UNIT - I APPLICATION OF MUSLIM LAW

Transcription

1 UNIT - I APPLICATION OF MUSLIM LAW Introduction : Laws may be of two kinds, either territorial or personal. A territorial law is that branch of law which is applied in a particular territory and is applicable upon all persons living in that territory irrespective of their communities or religion. Thus Indian Penal Code and the Indian Contract Act are examples of territorial laws, because these laws are applicable to all the persons living in the territory of India. On the other hand, a personal law in that branch of law which applies to the entire person of a particular religious community irrespective of the boundaries of any country. Thus Hindu Law applies upon the Hindu and Mohammedan Law applies upon the Muslims. Muslim Law in India means "that portion of Islamic Civil Law which is applied to Muslims as a personal law." Mohammedan Law had no existence before Mohammad became a prophet, in Arab there was no general rule and regulations regarding any matter. Each tribe was governed by its own laws and matters in dispute were either referred to the chief, or decided by an appeal to the sword. The conduct of the Arab was regulated by custom which were barbarous and inhuman. Often the parents burried alive their female child, usury i.e. taking a very high interest on the debts, was common. Gambling was rampant. These days were of superstition and idolatory, the position of women was not much better than that of animals; they had no legal rights; in youth they were the goods and chattels of the father; after marriage the husband became their lord and master. Pologamy was universal, divorce was easy and female infanticide was common. Such was the condition of the Arabian society in which reforms were introduced by Islam by Prophet Mohammad to bring about a complete transformation of the society. Prophet Mohammad was posthumous and born at Mecca in 571 A.D., his father Abdullah, while returning from Syria, where he had gone for some business, died at Medina, so he brought up by his mother Amina. At the age of six years, the mother expires, he passed into the care of his grandfather, Abdul Muttalib. Two years later the grandfather also died and the boy was than brought up by his uncle Abu Talib. After the age of twenty five he spent much of his time in a cave named Hira in prayers and meditation. He became prophet after receiving his first wahi or message from god, through angel "Gabriel". From that time he devoted himself in replanting the only true and ancient religion, in his endeavours he met with the most bitter persecution from the idolaters whose faith he attacked. He was absued, spat upon, covered with dust and dragged from the temple of Mecca by the hair of his head, but still he assiduously preserved in his undertaking and ultimately succeeded in spreading his religion Islam. In religious sense Islam means Submission to the will of God and in secular sense Islam means Establishment of peace The prophet Mohammad was expired in 632 A.D. Who is a Muslim : A person, to be known as a Muslim in the society must possess five pillar's of Islam religion. 1. Profession of Full Faith : A person must have a full faith. Full faith in what? Full faith in Kalamah, "La ilaha illallah, Mohammad ur rasul-ullah" i.e. there is one god and Mohammad is his messenger called Rasool

2 2. Prayer (Namaz) : A faithful Muslim is supposed to turn his face towards Mecca and recite his prescribed prayer five time (dawn, midday, mid afternoon. Sunset and night-fall) in a day. The Friday noon prayer is public one and is obligatory for all male adults. 3. Alams-Giving (Zakat) : It is a voluntary act of love and is considered almost identical with piety. 4. Fasting (Roza) : In the month of Ramzan (sacred one), every Muslim must keep fast (from all food and drink) from dawn till sunset. 5. Pilgrimage (Hajj) : Once in a lifetime every Muslim of either sex who can afford is supposed to undertake at a stated time of the year a holy visit to Mecca. The Arabic word "Islam' means submission to the will of god. Islam is a religion in which it is believed by persons that (i) The God (Allah) is one and only one, and (ii) Muhammad is his messenger called (Rasool). The word Muslim is derived from Islam and signifies a person who adopts the faith of Islam. According to the court of law, the only requirement to a person for being a Muslim is the belief in one God and the prophet hood of Muhammad. If any person does not belief in this fundamental principle of Islam, he cannot be treated as Muslim. On the other hand, if a person has a faith but does not follow the culture or practices of Islam, he is legally a Muslim. But it is difficult to judge whether a person is Muslim or not only on the ground of his faith in Islam, because it is a matter of feelings. Therefore, according to the courts, a person may be a Muslim either by birth or through conversion. (i) Muslim by Birth : A person whose both the parents were Muslims at the time of his birth is regarded to be Muslim by birth. According to Hedaya, even if one of the parents is Muslim, the child is to be treated as Muslim, but according to the courts of India where only one of the parents of a child is Muslim the child is to be regarded as Muslim only when it is proved that he has been brought up as a Muslim. A person who is Muslim by birth continues to be a Muslim unless on attaining majority. (ii) Muslim by Conversion : A person of any religion who has attained the age of majority and is of sound mind, can become the follower of Islam after renouncing his original religion and the rules of Muslim personal law begin to apply on him immediately, he is generally known as a 'converted Muslim' conversion is of two kind a. A person may publicly declare that he has renounced his original religion and is now professing Islam. b. The second method is through ceremonies prescribed in the religion of Islam itself. The non-muslim goes to a mosque where the Imam may ask him to read a Kalema and give him a Muslim name. The purpose of conversion must be bonafide. It is just possible that a person converts his religion to get some benefit which he has not in his original religion, therefore, that person cannot regarded as Muslim even if he says that he is professing Islam. In Spinner V Orde 1 A Christian Widow was living and cohabit with Christian male who had already a wife living. Cohabitation of such kind is illegal, to legalise that they converted to Islam and became Muslims, because under Muslim Law it is allowed to have four wires at a time. It was held by Privy council that such a conversion was not bonafide because its purpose was to commit fraud upon Muslim Law. 1 (1871) 14 M I.A

3 A person who adopts Islam adopts also the application of the Muslim personal law on his family-matters. But before 1937, the converted Muslims were allowed to follow some of the customs of their original religion. However, in 1937 the Shariat Act was enacted which abolishes all the customs. Kalema means La ilaha ill Allah, Muhammad ur Rasool ullah. Application of Muslim Law : The entire Muslim Law is not applied by the Indian Courts. Only such law is applied which regulates the family-matters or personal-matters of the Muslims. The enactment which authorises the Indian Courts to apply Muslim personal law is the Muslim Personal Law (Shariat) Application Act, 1937, popularly known as the Shariat Act, which literal meaning is "the path to be followed" by the human beings. Section 2 of this Act provides where both the parties are Muslims, Muslim Law shall be govern on them, involving any of the matters (i) Inheritance (ii) special property to the females (iii) marriage (iv) divorce (v) maintenance (vi) dower (vii) guardianship (viii) gift (ix) wakf (x) trust. But there are certain cases in which even if both the parties are Muslims and the matter is one specified in the Shariat Act yet, Muslim law is not applied. Ex-1: If any marriage took place under the Special Marriage Act, 1954, the mutual rights of inheritance of the husband and wife are governed by the Indian Succession Act, Ex-2: The Child Marriage Restraint Act, 1929, restrains a boy under the age of 21 and a girl under the age of 18 years, for marriage. Inspite of all these provisions there are certain matters in which Muslim Law are applied even if both the parties are not Muslim, the law of the defendant is applied. Ex-1: A married women who renounces Islam and converts to any other religion ceases to be Muslim. But, under Section 4 of the dissolution of Muslim Marriage Act, 1939 such a women (even after conversion to another religion) may obtain a decree for the dissolution of her marriage on any grounds mentioned in Section 2 of this Act. Ex-2: The rule of defendant is available in the right of pre-emption. SOURCES OF MUSLIM LAW By sources of any law, we mean the original materials where the contents of that law are to be found and are made available to us. Study of these sources is necessary for having knowledge of the origin of a law and for its proper explanation and interpretation. Sources of Muslim Law may be classified into two categories (i) The primary sources, and (ii) Secondary sources. Primary sources are those which the prophet himself directed to be the sources of Muslim Law. Secondary sources explain or modify the primary sources of Muslim Personal Law according to the changing needs of the Islamic society. The Primary Sources : 1. Quran : The word Quran is derived from the Arabic word "Qurra" and properly signifies, "the reading of that which ought to be read". The world Quran is the divine communication and revelation to the prophet of Islam for the benefit of mankind, through angel Gabriel. It is the first sources of Muslim Law in point of time because, before Quran there was no Islamic society as it exists tody. The Quran in its present form is a book, contained 6237 verses called Ayat and divided into 114 chapters called Sura. Not more than 200 verses, disclosed at Madina was concerned with legal principles and nearly about 80 verses were concerned with marriage, dower, - 3 -

4 divorce and inheritance or deal with the philosophy of life and Islamic religion, disclosed at Mecca. It was given to world in fragments, during a period of 23 years (609 to 632 A.D.). Quran is the foundation upon which the very structure of Islam rests. It has retained its purity, without the least change, for the last one thousand and three hundred years. 2. Sunna or Ahadis (Tradition of the Prophet) : In Islam it is believed that revelations were of two kinds, manifest (Zahir) and internal (Batin). Manifest or express revelations were the very words of God contained in Quran. On the other hand internal or implied revelations, were those which had been 'Prophets own words' but the ideas contained in the sayings were inspired by God, formed part of Sunna. Any words used or act done by prophet is called Hadis, if this hadis is followed by a number of persons become Sunna which has been classified into three categories (i) Sunnat-ul-Qaul (Words Spoken) : Traditions about which he enjoyed by words. (ii) Sunnat-ul-fail (Conduct) : Which the prophet did himself i.e. his behaviour, and (iii) Sunnat-ul-taqrir (Silence) : The things done in his presence without his disapproval, includes such pre-islamic customs which were not disapproved by prophet. These traditions could become an authoritative source of law, if narrated by competent and qualified person called Narrator. According to Abdur Rahim, qualification for being a competent Narrator (i) he must have understanding (sane and adult); (ii) he must possess the power of retention; (iii) he must be Muslim, and (iv) he must be of righteous conduct. Having such qualification following persons were recognised as narrators (i) Companions of the Prophet : Such Muslims who had privilege of being in the close contact during the life-time of the prophet. These narrator were treated as most reliable. (ii) Successors of the Companions : Those who were not with the prophet but had the occasion of being contact with the companions of the prophet were called the successors. (iii) Successors of the Successors : Those Muslims who were neither with the prophet nor with the companions but were in contact with the successors, were called the successors of the successors of a companion. On the faith of these narrators Ahadis are classified as (i) Ahadis-i-mutwatir (Universally Accepted Traditions) : These traditions have universal acceptance and are followed by all the sects of Islam. (ii) Ahadis-i-Mashhoor (Popular Traditions) : These traditions have no universal acceptance but a great majority has always recognised them as a source of law. (iii) Ahadis-i-Ahad (Isolated Tradition) : These traditions have neither been continuously followed nor followed by majority of the people. Only a certain section of society has accepted them

5 3. The Ijma (Unanimous Decisions of Jurists) : When Quran or Sunna could not supply any rule of law for a new problem, the law making person, called Mujtahids used to give their common opinion or unanimous decision over that point. Such decision of jurists was termed Ijma. Ijma is of three kinds (i) Ijma of the Companions : It was presumed that the companions were the best persons to act as jurists. Such Ijma being most authoritative, could not be overruled or modified by any subsequent Ijma. Hanbalis recognise only this kind of Ijma. (ii) Ijma of the Jurists : In the absence of any Ijma of the companion, the unanimous decision of other jurists is recognised as most valuable and reliable. Hanafies recognise this kind of. (iii) Ijma of the People : Sometimes the general agreement of the great majority of Muslims was also accepted as law. This kind of Ijma has little value and generally relates to fundamental observances of Islam such as to prayers, fasting, pilgrimage, Zakat etc. 4. Qiyas (Analogical Deduction) : Qiyas means measuring or comparing by analogy with a similar problem for which solution was given in the texts. Ex Wine is haram to Muslims, is cigrate also haram to Mulsims, does cigrate come within the preview of intoxication the answer of this question can be decided by analogical deduction. For qiyas two thing were required (i) The person who established analogy was a Mujtahids and (ii) He deduced the law from a definite text of Quran, Sunna or Ijma. Secondary Sources : 1. Custom (Urf or Taamul) : Before Islam, the Arabs were governed by customary laws. On being introduced the Islam, many custom was abolished but those custom which were not expressly repealed during the life-time of the prophet, were held to have been sanctioned by the law giver by his silence. A customary law exists in Islam either because of Sunna or Ijma. Requirements of a valid custom are (i) General prevalence in the country is necessary. (ii) It must be territorial. (iii) It should be immemorial. (iv) It must be ancient and invariable and (v) It should not be opposed to public policy. After passing the Shariat Act 1937, Section 2 of this act provides that all Muslims of India (except Jammu and Kashmir) will be governed by Shariat Act in 10 matters as inheritance, special property of female, marriage, dower, divorce, maintenance, guardianship, gift, walf and trust but according to Section 3 agricultural land, testamentary succession in certain communities and charities, other than wakfs are excluded. However, the states of Andhra Pradesh and Tamil Nadu have included also, the matter contained in Section 3, in Section 2 of the Shariat Act through their State Amendments. 2. Judicial Decisions : The decisions of the Privy Council, the Supreme Court, as well as of the High Courts of India, are regarded as precedents for future cases and become an authority for subsequent cases arising in subordinate courts. On some points judicial decision have modified the pure Muslim Law

6 Ex Hammeera Bibi V Zubaida Bibi 2 The taking of interest in a loan is prohibited in Islam, but the Privy Council allowed simple interest on the amount of unpaid dower. 3. Legislation : According to Islam, the only power to make laws, vested in God and any legislative modification is treated as an encroachment upon the traditional Islamic law. In India, Muslims are also governed by the various legislations passed either by the Parliament or by State legislature as. The Guardians and Wards Act 1890, the Child Marriage Restraint Act, 1929, the Shariat Act, 1937, Dissolution of Muslim Marriage Act, 1939, Muslim Women (Protection of Rights on Divorce) Act, 1986 etc. 4. Justice, Equity and Good Conscience : Under Muslim Law this can also be regarded as a source. Abu Hanifa, explained that any rule made by Qiyas could be set aside at the option of the judge on any juristic preference of a particular case. These principles are known as Istihsan or Juristic equality. SCHOOLS OF MUSLIM LAW There was no separation among the Muslims during the life-time of prophet Mohammad because he was the universally accepted head of the Islamic Commonwealth as well as the Chief Administrator of the whole body of Muslim. The division among Muslims originated in the dispute concerning the question of the spiritual leadership of Islam, which came up immediately on the death of the prophet. A great majority of Muslims suggested to find out the prophet's successor by way of election by the Jammat or the universality of the people. This view was advocated by Ayesha Begum, the youngest wife of the prophet because prophet himself had suggested election and Muslims believed what prophet did or suggested as sunna therefore they opt to elect caliph. Abu Bakr, the father of Ayesha Begum ultimately became first caliph by means of votes. Abu Bakr and their followers are called Sunni. The rest Muslims who repudiate the authority of Jammat (election), emphasised upon the spiritual headship of the prophet rather than his administrative control. Fatima, daughter of prophet, argued that spiritual leadership could come through the nobility of blood and relied upon the principle of succession. Consequently Ali, who was Fatima's cousin and was also her husband, was nominated as the first Imam. Ali and his followers are called Shia. Thus we can say the division among Muslims was due to the difference of opinion as to find out the successor of the prophet. It was a political event only subsequently it resulted in the separation on legal principles as well. Caliph : The heads of Sunni community were called Caliph or Khalifa, who were the elected chief. Caliph was more an administrative head than a religions chief. Imam : The heads of Shia community is to be called as Imam. He is administrative as well as religions head. Imam is a descendant in the male line of the prophet. Thus the Muslims are divided into three sects and further these sects splitted into several sub-sects so there are three sects of Muslim law in which Sunni and Shia are main 2 (1916) 43 I.A

7 Muslims Sunni Shia Motazila Hanafi Ithna Asharia or Imamia Maliki Akhbari Usuli Shafei Ismailia Hanbali Khoja Bohra Wahabi Zaidya A. The Sunni School : 1. The Hanafi School : This school is the oldest and supposedly the most liberal of the four schools. The Hanafi school takes its name from a name of honour given to its founder, Abu Hanifa. He born and studied Islamic Jurisprudence in the city of Kufa. During his life, Kufa had became an important centre of distinct thinking in Muslim Law. Therefore, this school is also called as Kufa school. Abu Hanifa was an eminent scholar of his time and possessing an outstanding logical reasoning and technical legal thought, therefore, they stressed more on Ijma and Istahsan (juristic equity) and also recognises the authority of customs (urf) but only those which are authentic and accepted as law. Therefore, Abu Hanafi relied upon eighteen traditions only. Tis school is followed by a great number of Muslims in India, Pakistan, Bangla Desh, Afghanistan and Turkey. Some of the important books on Hanafi law are Rodd-Al-Makhtar, Durr-ul-Muktar, Al-Hidyaya and Eatwai Alamziri. 2. The Maliki School : This school was founded by Malik Ibn Anas, who was born and taught in Medina. Where he had the position of Mufti. He always emphasises the importance of the traditions as a source of law. He was not only a great traditionist but a jurist also. He recognised Ijma of such jurists who lived in Medina. Therefore, the scope of Ijma as a source of law is limited. The main features of this school are that a married woman and her properties are always supposed to be under the control of her husband, she cannot deal with her property without the consent of her husband. This school has a few followers in Upper Egypt in western Sudan, West Africa, Spain, Kuwait and Bahrain. There are no Malikis in India. Some exhaustive books are Kitab-al-Muwatta, Khalil-isn-Ishaq's and Al-Mukhtarar. 3. The Shafei School : This school was founded by Muhammad ibn Idris ash- Shafei, who was born in Ghagga (Palestine). He was remotely connected with the prophet, he memorized Holy Quran at the age of 10 years, about 20 years he went to Madina and became the pupil of Malik Ibn Anas. Ash Shafei - 7 -

8 also relied upon traditions of prophet after examining in the light of ligal reasoning and logic in order to get a very balanced and systematic rule of law. Shafei doctrines are definitely less favourable to women than either the Hanafi or the Maliki. The followers of this schools are in lower Egypt, South Arabia, Cairo, Indonasia, Malaysia and South East Asia. There are very few Shafeis in India except of west coast. The books are Kitab-ul-umm, Risala and Muhtaj. 4. The Hanbali School : This School was founded by Ahmed ibn Hanbal, born at Baghdad. He was a pupil of Ash Shafii. The peculiar feature of this school to rigidly believed on the traditions of the prophet than other sources, Ijma and Qijas were neglected by him. Therefore, Hanbal was called traditionist rather than a jurists. Hanbalis are to be found in Syria and Palestine. In India Hanbalis are not found. The book is Musnad-ul-Imam Hanbal in which about fifty thousand traditions were collected. 5. The Wahabi School : This is the last and most latest Sunni school, which is generally not accepted by Sunni scholars to be Sunni but they are governed by Sunni (Hanafi) law for their practical problems. Mohammad Ibne Abdul Wahab was the founder of this school. B. The Shia School : Ali, the son in law of Prophet, was acknowledged to be the first Imam of Shia's. After his death, his two sons Hasan and Hussain became Imam. After Hussain death, his son Zain-ul Abdeen succeeded upto this stage there was no conflict among Shia community but afterwards there had been divisions and subdivision 1. Ithna Asharia or Imamia : Majority of Shia's are of this school. They are called twelvers, because of there believe to be twelve Imam's in Shia community and that the twelfth Imam who disappeared in the childhood would reappear in future. A special feature of this school is to recognises "Muta" or a temporary marriage. Twelve Imam's are (i) Ali (ii) Hasan (iii) Husain (iv) Ali Asghar Zainul-abdin (v) Mohammad-al- Baqir (vii) Jafar-as-Sadiq (vii) Musa-ul-Kazim (viii) Ali-ar-Raza (ix) Mohammad-al Taqia-al-Jawad (x) Ali-an-Naqi-al-Hadi (xi) Al-Hasan-al-Askari (xii) Mohammad-al-Muntazar. This school is sub-divided into two schools namely (a) Akhbari (b) usuli. Akhbaris are recognised as rigid traditionalists of Imam's while, Usuli, interpret the texts of quran on the practical problems of day to day life. These Shia's are found in Iran, Iraq, Lebnon, Pakistan and India. 2. The Ismailia School : They are called seveners. Sixth Imam Jafar-as Sadiq had two sons, Ismail and Musa ul-kazim. Musa ul-kazim became seventh Imam but a number of Shia's did not accept them as their Imam. They recognised Ismail as seventh Imam. They are found in Syria, Central Asia, Pakistan and India. 3. The Zaidys School : They are called fivers. Forth Imam Ali Asghar Zainulabdin left two sons, Zaid and Mohammad al-baqir. Mohammad al-baqir became Vth Imam but some Shia's accepted Zaid as their Vth Imam. They are the first who separated from Shia community. They are found mostly Yemen in South Arabia not in India. C. The Motazila : The Motazila sect came into force around 9 th century A.D. by Ata-al- Ghazzal. They were the defectors of Shia community. They believe only on the principle of Quran and mostly traditions have been rejected. This is only the sect in - 8 -

9 which monogamy is highly practiced and divorce cannot take place without the interference of judge. IMPORTANT QUESTIONS : Q.1 What is the extent of applicability of Muslim Law? Q.2 What are the main sources of Muslim Law? Discuss the role of Quran as a sources of Law. Q.3 What are the basic primary sources of Muslim Law? Q.4 Who are Mohammedans and what are their main sects? - 9 -