India is a country with a diverse array of personal laws, each community having its own set of family laws. The majority community, the Hindus, have their distinct family law, and the biggest minority community, the Muslims, also have their own family law. Similarly, smaller minority communities such as Christians, Parsis, and Jews, though not significantly numerous in the context of the total population of India, have their separate family laws as well.
Even though each of these communities is religious, it is not necessarily the case that their personal law is strictly religious law. Moreover, for the application of personal law, it is not required for the community members to be devout followers of their religion. In most cases, being a member of the community by birth or conversion is sufficient, regardless of whether the individual is atheist, non-religious, non-conformist, anti-religious, or even critical of their faith.
As long as they do not abandon their faith and convert to another religion (for some communities, mere renunciation of faith is not enough), they will continue to be governed by the personal law of their community.
Hindus and Muslims have traditionally maintained that their laws are of divine origin. No such divine claim is made by other communities. Modern Hindu law, through judicial interpretation and legislative amendments, has undergone significant changes, rendering any divine claim nearly unsustainable. In certain areas, customs are still allowed to prevail.
Muslim law as currently administered in India has also undergone changes and modifications, although legislative modifications are few but not insignificant. Judicial interpretation has also introduced changes in certain areas, modernizing aspects of Muslim law. For instance, the Muslim matrimonial law has been amended by the Muslim Dissolution of Marriage Act, of 1939, allowing the wife to seek judicial divorce. The Wakf Act, of 1954, has brought some changes to traditional Muslim law. Nonetheless, much of Muslim law remains traditional.
According to Mulla, there are four formal sources of Muslim law: the Quran, Hadis, Ijmaa, and Qiyas. However, there are eight important sources of Muslim Law in total:
The Quran (Koran)
The Quran is regarded as the primary foundation of Muslim law. Muslims believe the Quran, also known as Al-furqan, distinguishes between truth and falsehood, as well as right and wrong.
The Quran comprises approximately 6,000 verses, but only around 200 verses deal with legal principles. Among these, about 80 verses specifically address the law of personal status.
The Sunnah (Sunna)
The Sunnah, or the precepts of the Prophet Mohammad, is the second source of law in Islam. It differs from Hadith, which refers to the traditions or sayings and occurrences attributed to the Prophet.
The Sunnah encompasses the rules of law exemplified by the Prophet’s actions and practices.
Ijmaa
Ijmaa signifies the consensus among the founders of Islamic law or the community, represented by its most learned members. This consensus is considered a crucial source of Islamic law, reflecting collective agreement on legal matters.
Qiyas
Qiyas involves deducing rules or principles through methods of analogy and interpretation from the first three sources (the Quran, Sunnah, and Ijmaa). It serves as a means to derive new legal rulings by drawing analogies to established principles.
Customs and Usages Having the Force of Law
Customs and usages that have acquired legal force are also recognized as sources of Muslim law. These are long-standing practices followed by the community, which have been accepted as binding.
Judicial Decisions (Fatawas)
The decisions of Indian courts have significantly influenced the development of Muslim law. While administering justice, courts are advised not to impose their interpretations of the Quran in opposition to the rulings of eminent Islamic law commentators of great antiquity and authority.
However, quotations from Muslim texts should be applied in a way that suits contemporary circumstances and conditions. Courts are not permitted to disregard any portion of these tenets, even if they may appear outdated. Both ancient texts and the precepts of the Prophet should not be taken literally to formulate new legal rules, particularly if such rules do not promote substantial justice.
Legislation
Although Muslim law in India is not comprehensively codified, certain aspects are regulated through legislation, such as the Shariat Act of 1937 and the Dissolution of Muslim Marriages Act of 1939.
Justice, Equity, and Good Conscience
In cases of conflicting opinions with no specific rule to guide the court, the court adheres to the opinion that aligns more closely with principles of justice, equity, and good conscience.
Ancient Sources: Preliminary Sources
The Koran
The Koran is the foremost and most significant source of Islamic law, believed to be the direct word of God as revealed to the Prophet Muhammad through the angel Gabriel in Mecca and Medina. The scripture outlines the moral, philosophical, social, political, and economic foundations upon which a society should be built.
The verses revealed in Mecca primarily address philosophical and theological issues, while those revealed in Medina focus on socio-economic laws.
The Koran was written and preserved during Muhammad’s lifetime and compiled soon after his death. Muslim jurists agree that the Koran, in its entirety, is not a legal code in the modern sense. Instead, its purpose is to establish a way of life that governs the relationship between individuals and God, as well as among themselves.
The verses of the Koran are categorized into three areas:
Science of speculative theology
Ethical principles
Rules of human conduct
The third category, which directly pertains to Islamic legal matters, contains about five hundred verses, or one-thirteenth of the Koran. Interpreting the Koran has resulted in various opinions and judgments. The interpretations of the verses by Muhammad’s companions for Sunnis and Imams for Shias are considered the most authentic, as they were closest to the context and circumstances of the revelations.
The Sunnah
The Sunnah is the second most important source of Islamic law. It is commonly defined as the traditions and customs of Muhammad, encompassing his words, actions, and silent assertions. It includes the everyday sayings and utterances of Muhammad, his acts, his tacit consent, and his acknowledgements of statements and activities.
According to Shi’ite jurists, the Sunnah also includes the words, deeds, and acknowledgements of the twelve Imams and Fatimah, Muhammad’s daughter, who is believed to be infallible.
The justification for using the Sunnah as a source of law is found in the Koran, which commands Muslims to follow Muhammad. During his lifetime, Muhammad made it clear that his traditions, along with the Koran, should be followed after his death.
While the Koran contains many rules for expected Muslim behaviour, there are no specific Koranic rules on numerous religious and practical matters. Muslims look to the way of life, or Sunnah, of Muhammad and his companions to determine what to emulate and what to avoid.
Much of the Sunnah is recorded in the Hadith. Initially, Muhammad instructed his followers not to write down his acts to avoid confusion with the Koran. However, he encouraged them to disseminate his sayings orally. While he was alive, any doubtful record could be confirmed as true or false by simply asking him. After his death, confusion arose regarding Muhammad’s conduct, leading to the establishment of the Hadith.
Due to issues of authenticity, the science of Hadith (`Ulum al-Hadith) was developed. This method of textual criticism was created by early Muslim scholars to determine the veracity of reports attributed to Muhammad. It involves analyzing the text of the report, the scale of its transmission, the routes through which it was transmitted, and the individual narrators involved in its transmission. Based on these criteria, various classifications of Hadith were developed.
Secondary Sources
Medieval Muslim jurists rejected arbitrary opinions and developed various secondary sources, also known as juristic principles or doctrines, to be followed when the primary sources (i.e., the Koran and Sunnah) are silent on an issue.
Ijma
Ijma, which can be interpreted as judge-made law or their interpretations based on wisdom, is a critical secondary source. While the Koran and Sunnah provide guidance based on historical contexts, Ijma and Qiyas offer insights for future applications.
Orthodox Muslims believed that human intellect must be exercised to understand these sources, but this process cannot modify the divine revelations, leading to the development of Ijma. Ijma is also termed the “Foundation of foundations.”
The validity of Ijma is based on a Sunnah of the Prophet Muhammad, which states, “God will not allow his people to agree on an error.”
Sunni jurisprudence heavily relies on Ijma. The Hanafi School believes that law must evolve with changing times, a principle reflected in Ijma.
According to Sunni doctrine, only Muslim Mujtahids (jurists) who are deeply knowledgeable in the law and capable of rendering correct judgments can participate in forming Ijma. All Sunni schools accept Ijma as a source of law, except for the Hanbali School, which bases its principles on the Sunnah and provides liberal interpretations of the Prophet’s traditions.
During Islam’s expansion into various parts of the world, the Koran and Sunnah were found insufficient, prompting the development of Ijmas.
Qiyas (Analogical Deduction)
Qiyas, or analogical deduction, is the fourth source of Sharia for Sunni jurisprudence. However, Shiites do not accept Qiyas, replacing it with reason. Qiyas is the process of legal deduction where a jurist confronted with an unprecedented case bases their argument on the logic used in the Koran and Sunnah. Qiyas must not be arbitrary but must be firmly rooted in primary sources.
Supporters of Qiyas often cite passages in the Koran that describe a similar process applied by past Islamic communities. According to Hadith, Muhammad said, “Where there is no revealed injunction, I will judge amongst you according to reason.” He also extended the right to reason to others. Finally, Qiyas is sanctioned by the Ijma, or consensus, among Muhammad’s companions.
Islam’s success and expansion brought it into contact with various cultures, societies, and traditions, such as those of the Byzantines and Persians. These interactions introduced new problems for Islamic law to address. Moreover, there was a significant distance between Medina, the Islamic capital, and Muslims on the periphery of the Islamic state, necessitating novel Islamic solutions without close supervision from the Islamic law hub in Medina. During the Umayyad dynasty, rulers abused the concept of Qiyas. The Abbasids, who succeeded the Umayyads, defined Qiyas more strictly and attempted to apply it more consistently.
The general principle behind Qiyas is that every legal injunction aims to achieve a beneficial and welfare-satisfying objective. If the cause of an injunction can be deduced from primary sources, analogical deduction can be applied to cases with similar causes. For example, wine is prohibited in Islam due to its intoxicating properties. Thus, Qiyas leads to the conclusion that all intoxicants are forbidden.
Abu Hanifa developed a new source called Istihsan, or juristic preference, as a form of analogical deduction (Qiyas).
Istihsan is defined as:
Seeking ease and convenience
Adopting tolerance and moderation
Overruling analogical deduction if necessary
Istihsan, inspired by the principle of conscience, is a last resort if none of the widely accepted sources apply to a problem. It favours rulings that dispel hardship and bring ease to people. This doctrine is directly justified by the Koran: “Allah desires you ease and good, not hardship.” While its main adherents were Abu Hanifa and his pupils (such as Abu Yusuf), Malik and his students also used it to some degree. However, Istihsan was subject to extensive discussion and argumentation, with opponents claiming that it often departs from primary sources.
Custom: A Source of Muslim Law
As early as 1868, it was an established rule among Hindus that a valid custom could override a rule of sacred law. This perspective was also recognized by the Privy Council in the context of Muslim law for those converts who wished to accept Islam but retain their personal laws. However, this view was rejected by Orthodox Muslims, leading to the enactment of the Shariat Act in 1937. While all schools of Muslim law acknowledge the four ancient sources, they do not entirely dismiss the existence and relevance of customs. Even the Prophet Muhammad retained the age-old customs of Arabia, provided they did not conflict with Muslim law.
Customs are considered supplementary to Muslim law. In the early period, when a comprehensive code of Islamic law was not yet established, the Prophet Muhammad and his companions left certain matters to be governed by customs. Examples include the remuneration of a foster mother and compensation for civil wrongs.
Muslim jurists have outlined four conditions for a custom to be considered valid:
The custom must be continuous and certain in its practice.
The custom should be universally observed by the community.
The custom must be reasonable in nature.
The custom should not contradict any express text of the Koran or the Sunnah.
The custom does not need to be ancient and immemorial.
Modern Sources of Muslim Law
Equity, Justice, and Conscience
The concept of Istihsan in the Hanafi school and the doctrine of Maselihul Mursala in the Maliki school have been used to override Qiyas (analogical deduction) and allow jurists to deduce law based on public good. Although the principle of equity was further developed by the British, some schools of Muslim law have adopted it. Many cases under Muslim law decided by British courts naturally applied this principle of equity.
Precedent
Precedent, in the sense of English law, is not traditionally a part of Muslim law. The decisions of Kazis (judges) did not constitute precedent. The nearest equivalent in Muslim law is the issuance of Fatwas, which holds moral sanction and legal authority. A Mufti (Islamic scholar) pronounces Fatwas, but the Kazi is not bound by them. Various collections of Fatwas exist, with Fatwa-al-Alamgiriyya being one of the most famous. Many traditions related to gifts and Wakf (endowments) have been modified to protect women’s rights, resulting in a blend of precedents within Muslim law. Today, the doctrine of Stare Decisis (adhering to precedent) has become a part of Muslim law.
Legislation
The Hanbali school recognized certain legislations, known as Nizam (ordinances/decrees), Farmans, and Dastarul Amals, but these were not related to personal laws. The British did not interfere with personal laws, leading to Muslim law lacking proper legislative frameworks. However, there were a few legislations in this regard, such as the Shariat Act of 1937 and the Musalman Wakf Validating Act of 1913.
The Dissolution of Muslim Marriages Act of 1939 introduced significant innovation in Muslim law by granting Muslim wives the right to judicial divorce on specific grounds. After independence, a proposal to reform Muslim personal law was introduced in Parliament in 1963, supported by progressive sections of the Muslim community but opposed by orthodox elements. Consequently, there have been limited improvements in this source of law.
Who is a Muslim?
In Muslim law, the term “Muslim” has always been defined in relation to the Muslim religion, regardless of whether the belief is orthodox or heterodox. For the purpose of applying Muslim law, Muslims are categorized into two main groups:
Muslims by origin
Muslims by conversion
Muslims by Origin
A person born to Muslim parents is considered a Muslim. It is not necessary to prove that such a person observes any Islamic rites or ceremonies, such as the performance of five daily prayers or fasting during Ramadan. Such individuals will continue to be Muslims unless they renounce Islam. Simply observing some form of Hinduism or any other religion does not make a Muslim a non-Muslim, and conversely, a person does not become a Muslim merely by calling themselves Muslim or being considered a Muslim by others.
A child whose parents were both Muslim at the time of their birth is considered a Muslim unless, upon reaching adulthood, they convert to another religion. According to Shariat, even if only one parent is Muslim, the child is deemed a Muslim. Under Hindu law, if one parent is Hindu and the other is Muslim, and the child is raised as a Hindu, the child will be considered Hindu. However, the rule of Muslim law will be subject to this rule of Hindu law.
Muslims by Conversion
A non-Muslim may become a Muslim by either professing Islam or undergoing a formal conversion ceremony. Before 1937, it was possible for a convert to Islam to continue being governed by their previous personal law or custom. However, after the Shariat Act of 1937 came into force, the application of old personal laws and customs was significantly reduced.
Under Muslim law, a person can convert by professing Islam. A mere profession is sufficient, and the motive behind the conversion is immaterial. A person may renounce their previous faith for reasons such as love or avarice; what matters is the act of conversion itself, not the underlying motivation. Religious belief is a mental state of believing in certain articles of faith, which constitutes one’s religion. Succession to the property of a convert is governed by Muslim law.
Conversion to Islam can also be achieved by undergoing prescribed conversion ceremonies. The genuineness of belief in the new faith is immaterial; even if the convert does not practice Islam, they will be considered Muslim. However, the conversion should be bona fide, honest, and not merely pretended or dishonest. Conversion from one sect of Islam to another does not constitute apostasy.
Position of Converts Under the Shariat Act, 1937
After the enactment of the Shariat Act of 1937, the position of converts to Islam is as follows:
All converts to Islam are governed by Muslim law in matters related to marriage, dissolution of marriage, divorce, guardianship, gifts, trust properties, and wakfs (except for charities, charitable institutions, and charitable and religious endowments).
In matters of adoptions, wills, and legacies, converts will continue to be governed by custom unless they file a declaration on a prescribed form indicating their desire to be governed by Muslim law in these matters. Once such a declaration is filed, the convert and their descendants will be governed by Muslim law.
The Shariat Act does not apply to agricultural land.
A Muslim is free to convert to another religion or renounce Islam.
Schools of Muslim Law
The foundation of Muslim Law is rooted in the teachings of the Quran and the Prophet Mohammad. Where explicit commands are available, they are adhered to diligently. However, many situations are not directly addressed by these sources, leading esteemed scholars to devise their own interpretations (Qiyas). These interpretations resulted in a variety of opinions among scholars, giving rise to different schools of Muslim Law. Each school has its own explanations and justifications for its interpretations, often resulting in conflicting judgments. In the absence of explicit rules, no school can be deemed superior to another. Hence, all schools are recognized as valid, and adherence to any of these schools is considered legitimate.
The Schools of Muslim Law can be categorized into two main types:
Ancient Schools
Modern Schools
Ancient Schools
During the Umayyad period, a significant development occurred with the appointment of Kadis (judges). The pre-Islamic institution of arbitrators became insufficient for the needs of the new Arab society, necessitating the replacement of Arab Hakim with Kadis. Kadis, who rendered decisions in cases brought before them, exercised considerable discretion, thereby laying the foundation for Muslim Law. They relied on customs, practices, administrative regulations, and Koranic norms.
By 1800, Kadis had become highly specialized in law, and the practice of appointing legal specialists became established. Kadis were also known as Muftis of Islam. This ancient school developed in Kufa and Basra (in modern-day Iran), Mecca and Medina (in Saudi Arabia), and Syria. Differences among Kadis arose due to varying geographical factors, social conditions, customs, and practices. They formulated rules based on the religious and ethical teachings of the Quran.
Two opposing tendencies emerged:
Islamicising law
Rationalizing and systematizing law
Gradually, rules were developed and settled, but the freedom enjoyed by jurists was suppressed, leading to fanaticism.
Modern Schools
In the modern period, Islam has seen a division of its followers into two main sects with differing views on certain aspects of Islam.
Consequently, the schools of Muslim Law are broadly classified into two categories:
