Sources of Muslim Personal Law

Introduction:

Islam in its rudimentary sense means “Submission to God”; and Muslims are the people who without any hesitation choose to follow this noble thought; and actively obey, preach, follow and live according to Islam.

Islam glorifies in the oneness of god. The religion is adamant in taking forward the idea of “God” as the sole creator, judge, savior, ruler, and sustainer. That God is a power, that god didn’t take birth and on the final day known as The Day of Judgment each individual has to come before God and answer for their ventures at life.

Everyone who worships one god and rejects the existence of another divine power is said to be a worshipper of God (Allah); as the word Muslim means one who submits to the will of God, irrespective of their race, nationality, ethnicity or cast. Islam is the 2^nd most followed religion in the world with followers around the world; who comply with and abide by all the adages of Quran revealed by Prophet Mohammed.

Sources of Muslim Law

The sources of Muslim law can be categorised into two broad categories for further deliberations:

1. The ancient sources: comprising of holy quran, sunnah, hadith, ijma and qiyas.
2. The modern sources: comprising of principles of justice, equity and good conscience, legislations and precedents

I. Ancient Sources

1. The Holy Quran

The Quran is a way of life for the Muslim community; it has the truest, most pure words of God. It is the ultimate righteous path that a human should wander upon. The Quran has the words which are irrefutable and idiosyncratic. Like any other religion The Quran also has the principles and noble teachings by the God which were perceived by Prophet Mohammed for a period of around 23 years. The Quran is the Holy book of Islam which is followed by every Muslim around the world. The Quran is the supreme authority for Muslims and it contains all the prepositions relating to Muslim Personal Law. In case of any question regarding the personal law, a Muslim has to turn to The Holy Quran on primary basis as it contains commandments regarding divorce, succession, marriage etc.

It is believed that the Prophet Mohammed’s teachings were compiled in a book; It was named Quran as the commandments were received by the prophet in Mecca (the Holy Pilgrimage) and Medina. The commandments in Mecca were about the religion’s development, origin, idea etc. And in Medina the commandments were about regulation of society and how society is to govern itself. The Quran is made to provide people with spiritual as well as intellectual nourishment; it has chapters and verses which could help a person in every walk of life. In short Quran is what every Muslim is bound to follow and live according to as to be eligible for the God’s mercy on The Day of Judgment; and it is the primary source for of Muslim community’s way of living.

2. Sunnah

Sunnah comes second in the line of primary sources of Muslim personal law. Sunnah in literal sense means “path”. It is about how Prophet Mohammed lived his life according to and as messenger of God; and how every Muslim should imprint the same. Sunnah is used when a Muslim faces such circumstances and Quran is silent about it, then one must look for answers in Sunnah. After the demise of the Prophet the Muslim community was divided in two sects as to

decide who would be successor of the Prophet one being Shia Muslim and the other being Sunni Muslim. One sect believed the successor must be the person elected known as Caliph by the popular demand; the other sect believed that the successor must belong to the family of the Prophet. According to Quran, the Prophet preached about the traditions and customs which were followed by him and must be followed even after his demise; as his actions were according to the God’s will and God’s grace. Sunnah is mostly followed by Shia Muslim in day to day life and circumstances arising there of.

3. Hadith

Hadith is the compilation of Sunnah. It is widely accepted that the Prophet never allowed his followers to write his preaching; and his actions as it may happen that writing could cause confusion between Quran and his actions. Therefore, there is no Hadith of that period but it was later written by many followers. Then compiled together as for the authenticity the Hadith have references as to from whom and where the text was taken from. This was done as to maintain the sacrosanct nature of the Hadiths.

4. Ijma

Ijma stands for consensus i.e. the agreement among all the noble Islamic jurists on a particular fact, issue, law etc. It is of binding nature like precedent. Ijma is the third in the line of primary sources of Muslim Personal Law. It is well within the ambit of Quran. It stands on the credence that the Ijma is product of the most lionized, the most esteemed jurist of Islamic Jurisprudence; and when people with such high knowledge of The Holy Quran comes to a common a result it is according to the God’s will.

Ijma is mostly followed by Sunni Sect of Muslim community and some of them also believe that Ijma is as important as Quran and Sunnah; as it is about the popular demand of the living Muslim who knows about the Quran. While Shia sect thinks that the Ijma is not free of errors as Quran and Sunnah as they are made by humans themselves.

5. Qiyas

As Islam grew in different parts and corners of world so did the difficulties and questions. As Islam came in contact with people from different ethnicity, casts, backgrounds, communities the Islamic law now had to deal with different problems. The expansion of Islam led to formation of Qiyas which is logical deduction to a certain problem; which is intern backed by the primary sources like Quran and Sunnah. As the Quran was not capable to growing problems of outside world which came in contact with Islam; the Muslim Jurists took upon them to analyze the problem keeping in mind the teachings of Quran and Sunnah and then coming to a logical deduction. The Qiyas are 4^th in the line of primary sources of Muslim Personal Law. Qiyas are mostly followed by Sunni sect.

These are the five most prevalent sources through which the Islam governs itself; the Quran is the most trusted and acts as the supreme authority. It elucidates the way of living and morals of life.

Conclusion of Ancient Sources:

It is not a legal code. The Holy Quran is followed by every Muslim sect without any hindrance. Then comes the Sunnah which is about the Prophet Mohammed’s way of living and existing. Sunnah teaches people what the Prophet Mohammed the messenger of God would have done if he would have been in the same place. Then in the line is Hadith which is the compendium of Sunnah from various sources.

The Sunnah and Hadith are not different or devoid of each other. The Sunnah is intern the whole of Hadith. The question did arise about the authenticity of Hadiths due to their coming into existence only after the passing of Prophet Mohammed; that is why the Islamic scholar did write all the references they took to be true and then mentioned the same. Then comes the Ijma which is like the judgment by the regulating authority of Muslim community or a group of Muslim Jurists who lie on a higher pedestal; and is believed to have the utmost knowledge about the Quran and its meaning. The last in the line is Qiyas which is also in the same line as of Ijma; but has just a variation of dealing with the outside problems which arose due to the expansion of Islam. But still, within the periphery of Quran and its teachings.

The Quran is the only source which every individual of the Muslim community use, rest all either follow or have an alternative. The Quran in fact is the only source which is devoid of all impurities and have not been adultered with; rest the making and writing of all sources is by humans so there prevails always a doubt in the mind.

II. Modern Sources

It refers to the sources of law prevalent in contemporary times such as the principles of natural justice, codified legislations under the Indian Legal System and the various precedents passed by the judiciary.

1. Justice Equity and good conscience:

This principle refers to the concept of natural law or justice, implying the serving of the justice to the appellants in the court of law; even if a specific provision doesn’t exist in the codified laws for the specific situation. Hence, this principle becomes the paramount source of Hindu Law, as it encourages the extension of the existing laws to suit the specific situations and amend the laws as per the necessity.

2. Legislation

Legislations are the inaction of statutes by the Parliament or the State Legislature to govern human conduct in a country as per moral, good conscience and equality. There are many acts enacted by the Legislature as it aligns with the religious belief and the public order. One such act is The Muslim Personal Law (Shariat) Act, 1937 which regulates the divorce, succession, marriage, Wakf(trust), Mehr, Gifts, Property etc. The Muslim Personal Law is known as Sharia; that’s why the law is also popularly named as Sharia. Any other act enacted by the parliament also meddle with the working and beliefs of a religion like The Child Marriage Restraint Act, which make child marriage i.e. boy under the age of 21 and the girl under the age of 18 years punishable.

The Special Marriage Act, 1954 where if cross religion marriage happens then the marriage would be governed under the act; not according to one’s religious beliefs. The issue of Divorce has always faced a major drawback as many people interpret the area in different ways and hence confusion arises. The Quran is silent on the fact by the woman to the man and only talks about divorce by the husband. To solve this grey area the Indian Parliament enacted a law Dissolution of Muslim Marriage Act, 1939 which gives the right to Muslim women to divorce her husband on 3 grounds. After this the issue of maintenance after the divorce also came before the public eye and in 2019, through The Muslim Women (Protection of Rights on Marriage) Act, 2019 Instant Triple Talaq practice became punishable.

3. Judicial Precedent

Late 80s was the time when the Muslim men and women came forward and started considering their individual human rights, and it was the duty of the India courts to provide the citizen of India with their Fundamental Right whatever the Public opinion was.

One of the pioneers of change in the Muslim Personal Law was the case of Shah Bano Begum vs. Md Ahmed Khan.¹ Where the Shah Bano Begum became the Messiah and gave every Muslim women right to maintenance after divorce like any other Indian Women; the apex court set aside the rule given in Quran and chose to give right to maintenance under Section 125 of Cr.P.C. Yet another case which bought a wave of change in Muslim personal Law was Shayara Bano vs. Union Of India² through which the apex court abolished the practice of Instant Triple Talaq as it was permissible only to Muslim men and not Muslim women; and it was also a violation of Article 14.

Through Legislation and Judicial Precedent, the Parliament and Courts take a progressive step in assertions of an act which is widely recognizable and follows constitutional or unconstitutional procedures. This is only done in grave situations as the Freedom of Religion is also enshrined in the Constitution; and India being a culturally proactive country, it is really difficult for a government to overturn popular belief; As well as, to do it, is violative of Constitution. But this is how Legislation and Precedent becomes a part of Muslim Personal Law.

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References:

¹ Shah Bano Begum vs. Md. Ahmed Khan, 1985 (2) SCC 566

² Shayara Bano vs. Union Of India, Writ Petition (C) No. 118 of 2016