This article is written by Himanshu Dhaked, a third-year student pursuing BBA. LLB. from Symbiosis Law School, Nagpur. The author has traced the development of Islam and facets of its origin in detail with the reference to the teachings of the Prophet himself. The author has dived into the tenets of Islamic Conventions and attempted to encapsulate the reforms both into legislature and traditions either it’s related to the recent Triple Talaq or the flimsy “love Jihad” ordinance by various Indian state governments.
الر ۚ تِلْكَ آيَاتُ الْكِتَابِ وَقُرْآنٍ مُّبِينٍ ١
“ALIF LAM RA. THESE ARE THE AYATS OF REVELATION, – OF A QUR’AN THAT MAKES ALL THINGS CLEAR.” – Surah al-Hijr 15:1
Every religion which has ever prospered on the earth, promulgated to its followers a sacrosanct course of action to live their lives. ‘ISLAM’ is the work of God, where ‘QURAN’ is at the center of the lives of the all the people attached to it and acting as a centripetal force towards the holy center. Founders of Islam believed in one God, which via revelation have guided and regulated the human conduct of its followers. Islam is a monotheistic religion, which means it believes in existence of only one God that is ‘ALLAH’, which is the creator of the world, which is omnipresent, omniscient and intervenes in the world. The meaning of the word ‘Islam” is ‘submission to the will of the god’. The followers of Islam are called Muslims. Islam have survived the sands of time, to test itself to the belief of other religion. Islam is the direction of God to man through the holy book of Quran and its messenger Muhammad. It is very comprehensibly stated in the holy book of Quran about the oneness of God and the Muhammad as his messenger as can be seen below: –
ونزالنا ألكال كتاب تيبانان لي-كالي شاين إن
الوحدان والرحمة والبشر ليل مسلم – [“AND WE HAVE REVEALED THIS BOOK TO YOU WHICH HAS A CLEAR EXPLANATION OF EVERYTHING; AND A GUIDANCE, A MERCY AND GOOD NEWS FOR THOSE WHO SUBMIT”. – Surah al-Nahl 16:89]
Here, we will witness the changes of Islam, through its development from the inception of Islam to the recent judicial shift seen in the Shayara Bano v. Union of India, famously known as Triple Talaq case. The shift which we have been witnessing in the recent years are the results of the conundrums of centuries for the Rights of Women, though suppressed but now given cognizance in parlance to Islamic law.
Development of Islamic law
Islam is an Arabic word which means “submission”. It is developed from the word “sa’lm” which literally translates to “peace”. Prophet Muhammad is a pioneering figure in Islam. He is believed to be last in the long line of messengers such as Abraham, Moses, Noah and Jesus. A much of the emphasis is based or we can say the founding stones to the pyramid of Islam were laid by Prophet Muhammad. The life of Prophet Muhammad is imperative to the understanding of Islam. Prophet Muhammad was born in the city of Mecca, which was the home of a powerful tribe of Quraish around 570 A.D. Prophet was regarded as Al-Ameen – the Trustworthy because of the fact of his loyalty as a merchant in early days of his life. He was a spiritually intrigued person and frequently meditated in a cave at Mount Hira, near Mecca. On one such particular juncture, he was instructed to cantillate “in the name of [your] lord.” by the Archangel Jibril.
The revelations were the first of a plethora which formed the very edifice of the Quran. These vouchsafes contradicted the pre-Islamic polytheistic beliefs and propelled for the existence of a monotheistic belief. The metamorphosis stated with her wife Khadijah, as she was the first transmute to the Islam. Her advice was of great importance to the prophet as she always prompted prophet that Allah will not let him glum. After her demise in 620, prophet married again eight times, of which all were instrumental in spreading the teachings of Allah. Muhammad received numerous revelations from Gabriel for next 23 years, which were recorded by his scribes. The resulting 114 surahs (or chapters) were collated into the Quran.
قُل لَّا أَقُولُ لَكُمْ عِندِي خَزَائِنُ اللَّـهِ وَلَا أَعْلَمُ الْغَيْبَ وَلَا أَقُولُ لَكُمْ إِنِّي مَلَكٌ ۖ إِنْ أَتَّبِعُ إِلَّا مَا يُوحَىٰ إِلَيَّ ۚ قُلْ هَلْ يَسْتَوِي الْأَعْمَىٰ وَالْبَصِيرُ ۚ أَفَلَا تَتَفَكَّرُونَ
“SAY, ‘I DO NOT SAY TO YOU THAT I HAVE TREASURES OF GOD, NOR DO I KNOW THE UNSEEN, NOR DO I TELL YOU THAT I AM AN ANGEL. I ONLY FOLLOW WHAT IS REVEALED TO ME. SAY: `CAN A BLIND MAN AND ONE WHO SEES BE ALIKE?’ WILL YOU NOT THEN REFLECT”. – Surah al-Aam 6:50
This verse imparts that prophet was not at liberty to innovate or legislate, he was subject to the divine edicts and express consent of Almighty. The only hope for the survival for the Muhammad and his followers was – The Hijra (Emigration). The emancipation led Muhammad to Medina, another oasis town. The operation of being poignant from mecca to medina is known as Hijra. It also denoted the first month in the Islamic calendar. Almost all the Arabia was under the emblem of Islam, when Muhammad made his last pilgrimage to mecca, with 120000 men and women. At the age of 62, Muhammad quietus shunned the world.
Quran – principal source of Islam
Quran is the genesis of Islam and also the primary source. Its significance is spiritual and sacred in Muslim principle. Every word of Quran is that of God, communicated to the Prophet Muhammad through Gabriel. Quran exercises its influence in shaping Islamic principles though not pragmatically but theologically ‘a code of rules’ for Muslims. In the tradition of the Muslim faith, the Holy Quran is the last Book of God revealed to the Prophet Muhammad who was the last Prophet of God on earth figuratively the “Khatam-a-Nabiyin“ (Seal of the Prophets) – after which no other Prophet was, or will ever be, sent by God. The Quran gave the idea that the law is God’s direct commandment. His law must be a ‘single whole’.
Around 6000 ‘Ayats’ are there in Quran. Legal importance of the verses as they have around 200 verses related to law and enforcement, with only 80 verses related to family law and policy state policy. Its importance is political, social, emotional, religious etc., all of the revelation were to Muhammad in medina.
As Islam flew in pace with the sands of time, Muslim Law encompasses a marvelous system of jurisprudence culminating into all branches of law including both public and private, and covering all legal subject including Criminal law (Jinayat), Governance, administration of justice, transactions (Muamalat), Personal status and Human Rights (Huqooq-ul-Ibad). Having its genesis in divine, it is widely believed that Muslims cannot be changed and attempts to change or alter must be condemned thus the actions of legislature which are in consonance of uniform civil code are greatly criticized.
Quran a as primary source of Islamic law flourished in the hearts of Muslims and still is a touch stone to the customs and practices followed by Muslims worldwide.
Other paramount sources of Islam
- Sunna – The literal meaning of the Sunnah is “a form, a procedure, a course of action.” The purpose of the Sunnah is the exposition, explanation and supplementation of the Quran. Its literal interpretation in Islamic law is that it practices of prophet which involves his tacit approvals, deeds and sayings. In other words, it is a prism to understand the spectrum of teachings of the Quran. Sunnah laws encouraged in the introduction of wakfs, gifts etc. though they had mention in Quran but were widely accepted through the traditions of prophet. The combined sources of Quran and sunnah is called as Naas (binding ordinance).
- Ijma – the validity of ijma as a source of law is approved by various jurist based on the consensus reached among them on a particular issue.
“There can be no consensus on error, or misguided behavior amongst my people”. [Hadith] The validity of ijma can be expressed or through actions. Muslims who have knowledge of law and is self-sufficient in taking their own opinion are considered as Jurist (Mujtahids). but like the modern-day judges they were also bestowed with duty to reason their opinion from a settled principle of the Constitution in their case the holy Quran. Ijma as a source is of great importance as they have allow the space for changes to breath with the evolving time. The validation of ijma is based on the reason. “O ye who believe; obey God and obey the Prophet, and those of you who are in authority, and if ye have a dispute concerning any matter, refer it to God and the prophet” (Quran 4:5a)
3. Qiyas – the meaning of the word is derived from Aramaic descent which means ‘measurement’. They are the last lowest in the sources of law. Qiyas are often ascertained with the ‘analogical deductions’ i.e., they are decisions for consistency and were based on already existing principles. They are in corollary to the existing law. All four schools of Sunni agreed to the assertion of qiyas as source of law but varied on the scope of Qiyas. Shias don’t give cognizance to qiyas as a source of law.
Secondary sources of Islam
- Customs – customs as a source of law were in prevalence before the Islam occupied Arab. Prophet abolished customs which were found to bad or evil by the prophet and some were given sanction by prophet through is assent and conduct. Jurist also formed their unanimous decision on the basis of customs. Today, Customs are force of law in Islam excluding matters related to inheritance, special property of females, marriage, dower, divorce, maintenance, guardianship, gift, waqf and trust which are governed under the purview of Sharait Act, 1937.
- Judicial precedent – British regime made judicial precedents a part of muslim law. They were originally never a part of Islam. Fatwah’s were part of Islamic law, there also the Kazi’s were not bound to follow the same. After the independence the Doctrine of Judicial Precedent was supported and implemented by the courts and the Constitution of India. Courts provided interpretation on the question of law where the provision were unclear in providing solution. The decision given by Supreme court and High Courts acted as binding precedents for the time being in force. Court gave interpretation in various cases to draconian provisions conflicting with fundamental rights especially of women in relation to divorce, maintenance etc. case laws of Shah Bano, Shayara Bano and Begum Subanu etc. are few of the landmark cases which holds the grounds of ‘Reasonable Nexus’ and ‘Intelligible Differentia’ in the courts.
- Legislation – legislations are another postulate which are a product of the British regime. In Islam, there is a rejection of every other source other than God vis-à-vis Quran, but legislation is being enacted to deal with particular matters of debate, the Islamic community are reluctant to accept the changes done or new legislation given, this has sometimes led to a loggerhead between the community and the government. The Shariat Act, 1937 is one such legislation which legislates on Muslims. Wakf Validating Act of 1913 is another example of such legislation.
- Equity and absolute good – it is based on the principles of justice and equity, as used in English common law. we find it in Islam that the purpose of Islam is to guide human in fundamental principles of religion, morality, economically, which have derived its origin from the natural source.
-Istihasan (Preferences) – it interprets into preference of stronger base or evidence compared to analogy. It is considered by jurist as a source of preference where something appeals more to juristic preference or equity. When a stronger analogical base is present in Quran, Sunna and Ijma, the Qiyas will be overridden. Abu Hanifa developed the said source.
-Istisalah (Public Interest) – the meaning to the source is set to be in the domain of public interest and benefit of public at large. Here the wisdom of the jurist plays a role to pronounce rulings with the underlying original text, in interest of Muslim community. The source was validated by Imam Malik.
-Istidlal (textual indication) – it provided flexibility in interpreting the sources and gave a chance to jurist to avoid strict interpretation when no precedent could be found. It refers to the inferring of one thing from another to reach out same rule using different basis using reason and logic.
Schools of Islamic law- After the death of Prophet Muhammad, there was split in the Islam as to who will be the next leader. The majority supported the father of fourth wife (Ayesha Begum) of Muhammad, Abu Bakar, this sect later came to be known as Sunni Sect and Abu Bakar as the first Caliph. Th dissenting sects chose husband of daughter (Fatima) of Muhammad, Ali, as their leader, this sect later came to be known as Shia Sect and Ali as the first Imam. Both of the sects further divide on the basis of interpretation of Supreme source. Islam is tolerable to other religion and give people freedom of opinion, but that comes with caveat of it must coincide with commands of Allah.
First, we’ll be discussing the Sunni sect and its various schools:
- The Hanafi school – Abu Hanifa was the founder of the school. It is based on less reliance to the unsighted customs and emphasized on the analogical deductions verified through the text of Quran. The use of local customs and usages as guiding principles in law. He established the Istihasan as development of legal principle to the needs of changing times and also advocated for the Ijma. This schools became extremely popular among Muslims for their liberal thinking within the ambits of sources of Islam.
- The Maliki school – the school was founded by Malik Ibn Anas. The school believed highly of traditions and gave due importance to them even if they were of one character. The school was prominent in foundation of Istisahah as source of law, though it must be resorted onlywhen there was ambiguity in decision based on other sources. The traditions of the companions of prophet and of Medina are considered of high regard. The rights of the women in property were not effectively represented in the schools as the properties of her must always remain under her husband, for she cannot take care of her property alone. The followers of the school are mostly situated in north Africa and Spain.
- The Shaefi’s school – Abu Abd Allah Muhammad ibn Idris Ash Shaefi founded the school. His most valuable contribution is foundation of Istidlal, he believed that the problem of every solution is there in Quran. He rejected the application of Istihasan and Istisalah as a source of law. the emphasis was laid on Qiyas as source only after Quran, customs and Sunna. The major drawback to the school was to the women’s rights to marry which was subjected to the consent of her guardian even after she’s major.
- The Hanbali school – Imam Abu Abdullah Ahmed ibn Muhamad Hanbal was the founder of the school. Hanbal was regarded as a traditionalist and gave much emphasis to traditions, with unbending approach to hadiths. In the school very less emphasis is laid down to the human logical reasoning and the ijmas and qiyas were also subdued in the school. The ijmas of the companions of the prophet were admitted only when it had no contradiction to the Quran and Sunna. The followers of the school are present in Saudi Arabia and Qatar.
After discussing the Sunni schools in detail, now we are heading towards the Shia schools:
- The Imamiyah School – the meaning of the term ‘Imamiyah’ in Arabic is Twelve’rs. It had 12 Imams to its credit. The school is the only one to allow ‘muta’ marriage or ‘temporary marriage’. The school of thought is further divided into Akhbaris and Usulis. The Akhbaris are ardent followers of religion and the Usulis apply the principles of Quran in the realistic chaos of life. The Shia’s are majorly of this school. The school is found in Iran, Iraq, Lebanon, Pakistan and India.
- The Ismailiyah School – the demise of Imam Jafar lead to the foundation of the school when the minority refused to acknowledge Musa-al-Kazim and started following Ismail. The name ‘Sabiyya’ or Sevener’s for accepting only seven Imams. They are further sub divided into Khojas and Bhoras. The Ismailiyah’s of Bombay are either Khojas or Bhoras. The khojas are the ones who believed Aga Khan to be the 49th Imam and Bhoras are mainly merchants. Egypt saw prevalence of school in the Fatimid regime and is prevalent in south Arabia, Syria, Pakistan, central Asia and East Africa.
- The Zaidiyah school – one of the fourth Imam’s sons, Zaydi founded the school. The peculiar feature of the school is that it has some of the tenets of the Sunni sect. The sects believed in the basis of election on the concept of election and imam was regarded as a “right guide”
- The Motazila Sect – the followers of the sect disregarded both the popular sect and were originally the deserter of Shai sect. Ata-al-Ghazzal was the founder of the school. Quran is the only threshold of the followers of this group and they only believe in that.
Role of Shariat in Islamic law
Shariat – In Islam, the “law” is of divine origin. The law is what is recognized by a declaration of God related to human actions, that expresses a request or indifference on your part, or that is simply declarative. In Islam, therefore, “law” means God’s instruction to regulate all human, spiritual, moral or worldly behavior. These instructions from God to the people include Shariat. For humans, the meaning of Shariat is “the way forward”. Therefore, Sharia in the symbols of Islamic behavior can be seen as a heavenly origin in all its aspects.
Development of Islam in pre and post-Constitutional era
Pre-Constitutional era – during the time of Mughals, Islam flourished with their personal laws being propagated to wider section of society. But, to our despair, religious persecution of non-Muslims in the name of Islam was also a reality of the adversity faced by the people during the reign of Mughals. The East India Company was not as such, was in a role of administration of people upon their personal laws.
The Charter in 1661 during the reign of Charles II, authorized the company to administer the few places under the control of company in administration of justice according to laws of the British kingdom. The hegemonic claims influenced various aspects of Indian life – Social, Political and Legal. A new class of educated People were created during the regime, which undermined Islamic principles on rationale and observation, this proved to have a downhill impact on the Islam on theocratic front. The Indian legal system under gone a change during the British regime, with it the personal laws also changed. These changes were largely instrumental in transforming India to develop a system on Principles of Justice, Equity and Good Conscience. The British for a variety of reasons did not indulge into transforming Islamic laws directly.
Post Constitutional era – after independence, the attempts were made to make all personal laws of different religions to be unified under the banner of Uniform Civil Code. The attempts were made to align personal laws in consonance with the secular nature of the Constitution, to end centuries old laws outdated by the common need of the society – article 25 was inserted in the Constitution of India. The Centre and state governments ‘dared’ to change personal laws but was faced by stirred agitation from different parts of the country. “Muslim Personal Law (Shariat) (Kerala Amendment) Act, 1963, Meghalaya Muslim Marriages and Divorces Registration Act, 1974, Jammu Kashmir Muslim Personal Law (Shariat) Application Act, 2007” are few of such legislations which were a move in such directions. The legislation though implemented in ‘Letter’ but, failed in ‘Spirit’ to provide any substantial change. The Muslim Women (Protection of Rights on Divorce), 1986 failed to provide any relief to destitution of women for maintenance after divorce.
Islamic law and judicial interpretation
There has always been a conflict between the judiciary and the personal laws of any religion. The case was no different in Islamic law, but the problems faced by the judiciary were much more sporadic and erratic. Interrelation of Constitution and personal laws.
Departure of court from personal laws – The first case is that of a sentence handed down by the Bombay Supreme Court in the State of Bombay v. NarsuAppa Mali, the case refers to the “Bombay Bigamous Marriage Ban Act, 1946, whose Constitutionality was challenged on the basis of Articles 14, 15 and 25 of the Indian Constitution. The question was whether the personal law of Hindus or any other community was a “law” within the meaning of Article 13(3)(b) and Article 372(3) and if a modification of a community’s personal right, without alteration similar to that of other people, violating equality.
The Bombay High Court, in considering the validity of the Bombay Bigamist Hindu Marriage Prevention Act of 1946, declared that personal law was not included in the “law” referred to in subsection 13 (3) and that the “current law” was saved by section 372 was not (3). It was also alleged that the Bombay Hindu Marriage Prevention Act, Bigamist, 1946, did not violate Article 14, as the state was free to carry out social reforms in stages. In this case, the Bombay Supreme Court ruled those personal laws are not “existing laws” within the meaning of Article 13 of the Constitution, since they are based on religious precepts and traditional practices and the principles enshrined in Part III of the Constitution. it does not apply to the laws of personality.
The second case related to the issue of personal laws was of Ahmedabad Women’s Action Group (AWAG) v. Union of India, this case is related to the triple talaq in violation of fundamental right to equality. The court said that it has nothing to do with the personal laws as they are not under the ambit of the fundamental rights. This judgement wanted to convey that in such cases remedy lies before parliament.
Judicial shift in the approach towards Islamic laws
In the case of Md. Ahmed Khan v. Shah Bano Begum, the Supreme Court of India ruled against the principles of the Muslim Personal Law when filing a maintenance claim with a divorced Muslim woman under Article 125 of CrPC, despite the ban under Muslim personal law. Shah Bano, a Muslim woman, had been divorced by her husband. She filed a maintenance action under Article 125 of the CrPC. In defending Shah Bano’s claim under section 125 of the CrPC., despite its prohibition under Muslim personal law, the Supreme Court expressed the hope that Parliament would take steps to enact the Uniform Civil Code under Article 44 of Constitution.
The case that followed the aftermath of the shah Bano was that of Danial Latifi v. Union of India, since the decision of the Shah Bano case had created a lot of unrest and chaos within the Muslim community. Therefore, to avoid chaos and feelings of insecurity in the Muslim community, especially among Muslim men, the government enacted the Muslim Women Act (Protection of Rights in Divorce) of 1986. It was in this case that the Constitutionality of the law was questioned. The Supreme Court confirmed the Constitutional validity of the law but provided a more egalitarian and fair interpretation of the law. The new law replaced the old right to recurring child support under section 125 of the 1973 Code of Criminal Procedure with a new right to claim a lump sum in the event of divorce. If the husband does not reach this agreement, the divorced Muslim woman has the right to present a judicial decision to claim the right provided for in section 3 of the law.
Islamic laws in consonance with the Constitution – one of the most landmark decisions given by the Supreme Court was of Shayara Bano v. Union of India. Before looking into the case let’s take a quick look on the validity of triple talaq from the purview of Quran. The procedure of talaq as mentioned in the Holy Quran is an elaborated procedure which includes reconciliation as quoted in Surah IV verse 35 “And if you fear dissension between the two, send an arbitrator from his people and an arbitrator from her people. If they both desire reconciliation, Allah will cause it between them. Indeed, Allah is ever Knowing and Acquainted [with all things]”, which means Allah wants reconciliation between the husband and wife via mode of arbitrators if the divorce is given by the husband in anger so that he can take it back within the Iddat period if he desires.
The interpretation by Omayyad Monarchs was against the Holy Quran as per surah 4 verse 35 which clearly defines the reconciliation which is absent in triple talaq and challenges the validity of triple talaq because no words of Caliph is above the orders of Allah i-e Holy Quran SURAH 4 verse 35- This verse clearly defines the importance of appointment of two arbitrators, one from the husband’s family and the other from wife’s family so that they can help them in reconciliation if they wish to do so. In triple talaq there is no opportunity for reconciliation between the parties as it is an irrevocable form of talaq and once it is pronounced it becomes effective from that particular moment only, which cannot be taken back and no justification of this arbitrary power is required to be given.
Now let’s have a look at the judicial interpretation applied on the matter of triple talaq, the observation of eminent judge and jurist V.R. Krishna Iyer, J. in case A. Yousuf Rawther v. Sowramma where it was observed that it is a disbelief that Muslim man has an absolute power to liquidate the marriage as and when they want under Quranic law and instant divorce does not accord with Islamic injunction. The Holy Quran forbids to divorce his wife till she remains faithful to him.
In Asha Bibi v. Kadir Ibrahim Rowthar, observed that “an arbitrary or unreasonable exercise of the rights to dissolve the marriage is strongly condemned in the Quran and in the reported sayings of the Prohet (Hadith) and is treated as a spiritual offence.”
The Constitution of India cast a duty upon the judges to give judgements according the fundamental rights of the citizens and deliver justice in interest of public peace and tranquility. In Kesavananda Bharati v. State of Kerala, Justice Khanna said, “As long as some fundamental rights exist and are a part of the Constitution, the power of judicial review has also to be exercised with a view to see that the guarantees afforded by these rights are not contravened… Judicial review has thus become an integral part of our Constitutional system.”
In the case of Shayara Bano, the triple talaq was challenged on the basis that it violates several fundamental rights such as Article 14, 15(1), 21, and also Article 25. The court had a divided opinion of 3:2, where the majority held that the practice of Triple Talaq is unConstitutional and violates the Fundamental Rights of Muslim Women. The majority found that the practice of Triple Talaq is not essential to religion. Therefore, as per the majority, it was held that triple talaq was not to be protected under Article 25 of the Indian Constitution as it is not an essential element of the religion. The court held that the meaning of essential religious practices is those based on which the religion finds its base. Only such practices can be protected under Article 25 of the Constitution.
The radiant on the spectrum of Islam displays a wealth of spirituality, religion and monotheistic nature. When we traced the origin in form of Quran, we enriched ourselves with a plethora of revelations where God gave human beings path to follow for self-discipline, holiness and oneness with God. The development traced down to different schools after the death of the Prophet showed us the independent nature of thought developed on the principles of Quran. The role played by the Hadiths, Sharia law and Fiqh also had positive impacts in the development of Islam, by saving it from the archaic rudimentary thought process. Much have been done to keep pace with the sands of time, the judiciary is also trying to bring Islamic laws in Consonance with the Constitution of India, which can be seen through the cases of shah Bano to Shayara Bano.
The duty of judicial review can be seen with the judgment of Chandrachud C.J. in Minerva Mills Ltd. v. Union of India observed “It is the function of the Judges, may their duty, to pronounce upon the validity of laws. If courts are totally deprived of that power, the fundamental rights conferred on the people will become a mere adornment because rights without remedies are as writ in water. A controlled Constitution will then become uncontrolled.” In the context of personal laws, the doctrine of judicial review was always surrounded by one of the Constitutional objectives i.e., Uniform Civil Code. Development is an ongoing process, it is not the destination, with that perspective in mind we’ll be witnessing the development of Islam.
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- State of Bombay v. NarasAppa Mali , ILR Bom 775
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