of companions is considered higher than the ijma of other jurists. The Maliki school recognised the validity of ijma of the companions and their successors who were residing at Medina. The ijma of the companions was considered to be conclusive and could not be altered by ijma of a later date. According to the Sunni school, individual jurists cannot question a decision reached by ijma but except in the case of the ijma of the companion, the ijma of one age may be reversed by that of another age. 
  • Ijma of the Jurists: This was the unanimous decision of the jurists (other than companions). The Ulemas (alim scholars) were more on the morality tilt than professional jurisconsults for the purpose of jurisprudence. The ijma of jurists was necessary. A kind of legislative power was recognised in the jurists acting in a body. 
  • Ijma of the people or masses: Basically, Ijma is the consensus of the masses. In certain matters of religious practices, (such as fasting, prayer, etc.) the law was established by the consensus of the opinion of the masses. It is the opinion of the majority of the Muslims which was accepted as law. But this kind of Ijma has little value.The principles of ijma were used for the settlement of various legal, political, and ethical problems. The important case is that of the selection of the first caliph (successor) after the death of Prophet Muhammad. The selection of Abu Bakr was based on Ijma. Once a valid Ijma is constituted, it is regarded equal to Quranic verse i.e. it is equally binding on people. Without Ijma, these rules of Islamic law would have been diffused and incomplete. Its principles cover the vast subject. Ijma authenticated the right interpretation of the Quran and the Sunna.

Qiyas (analogical deductions)

The word Qiyas originates from the term ‘Hiaqish’ which means ‘beat together.’ In Arabic Qiyas means ‘measurement, accord, and equality.’ In simpler words, it involves measuring or comparing a thing to a certain standard, or to ‘establish an analogy.’ Those issues which have not been covered by Quran, Sunna or Ijma, the law may be deducted from what has been already laid down by these three authorities by the process of analogy (Qiyas).

The Qiyas is a method of deduction aimed at discovering existing law rather than making a new law. Its main role is to extend the law of the text, to cases which do not fall within the purview of the text. For Qiyas to be valid, it must fulfil the following:

  • The process of the Qiyas can only be applied to those texts that can be extended. The texts should not be confined to particular facts or rules having a specific reference.
  • The analogy drawn must be consistent with the principles of the Quran and authority of Sunna.
  • The Qiyas should be applied to discover a point of law and not to determine the meanings of the words used in the text.
  • It must not bring a change in the existing law.
  • If there is a conflict between two deductions, a jurist can choose any one of them. One analogy cannot override the other.

Qiyas hold less importance compared to other sources. This may be because analogical deductions rely on human reasoning which is prone to error. Zahirites called qiyas as only proof instead of a source (asl) of law. An early traditionalist said that, “analogy is like carrion, when there is nothing else, you eat it.” 

It may be concluded that the Islamic Jurisprudence is built on Quranic verses and traditional sayings of the Prophet, yet other sources have also helped a lot in developing the sacred law in its present form. It is the collective contributions of all the sources of Islamic law that an orderly and systematic theory of the personal laws of Islam came into existence.

Secondary sources of Muslim Law

Customs

Custom (aadat) is an important source of law and has existed as law in almost all the countries.

Hindus recognised as early as 1868 that a legitimate custom could take precedence over a provision of sacred law. In the instance of Muslim law, the Privy Council conveyed the same sentiment concerning conversions who prefer to adopt Islam but keep their rules, but the  Orthodox refused this viewpoint, and the Shariat Act, 1937 was enacted. Despite the fact that all schools trust in the four ancient sources, they do not reject the concept of customs. The Prophet also kept existing Arabian customs, as long as they did not contradict Muslim law. Customs are recognised as an addition to Muslim law. Since there was no Islamic law code at the time, the Prophet and his followers had to rely on conventions to resolve some issues. For example, foster mother remuneration, civil wrongs recompense, and so on. According to Muslim jurists, a legitimate Custom must meet four characteristics which are mentioned below: 

  1. A custom must be repeated regularly, i.e. it must be continuous and noticeable.
  2. It should be applicable to everyone and should be rational.
  3. It must not contradict any implied text of the Quran or the Sunna.
  4. It does not have to be very old.

Judicial decision (precedents)

Judicial precedent refers to the practice by which judges follow the earlier decisions in cases with similar facts. The concept of judicial precedent is based on the principle of stare decisis, or conforming to what has already been declared. In reality, this implies that lower courts must follow the procedural rules established by higher courts in previous decisions. This ensures that the law is satisfactory to both parties. However, it is to be considered that the concept of ‘precedent’ is not covered under Muslim law. Kazis (judges) judgements were never regarded as precedents under English law. ‘Fatwas’ (a ruling on a point of Islamic law given by a recognized authority) which has both moral and legal authority, is the closest approach to this theory in Muslim law. But while a Mufti (a professional jurist who interprets Muslim law) would declare Fatwa on a scholar, the Kazi was not obligated by it. Several Fatwa compilations exist, the most notable of which is Fatwa-al-alam-giriyya. Many gift and Wakf practices have been altered to safeguard women, and there is a cluster of precedent under Muslim law. Today, the doctrine of stare decisis is incorporated into Muslim law.

Legislations

Legislation as per Cambridge Dictionary has been defined as ‘a law or set of laws suggested by a government and made official by a parliament’. The importance of legislation may be seen in the fact that, on the one hand, it establishes rules and procedures through the parliament, while on the other hand, it has state-level authority. Some parts of the legislation were approved by the Hanbali school under the names Nizam (Ordinance / Decree), Farmans (irrevocable royal decrees and dastar amals (manual of regulations) but they were not connected to personal laws. The Britishers were never allowed to interfere with personal laws, Muslim law suffered greatly as a result of the lack of effective regulatory frameworks. There were just a few laws in this area, including the Shariat Act, 1937 and the Mussalman Wakf Validating Act, 1913. The Shariat Act, 1937 is concerned with issues like marriage, divorce, inheritance, and family relationships. Further, the purpose of Mussalman Wakf Validating Act, 1913 is to validate and regulate the creation of waqfs (Islamic endowments) for religious, pious, or charitable purposes. The Dissolution of Muslim Marriage Act,1939 was a breakthrough in Muslim law since it granted a Muslim wife the right to a judicial divorce on particular conditions. Following independence, in 1963, a motion to change Muslim personal law was introduced in Parliament, sponsored by progressive Muslims but opposed by the orthodox, resulting in few modifications in this area.

Now, post-divorce maintenance rights are governed by both Muslim personal laws and statutory laws. Section 125 of the Criminal Procedure Code, 1973 (now covered under Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023) provides for maintenance for wives, children and parents. It applies to women of all religions including Muslims. After the case of Mohd. Ahmed Khan vs. Shah Bano Begum (1985), the Supreme Court held that a Muslim woman is entitled to maintenance under Section 125 of CrPC. This sparked a significant debate and led to the enactment of the Muslim Women (Protections of RIghts on Divorce) Act, 1986. This act provides for a reasonable and fair provision and maintenance to be provided by the former husband within the iddat period (a period of purification).

In the case of Shayara Bano vs. Union of India (2017), the Supreme Court held that the practice of instant triple talaq (talaq-e-biddah) was unconstitutional by a majority of 3:2.  The Court held that triple talaq violated the fundamental rights of Muslim women and was neither an essential part of Islam nor safeguarded by Article 25 of the Constitution. Additionally, the Court concluded that the practice was arbitrary and contradicted the core principles of the Quran and Shariat. 

Equity, justice and good conscience

One of the origins of Muslim law is the idea of fairness, justice, equity, and excellent conciseness. These Islamic legal doctrines are known as ‘Istihsan’ or ‘Juristic Equity.’ Istihsan means ‘liberal construction’ or ‘juristic choice’, or what we now refer to as ‘equity law.’ To respond to various conditions in India, a number of Muslim provinces have been transformed. Although the British originated this notion of equity, it has been adopted by various Muslim law schools. This notion of equity was used in most of the matters handled by British Courts under Muslim law. Some of the examples of the principles of equity are:-

  • Istehsan: It literally means referring or considering a thing to be good at ‘holding for better’. Istehsan is the equitable principle of juristic preference. With the expansion of Muslim rule in the other countries the local conditions had to be taken into consideration. This principle was reduced to a definite rule by Abu Hanifa. In cases in which a law deduced by analogy was found to cause hardship or inconvenience, the jurist was at liberty to adopt a rule which was more in the interest of justice and welfare of the society. 
  • Istidlal: This means inferring one thing from another. The Hanafi justists use it more or less in this sense in connection with the rules of interpretation. The Malikis held it to be a principle of juristic deduction. 
  • Istislah: This doctrine was introduced by Malik and is based on the conception of common welfare. Public advantage was considered to be a basis for reference. 
  • Shariat and Fiqh: ‘Shariaf’ (literally means the path to be followed) means the canon law of Islam, the totality of God’s commands. Shariat embraces all human actions. All human conduct whether it be ethical, legal is covered by the term. Fiqh, the science of jurisprudence has been comprehensively defined as the knowledge of one’s right and obligations derived from the Quran or Sunna or about which the learned scholars have agreed. 

Important precedents

Judges emphasise the law when they investigate specific cases. These rulings appear to set a precedent for future cases, and the courts will certainly follow the precedents. The rulings are binding on all lower courts and it follows a framework in terms of its application wherein decisions taken by the Supreme Court will by default apply to High Courts and they can’t deny rulings cited by the Supreme Court. 

Mohd. Ahmed Khan vs. Shah Bano Begum (1985)

Facts

In this case, Shah Bano, a 62-year-old Muslim woman was divorced by her husband, Mohd. Ahmed Khan. He refused to provide maintenance to her. Shah Bano filed a claim for maintenance under Section 125 of CrPC. The lower court and High Court awarded her maintenance but the husband appealed and argued that he was not obliged to pay maintenance beyond the iddat period according to Muslim personal law. The husband filed a Special leave petition in the Supreme Court. 

Issues

  1. Whether Section 125 of CrPC applies to Muslim women seeking maintenance?
  2. Whether Muslim personal law can override the provisions of CrPC?

Judgement

The Supreme Court upheld the judgement of the High Court and affirmed Shah Bano’s right to maintenance under Section 125 of CrPC. The Court ruled that Section 125 of CrPC is a secular law and applies to all citizens of the country. Further, the Court stated that the provisions of CrPC can take precedence over personal law when the personal law does not provide adequate maintenance. This judgement highlighted the tussle between personal law and secular law. It reiterated the applicability of secular law over personal laws in matters of fundamental rights. 

Danial Latifi vs. Union of India (2001)

In Danial Latifi vs. Union of India (2001), the Supreme Court’s decision in Mohd. Ahmed Khan v. Shah Bano Begum (1985) appeared to be overruled by the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter referred to as MWPRDA, 1986). 

Facts

A Muslim husband was only liable for keeping his divorced wife during the iddat period, according to a prima facie interpretation of the MWPRDA, 1986, and after that term, the responsibility of keeping the lady shifted to her relatives. The issue came to the light when the constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986 was questioned on the grounds that the law was discriminatory and violative of Articles 14 and 21 of the Indian Constitution. The fact that Article 14 was being violated because Muslim women were being deprived of the maintenance benefits of Section 125 of Criminal Procedure Code, 1973. Also, it was pointed out that the right to life guaranteed under Article 21 was being violated as the law will leave Muslim women in a state of helplessness.

Issues

Whether the Muslim Women (Protection of Rights on Divorce) Act, 1986, was constitutional and provided adequate protection and maintenance for divorced Muslim women? 

Judgement

The Supreme Court maintained the validity of the MWPRDA, 1986, based on critical analysis. It was decided that a Muslim husband is responsible for making appropriate and equitable arrangements for his divorced wife’s future beyond the iddat period. This approach was founded on the term ‘provision’ in the MWPRDA of 1986, which said that, “at the time of divorce the Muslim husband is required to contemplate the future needs (of his wife) and make preparatory arrangements in advance for meeting those needs”. The court clarified that the Act does not negate the applicability of Section 125 of CrPC. Rather, it provides an alternative mechanism specially for divorced muslim women. The interpretation by SC ensured that divorced Muslim women received fair and reasonable provision for their maintenance. This judgement harmonised personal laws with the broader equitable framework to protect the rights of divorced muslim women. 

Chand Patel vs. Bismillah Begum (2008) 

Facts

In this case, the appellant married Mushtaq bee who was the elder sister of the respondent. Further, with the consent of his 1st wife (Mushtaq bee); he (the appellant) even decided to marry his wife’s sister (Bismillah Begum). In response to this, the respondent stated that a child was born out after they consummated in their marriage. Bismillah Bano claimed that she had been lawfully married to Chand Patel for the past eight years and that a ‘Nikahnama’ had been performed. She mentioned in her petition that she and her daughter shared a home with Chand Patel’s first wife and that the appellant had knowledge about the same and he had raised the daughter. However, after a few years of marriage, her relationship with her husband began to worsen to the point where he began to ignore her and their small daughter. But the appalling argument found was that Chand Patel claimed that the two had never married.

Issues

The following were the issues that court considered adjudicating upon:  

  1. Whether marriage in Islam with a wife’s sister will be considered void?  
  2. Another issue found was whether the wife will be entitled to maintenance even after marriage with her sister is void or irregular?

Judgement

The Supreme Court ruled that if a Muslim man is married to his wife’s sister while still married to his first wife, the marriage will be considered irregular, not unlawful or void. The Supreme Court validated the lower court’s verdict, ruling that the illegal marriage would continue to exist and that the Muslim man would be obligated to support his wife until his marriage was pronounced void by a court of competent jurisdiction. The Court ruled that the irregular marriage between the appellant and respondent remains valid as it has not been annulled by any authorised body. Consequently, the respondent is entitled to maintenance under Section 125 of the CrPC. Chand Patel was directed by the Court to pay maintenance within six months of the date of the judgement, as well as the respondent’s legal fees for arguing the case and setting up a landmark judgement.

Shayara Bano vs. Union of India (2017)

Facts

In this case, Rizwan Ahmed and Shayara Bano were a married couple and they were living together for 15 years. In 2016, Shayara Bano was divorced through immediate triple talaq (talaq -e-bidat) in response to this she filed a writ petition in the Hon’ble Supreme Court of India praying for holding three practices talaq-e-bidat, polygamy, and nikah-halala as unconstitutional as they infringe Article 14 (Right to equality), 15 (Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth), 21 (Right to life), 25 (Right to freedom of religion) of the Constitution.

 The practice of talaq-e-bidat allows a man to leave his wife by saying ‘talaq’ three times in one sitting without his wife’s agreement. Nikah Halala is a Muslim custom in which a divorced woman who wishes to remarry her spouse must first marry and divorce a second husband before returning to her first husband. Polygamy, on the other hand, is a practice that allows Muslim men to have many wives. 

On February 16, 2017, the Court requested detailed responses from Shayara Bano, the Union of India, several women’s rights organisations, and the All India Muslim Personal Law Board (AIMPLB) on the issues of talaq-e-bidat, nikah-halala, and polygamy. Ms Bano’s claim that these practises are unlawful was recognized by the Union of India and women’s rights organisations such as Bebaak Collective and Bhartiya Muslim Mahila Andolan (BMMA). The AIMPLB has maintained that uncodified Muslim personal law is not available for judicial examination under the Constitution and that these are vital Islamic religious traditions safeguarded under Article 25 of the Constitution.

Issues

  1. Whether the practice of instant triple talaq (talaq-e-bidat) is constitutional?
  2. Whether instant triple talaq violates the fundamental rights of Muslim women?
  3. Whether triple talaq is an essential practice of Islam that is protected under Article 25, which guarantees freedom of religion?

Judgement

The Supreme Court’s 5 Judge Bench issued its verdict in the triple talaq case on August 22, 2017, ruling the system unlawful by a 3:2 majority. The aforementioned practice of divorce is arbitrary, in respect that a Muslim husband might break the marital tie unfairly and thoughtlessly without making any effort to communicate to safeguard the marriage. The Supreme Court, in a unanimous decision pronounced on August 22, 2017, declared instant Triple Talaq to be a violation of Article 14 of the Constitution, putting an end to the practice of divorce. Further, the Court held that instant triple talaq violated the right to equality and right to life and personal liberty (Article 21) of muslim women. The Court examined various Islamic texts, teachings, etc and concluded that triple talaq was not fundamental to the practice of Islam. This decision paved the way for the enactment of the Muslim Women (Protection of Rights on Marriage) Act, 2019, which criminalised the practice of instant triple talaq.

Mohd Abdul Samad vs. The State of Telangana (2024)

Facts

In this case, a deserted wife sought maintenance under Section 125 of CrPC from the family court in Telangana, which granted her 20,000 rupees per month. The husband then divorced her arguing that she could no longer claim maintenance under Section 125 as her rights were governed by the Muslim Women (Protection of Rights on Divorce) Act, 1986. He claimed that the Act offered a more effective remedy and should take precedence over CrPC as special law prevails over general law. The Telangana High Court rejected this argument but reduced the maintenance to Rs 10,000 per month. The husband then appealed to the Supreme Court.

Issues

  1. Whether Section 125 of CrPC applies to divorced muslim women?
  2. Whether the Muslim Women (Protection of Rights on Divorce) Act, 1986 bars Muslim women to claim maintenance under Section 125 of CrPC?

Judgement

The Supreme Court dismissed the ex-husband’s appeal and upheld that divorced muslim women are entitled to maintenance under Section 125 of CrPC as CrPC is a secular law and applies to all women, irrespective of their religion. It reaffirmed that the MWPRDA, 1986 does not override the maintenance under CrPC. The SC relied on the case of Daniel Latifi and Anr vs. Union of India (2001) which upheld the constitutional validity of the MWPRDA, 1986 and said that its provisions do not violate Article 14,15 and 21 of the Constitution of India. However, it interpreted the Act in a way that Muslim women could receive maintenance until they remarry beyond the iddat period. SC also referred to the case of Shabana Bano vs. Imran Khan (2009), where the SC held that divorced muslim women can claim maintenance under Section 125 of CrPC, even beyond the iddat period, as long as they do not remarry. 

Conclusion

Muslim law is a comprehensive legal system that governs various aspects of a Muslim’s life. The sources of Muslim law are rooted in divine revelations, traditions and practices of the Prophet Muhammad, providing a robust framework for legal, moral and social conduct. As the holy book of Islam, the Quran is considered the foremost source of Muslim law. It is considered reliable and serves as the ultimate authority in the Islamic jurisprudence. The Sunna includes the practices, sayings and approvals of the Prophet. These traditions offer real life examples of how the principles in the Quran should be applied. The Hadith complement the Quran by providing context and detailed instructions on various aspects of law and life. Ijma ( consensus of Islamic scholars) serve as guiding principles in those aspects where the Quran and Sunna do not have an explicit answer. Qiyas ( Analogical reasoning) is another source that derives legal rulings for new situations by drawing analogies with established principles from the Quran and Sunna. It ensures that the Muslim law addresses contemporary issues while remaining connected to the primary texts. 

Muslim law is an integral element of Indian laws and must be understood and implemented in the similar manner as any other law in the country. Despite the fact that most of it is uncodified, Muslim personal law has the same legal significance in India as other religions’ codified personal laws, such as the Hindu Marriage Act, 1955 and the Christian Marriage Act, 1872.  Recent Supreme Court judgements have played a crucial role in expanding Islamic jurisprudence. Lately, the Indian judiciary has been interpreting the Muslim personal laws in a manner that aligns with the constitutional principles such as equality, justice, non-discrimination. The Hon’ble Supreme Court of India has taken into account that women’s rights are not being neglected or discriminated against on any grounds by delivering progressive judgements. This has developed in contribution to Muslim law to have a newer perspective with the landmark cases. The recent judgements have emphasised on the need for reforms in the Muslim personal laws to protect the rights of women and marginalised sections of the Muslim community. The judgements have set up a platform of a level playing field and thus, leading to the formation of an egalitarian society. As our country’s legal principles and ideals continue to evolve, it is very important to uphold the principles of justice,equality and basic fundamental rights guaranteed under the Indian Constitution to ensure that the rights of all individuals are protected. It can be noted that the legal framework of Islamic jurisprudence has sustained diverse cultures and eras demonstrating its adaptability with changing times. 

Frequently Asked Questions (FAQs)

What is the difference between Sharia, Fiqh, and Usul al-Fiqh?

Sharia refers to the divine law as revealed by Allah to Prophet Muhammad through Quran and Hadith. It covers all aspects of life as well as legal principles. Fiqh means ‘understanding’ and refers to human interpretation. It is developed by Islamic scholars. Usul al-Fiqh means ‘the principles of jurisprudence’ and refers to the science used by Islamic jurists to derive judicial rulings from the primary sources. 

Who is the founder of Islamic jurisprudence?

Abu Abd Allah al-Shafi’i, also known as Imam al-Shafi’i, is known as the ‘Father of Islamic jurisprudence’. He established the Shafi’i school of law, which became one of the four major Sunni schools of Islamic jurisprudence. 

What is the role of customary practices (urf) in Muslim law?

Urf refers to the local customs and traditions that are not in conflict with the primary sources of Muslim law. It can be considered a source of law when it aligns with the principles of Sharia. 

References 

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