In this blog post, Sunidhi, a student of the Rajiv Gandhi National University of Law, Patiala, and Pranav Sethi studying at NMIMS School of Law, Navi Mumbai explain about sources of Muslim law by elaborating on precedent cases that have given Muslim law a new perspective. The blog post 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 Sunnah are the fundamental sources, both of which are uniformly recognized by all Muslims. The Quran is Islam’s holy scripture, which Muslims consider to be Allah’s direct message. The Sunnah 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, Sunnah, consensus, and aql are the four sources used by the Usuli school of Ja’fari jurisprudence among Shia. They focus on aql (intellect) to find broad concepts founded on the Quran and Sunnah and employ usul al-fiqh as a method to understand the Quran and Sunnah in various contexts, while Akhbari Jafaris depend more on Hadith and 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.

The personal law of Muslims is based on Islam. Islam had its origin in Arabia and from whence it was transplanted into India. In Arabia, Prophet Hazrat Mohammed, himself an Arab, promulgated 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 7^th century of the Christian era.

Primary sources of Muslim Law

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

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

 Quran

It is the original or primary source of Muslim Law. It is the name of the holy book of the Muslims containing the direct revelations from God through Prophet. The direct express or manifest revelations consist of the communications which were made by the angel, Gabriel, under directions from God, to Mohammed, either in the very words of God or by hints and of such knowledge which the Prophet has acquired through the inspiration (Ilham) of God. All the principles, ordinances, teachings and the practices of Islam are drawn from Quran.  The contents of Quran were not written during the lifetime of the Prophet, but these were presented during the lifetime of Prophet, in the memories of the companions.

There is no systematic arrangement of the verses in the Quran but they are scattered throughout the text. It contains the fundamental principles which regulate the human life. The major portion of the Quran deals with theological and moral reflections. The Quran consists of communications of God; it is believed to be of divine origin having no earthly source. It is the first and the original legislative code of Islam. It is the final and supreme authority.

Sunna (Traditions or Ahadis)

The literal meaning of the term ‘Sunna’ is ‘the trodden path.’ It denotes some practice and precedents of the Prophet, whatever the Prophet 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 could not supply an authority for a given rule of law, Prophet’s words were treated as an authority because it is believed that even his sayings derived inspiration from Allah.

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 Quran in the sense that Quran consists of the very words of God whereas a Sunna is in the language of Prophet.

Sunna or traditions consists of:

• Sunnat-ul-Qual (word spoken)
• Sunnat-ul-Fail (conduct)
• Sunnat-ul-Tahrir (silence)

Ijma (Consensus)

With the death 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 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 concurrent opinion of the companions of Prophet was considered most authoritative and could not be overruled or modified.
• Ijma of the Jurists: This was the unanimous decision of the jurists (other than companion).
• Ijma of the people or masses: It is the opinion of the majority of the Muslims which was accepted as law. But this kind of Ijma has little value.

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 was derived from term ‘Hiaqish’ which means ‘beat together.’ In Arabic Qiyas means ‘measurement, accord, and equality.’ In other words, it means measuring or comparing a thing to a certain standard, or to ‘establish an analogy.’ If the matters 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 process of deduction, which helps in discovering law and not to establish a new law. Its main function is to extend the law of the text, to cases which do not fall within the purview of the text. For  valid Qiyas, the following conditions must be fulfilled:

• The process of the Qiyas can be applied only to those texts which are capable of being extended. The texts should not be confined to a particular state of facts or rules having a specific reference.
• The analogy deduced should not be inconsistent with the dictates 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 law embodied.

If there is a conflict between two deductions, a jurist is free to accept any one of the deductions from a text. Hence one analogy cannot abrogate the other.

Compared with other sources, Qiyas is of much lesser significance. The reason is that on the analogical deductions, resting as they do, upon the application of human reasons, which is always liable to error.

It may be concluded that the superstructure of Islamic Jurisprudence is founded on Quranic verses and traditional utterance of Prophet, yet other sources have also helped a lot in developing the sacred law in its present form. It is due to the contribution of all the sources of Islamic law that an orderly and systematic theory of the personal laws of Islam came into existence, which governs the Muslim community.

Secondary sources of Muslim Law

Judicial decision – (Precedent)

Judicial precedent refers to the procedure by which judges follow earlier decisions in cases with relatively similar facts. The idea 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’ judgments were never regarded as precedents under English law. ‘Fatwas,’ which have both moral and legal authority, are the closest approach to this theory in Muslim law. But while a Mufti 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.

Custom 

Hindus recognized that a custom, if otherwise legitimate, supersedes a provision of sacred law as early as 1868. 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 of 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 Sunnah.
4. It does not have to be very old.

Legislation

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, and dastarul amals, but they were not connected to personal laws. The British 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 of 1937 and the Mussalman Wakf Validating Act of 1913. The Dissolution of Muslim Marriage Act of 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.

Equity, justice and 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.

Precedent cases that have given a new dimension to Muslim law

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. 

Chand Patel v. Bismillah Begum, 2008 

In Chand Patel v. Bismillah Begum (2008) 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?

Arriving on the fact sheet of the 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.

Supreme Court judgment 

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. 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 judgment.

Shayara Bano v. Union of India, 2017

In Shayara Bano v. Union of India (2017), 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 biddat) in response to this she filed a writ petition in the Hon’ble Supreme Court of India praying for holding 3 practices talaq-e-biddat, polygamy, nikah-halala as unconstitutional as they infringe Articles 14, 15, 21, 25 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. 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 Supreme Court verdict

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.

Danial Latifi v. Union of India, 2001

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

Judgment in the case 

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”.

Conclusion

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 of  1955 and the Christian Marriage Act of 1872. 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 judgments. This has developed in contribution to Muslim law to have a newer perspective with the landmark cases. Adding more to this, the judgments have set up a platform of a level playing field and thus, leading to the formation of an egalitarian society. 

References 

• http://www.jiwaji.edu/pdf/ecourse/law/Sources%20of%20law.pdf
• Asaf A.A Fyzee, Outlines of Muhammadan Law, edited and revised by Tahir Mahmood, 5th edition, 2008, Oxford India Paperback. (Classic).
• Dr. Paras Diwan, Law of Marriage and Divorce, seventh edition, 2016 Allahabad Law Agency. (Classic).
• http://mja.gov.in/Site/Upload/GR/Title%20NO.149(As%20Per%20Workshop%20List%20title%20no149%20pdf).pdf
• https://dictionary.cambridge.org/dictionary/english/legislation
• https://www.mondaq.com/india/trials-appeals-compensation/882616/judicial-precedents-in-india
• https://www.lawteacher.net/lecture-notes/judicial-precedent-1.php
• https://www.tribuneindia.com/news/schools/legislation-as-a-source-of-law-143948
• https://old.amu.ac.in/emp/studym/100001747.pdf.

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