Origin of Muslim Law
Muslim law or Islamic law is known to be originated from the divine and not like
the man-made laws that are passed by the lawmakers and are governed by the
principles of modern systems of law. Islam signifies submission to the will of
God and means peace, purity, salvation, and obedience. Muslims believe that
there is only one god, Allah
The traditional Islamic law or Islam's legal system is well known as Sharia
it is an Arabic word which in the literal sense is referred to as the way. Sharia is originated from Allah and that is the reason that Muslims consider it
as holy. Muslims considered it a word of god' which regulate and evaluate
human conduct. The Sharia is also derived from Prophet Mohammed's principles and
by some of the Muslim legal scholars who interpreted his teachings. It is said
that Islamic jurisprudence is also something that goes back to the lifetime of
Mohammed. For Muslims, the Quran' is the only disclosed book of Allah.
In the case of Narantakath v. Prakkal
(1922) ILR 45 Mad 986, it was stated that
there are two basic beliefs of Muslims, first, the existence and oneness of God,
and second was the belief in the truth of Prophet Mohammed's mission.
Sources of Muslim Law
The primary sources of Muslim law are the Quran, the Sunnat (the way of the
Prophet), the Ijma (consensus of Islamic scholars), and the Qiyas (reasoning by
analogy). Other secondary sources are judicial decisions, customs and
QuranThe word Quran is derived from the Arabic word Qurra which means to read.
Every word of Quran is the word of god, communicated to the Prophet Mohammed
through angel Gabriel for the benefit of mankind, at different times, places,
and situations during the period from 609 to 632 A.D (23 years).
The whole body of the Quran was given to the world in small incomplete parts
during the lifetime of the Prophet. The Quran was never compiled or arranged in
a proper form. In the starting, it was written down on palm leaves, skin or
parchment, so it was available in this form only.
The Quran was structured in Arabic and it consists of 114 chapters, which are
known as suras. The suras contain 6666 verses which are called Ayats and the
total number of 77, 934 words. Out of these verses, 200 dealt with legal
principles such as marriage, maintenance, transfer of property, inheritance,
etc. The Quran was disclosed over two periods which are:
The words of the Quran is divine in nature, it cannot be amended, revised, or
modified by any institution or human agency. The sacred book has been translated
into a number of languages as well.
Aga Mohammad Jaffer v. Koolsom Beebee and others,
It was a judgment delivered by the Privy Council on 7th April 1897.
It was observed that where a passage of the Quran was interpreted in both
Hedaya (a work of Sunni Law), and in the Imamia (a work of the Shia Law) it was
not open to a judge to construe it in a different manner.
The courts should not compare any traditional settled law with Quran.
The SunnatSunnat is also known as Hadis or Sunna, it is the traditions of the Prophet
Mohammed. The term Sunnat means a procedure, the trodden path or a way of
action. Quran consists of the words of Allah but on the other hand, Sunnat
indicates some precedents, acts, language, and the practice of the Prophet.
Whatever the actions of the Prophet were or the Prophet said or did was
considered as a tradition. According to Islamic law, there are two types of
revelations i.e. manifest (Zahir) and internal (Batin).
The Traditions of Sunna comprises of:
Sometimes, the Prophet gave his opinion or after consulting with some of
his companions but most of his verdicts were influenced by divine authority.
He was considered as a role model and others were inspired by whatever he
did. This was known as Sunnat-ul-fail, which means whatever he did by himself.
- Sunnat -ul-Tuqrir
many instances when in his presence people did some acts which were in
accordance with the Quran. The acts of the people which he allowed without
openly expressing his consent through words were known as Sunnat -ul-Tuqrir'.
All the enjoined words & the precepts of the Prophet were known as Sunnat-ul-Qaul.
IjmaIjma is a consensus within Muslim jurists on a particular legal issue. In
simpler words when Quran and other traditions were not able to provide any rule
of law for a particular problem, the jurists unanimously gave their decision and
this was referred to as Ijma.
Those people who had much knowledge and learning about the law were known as
Mujtahids (jurists). The Ijma derives its power and authority from both the
Quran and the Sunnat due to which it can never be contradictory to anyone of
There are two types of Ijma or consensus:
- Ijma-al-ummah (community consensus)
- Ijma-al-aimmah (religious authorities consensus)
QiyasQiyas is the fourth primary source of Islamic law, it means analogical
reasoning. The term in the literal sense is known measuring or ascertaining the
length, quality, and weight of something. There are no clear authorities of Qiyas in the Quran. However many legal jurists have provided several proofs from
the Quran and Sunnat and also from the practices done by the companions as
indirect evidence to support the authority of Qiyas.
The Hanafi school of thought very strongly supports Qiyas. As Abu Hanifa
quoted - The knowledge of ours is an opinion; it is the best we have been able
to achieve. He who can arrive at different conclusions is entitled to his own
opinion as we are entitled to our own.
Judicial DecisionsOur Indian judiciary at several instances interpreted Muslim law in several
cases. All these interpretations is generally relied upon primary sources.
Legislation, opinion of jurists and courts have settled many important legal
anomalies using judicial interpretations.
CustomsCustoms are basically practices that people follow continuously for a long
period of time. In fact, it is followed for so long that it obtains the status
of law in some cases. In Muslim law there are various customs which regulate the
practices of people.
LegislationMuslim law in India is not codified, but the parliament has made some laws to
regulate Islamic practices. For ex. The Muslim personal law (Shariat)
Application Act, 1939.This act deals with the marriage, succession, inheritance
and charities among Muslims.
Who is a Muslim?
The term Muslim
. A Muslim is a person who follows Islam.
Muslim law applies to a born Muslim or a person who is a convert Muslim.
Muslim law even applies to certain other categories of people also such as the
Khojas, Halai Memons, Sunni Bohras of Gujarat Daoodi, and Sulaimani Bohras and
to Molesalam Broach Girasis.
In Azima Bibi v. Munshi Samalanand
, (1912) 17 CWN 121, it was observed that a
child born out of a Muslim couple would be Muslim, even if he by choice goes to
a Hindu temple. The person would be a Muslim, till the time he does not renounce
his religion and converts to another religion.
In Bhaiya Sher Babadur v. Bhaiya Ganga Baksh Singh
, (1914) 41 IA 1, it was held
if a Muslim woman has a child from a Hindu man but the child from the time he
was born was brought up as a Hindu, then, in this case, he would be called a
The right to convert is given under Article 25 of the Constitution of India,
which guarantees every citizen of India, freedom to practice, profess and
propagate one's religion. There are many instances in which a Hindu man who
intends to get married for a second time, which is prohibited under their set of
family laws, purposefully converts to a Muslim to misuse it and escape from the
punishment given under section 494 (bigamy) of Indian Penal Code, 1860.
The Supreme court in Sarla Mudgil v. Union of India
(AIR 1995 SC 1531) and Lily
Thomas v. Union of India (AIR 2000 SC 1650), has held that, if a Hindu married
man converts his religion to Muslim just because of the reason as to marry a
second time then it will be void and he will be punished under Section 494 of IPC for committing bigamy.
Under Muslim law, if a married man renounces his religion then in that case his
marriage ends immediately but this is not the case for Muslim women who convert,
her marriage would not come to an end if her marriage was done according to the
rituals of Muslim law. Unless and until she was a convert Muslim and again
re-embraces her faith.
- Family Law-II by Dr Poonam Pradhan Saxena (2016, 3rd edn, LexisNexis),