FAMILY ACT -2

Mohammedan Law

The Mohammedan Law applies upon the Muslims, thus first question arises that, ‘Who is a Muslim? The simplest and universal definition of Muslira is that. “who believes in Islam, he is muslim.” In other words, it may be said that such a person is Muslim- (i) who belives that there is one God, or who believes that there is no God but Allah, and (ii) who acknowledges the Mohammed as prophet of Allah (La Illah Il Lillah, Mohammed Ur Rasul Allah) In the case of ‘Queen Empress Vs Ramzaan [(1885)7 Allahbad 461ľ also the same definition of Muslim has been given. In the case of ‘Abraham Vs Abraham’ [(1863)9 M.IL.A. 199] it has been stated thata person may be a Muslim by birth or by conversion of religion. According to Mohammedan Law, if any one of parents is Muslim then the child deems to be a Muslim. Similiarly, if the parents become Muslim by conversion of religion later on then also the child deems to be a Muslim.
In the case of Azim Khan Vs. Rajah Sayed Mohammed Sadal Ali Khan (A.I.R. 1931 Awadh 177), it has been held that 30 if there is a child of muslim father then that will be deeme the religion of father. Muslim until he does not adopt another religion. If a muslim ado little worshipness then it may not be infer from this that he no more muslim. [Azimma Bibi Vs. Munshi Shamlanand (1912 17 CWN 121]. If à person after renouncing another religion, accepts Islam religion then declaration of such intention is required from him. (Dr. Abdul Rahim Undrey Vs Smt. Padma Abdul Rahim Undrey, A.I.R. 1982, Bombay 341). Principles of Islam A person born as a Muslim continues to be a The term ‘Islam’ means-“Submission to the will of God.” Main principles of Islam are as below: (1) God is One-The main and paramount principle of Islam is ‘God is One’ or faith in authority of one God. Allah is being regarded as one unit. It is based on a monist. It does not believe in polytheism and image worship. Who believes in more than one God, is regarded as anti-islamic. Its basic principle is-“There is no god but Allah.” (2) Feelings of Brotherhood-The second important principle of Islam is “feelings of brotherhood.” The feeling of brotherhood has been given importance in all religions but not as much importance as accepted as Muslim Law. They accepted it in their behaviour also and not merely a principle. To drink water in same glass, eating in same utensils etc. are some examples. Islam believes in justice, equity and good conscience. Islam means “establishment of peace’. (3) Most Ancient-Islam says that it is not new tradition but most ancient. Prophet Mohammad said that Islam is as old or ancient as hills of Arabs. Islam survives as long as world, Islam lives till the end of universe.
These are main principles of Islam.
The sources of Muslim Law are divided into two categories. I. Primary II. Secondary 1. The Quran 1. Urf/ Custom 2. Traditions 2. Judicial decisions (i) Sunnat 3. Justice, equity, good conscience (ii) Ahadis 4. Legislation 3. Ijma 4. Qiyas I. Primary Sources (1) Quran-Word “Quran”is derived from Arabic word “Qurra” – mean to read. Quran is the most important source of Muslim Law. “Govind Dayal Vs Inaytullah [(1885)7, Allahabad 775]-It was said that the Muslim has so strong relation to Islam that it cannot be severed and since Islam is mainly based on Quran, therefore it is the primary source of Muslim Law. It contains revelation of god to his prophet mohammad, hrough angel Gabriel. Quran has not be codified at one time, rather it is the essence of revealation to prophet from time to dme in his last 23 years earlier. It was written on leaves, but tater it was given a codified form. The acclouds of codification goes to Abu Baker and Khallifa Usman. Now, it is divided into 30 chapters. In Quaran, Public prayers, Namaaz (prayer), pillgrimages, toxicating drinks, divbrce, succession etc have also been nghlightened. Due to this region that it being a religious work, a book of law. Later on these were so many commentaries fasts etc along with the matters of marriage, prevention ofintoxicating drinks, divbrce, succession etc have also been highlightened. Due to this region that it being a religious work, is also a book of law. Later on these were so many commentaries
on the Quaran amongst them, the commentaries of Tawasi, The Quaran has a paramount ant universal authority of Muslim Law. Number of examples is there of its importance. In the case of Kunhi Mohammed Vs Ayisha Kutty (A.I.R. 2010 NOC 992 Kerala) it has been stated that although under Muslim law the husband may give divorce to his wife, at his own, and for this no reason is required to be explained, but according to holy Quaran, it should not be self willed. A reasonable procedure to follow for it, is required. It clears the importance Fakkruddin etc are prominent. of Quaran. (2) Sunnat & Ahadis (Tradition) The second important source of Muslim Law is Sunnat and Ahadis. Ahidas means traditions whereas sunnat means the model behaviour of the prophet. Ahadis and Sunnat are considered important as a source of Muslim law when Quran is silent on a subject when there is a solution to any problem in Quran, then it shall be supreme But when any problem has to be solved by Ahadis and Sunnat then it is kept in mind that it is not adverse to the basics of Quran. Thus, those act which the prophet himself did or supported it, they came to be known as Ahadis and Sunnat At the time of death, the prophet said that, “So long as you hold fast to two things which I have left among you will not go astray, God’s book, and his messengers Sunna.” Sunnat-It has been classified in following 3 Classes- (i) Sunnat-ul-fail-Prophet did himself. (ii) Sunnat-u I-qual-Which he enjoyed by Words, (iii) Sunnat-ul-Tuqrir-Things done in his presence without his disapproval. It is also called Sunnat d Madina. Hadis-As Sunnat it has also been classified in followg 3 Classes-
(i) Ahadis-i-muturatir-Traditions are of public & universal propriety & held as absolutely authentic. (ii) Ahadis-i-mashoora-Though known to a majority of people, do not possess the character of universål propriety. (iii) Ahadis-e-wahid-which depend on isolated individuals. Here it is to mention that Ahadis has also called as Hadis. (3) IJMAA (Consensus of Opinion) The third inmportant source of Muslim Law is Ijmaa. Upto the origin of Ijmaa, although the Quaran, Sunnat and Ahidas had been recognised as a source of law but later on new problems arised with the growth of society, which could not be solved by Quaran, Sunnat and Ahadis, so these problems were resolved on other grounds. Ijmaa one of them. Ijmaa means-a consensus of opinion of the jurists of particular era on a question of law, where Quran, Sunnat or Ahadis was silent for resolution of a question, that question was resolved with a consensus of opinion of jurists. Specific importance has been given to Ijmaa in Sunni School. Ijmaa is of three kinds- (i) Ijmaa of the Companions of the Prophet (ii) Ijmaa of Jurists, and (iii) Ijmaa of the people. Ijmaa of companions of the prophet is universal. It has great importance because it is based on the principles of Quaran. Some of the branches of Muslim Law only recognises the ijmaa of the companions of the prophet and the sucessors of them living in Madina. According to Abdul Rahim, great weight will be attached to the ijmaa of the companions of the prophet in as much as the companions were appointed with the view point of prophet and remaining close to the prophet they had almost adopted the same way of reasoning as the prophet.
Ijmaa of a group of jurists is accepted as a legal powe, although, different contentions are in vague in different schoola Some give preference to unanimous opinion of jurists wheren some believe in majority decision. Some people consider mandatory but not in a manner of impartial authority. Accordin, to Abdul Rahim, the ijmaa of such jurists can only be considered important when they are wholly qualified for it and not altering opinion in their life. 9 Ijmaa of the people is agreeing upon a question by general public. In matters relating to religion, prayer, fasting etc. the law has been constituted by ijmaa of the people. Principles of Ijmaa have been used to solve various problems of religion, political, constitutional etc. Appointment of Abu Bakar as a Calif (Khalifa) after the death of Prophet is a good example of it. (4) The QIYAS-(Analogical deduction) It orginated as source of Muslim law when any question or problem could not be solved by the Quran, Sunnat, Ahadis and Ijmaa. In such situation, the problems are being solved by comparative study of the above sources. This was called ‘Qiyas’. Under Qiyas, the problems are solved on the basis of discrimination, reasoning power and logical equality. Therefore, it is said that arriving out a solution of two things by having reasoning on logical equality basis is Qiyas. It is essential to take care whole solving the problems by Qiyas that it is not in contradiction to Quaran, Sunnat, Ahadis or ljmaa. There is a good example of it. Once the Prophet sent Mu’adh as Governer and Judge of the place. At that time, the Prophet asked Mu’adh on what would base your decisions on a problem on which the Quaran and traditions are silent? Mu’adh said, “On the basis of my own reasons.” The Prophet said that, “Praise thee to God, who guides the messenger of his prophet in what he pleases.”
Here, it is to mention that Qiyas does not purport to create new law, but merely to apply old established principles to new circumstances. (5) Urf or Customs-Customs are being considered an important source of Muslim Law since begining. Even today the Muslim Law includes many rules of pre-Islamic customary law. Those customs and.usages which were not expressly repealed during the lifetime of the Prophet, are held to have been sanctioned by the Law-giver. According to Hedaya, custom holds the same rank as Ijmaa in the absence of an express text. However, many customs have now been abolished by the Shariat Act. The requirements of a valid custom are as follows, that is a custom should be : (i) ancient (ii) prevailing (iii) reasonable (iv) logical (v) according to public policy (I) Secondary sources (1) Urf or Custom (a) Custom never formally recognised as source of Muslim Law but has been occasionally referred as supplementing the law. (b) Requirements of a valid custom (i) General prevalence in country i.e. universal (ii) It must be territorial. (iii) It must be existing from immemorable time i.e. ancient. (iv) It must be continuous & certain & invariable. (v) Should not opposed to public policy. . (vi) not in contravention of Quran & ljmaa. (c) In cases where the parties are Muslims, shall be governed by Muslim Personal Law (Shariat) and any custom to contrary effect would not apply in such cases. But following still governed bu customary law. (i) Agricultural land (ii) Testamentary succession in certain communities. (iii) Charities, other than Wakfs. Smt. Bibi V/s Smt. Ramkali (A.L.R. 1982 Allahabad 248)- Allahabad High Court held that the customs of Caste and Sub caste require it to be proved for their validity that they are ancient, definite and reasonable. Yamaji H. Jaddav V/s B. Nirmala (A.I.R. 2002 S.C. 971)- Supremcnt Court said that a valid custom require it to be well established. In the case of Amar Singh Vs Kehar Singj (A.I.R. 1995 Himachal Pradesh 82) it has bzen held by the Himachal High Court that for the validity of a custom it is required that it should be ancient, definite, reasonable, unchangeable and in continuum. Lack of any one of these will lost the validity of custom. (6) Legislation-Legislation is also an important source of Muslim Law. Various legislations passed by the parliament or state legislature come under this source. The following acts are the instances of lesilation the Mussalman Wakf Validating Act, 1913 & 1930; the Wakf Act, 1954; the Sharial-Act, 1936; the Dissolution of Muslim Marriage Act, 1939 etc. Modification, enhancements and amendments are being made in these Acts by the legislation according to country, time period and circumstances. (7) Judicial Decisions-Judicial decisions are also an important source of Muslim law. Judicial decisions pronounced from time to time also constitutes the law. These decisions are regarded as precedents for future cases. The decisions become an authority for subsequent cases arising in subordinate courts.
Thus, decisions of Supreme Court are binding upon all ute courts of India and decisions of High Courts are binding upon the subordinate courts. The Supreme Court has held in the case of PanduRang Kaloo Patil Vs State of Meharashtra (A.I.R. 2002 SC 733) that the decisions of Privy Council are binding upon High Courts if they are not modified by the Supreme Court. Ratio decidandi has an important role in the following decision of courts. To have a ratio decidandi after going through the whole decision of each case is expected. (Messers Ansal Housing and Construction Limited, New Delhi Vs State of Uttar Pradesh, A.I.R. 2005 Allahabad 23 and P.S. Sthappan Vs Andhra Bank Limited, A.I.R. 2004 SC 5152). (8) Principles of Equity, Justice and Good Conscience- Principles of equity, juștice and good conscience are an important source of Muslim Law. When no law is available on a subject matter, then judicial decisions are being taken on the basis of principles of equity, justice and good conscience. These principles are based on the principle of natural justice. Accordingly, the above important sources of Muslim Law are in existence.