This article is written by Michael Shriney from the Sathyabama Institute of Science and Technology. This article gives an overview of Sharia law from an Indian point of view, including information on its history, sources and schools. It also covers the aims and objectives of Sharia law and some frequently asked questions around the same.

It has been published by Rachit Garg.

Introduction

Islamic law is based on the divine and philosophic principles of Sharia. In Arabic, the term Sharia is meant to be a ‘clear, well-trodden path to the water’. It refers to the fact that the route of water is the entire way of life in a dry desert region. Sharia is a body of laws established by Muslim scholars over centuries, is viewed as an everlasting creation of God that his words are without fault and also understandable by humans. These are drafted and implemented to satisfy the interests of those in power. Sharia law in India deals with marriage, succession, inheritance, and charitable works among Muslims and is administered by the Muslim Personal Law (Shariat) Application Act of 1937. Muslims follow their religious law that establishes moral standards for their physical, mental and spiritual life. Muslims founded Sharia on the teachings of the Prophet Muhammad and the Holy book ‘Quran’. Sharia can not be altered, thus it will go on till the end of eternity. This article goes into deeper detail regarding Sharia law, specifically how it applies and is practiced in India. 

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Sources and schools of Sharia law

The Quran, the sacred book of Islam, as well as the Sunnah, the deeds of the prophet Mohammad and the hadith, his sayings, are the sources of Sharia law. There are various sources on how God wants Muslims to live, but there is no single law book, defined statute or defined judicial procedure to decide what Sharia law is. Sharia is a wide collection of conflicting interpretations. Such interpretations paved a way for legal schools of thought in accordance with Sharia. There are many forms of schools under Sharia, which are as follows:

  1. Ahmad Ibn Hanbal founded the Hanbali school of thought. The Hanbali Sharia school is the smallest and most stringent of all other schools. The basic source of this school is the Quran as it is practiced in Saudi Arabia and Qatar. In these nations, it has large followers.
  2. Malik Ibn Anas founded the Maliki school of thought. The Maliki School of Sharia is based primarily on an independent interpretation of the Quran. It is mostly founded in African regions, including the whole West African region, as well as charred Sudan and Kuwait.
  3. Muhammad Ibn Iris Ash-Shafi’i founded the Shafi’i school of thought. The Shafi’i school of Sharia is based on a consensus on the Quran’s understanding. This school is followed by East Africa and Southeast Asia, including nations such as Somalia, Eritrea, Lower Egypt, Djibouti, Maldives, Ethiopia, Indonesia, and small populations in Malaysia.
  4. Abu Hanifa An-nu’man founded the Hanafi school of thought. The Hanafi school is the earliest and most flexible version of Sharia, relying on both consensus and independent reasoning. The Hanafi school has the most followers, resulting in approximately one-third of Muslims worldwide. Turkey, Jordan, Lebanon, Afghanistan, Pakistan, India, and Bangladesh are the countries that follow this school.
  5. The first four schools are Sunni, whereas the final school of thought, Ja’fari founded by Ja’far Ibn Muhammad Al-Sadiq, is classified under the Shia school. The Sharia school of Ja’fari is solely practiced by Shia Muslims. It is established in the Iranian Constitution, and there are followers in Iraq and a limited number of followers worldwide.

The five schools were founded by male theologians and jurists, who named them and interpreted them according to the Islamic scriptures.  

History of Sharia law in India

Muslims view Sharia law as holy and sacred since it is a law that Allah created. It is seen as a divine word that controls and guides human behaviour. Sharia law is mainly used for family, divorce, property, marital issues, etc. It is also based on the beliefs of the Prophet Muhammad. During the lifetime of Mohammad’s period, Sharia law had some development, which was defined as Islamic jurisprudence. Prophet Muhamad tried to explain the law by interpreting provisions as per Quran verses and served as a judge in legal matters. Then he found a way of interpreting and understanding Allah’s words. In the middle of the seventh century, Muhammad died. The interpretation of Muhammad’s teachings was done by Muslim legal scholars. Then various Muslim legal scholars interpreted Sharia law after Mohammad’s death. Those scholars interpreted the law and extended it throughout the Muslim empire. Sharia law was interpreted and adapted to new lifestyles and issues. Although they did not have a particular punishment, the Muslims followed severe punishments like beheading and stoning to death if anyone committed stealing or any other offences. The principles, punishments, and elements of Sharia law were not mentioned in any of the Muslim legal books or statutes. It did not take place in any of the Sharia sources such as the Quran, Sunna, Hadith, and so on, but they enforced those punishments on Muslims who committed or went against the law, thereby reducing crime in the country. This was happening in the Muslim empire and dynasty. Sharia law became an integral part of the Muslim religion.

When Sharia law was brought into India, there was no law or statute that was constituted in India that was not stringent when compared to Sharia. The statutes in India deal with imprisonment, compensation, etc related punishments. Statutes like the Indian Penal Code, Criminal Procedure Code, Civil Procedure Code, etc provide those punishments. In India, public officials try to change offenders by giving them some strict punishment, not to harm them physically but to make them realise their mistakes and faults. Sharia law declares that there is only one God and must follow his will and laws. The Quran contains certain fundamental elements of human behaviour in what ways a Muslim has to live, pray, profess and practice their religion. Sharia law does not have a detailed legal system. Only a few verses deal with legal matters. There are no certain provisions regarding punishments that are provided under Sharia law. Sharia law was established from the elements of Jewish, Greek, Roman, Persian, and Christian Church laws. Previously, there was a monarchy Muslim empire that governed Muslims in a prescribed manner. During the Muslim Empire, the caliphs of the Umayyad dynasty, who took control of the empire in 661, expanded Islam in India. The Umayyads appointed Islamic judges, who are known as kadis. These kadis determine issues involving Muslims who are knowledgeable about the Quran and Muhammad’s teachings. The kadis handled matters in all areas of the law. Then the Umayyad dynasty was replaced by the Abbasids. Sharia reached its heights during the Abbasids. These kadis followed and continued to handle religious, family, property, and commercial legal disputes.

The Indian legal system evolved from a different legal tradition in the ancient days, which has a historical foundation to support the independent school of legal theory and practice. The treaties in India were influenced by the Arthashastra from 400 BC and Manusmriti from 100 AD, documents that were deemed authoritative legal guidance. Sharia law, which is solely applicable to people of the Muslim religion under Islamic law, was established in India. There was a gap in tradition when India became part of the British Empire. Hindu and Islamic laws were overridden by common law. Sharia laws are mainly personal laws of the Muslim religion.

Indian Constitution on Sharia law

The Constitution of India gives freedom to many things, including festivals and personal life of all religious activities. The Indian Constitution ensures freedom to practice and profess any religion. It safeguards the religious rights of members of Muslim communities. The following Articles of the Indian Constitution state the freedom to practice any religion:

  • According to Article 25(1) of the Indian Constitution, everyone has the right to free conscience and to freely profess, practice, and promote religion. This means that a state will make certain that there is no interference or obstacle to enjoying this freedom. The state may also impose restrictions in the interests of public order, decency, morality, health and other state purposes. 
  • Article 14 of the Indian Constitution states that everyone is equal before the law. On Indian territory, the state cannot deny someone equality before the law or equal protection under the law. Discrimination on the basis of religion, race, caste, gender, or place of birth is prohibited. In India, citizens have equal rights to practice and profess their faith without any discrimination.
  • Article 26 of the Indian Constitution deals with the freedom to administer religious denominations or any section that establishes and maintains institution for religious activity and charitable purposes. It also handles its own religious affairs and owns or acquires a movable and immovable property. It can also administer such property through the use of the law.
  • Article 21 of the Indian Constitution states that no one shall be deprived of his life or personal liberty unless in accordance with legal processes. The right to life and the right to personal liberty are protected by the Indian Constitution. 

Views of Indian Constitution on Sharia law

  • According to Article 26 of the Indian Constitution, Muslims have the freedom to administer their religious affairs. They can establish or maintain any institution for religious activity, including charitable purposes. They can also own and acquire movable or immovable property.
  • Article 25 of the Indian Constitution gives Muslims the right to practice their religions, with certain duties including marriage, contract, transfer of property, and divorce according to their religion’s legal system. Article 25(1) of the Indian Constitution states that all citizens have the right to practise their own religion. 
  • According to Article 21 of the Indian Constitution, Muslims have the right to practice and preach their religion accordingly without any interference or restriction.
  • Article 14 of the Indian Constitution deals with equality before the law. Thus, Sharia law can be practiced in India like any other religion which is practiced in India. Sharia can be practiced in India as the personal laws of Muslims. They can apply Sharia laws only among Muslim people. 
  • Note: There is no limitation on following Sharia in India, which is prohibited only during national emergencies. At a national emergency point in time, the people cannot challenge the court, claiming that a citizen’s right has been violated. This cannot be challenged as violating fundamental rights during a national emergency.

Sharia law in India

In Arabic, Muslim law is known as Sharia law, which can also be spelled ‘Shariah or Syariah’. The principles underlying the fiqh are referred to as Sharia. The term ‘fiqh’, which means ‘human understanding of Sharia,’ describes how humans interpret the law. Fiqh is the understanding of details and refers to the views obtained by scholars. The terms ‘fiqh and Sharia’ are often used, however, they don’t mean the same thing. Sharia refers to divine and infallible, while fiqh refers to changeable and arguable beliefs. Sharia law is deemed to be too stringent and its penalties are severe. The country’s legal system nowadays is heavily influenced by the British system and the pre-British period. India is a country with many diverse ethnic groups, making it impossible to bring all populations under the same set of rules. Sharia law is based on how we as humans understand the philosophy of the divine. Here, the divine is defined as God’s will for humans. In India, Sharia law is based on the Hanafi school of thinking, as well as fiqh and other schools of thought, legislation, precedent, and some juridical books that are regarded as authoritative and customary. The normal judicial system applies Muslim personal law. 

Sharia law has five main versions, which differ not in the fundamentals of Islam but in their implementation. There are variances in how Muslims worship, how legal issues are resolved, how marital conflicts are settled, and how specific crimes are punished.  

There are certain relevant legislations related to Sharia law such as-

There are four tiers of courts in Sharia: 

  • Civil Courts, 
  • District Courts in administrative subdivisions, 
  • State High Courts in each of the 18 states, and 
  • The Supreme Court.

Interaction of Muslim Personal law and Sharia Courts in India 

The All India Muslim Personal Law Board (AIMPLB) had requested Sharia Courts to be established throughout the country. The Sharia Court is called Darul Qaza in Arabic term, which is not a court in the strict sense of the word, but it is a counselling or arbitration center. These courts are accessible, helpful, informal and voluntary organisations that offer quick and low-cost justice to the poor. Darul Qaza, which literally means ‘house of judgement,’ is a common term for the Sharia Court. An arbitration committee led by Qazi, an Islamic law scholar who serves as a judge. Darul Qaza is governed by personal law, and a personal law board runs various Darul Qaza in the country. 

For example, if Muslim wishes to divorce, he or she has two options: seek remedies under lower courts or seek Sharia courts. There are lengthy procedures if that individual seeks relief from the lower courts, but if he seeks relief from the Sharia courts, he will obtain a remedy at a low or no cost and will be relieved as soon as possible. In the year 2014, Vishnu Lochan Madan v. Union of India, which is a landmark case, the Supreme Court held that Muslim women find it difficult to obtain justice in India‘s judicial system, Sharia courts are established to construct an alternative judicial system to Muslims. There are around 70 Islamic courts or Darul Qaza in India as per the 2021 study, with the majority located in Maharashtra and Uttar Pradesh. According to Pew Research study, 74% of Muslims in India support access to their religious courts for the settlement of family issues including inheritance or divorce cases.

Functions and needs of Sharia courts in India

  • The Indian civil justice system and the procedures of ordinary courts require several procedures to be completed. As a result, there is a demand for Sharia courts, which are an Alternative Dispute Resolution (ADR) option for Muslim people seeking speedy and low-cost resolution.
  • Governments are also supportive of ADR since it saves the public money. ADR is a kind of justice privatization since parties can not only choose their own judges but also create their own laws or accept laws from other nations.
  • Sharia courts are well-respected for their elaborate procedures for resolving issues, systematic recording of testimony, and speaking orders.
  • There are now around 70 Sharia courts in India that have been in operation for decades. These courts provide poor people with simple and easy justice. Some of these orders are cited with the formal courts’ consent. The majority of women go to these courts to get divorced or dissolve their marriages.
  • These courts have resolved over 60,000 cases successfully. The cases are resolved in less than a year. These courts never issue triple divorce/talaq and always prefer the Quranic divorce procedure. Their orders are not enforceable and lack legal sanctity, but they are entirely legal if all involved parties desire to agree with them.
  • These courts do not hear criminal matters and cannot force people to obey their orders. Over decades, the number of cases filed with Sharia courts has constantly increased, only in the rarest case of a Sharia court’s decision being challenged in a civil court.
  • According to the All India Muslim Personal Law Board (AIMPLB), at least one Sharia court for women is required. However, there are all-women Sharia courts in Mumbai that are doing a good job. 
  • Sharia courts must address matters relating to Muslim personal law. This only relates to civil laws concerning family law, divorce, marriage, gifts, wakfs, trusts, and trust properties, as well as other charities, charitable organizations, and charitable and religious endowments.
  • Sharia Courts do not always require the involvement of a lawyer, and parties might argue their cases before the judge on their own. Because there is no judicial process to preside over a case, cases are heard by a single judge who makes decisions based on unwritten Sharia principles rather than legal criteria.
  • There are no formal and rigid court procedures. In this court, proceedings are conducted in a casual manner. The principle of contract privity is followed. The Sharia court’s decision is not legally enforceable against the parties. The parties to the dispute have the option of following or ignoring the court’s decision.

Triple talaq

In Sharia law, talaq is a type of divorce practiced by Muslims. A Muslim man could divorce his wife in accordance with Islamic custom by saying the word ‘talaq’ three times. The wife need not be present when the talaq is announced, nor does the male need to specify or give any reasons for the divorce. In the case of Shayara Bano v. Union of India (2017), the Supreme Court of India forbade triple talaq. Even after the judgement prohibiting triple talaq, this practice continued. The government then passed a Muslim Act that included penalties for males who practice triple talaq. Triple talaq will be regarded as null and void under the Muslim Women (Protection of Rights on Marriage) Act, 2019, which considered triple talaq unconstitutional and unlawful to practice. If any Muslim male engages in triple talaq, they will be sentenced to three years in prison and must pay a fine.

Shayara Bano v. Union of India, (2017)

This case is known as the triple talaq case, and it resulted in a landmark judgment by India that triple talaq is illegal. A Muslim married couple says three times talaq to dissolve their marriage, which is considered divorce in the Muslim religion by consent of both parties.

Facts of the case,

In this case, Bano, the petitioner, had been married for 15 years. Her husband suddenly divorced her without her consent by proclaiming talaq three times. Then she filed a writ petition against the Supreme Court to declare triple talaq, polygamy (men having more than one wife) and nikah-halala (remarrying her first husband), unconstitutional since they violate women’s basic rights under Articles 14, 15, and 21 of the Indian Constitution.  The petitioner’s claim that these practices are illegal was supported by the Union of India and women’s rights organisations.

Issues involved

The question of whether triple talaq is constitutional arises.

Judgement of the case

The Supreme Court of India decided that triple talaq violates Article 14 and should be abolished. The Court further stated that Islamic countries have abandoned triple talaq, which is not regarded as an essential religious practice.

Difference between Sharia Court and Civil Court

Sharia Court Civil Court
Sharia courts are solely meant for Muslims.Civil courts are meant for all citizens of the country.
Sharia courts are similar to arbitration.Civil courts have the most lengthy procedures for obtaining relief from subordinate courts in the hierarchy.
This court is inexpensive and accessible to low-income Muslims.This court is expensive depending on the nature of the case.
It takes a shorter time to get relief.It takes a longer time to get a remedy.
The court’s decision might be obeyed or ignored by the parties in the case.The court’s decision must be followed by the parties engaged in the case.
This court follows Islamic Personal Law.This court does not follow any religious views.
Sharia laws, it is believed, cannot be changed since they are religiously motivated.Civil laws can be changed by lawmakers.

Conclusion

The article concludes by outlining that Sharia law should be adapted to fit the new environment. Sharia law emerged during the monarchy period. However, this does not imply that Sharia laws from the monarchy era can be applied to the modern era. Based on religious law, these laws should not affect or supersede the Indian Constitution. Muslim women are affected by Sharia law, and male dominance is arising. There are laws and courts to control Sharia laws since it is less expensive and faster to acquire a remedy than to approach a regular court with so many formalities. According to the Indian Constitution, everyone has the freedom and fundamental right to profess and practice any religion in the country, unless there is a situation of emergency or for the safety of the country. They cannot, however, threaten or force any other religion’s people to follow their religion. Sharia courts function similarly to arbitration centres in the settlement of civil problems such as family, property, marriage, and divorce cases.

Frequently asked questions (FAQs) 

Is Sharia law codified in India?

In India, Muslim personal laws are not systematically codified. However, Muslim laws are only enforced in Muslim-majority areas.

Are Sharia courts legal in India?

There are 70 Sharia courts in India, however, they lack legal validity. Darul Qaza refer to Sharia courts in Arabic term.

Can a woman divorce her husband under Sharia law in India?

Yes, a woman can divorce her spouse if the husband has delegated the right to divorce her by contract. The second approach is divorce by mutual consent via the Mubaarat process.

References 

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