This article has been written by Ms. Mahek Choudhury, a 3rd year student of South Calcutta Law College, Calcutta University , Kolkata.
- ABSTRACT
Imagine you live in a world, where there is no such thing as law. What would be the direct result of it? The world will be in chaos with no rule and order to control the activities of the people and govern the nation. This was the very reason the law was brought in. Just like a country would suffer without a uniform law; a religion would also suffer without any uniform law to manage their religious practices. That is why, in a secular country like India we have various personal laws for managing the affairs of the different religions.
Using the doctrinal research method, this author delves into the aspect of Muslim personal laws, their sources, interpretation over the years by the judiciary and finally analyzing and giving their opinion on the cases and law in general.
1.2 INTRODUCTION
The world we live in today is a jumble of many ideas, morals, laws, and customs that all dictate acceptable social behavior. Laws are official guidelines that outline what members of a society are expected to do and are not allowed to do. These are put into effect by the government and legal system to establish a fundamental and binding code of conduct for the good of society. There was no specific separation between morality and the law in the past when legal restrictions were yet in their infancy. Dharma was regarded as morality and the law in India. For instance, the Vedas and Smritis, which were the people’s ideals, served as the primary source of Hindu law.
The Islamic institution of shari’ah is the formal name for Islamic law. Shari’ah means “path” or “way”. The shari’ah embodies a systematization of the path of conduct ordained by God for Muslims. It was formulated essentially during the eighth and ninth centuries A.D. and was originally conceived as regulating all aspects of a Muslim’s life: not only his relationships with the state and other individuals but also his obligations to God and his conscience. Its scope extends over ethical and religious duties, the laws of marriage, divorce, and inheritance, as well as the entire field of criminal law.
As far as Islamic law is concerned, over the years, there have been debates about its ideologies and how it does not match liberal ideals. While that may have been correct, it is necessary to remember that laws are made for the people of a particular faith, for the people who believe in it and therefore, its beliefs and customs are not required to be justified and “approved” by anyone other than the people practicing the religion but at the same time, it is necessary that with changing time, the position of certain sections practicing the given religion needs to be improved.
1.3 EARLY HISTORY
Every religion that has ever flourished on Earth has taught its adherents a sacred way to conduct their lives. “ISLAM” is God’s creation, with the “QURAN” at the core of each adherent’s life and serving as a centripetal force leading to the sacred center. The founders of Islam held that there is only one God, who has revealed Himself to his followers and governed their behavior. Islam is a monotheistic faith, meaning that it acknowledges the presence of just one God, known as “ALLAH,” who created the universe and is all-knowing, all-present, and capable of intervening in it.
To know more about Islam, let’s dive into the life of Prophet Mohammed who is believed to be the one initiating the Islamic movement. In 610 A.D., Prophet Mohammed was given the first revelation by the angel Jibril, also known as Gabriel. He began by instructing his friends and family in Islam. He then began giving public lessons in 613 A.D. He faced resistance to this, which resulted in the boycott of Muhammad’s tribe, the Hashim. This prompted him to look for an appropriate location where the message might be freely shared. To make it easier for him to relocate to Medina, he started consulting with the local clans in 620 A.D. As a result, in 621 A.D., twelve men from Medina visited him. Once more in 622 A.D., Mohammed received a visit from a group of seventy-five people who vowed to support him and his mission. His journey from Mecca to Medina in 622 A.D. was the consequence of this. The beginning of Islamic history is considered to be this time when Mohammed and his adherents left Mecca and moved to Medina.
It is believed that two women played a very important role in Mohammed’s life and the birth of Islam. When he was 25 years old, he married Khadijah, who was more than just a spouse. She was a disciple instead. Aisha was another significant female figure in Islam. That is why Attallah N. remarked, “Two remarkable women are central to the story of the birth of Islam: Aisha, the girl who became the Prophet’s youngest wife and the source of much of hadith, and Khadijah, the Prophet’s first wife and disciple.”
1.4 SOURCES OF THE LAW
Any family law is derived from two main sources, one is the primary source of law which is the guiding force for any law and another is the secondary source of law which itself is derived from the primary sources.
In Islamic law, the Arabic word for source is dalil (guide). The Quran and the Sunnah are the two main sources of Islamic jurisprudence. Shariah (the road), which is derived from the Quran and the Sunnah, is the foundation of Islamic law.
QURAN– The primary and most significant source of Islamic law is the Qur’an. The text, which is said to be the exact word of God as conveyed to Muhammad in Mecca and Medina by the angel Gabriel, outlines the moral, intellectual, social, political, and economic foundations upon which a society ought to be built. While the verses revealed in Medina are concerned with socio-economic rules, the verses revealed in Mecca deal with intellectual and theological matters. Muhammad wrote and preserved the Qur’an during his lifetime, and it was assembled shortly after his passing. Muslim jurists concur that the Qur’an as a whole establishes a way of life that governs man’s relationship with God and other people, not a legal system in the contemporary sense.
SUNNAH– The next significant source is the Sunnah, which is often understood to mean “the traditions and customs of Muhammad” or “his words, deeds, and silent assertions.” It comprises Muhammad’s regular sayings and utterances, his deeds, his implied approval, and his acknowledgments of remarks and deeds. Shi’ite jurists assert that the sunnah also contains the supposedly infallible sayings, acts, and acknowledgments of Muhammad’s daughter Fatimah as well as the twelve Imams.
IJIMA (CONSENUS OF OPINION)-An agreement on a legal matter among Muslim jurists of a specific era is known as an Ijma. Ijma and other legal sources should only be employed in situations when the Quran and Sunnah do not include clear instructions or specific rules on the subject at hand. The Quran and Sunnah are the core texts of all the sources. A jurist’s Ijma cannot alter essential religious rites and regulations.
QIYAS (ANALOGICAL DEDUCTION)-The fourth source of Shari’a, Qiyas, is only consulted when a topic has not been covered by the first three sources. It is the process of inferring a guideline from preceding references. Because the new case has the same effective cause as the original case, it is the extension of a Shariah decision from the original case to the new case.
Secondary sources according to Muslim law are Maslaha, Urf, Istihsan, and Istishab,
MASLAHA– When making decisions, maşlahah takes into account the welfare or interest of the general population. The goal of basing decisions on maslahah is to uphold the five fundamental principles of Sharia which are religion, life, intellect or mind, property, and progeny.
ISTISHSAN– A judgment that overturns a recognized dalil (i.e., guide) for a cause that warrants such a deviation (i.e., to deviate from an established norm or precedent) is made using istishsan, or juristic discretion. Istihsan is utilized to derive opinions so that the application of specific decisions won’t be inflexible or stiff.
URF– The Arabic word “urf” describes the traditional knowledge or way of life of a people or a particular culture (i.e., social tradition). The term “customary” denotes the use of phrases or behaviors frequently until they are deemed acceptable by the community. But if there is a difference in Sunnah and customary practice that contradicts the Al-Quran, then that difference is ignored.
ISTISHAB– Istishab alludes to the assumption of continuity premise. According to Istishab, precedent-setting decisions are deemed to be enforceable unless new information emerges that casts doubt on or contradicts the prior decisions. This assumption is true for both verdicts that are favorable and negative. This implies that if a certain rule has been demonstrated to be true in the past, it will continue to be true until countervailing evidence is provided.
1.5 INTERPRETATION OF THE ISLAMIC LAW
The way a judge understands the law is known as judicial interpretation. Varied judges have varied interpretations of the state or national legislation. Similarly, Islamic law or Sharia has been interpreted by courts differently at different times. To understand such interpretation better, let us study some important case laws or judicial decisions taken by the judges.
One of the most important cases under Muslim law is Mohammed Ahmed v. Shah Bano and Anr. The main issue surrounding this case was maintenance and dower. In Muslim law, there is no concept of maintenance rather dower is given to the wife after marriage for her to use after her husband passes away. Supreme Court held that a woman can claim maintenance from her husband after divorce irrespective of religion. By giving mehr or dower, a man cannot escape from his liability of giving maintenance under Section 125 of the Criminal Procedure Code, 1974.
Another landmark case was Shayara Bano v. Union of India and others wherein a resident of Uttarakhand had an ugly marriage and was divorced by way of triple talaq(Talak-ul-biddat). This case highlighted the inconsistencies and partiality of Islamic law towards women and changed the scenario of the whole law. it was held that triple talaq violated the basic fundamental rights given by the Constitution i.e., Articles 14, 19 and 21. In many jurisdictions, the Triple Talaq ruling is recognized as a defense against societal ills. Instantaneous Triple Talaq was a retrograde and immoral practice that was eventually outlawed in India due to the smart and justifiable argument offered by the majority bench of the Supreme Court.
The next case was the aftermath of Shah Bano’s case; the Muslim personal laws were in disarray. The Muslim Women (Protection of Rights on Divorce) Act, 1986 was enacted by the parliament and put into effect. Section 3(1)(a) of the act states that a divorced woman is entitled to support throughout the “iddat” term as well as reasonable and equitable arrangements. Danial Latifi, a council member, contested the aforementioned legislation because it violated Articles 14 and 21 and was thus illegal. It was held personal laws can be discriminatory and therefore, enactment of this act does not violate articles 14 and 21 of the Constitution.
1.6 ANALYSIS
If we take a closer look at the cases, we find that the Muslim women are denied basic rights and discriminated between the two genders. These laws have imposed societal and legal restrictions on women from time to time in the mane of Holy Scriptures like the Quran and Sunnah but if we take a closer look at the past, we find that in fact, it was two women who played an important role in the life of Prophet Mohammed and led to the birth of Islam.
This discrimination is, therefore, not an inherent trait in Islam. It is borne by the patriarchal and misogynistic mindset of the people. These laws are gender-biased give rise to the hardships and give a derogatory position to the women of our society. It is high time we hostile view of the laws discriminatory towards women and change them for the better. If the State wants the development and progress of their country, it must ensure that every individual is given equal rights be it, in personal laws or national laws.
It is important to note that developing diplomatic relations with other countries and adopting a different way of living is important with change in time but not as imperative as improving the position of Muslim women and women in general, who are at the receiving end of societal flaws and evils. For it is rightly said that “Change starts at home”.
1.7 REFERENCES
WEBSITE
- https://habib.camden.rutgers.edu/courses/evolution-of-islamic-law/#:~:text=It%20was%20formulated%20essentially%20during,God%20and%20his%20own%20conscience.
- https://blog.ipleaders.in/voyage-islamic-law-origin-development/
5 https://www.legalserviceindia.com/article/l302-Sources-of-Islamic-Law.html
6 https://islamiclabourcode.org/sources-of-islamic-law/
7 https://www.theaccsense.com/finance/islamic-finance/secondary-source-of-islamic-laws/
8 https://ballotpedia.org/Judicial_interpretation
BOOKS
1 Khan, A.A. et. al. Encyclopaedia of Islamic Law. v.1 Concepts of Islamic Law. New Delhi: Pentagon Press, 2006. p.59
2 Ramadan, H.M. Understanding Islamic Law. Oxford: AltaMira Press, 2006. p.4
SECTIONS AND CITATION
1 1985 SCR (3) 844
- 1985 (2) SCC 556
- Act 2 of 1974
- The Constitution of India, 1950
- (2001) 7 SCC 740
- Act 25 of 1986