Muslim law comprises of the directive of the Quran, of the conventions presented by the act of the prophet (sunna), of the normal assessment of the legal advisers (ijma), of the analogical conclusions of these three (qiyas). Further, it has been enhanced by the juristic inclination (Istihsan), open approach (Istislah), point of reference (Taqlid), and autonomous interpretation (Iltihad) that are considered as secondary sources of Muslim law.
A part of individual law or common law which is applied by courts concerning family matters while the parties are Muslim. The term ‘Muslim’ is gotten from the word ‘Islam’ and it indicates the person that adopts the religion of Islam. From in which the content material of a law is to be found and are made or to be had to us is known as the source of that law. It is essential on the way to have the law, its clarification, and its proper interpretation.
Sources of Muslim Law
Sources of Muslim law classifies into two categories:
Primary Sources of Muslim Law
Primary sources are the sources which the prophet himself directed to the resources of Muslim regulation. These are the inspiration for Muslim regulation. These sources are universally widely wide-spread as proper and they are primary which means these sources will rely earlier upon than every other source. These are also referred to as formal sources. These are:
The Quran is like a charter for the Muslims and it carries all ideas to be used in personal legal guidelines inclusive of marriage, divorce, succession, and so forth.
Sunnah or Hadith (Traditions)
The word ‘Sunnah’ basically approach ‘Route’. It connotes that the path that the prophet followed has to be accompanied by the people after him. Consequently, whenever there may be a state of affairs where the holy Quran is silent and the people are not able to come to a decision, sunnah, i.e. the movements of the prophet are accompanied.
The term ‘Ijma’ means a ‘Consensus’, i.e.the settlement among all on a specific point of truth or regulation. Ijma is a concept of a regulation made by consensus of all Islamic jurists or different people of expertise and talent.
When the answer to trouble is located and all of the jurists together agree to it, it was known as the qiyas.
Secondary Sources of Muslim Law
These are those sources that are advancements in the establishments set somewhere around the primary sources. These sources are not essential sources of Muslim law but rather the strengthening source of Muslim law. These sources clarify or change the primary sources. They manage the requirements of the Islamic culture in the cutting edge time. These are likewise called superfluous sources. The secondary sources of Muslim law are:
- Urf or Custom
- Judicial decision
- Equity, Justice, & Good conscience
Urf or Custom
Customs are fundamentally rehearsed that individuals follow ceaselessly for an extensive period. Indeed, they tail them for such a long time that they get the status of law now and again. Muslim law contains different traditions directing acts of individuals.
Under the watchful eye of Islam, standard law administered Arabia. At that point, the Prophet nullified the greater part of them, as they were Un-Islamic and awful. The Shariat Act, 1937 has annulled the vast majority of the traditions. Segment 2 records ten issues including legacy, marriage, separate, wakf and, support wherein customs and uses can’t be applied any longer.
A few traditions, nonetheless, were proceeded because of the Prophet’s quiet endorsement. Some were even remembered for his conventions. Something else, a few traditions made due because of their fuse in the Ijma. For instance, Prophet Mohammad never repeals the entire of the pre-Islamic standard law of Arabia. In the different matter of Muslim law, custom assumes a huge job when the issue is identifying with:
- Agricultural land;
- Testamentary succession among certain communities; and
- Charities other than wakf, because these matters have not been included in the Section 2 of Shariat Act, 1937.
Requirements of Valid Customs
- General prevalence in a country is necessary. The practice of a limited number of individuals cannot be regarded as custom.
- It must be Territorial.
- Customs must be immemorial which means beyond human memory.
- It should be ancient and invariable.
- It should not oppose public policy.
It’s anything but a proper source, yet, without rule of law in the writings of the essential sources, the standard practices are viewed as law. The English Courts in India held that custom would beat a composed book given that the exceptionally was old and invariable.. Nonetheless, it can’t be denied that custom has consistently been given a spot under Muslim law, on the off chance that it is in congruity with Muslim law.
Judicial Decisions or Precedents
This encompasses the choice of the privy council, the supreme court as well as high courts of India. in finding out precise cases, the judges enunciate what the law is. these decisions have seemed as a precedent for future cases and the courts are certain to follow the precedents.
It is said that the law secures just the watchful. This is a lot of right on account of Muslims in India. The advancement of Muslim law by the legal executive went to its full improvement during the 1980s because till at that point, the Muslim people have been dozing on their privileges or were uninformed about their privileges.
Courts have settled numerous significant legitimate oddities utilizing legal understandings. Law of preemption, legitimacy of blessings to the minor spouse, extra grounds of the disintegration of marriage, and even enthusiasm on unpaid dower are not many of the fields where courts have stepped in with new understandings or caution based on equity, value and great inner voice to build up the law further.
Numerous multiple times, enactments have overruled or refuted the principles; they are as yet a wellspring of law. It might be finished up accordingly, that somewhat, the courts in India have attempted to change the guidelines of Muslim individual law as applied in India. Except if overruled or negative by some administrative authorization, these principles through the choices, keep on being a source of Muslim law.
There is a range of judicial decisions that have given a new dimension to Muslim law.
- The first landmark judgment that deals with Muslim personal law became the 1986 judgment in Shah Bano Begum v. Md. Ahmed Khan1, . In this case, the apex courtroom held that Muslim women have a right to upkeep below segment 125 of the Code of Criminal Procedure even though the Quran or their non-public laws have furnished for a trade remedy. the same ratio becomes upheld through the apex court in Daniel Latifi v. Union of India2.
- In Maini Bibi v. Choudhry Vakil Ahmad3, held that a widow possesses the proper to maintain the assets of her husband till her dower money becomes paid.
- Recently, within the leading case of Shayara Bano v. Union of India4, the apex court held the system of instantaneous divorce by the utterance of the phrase ‘Talaq’ thrice orally unconstitutional because the proper to instant divorce is only with the men and now not women. Besides, the system is unfair, and for this reason, violative of Article 14. Consequently, the judiciary has assisted with the improvement of Muslim personal regulation.
Legislation means resolutions sanctioned by the Parliament or the State lawmaking body for the guideline of human activities from a specific perspective. God is the supreme lawmaking body according to Islam. Muslim law in India is uncodified, therefore Parliament has made a few legislatures that bring a few changes to control some Islamic practices. For instance, The Muslim Personal Law (Shariat) Application Act, 1937 administers marriage, progression, and legacy. The Dissolution of Muslim Marriages Act, 1939 is another law managing certain separation cases among Muslims.
Similarly, substitute enactment accessible to all religions has had its effect felt on the Muslim personal law. For instance, a couple that marries under the Special Marriage Act, 1954 will be controlled by this represent matters concerning marital life and not by the personal laws of the party. The legacy and intestate progression of the life partner or beneficiaries will likewise be administered under The Indian Succession Act, 1925. It doesn’t make a difference whether the people getting married under this law are from a similar religion or group or not.
In Indian Muslims are additionally administered by the different legislations passed either by parliament or by state governing body.
The latest advancement in enactments has been the Triple Talaq Bill (The Muslim Women Protection of Rights on Marriage Bill 2019) that disallowed any type of an oral or composed affirmation of separation to be illicit except if it is executed with the due procedure of law.
Justice, Equity, and Good Concise
The doctrine of fairness, Justice, Equity, and good concise is regarded as one of the sources of Muslim law. These concepts of Muslim law are known as ‘Istihsan’ or ‘Juristic Equity’. Istihsan manner approbation and can be translated as liberal construction or juristic choice or what we call today as the law of equity. Numerous regions of Muslims have been changed to meet the changing situations in India.
In conclusion, sources of Muslim law can classify into two categories that are primary sources and secondary sources. Primary Sources are the sources from which the original content of the law is taken and secondary sources are subsequent the primary sources that are made or formed with the changing needs of the society. It is because of the commitment of all that a deliberate and precise hypothesis of individual laws of Islam appeared which governs the Muslim people group.
- 1985 (2) SCC 556
2. (2001) 7 SCC 740
3. 11 December, 1924
4. Writ Petition (C) No. 118 of 2016
- In how many categories, sources of Muslim law can classify?
2. What are secondary sources of Muslim law?
3. What are Precedents?
4. To whom Muslim law is applied?
5. What are the requirements of valid custom?