Muslim Personal Law: Meaning and Sources


Anyone who practises Islam as their religion is referred to as a Muslim. A person can become Muslim either by birth or by conversion, according to judicial opinion. If both of a person's parents were Muslims when they gave birth to him, he is a Muslim by default. When a person of another religion renounces their previous faith and chooses Islam after reaching the age of majority and does so consciously, they are considered Muslims by conversion.

Muslims are governed by their personal law contained in their own religious sources. In Muslim law, case-law also has a part to play, but it only serves to clarify and elucidate. This article makes an effort to discuss the major sources of Muslim law in India.

Historical Background of Muslim Personal Law

The historical background of Muslim Personal Law in India can be traced back to the time of the Mughal Empire i.e. during the 16th century. During this period, Islamic laws were applied to Muslim communities in India, and were based on the principles of Islamic jurisprudence derived from the Qur'an and the Hadith. However, these laws were often interpreted and applied differently in different regions of the country, depending on local customs and traditions.

During the British colonial period, the British government attempted to codify and standardize Muslim Personal Law in India. Resultantly, they introduced the Indian Divorce Act of 1869, which allowed Muslim men to divorce their wives through a process of talaq (verbal divorce). However, the act did not provide any rights or protections for women in the divorce process.

In 1866, when the Judicial Committee of the Privy Council, the highest court of appeal in the British Empire, placed Shariah above local customary law. Subsequently. it allowed the use of local customary law, it called for "proof of special usage." But in the subsequent years, the High Courts of Calcutta (1882) and Allahabad (1900) disallowed the use of customary law for Muslims. But in 1913, the Judicial Committee of the Privy Council changed its earlier stance and ruled that customary law played a major part in Muslim life and allowed its use in the courts of the Raj.

Furthermore, in 1937, the Muslim Personal Law (Shariat) Application Act was passed by the British government in India. This act made the principles of Islamic law the basis for personal law for Muslims in India. It majorly deals with respect to marriage, divorce, inheritance, and other related matters. However, the act did not provide a comprehensive and standardized system of Muslim Personal Law, and left many aspects open to interpretation and variation.

In 1939, the League passed the Dissolution of Muslim Marriages Act, which gave Muslim women the right to divorce their husbands.

After India's independence in 1947, Muslim Personal Law has remained in place, and is still governed by the Muslim Personal Law (Shariat) Application Act of 1937. But the Muslim laws still developing as per the needs of present day, particularly with respect to issues such as divorce, inheritance, and gender equality. Recently the triple talaq rule is legislated.

Sources of Muslim Law

The following are the important sources of Muslim Law −

Quran

Muslims view the "Quran" as the source of their legal system. They hold that the "Quran" is the only source that clearly illustrates the difference between truth and untruth as well as between right and wrong. The holy Quran is a representation of the letters that Allah, through Gabriel, sent to the Prophet. It covers issues including marriage, divorce, inheritance, and public prayer as well as traditions like fasting, pilgrimage, and the prohibition of wine. The final authority is the Quran. There are 110 chapters and 6237 verses. The scientific name for Allah's laws is "Shariat". It denotes the path leading to the watering well. So, this is the way that should be taken. Shariat is the set of rules and obligations that applies to all human conduct.

Sunna or Ahadis

Ahadis means Traditions. Sunna means the trodden path, the practice of the Prophet. When the Prophet served as a judge in his own era, his decisions were based on the "revelation" of the Quran. His principles and sayings became the way to go after his passing. Ahadis were the customs and laws, and Sunna was what the Prophet did. These Ahadis are reliable sources that have been written down. Bukari has catalogued around 7000 of these customs. Sunna is another source of law, and in times of disagreement, it completes and clarifies the Koran. The Sunna is a record of the Prophet's deeds, choices, and utterances. Even mute responses were Sunna. The Quran and the Sunna form the basic roots of Islamic law.

Qiyas

In Arabic, qiya is "analogical deduction." In this instance, inferences are made via analogies. Fatawas were the names given to judgments and scholarly opinions. Well-known is Fatawa Alamgiri.

Ijmaa

When the "Quran" and "Sunna" did not provide a rule of law for a new issue, the people who were familiar with Muslim law used to unanimously concur and give their common view on that issue. Ijma represents the "consensus of opinion" among Muslim scholars. The majority of academics share this opinion. This procedure handled brand-new legal issues. Thus, it was codified by the great authority as communal law. Ijtihad, which was based on equity, public interest, and solid precedent, was a special effort made by scholars to resolve the matter in individual circumstances when there was no principle on any subject. Every school had a unique "Ijtihad."

Customs

The wording of any of the four sources described above has been taken as law and in the absence of a rule of law, the customs have been treated as law. In the pre-Islamic era, there were numerous customs. A lot of them obtained the prophet's blessing. With his implied approval, some of them persisted, and these joined Ijrna. Over time, these were given legal standing. To the exclusion of customs, the 1937 Shariat Act was created to apply exclusively the Shariat.

Legislations

No one can create Muslim law since the Prophet is the only person who has the authority to do so. Any modification is seen as an invasion if it is made. Despite this, there are several Acts.

  • The Mussaiman Wakf Validating Act, 1913.

  • The Child Marriage Restraint Act, 1929.

  • The Shariat Act, 1937.

  • Dissolution of Muslim Marriage Act, 1939.

Judicial Decisions

Court rulings have in some ways influenced Muslim law. Although there isn't much room for judicial decisions to act as a source of Islamic law, the court may interpret the law in accordance with its own sense of justice in the lack of a clear scripture. The courts have rendered a number of notable judgements in this context.

Justice, Equity and good conscience: Similar to Hindu law, equity, justice, and good conscience would be used in this situation if there was no explicit law in place or if there was a dispute.

Various Muslim Laws in India

  • Marriage law

  • Divorce Law

  • Law of Succession

  • Maintenance law

Conclusion

In recent decades, there have been calls for reform of Muslim Personal Law in India, with many advocating for greater protection of women's rights and more consistent application of the law. However, these efforts consistently have been facing resistance from some traditionalist and conservative groups who argue that any changes to Muslim Personal Law would be a violation of the rights of Indian Muslims to practice their religion freely.

In the Indian context, legal pluralism operates through procedural and institutional cooperation and collaboration between religious and civil institutions. These matters are as much subjects of religion-ethical practise as they are matters of citizens’ rights.

FAQs

Q1. What are the major categories of Muslim law?

Ans. The Sharia regulates all human actions and puts them into five categories: obligatory, recommended, permitted, disliked or forbidden.

Q2. What is the difference between common law and Islamic law?

Ans. Islamic law is religious inspirited and regulated and the western law is man-made sets of law. Unlike some areas of Islamic law, the sphere of the common law is subject to constant legal changes.

Q3. Why is Islamic law important?

Ans. The primary objectives of Islamic law (maqasid shari'a) are the protection of life, property, mind, religion, and offspring.

Q4. What are the major elements of Islamic law?

Ans. Sharia comprises three basic elements:

  • Aqidah concerns all forms of faith and belief in Allah, held by a Muslim.

  • Fiqh governs the relationship between man and his Creator (ibadat) and between man and man (muamalat)

  • Akhlaq covers all aspects of a Muslim's behavior, attitude, and work ethic.

Updated on: 21-Feb-2023

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