2. ORIGIN OF MUSLIM LAW
• The term Islam is formed from the root ‘salam’
which means peace, greeting, safety, salvation. In
religious sense-submission to the will of God, & in
secular sense-establishment of peace.
• The origin of Mohd Law is ‘Al-Quran’/Koran.
• ML originates from divinity, it is established by
communication (khitab) from god with reference to
men’s acts.
• ML has been built upon 2 foundations – Quran and
traditions, supplementary source of urfs/local
customs.
3. 5 COMMANDS OF PROPHET
MOHD.
• A] Kalma – complete faith in god.
• B] Namaz – Remembering god, 5 prayers in a
day.
• C] Roza – Fasting one month in a year and
leads to pious life.
• D] Zakat – Giving alms, donate income to
others.
• E] Haj – Going on piligrimage.
4. WHAT IS MUSLIM LAW
• It’s a portion of Islamic Civil Law which is
applied to Muslims as personal law.
• It consists of the injunctions of Quran, of the
traditions introduced by the practice of the
Prophet(Sunna), of the common opinion of the
jurists(Ijma), of analogical deductions of these
three(Qiyas).
5. WHO IS A MUSLIM?
• One who believes in the mission of Mohd as
Prophet, or
• One who says that the there is one God & that
Mohd as prophet, or
• One who believes in a number of other essential
beliefs in God and Mohammad.
• Bhaiya Sher Bahadur v/s Bhaiya Ganga Baksh
Singh-Illegitimate son of Hindu by a Muslim lady,
brought up as a Hindu and married to Hindu girl
was held to be a Hindu.
6. SKINNER VS. ORDE (1871)
• Skinner v/s Orde (1871)- Child is presumed to
belong to the religion of the father. In this case
Helen Skinner married in Christian form to George
Skinner. After the death of her husband the wife
cohabited with some other Christian. The
subsequent husband was already married, his first
wife was alive. In order to legalize their union both
went through the ceremony of conversion to the
Muslim faith. Privy Council held such marriage was
of doubtful validity.
8. PRIMARY SOURCES OF
MUSLIM LAW
• Quran:-It is a divine communication and
revelation to the Prophet of Islam, it contains
the revelation of god to his prophet Mohd.,
through angel Gabriel. It is not book of law but
connected with the conduct of life.
• Quran divided into 114chapters & consists of
6000 verses, out of these 200 verses deals
with rules and principles of law. Only 80 verses
relate to family law(marriage, dower, divorce,
adoption, inheritance etc.,
9. • The verses of Quran are called Ayat and
chapters of this Holy book are called Sura.
• The portion of Quran which was disclosed to
Prophet Mohd at Madina is concerned with
legal principles, & the portion at Mecca deals
with the philosophy of life and Islamic religion.
10. • Quran was not collected/systematized during the
life time of Prophet.
• First Caliph Abu Bakar ordered the collection of the
Quran.
• 3rd Caliph, Usman ordered second collection 18yrs
after the death of Prophet.
• The style of Quran is most beautiful, fluent,
concise. The sentences end in rhyme, words being
well selected & beautifully placed.
11. • Quran contains minors and disabled interests,
general status of women in inheritance and
succession on equitable grounds.
• The attachment of the Muslims to the sacred
book was so great that it has retained its
purity, without least change for the last
1300yrs.
12. • Reforms made by Quran:-
•
• (1) Abolition of unlawful custom like Infanticide, gambling,
dirking of intoxicants, unlimited polygamy.
• (2) Social reforms:-position of women, marriage divorce,
chastity of men and women succession
• (3) Reforms in Criminal Law: - relations for punishment to
theft, fornication (Adultery) murder
• (4) Other rules: - Direction relating to treatment of enemy
distribution of booty.
13. • Sunnat & Hadis :- It means the model behaviour of
the Prophet. ( It is a mirror of Prophet’s life)
• The narrations of “what the prophet said, did” is
called Hadis/traditions.
• The following were the classifications made on the
basis of mode in which Sunnat has originated-
• i] Sunnat-ul-fail : Traditions about which the
Prophet did himself.
14. • ii] Sunnat-ul-qual : Traditions about which he
enjoined by words.
• Iii] Sunnat-ul-tuqrir : Things done in his presence
without his disapproval.
• The following are the three classes of Hadis-
• i] Ahadis-i-mutwatir : Traditions are of public and
universal propriety,(particular character) held as
absolutely authentic.
15. • ii] Ahadis-i-Mashhor : Traditions though known to
a majority of people, do not possess the character
of universal propriety.
• Iii]Ahadis-e-wahid : Traditions which depend on
isolated individuals.
• Ijma (consensus of opinion) :- Sir Abdul Rahim
defined it as “agreement of the jurists among the
followers of Prophet Mohd in particular age of
particular question of law”
• Hazarat Abu Bakar was the 1st Caliph on the
principles of Ijma.
16. • Essentials of valid Ijma – The consensus ( people
express their views + discussions, debates +
differences of opinion)
• The Jurists (only opinion of experts are admissible)
Jurists of a particular period
• Jurists to be Muslims
• Consensus on a religious matter.
17. • Kinds of Ijma :-
• a) Ijma of the companions of the Prophet
• b) Ijma of jurists
• c) Ijma of the people-prayers, fasting, pilgrimage.
• Qiyas (Analogical deductions) :- It means
reasoning by analogy from the above three
sources/measuring according to equality.
Originator of doctrine of Qiyas was Abu Hanifa.
18. • It is a process of deduction by which the law of
text is applied to cases, which though not
covered by the language are governed by
reason of the text.
• It does not purport to create new law, but
merely to apply old established principles to
new circumstances.
19. SECONDARY SOURCES
• 1. Urf/custom :- It was never formally recognised
as source of ML, but it occasionally referred as
supplementing the law.
• General prevalence in the country is necessary.
• It must be territorial
• It should be immemorial.
• It must be ancient & invariable
• It should not be opposed to public policy.
20. • 2. Judicial decisions :- These include the
decisions of Privy Council, The SC & HC of
India. These decisions are regarded as
precedents for future cases.
• 3 Legislation / Acts / Statute :- In India,
Muslims are also governed by the various
legislations passed by parliament/state
legislature. Ex-Wakf Act 1954, Dissolution of
Muslim Marriage Act 1939, Muslim woman
(protection of rights on divorce) Act 1986.
21. • 4 Justice, equity, good conscience :- These
principles of Muslim Law are known as
Istihsan/juristic equity. This was used by the
great Jurist Abu Hanifa.
22. OTHER SOURCES OF ML
• Istihsan (Abu Hanifa) :- It means
approbation/sanction/ approval. The jurists
were made able to lay down a rule of law as
would meet particular case rather than rule of
analogy. It was adopted by Abu Hanifa .
• Istislah :- Imam Malik was the founder. It is an
amendment which should be resorted to and
enables a jurist to amend a rule indicated by
analogy.
23. • Ijtihad :- It means application by a lawyer of
all his faculties to the consideration of the
authorities of the law to find out what the law
is.
• Taqlid :- Duty of laymen to follow the opinion
of jurists in matter not expressly dealt within
Quran/Sunna.
• Fatwas :- Kazis & Muftis - eminent judges,
their decisions and decrees occupy a
prominent place in Sunni law.
25. 1.SUNNI SCHOOL
• After the death of Prophet, it split into 2 great
sects – Sunnis ( supporters of the principle of
filing the office by election + Caliph is the
servant of law) In India a Mohd is governed by
the Sunni school of law.
Shias (supporters of succession to the office by
inheritance to the Prophet + Imam is
nominated by previous Imam)
26. • The word ‘Sunni’ in Arabic means “one who
follows the tradition of the Prophet”
• The word ‘Shia’ in Arabic means a group
/supportive party of people.
• Ali bin Abu Talib was the founder and called it as
‘the party of Ali’
• Sunni Muslim majority 85% all over the world,
Shia’s found in Iran, Iraq, Syria, Bahrain, Lebanon.
27. TIME PERIOD ? FOUNDER OF THIS
SCHOOL? ALTERNATE NAME OF THE
SCHOOL ? FEATURES ? SOURCES OF
LAW THEY USE ? WHERE ARE THESE
SCHOOLS FOLLOWED
• 1] Hanafi School(699-767A.D.) :- Abu Hanafia
was the founder, this school is also known as
‘Kufa/Iraq School’.
• Features – He placed greatest emphasis as
Qiyas, was a instrumental in developing his
system. He had full knowledge of tradition,
accepted 18 traditions only.
• He accepted Ijma as source of Islamic law.
28. • He was the founder of Muslim science of law
and formulated principles of jurisprudence.
• The Home of this school was Iraq. It spread to
Arabia, Syria, Afghanisthan, Turkish, Central
Asia and India.
29. • 2] Maliki School (713-795A.D.) :- It was
founded by Malik Ibn Anas, it is also called
‘Madani School’
• He collected 300 traditions of Prophet and
recorded in his book Kitab Al Muwatta,
developed his legal system.
• Features – He placed importance to traditions
of Prophet, he was very rigid traditionalist.
When tradition conflicted, he professed Ijma to
deduce a result of problem. He introduced
30. • The followers of Maliki school are found in Spain,
North & East Africa, Morocco.
• But this school has no followers in India.
• 3] Shafei School (767-820A.D.) :- founded by
Muhammad Ibn Adris ash-Shafei. It is second
prominent after Hanifi school.
• Features – It relied on the traditions more than
Hanafis but studied them critically.
31. • It elaborated the doctrine of Ijma / Qiyas as
source of Islamic law.
• It allowed analogy doctrine (Qiyas)
• This school is prevalent in lower Egypt, South
Arabia, East Africa, Iraq, Persia, Western &
Southern India. It has large number in
Indonesia, Malaysia, South East Asia.
32. • 4] Hanabali School (780-855A.D.) :- Abu
Abidullah Hamid Ibn Hanbal was considered to
the founder of this school. It is prevalent in
Arabia & largely found in Syria, Palestine.
• Features – He was a strict follower of tradition
He restricted Qiyas & Ijma
• The authoritative books are Taat-ur-Rasul &
Kitab-ul-Alal.
33. 2. SHIA SCHOOL
• The term ‘shia’ means ‘faction’ or adherent,
firm in opinion.
• The dictionary meaning is partitions, group of
people showing unanimity over an issue/faith
which they support and defend.
• It is term that describes the followers of Ali,
his sons and their school of thought.
34. WHAT DO THEY FOLLOW ? WHERE IT
IS USED ? SUBDIVISION – NAMES ?
ALTERNATE NAME
• i) Athna Ashari School :- They are called
Imamias and twelvers. For them it means the
followers of 12 Imams.
• The authoritative book is Shari-ul-Islam
• The followers are found in India, Pakistan, Iraq,
Iran.
• It is subdivided into Akhbari (rigid
traditionalist) & Usuli (followers are free scope
in interpretation of the Quran.
35. • ii) Ismailya School :- The followers of Ismail
are known as Ismailyas and are called as the
‘seveners’ as the Ismail was seventh Imam.
• According to them there had been seven
Imams only.
• Ismailyas are found in Syria, Central Asia,
Pakistan, India.
• Sub-schools of Ismailya are as follows-
36. 1) Khojas:-
• The original faith of these Ismailst Khojas was
hybrid between Hinduism V. Islam. After
Shariat Act they governed under Muslim Law.
2) Bohras: - Bohras also Ismials belong to
Bombay Bohra
37. • iii) Zaidya School :- The followers of Zaidya
school recognise Zaid as their 5th Imam.
• The Zaidyas follow the principles of elective
and not nominated Imamate.
• The followers of this school are not found in
India.
38. 3. MOTAZILAS
• Motazilas have no such school. They must be
treated as dead schools that have played its
part in history.
• They have no organised body or separate body
of law.
• A classical Medieval authority on Muslim Sect
treats the Motazilas as a distinct class from the
Shias.
39. THE MUSLIM PERSONAL LAW
SHARIAT APPLICATON ACT 1937
• Providing for the application of the Islamic Law
Code of to Muslims in India in personal affairs
• The act applies to Muslim personal law in a
number of important matters to those cases
where parties are Muslims
40. • According to sec 2 following are the sub sec expressly declared in which Muslim personal law Shariat
shall be applied:
• 1. Intestate succession
• 2. Special property of female
• 3. Marriage
• 4. Dissolution of marriage
• 5. Maintenance
• 6. Dower
• 7. Guardianship
• 8. Gift
• 9. Trust and trust properties
• 10. Waqfs
41. • PROVISIONS ARE NOT APPLICABLE AT ALL:
• Provisions which are not applicable at all
through the parties are Muslims are Muslims
criminal law and Muslim law of evidence. In
these matters the Muslim are governed by the
general law of India and not by the textual
Muslim law
