This Article has been written by Mr. D.V.V Tanay Raj, a 2nd year student of Lloyd Law College, Greater Noida, Uttar Pradesh. 

 

MUSLIM LAW

Muslim law, also known as Islamic law, is recognized to have come from the divine rather than being created by legislators and based on the ideas of contemporary legal systems. Islam is a religion of peace, cleanliness, obedience, and surrender to God’s will. Muslims consider Allah to be the only god.

 

Sharia, an Arabic phrase that literally means “the way,” is the term used to describe the traditional Islamic legal system or law. Muslims view sharia as sacred because they believe it was inspired by Allah. 

 

Muslims regarded it as a divine commandment that governs and judges human behaviour. The concepts of the Prophet Mohammed and some of the Muslim legal scholars who interpreted his teachings are also the source of the Sharia. It is also said that Islamic jurisprudence dates back to the time of Mohammed. The Quran is the only revealed book of Allah according to Muslims.

 

Two fundamental Islamic beliefs were identified in the Narantakath v. Prakkal (1922) ILR 45 Mad 986 case: the presence and unity of God, and the veracity of Prophet Mohammed’s mission.

 

MUSLIM LAW SOURCES

 

The Quran, the Sunnat (the Prophet’s manner), the Ijma (the consensus of Islamic scholars), and the Qiyas (reasoning by analogy) are the main sources of Muslim law. A few more secondary sources are laws, customs, and court rulings.

 

PRIMARY SOURCES :

QURAN : The Arabic term Qurra, which meaning to read, is the root of the word Quran. Every word in the Quran is divine wisdom that was conveyed to the Prophet Mohammed by the angel Gabriel for the good of humanity over the course of 23 years, at various times, locations, and circumstances. During the Prophet’s lifetime, the world received the entire Quran in little, unfinished portions. The Quran was never properly assembled or compiled. Originally recorded on parchment, skin, or palm leaves, it was only accessible in this format.

The 114 chapters of the Quran, referred to as suras, are composed in an Arabic format. The

suras have 77, 934 words overall and 6666 verses, or “Ayats,” in them. Two hundred of these verses addressed legal topics, including inheritance, property transfers, marriage, and maintenance. The Quran was revealed in two stages, which are as follows:

                Meccan and Medinan.

 

The Quran’s verses are divine in character, and no institution or human power can change, edit, or amend them. Numerous languages have also been translated into the holy book.

• SUNNAT : Sunnat, sometimes referred to as Hadis or Sunna, is the Prophet Mohammed’s customs. The word “Sunnat” refers to a process, a well-traveled route, or an approach. The words of Allah are found in the Quran, but the Prophet’s acts, words, and practices are indicated in the Sunnat. Every deed, statement, or action made by the Prophet was regarded as tradition. Islamic law distinguishes between two kinds of revelations: internal (Batin) and manifest (Zahir).

Sunna Traditions include the following:

Sunnat-ul-Mutual

Sunnat ul-Tuqrir

Sunnat-ul-Qaul

 

The Prophet occasionally voiced his opinions or did so after conferring with a few of his companions, but the majority of his decisions were shaped by divine authority.

• IJMA : Ijma is the consensus reached by Muslim jurists regarding a specific legal matter. Put another way, the term Ijma refers to the unanimous ruling of jurists in cases where the Quran and other traditions failed to produce a rule of law for a given situation.

 

Individuals with extensive legal knowledge and education were referred to as Mujtahids, or jurists. The Quran and the Sunnat are the sources of the Ijma’s strength and authority, so it can never be in conflict with either of them.

 

There are two kinds of consensus, or Ijma:

Ijma-al-ummah (consensus of community)

Ijma-al-aimmah (consensus of religious authorities)

QIYAS : The fourth main source of Islamic law is called Qiyas, which is Arabic for “analogical reasoning.” In its literal sense, the term refers to the process of measuring or determining the length, quality, and weight of an object. The Quran lacks any definitive Qiyas authorities. To support Qiyas’ authority, however, numerous legal jurists have offered a number of proofs drawn from the Quran, Sunnat, and the companions’ actions as indirect evidence.

 

The Hanafi school of thought backs Qiyas with great force. As Abu Hanifa cited, “Our knowledge is an opinion, the best that humankind has to offer.” As we each have the right to our own opinions, so does anyone who can reach a different conclusion.

 

SECONDARY SOURCES :

JUDICIAL DECISIONS :

The Indian judiciary has interpreted Muslim law on multiple occasions. Generally speaking, all of these interpretations rely on original sources. Using judicial interpretations, legislation, jurists’ opinions, and courts have resolved numerous significant legal anomalies.

CUSTOMS:

In essence, customs are long-standing behaviours that people stick to consistently. In fact, it has been observed for so long that in certain circumstances it becomes a law. Muslim law is based on a number of customs that control people’s behaviour.

LEGISLATIONS :

The parliament of India has passed several laws to control Islamic practices, but Muslim law is not codified in the country. The Islamic Personal Law (Shariat) Application Act of 1939 is one example. Th Decisions Made by Judges

The Indian judiciary has interpreted Muslim law on multiple occasions. Generally speaking, all of these interpretations rely on original sources. Using judicial interpretations, legislation, jurists’ opinions, and courts have resolved numerous significant legal anomalies.

 

INTER-RELIGION MARRIAGES

The essentials for marriage under the three schools are nearly same and as such no prohibition is there on the parties to undergo inter-school marriages. But when it comes to inter-religious marriages, Islamic laws prohibit them[xv].

In respect of inter-religious marriages, Sunni and Shia laws are different. The law is therefore discussed separately in both the schools.

Under Sunni Law, A boy is permitted by Sunni law to wed a Muslim girl of any sect as well as a “Kitabia” girl. If a girl is a part of a community that has its origins in a heavenly book, she is considered kitabia. 

Christians and Jews are regarded as kitabia by the law. A Sunni man is therefore free to enter into a legally binding union with a Christian or Jewish woman; such a union is entirely legitimate.

A sunni male’s marriage to a female who is neither Kitabia nor a Muslim is merely irregular rather than null and void (Fasid). A non-standard marriage has no legal status. An irregular marriage becomes fully legal as soon as the irregularity is eliminated. For instance, a sunni boy’s marriage to a Hindu girl or a foreworshipper is merely irregular; however, it may become official and recognized as lawful if the girl converts to Islam. In other words, a Sunni male’s marriage to any non-Muslim or non-Kitabia girl is not null and void, but it is irregular.

Under Shia Law, A Shia male cannot enter into a marriage contract with a non-Muslim woman. Even a kitabia female cannot be married to a Shia Muslim. All of these Shia Muslim marriages are null and void. On the other hand, a male Shia could get married to a female kitabia or fire worshipper in a Muta marriage.

It is forbidden for a Muslim woman, Sunni or Shia, to wed a non-Muslim man. According to both schools, a Muslim woman’s marriage to a Hindu, Jew, Christian, or Parsi is null and void.

Muslim woman + Muslim man makes a lawful union, Sunni man and Kitabia woman make a lawful couple, Sunni man married to a non-Muslim/non-Kababic woman results in an irregular union, Shia Man and Non-Muslim Woman Cannot Marry Each Other, Muslim woman + non-Muslim man = null and void union, Sections of the 1954 Special Marriage Act

This act allows anyone, regardless of religion, to legally marry a person of the opposite gender. A “court marriage” is a marriage that is arranged under this act. When someone marries under this law, their union is governed by secular laws rather than their own personal laws. Similarly, secular law also governs the rights and obligations that result from marriage. The Indian Succession Act, 1925, rather than the personal laws, governs succession.

The primary intention behind the enactment of the Special Marriage Act was to offer a unique marriage ceremony that would enable Indian citizens and those living abroad, regardless of their respective religions or spiritual beliefs, to consummate their intended marriage.

Because it allows for the appointment of diplomatic and consular officers as marriage officers (registrars), to solemnise and register Indian citizens’ marriages abroad, the Special Marriage Act of 1954 has proven advantageous for NRIs. All of India is covered by the Special Marriage Act of 1954, with the exception of Jammu and Kashmir. 

The Special Marriage Act, as it is officially named, is essentially a piece of legislation designed to legalise a select number of marriages that have been ruled null and void by different personal law provisions. 

This feature of the act makes it one of the most secular laws pertaining to personal civil matters. This action can further support the development of positive relations between different religions.

With its strict caste and religious system, India is still largely a traditional society. When choosing a spouse, caste and religion are crucial factors to consider. Most Indians find it difficult to consider getting married outside of their caste. However, it is encouraging to see that the caste system is gradually losing its influence over marriage selection, as about 10% of Indian marriages are said to be intercaste unions. This is a positive start towards ending India’s caste system entirely. India’s marriage customs have changed recently as a result of the country’s economic globalisation, socioeconomic growth, and modernization. Various socio-economic and demographic factors also affect the pattern of inter-caste marriages in India.

The pattern of inter-caste marriages varies significantly by place. Compared to the socioeconomically backward states of northern India, namely Uttar Pradesh, Madhya Pradesh, Bihar, and Rajasthan, there appears to be a higher rate of inter-caste marriages in socioeconomically developed states such as Punjab, Haryana, Assam, Maharashtra, and Karnataka.

It is anticipated that as society becomes more modernized and economically developed, the number of these intercaste unions will rise. To lessen the caste, divide that exists in Indian society, such marriages must be praised, publicized, and encouraged. It will take a long time before caste prejudice is entirely eradicated from India’s marriage system.

The only way to totally eradicate caste divisions in India—rural or urban—is through intercaste marriages. The initiative should start in urban areas and move towards rural ones. This is because the population in urban areas is more cosmopolitan, educated, and aware, which makes it easier to encourage intercaste marriages. The incentives offered to couples who register under this act and take advantage of the incentives need to be better structured by the government.

To protect religious believers who believe they have committed a sin by marrying outside of their caste, the legislature should amend this act to protect couples getting married under the special marriage act. In order to encourage intercaste marriages and assist couples visiting the Registrar’s office to get married under this act, the process and registrars appointed under it should also be made simpler and more appreciative.

Maternal and paternal succession issues arise in intercommunal marriages, such as those involving Hindus marrying Muslims, Hindus marrying Parsis, Hindus marrying Christians, or any other combination. These issues should be resolved. The caste of the children born out of such wedlocks is another significant factor that merits careful consideration; currently, there is no explicit legislation defining the caste of children born out of special marriages. 

Even with all the steps the government has taken to address the problem, the girl to boy ratio is decreasing daily in the current situation.

Today, the question is raised as to whether our caste system will still exist when there are virtually no women left to marry. What would happen to all religious beliefs if people married women from different castes? Would the couples then commit a sin? The answers to each of these queries are emphatically no. Under the current conditions, if something was not sinful in the past, it certainly won’t be now.

The Indian Constitution grants us the fundamental rights of Life, Freedom & Personal Liberty, and Equality, and these rights are also granted to couples who marry under the Special Marriage Act. Therefore, efforts should be made by the government, non-governmental organisations, legal teams, and young people to encourage intercaste marriages even at the local panchayat levels in rural areas.

 

Racial discrimination and caste systems are a curse on modern, progressive India. India’s diverse societies—Hindu society in particular—have long been split along religious and caste lines. It took years for the Indians to overcome their deep-seated belief in the caste system. India is still fighting to overcome this social threat today. History shows that numerous social reformers and individuals have worked to free India from the shackles of the caste system, untouchability, and racial discrimination.

 

Indians had an orthodox mentality for a long time. Intercaste marriages were unthinkable to them. They believed that unions could only occur between members of the same caste and community. In the past, most Indians avoided talking about marriages between people of different castes and religions.

 

But as time went on, things altered, and intercaste marriage also spread throughout the community. Being the most significant social custom, marriages were thought to be the most effective way to break down the caste system. Intercaste marriages are still common in Indian society today, but they are primarily a feature of urban culture. There is still more work to be done in the nation’s rural areas. 

 

REFERENCES

[i]U.P.D, Kesari, ‘Modern Hindu Law’, (Central Law Publications, Allahabad, 2007), p37.

[ii] Catherine Benton, ‘God of Desire’, (Sunny Press, Kolkata, 2006), p16.

[iii]http://en.wikipedia.org/wiki/Gandharva_marriage, accessed on 3/9/2013.

[iv]http://marriages-life.blogspot.in/2010/08/hindu-weddings-rakshasa-marriage.html, accessed on 3/9/2013

[v] See’ M.C. RICKLEFS, ‘A HISTORY OF MODERN INDONESIA SINCE C. 1300’, 3–14 (1991).

[xv] Fyzee ‘Outlines of Muhammedan Law’, Ed IV, p.99.

[xvi]http://www.webcitation.org/5symq8ed8, accessed on 3/10/2013

[xvii] Special Marriage Act, 1954.