This article has been written by Ms. Arushi, a B.A.LL.B.(2022-27) student of Lloyd School of Law, Greater Noida, U.P.
Origin of Muslim law-
Islam is one of the oldest religions in the world. it originates from Arabia. Prophet Mohammed had proclaimed Muslim law to be the commandment of God, most Muslims follow it strictly. It dictates several spiritual, religious, social and even legal activities of many Muslims in India. The personal laws of Muslims provide guidance in matters of marriage, divorce, succession, inheritance and even adoption. For example, the Islamic law of divorce is slightly different for Shias and Sunnis. Islamic law is based on various traditional sources. These sources may be either primary or secondary. Muslim law is known to be originated from the divine and not like the man-made laws that are passed by the lawmakers. Muslim law believes that there is only one God, Allah.
Who is a Muslim–
A Muslim is a person who follows Islam. Muslim law applies to a born Muslim or a person who is a convert Muslim.
Ancient sources of Muslim law-
Primary sources-
The Muslim law has been derived from various primary sources. These are classified as:
- Quran – The Quran is considered as the holy book of all Muslims. It contains direct revelations of God through Prophet Mohammed. It is due to this reason that it is the foundation of all Islamic laws. All tenets, teachings, principles, and practices of Islam originate from the Quran.
- Sunnah/Ahadis – it translates to ‘path’ and means the practices, traditions, and precedents of Prophet Mohammed. Whenever the Quran did not explain something, the Prophet’s actions and words became the authority.
- Ijma – The common opinions of the jurists on aspects that the Quran did not explain became Ijma. This source of law is very expansive and covers many topics. It gets almost as much importance as the Quran and the Sunna themselves.
- Qiyas – Whenever the other sources do not explain something, Qiyas helps in deducting interpretations that seem to be the most obvious.
Secondary sources-
- Judicial decision- Indian judicial system 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.
- Custom – Customs are basically practices that people follow continuously for a long period of time. The practices are 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.
- Legislation- Muslim 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.
- Justice, equity, good conscience-
Modern sources-
- Isti Hasan
- Isti Salah
- Ijtedar
- Taqlid
- Fatwa
Marriage under Muslim law-
Pre Islam, there were several unethical traditions in Arab.
Marriage under Islam is a civil contract and an institution which legalizes the sexual activities between a male and female for the object of procreation of kids, promotion of love, mutual support and crearion of families, regulation of social life which are considered as essential unit in a society.
Essentials of a Muslim Niqah are-
- Parties must have capacity to marry. Attain age of puberty and of sound mind.
- Proposal(ijab) and acceptance (qubool) in the same transaction
- Free consent of both the parties (coercion in Hanafi law is valid)
- A consideration(mahr)
- No legal impediment
- Sufficient witness (no witness required in Shia) (2 male witnessed in Sunni/ 1 male and 2 female witness)
Types of Marriage-
There are 2 kinds of marriage in Muslim law-
- Regular marriage
- Muta marriage
Muta Marriage –
The term literally means “pleasure marriage”. The marriage is a temporary agreement for a limited time upon which both the parties agreed. There is no any time limit it can be for a day, a month or year. This type of marriage is seen as prostitution by the Sunni Muslims and thus it is not approved by Sunnis.
Essentials-
The time period should be fixed
The dower amount should be fixed
The parties to the marriage should be of sound mind, competent to marriage
If the terms are not specified then it would be a valid marriage
Consideration in Muslim law
Mahr/ dower
Under Muslim law dower is known as mahr. It is a sum of money that the husband has to pay to wife on marrying her. For the purpose, a written Mehr deed called as Mahrnama is usually executed
Classification of dower
Specified dower -a kind of dower in which the amount is stated in the marriage contract.
Prompt dower- it is payable immediately after marriage on demand.
Deferred dower- it is paid after the dissolution of marriage either by death or divorce.
Rights of wife when dower is not paid to her-
Refusal to cohabit
Demand as debt
Right to retain possession in lieu of unpaid dower
Classification of dissolution of marriage
- By death of a party to the marriage
- By divorce
- By husband – Talaq, Ila, Zihar
- Talaq classified into 2 part- talaq- ul- Sunnat and Talaq-ul-Biddat
- By wife – Talaqetafwiz
- By mutual consent – Khula, Mubarat
- By judicial decree under dissolution of Muslim marriage Act,1939 – Lian, FaskH
Divorce under Muslim law
In Islam, the husband can divorce his wife by merely by pronouncement of words. the only pronouncement of such words is sufficient to end the marriage. These words showed that the husband want to disown his wife. Usually, this form is called a talaaq. But there are different forms like Ila and Zihar that are different from talaaq. a wife cannot divorce her husband by her own choice. Only under an agreement where the husband has devoted this right to his wife when she can act according to her choice. Before 1939, it was almost impossible for a Muslim wife to divorce her husband. Unless there are false charges of insanity, adultery, and impotence of the husband. Under the Muslim marriages act of 1939, there are several grounds on which a Muslim divorce is possible. There are categories under this law. They are:
Judicial divorce
Extrajudicial divorce
Furthermore, there are three sub-categories in which extrajudicial divorce is divided. These are
By wife – talaaq-i-Hafeez
Husband – talaaq
By mutual agreement – khula
Gift under Muslim Law-
Gift are of two types –
- Hiba-bil-Iwaj – in this there is consideration
- Hiba-Sharat-ul-Iwaj – there are some conditions applied if the condition valid then only it become gift.
The property will be moveable or immovable.
Valid conditions for Hiba-
Offer/acceptance
Declaration
Delivery of possession
Minor-
According to Section three of the Indian Majority Act, 1875, someone domiciled in the Republic of India who is below the age of eighteen years, is a minor. A minor is a person who has no capacity to protect his or her own interests. Law thus, requires that some adult person must safeguard the minor’s person or property and do everything on his or her behalf because such a minor is legally incompetent. A person who is authorized under the law to protect the person or property of a minor is called a guardian. Under Muslim law, guardians are needed for the aim of a wedding, for protecting the minor’s person and for protecting the minor’s property.
Inheritance under Muslim law
If the wife has children, then she receives one-eighth of the property and if there were no children then one-fourth property given to her. In case more than one wife one eighth of the property is divided equally between them. The husband succeeds one-fourth of her wife property in case of children and half the property if the wife died and there are no children.
Natural Guardians Under Muslim Law
In both schools of Shias and the Sunnis father is the guardian of the minor child he is equivalent to the natural guardian. The mother is not recognised as guardian of the child even after the death of the father. The father has the right to guardianship even if the custody of the child has been given to mother or any other female associated with the child. The father has the full control over the education and religion of the minor child and he can take all the steps for the betterment of that child. Therefore, as long as father of the child is alive, he is sole and supreme guardian of his minor child. The guardianship right of father extends only to minor child or child who is below 18 years. Among the Sunnis, the father is the only natural guardian of the minor children and after the death of father, the status of guardianship passes on to the executor. Among the Shias, after the death of father, guardianships belong to the grand-father even though executor has been appointed by the father. No other person even the brother cannot become the natural guardian. In the absence of grandfather, the guardianship goes to grandfather’s executor if he appointed anyone. Under Muslim law, father is natural guardian i.e. de jure guardianship of the minor or lunatic or its property. He has the legal authority to control and supervise the activities of the child. The property of a minor belongs to the father who is the natural guardian of the minor. If father died then the property belongs to the executor who is appointed by the father under a will, and he acted as a guardian of the minor child.
If father dies without appointing any executor, the paternal grandfather is entitled to guardianship of minor’s property as a legal guardian. After the death of paternal grandfather then the executor appointed by him through will act as guardian of minor’s property. If grandfather not appointed any executor, then it the duty of the court to appoint a guardian by supervising minor property under The Guardian and Wards Act, 1890.
Testamentary Guardian
A guardian appointed by the will of a father or mother, who are the natural guardians of a minor, is a testamentary guardian. No one else has the power to appoint a guardian by his will. In the early law, it was only the father who had the power to appoint a guardian and not a mother. Among the Sunnis, the father has only the power of making a testamentary appointment of guardian. In the absence of the father and his executor, the grandfather has the power of appointing a testamentary guardian. Among the Shias, if the grandfather is not alive then the father can appoint testamentary guardian. The grandfather too has the power of appointing a testamentary guardian. No other person has any such power. Among both the Shias and Sunnis, the mother has no such power of appointing a testamentary guardian for her children. It is only in two cases in which the mother can appoint a testamentary guardian of her property of minor children, first, when she has appointed a general executrix by the will of the child’s father. Second, she can appoint an executor in respect of her own property, which will devolve after her death on her children. Acceptance for the appointment of a testamentary guardian is necessary. Acceptance may be express or implied. But once the guardianship is accepted, it cannot be renounced with the permission of the Court. Muslim law does not lay down any specific formalities for the appointment of testamentary guardians. Appointment may be made in writing or orally. In every case the intention to appoint a testamentary guardian must be clear and unequivocal. A testamentary deposition made by testator must be invalid, but appointment of the executor may be general or particular. The testator should be major and must be of sound mind, i.e., at the time of execution of the will, he should be in full possession of his senses.
Guardians Appointed by the Court
The Qazi was entrusted with the power of appointment of the guardian of a Muslim minor on the absence of natural and testamentary guardians. Now, Guardianship and Wards Act, 1890 comes into picture at the time of appointment of a guardian of a minor child by the court. The rules and procedures are mentioned in this act. This Act applies to every Indian citizen in India. Hence, this act applies to every citizen irrespective of their religion. This is a special Legislation specifically dealing with the policy of guardianship and ward. Guardians are appointed by the court for minor’s person or property under this Statute.
References-
https://www.legalserviceindia.com/legal/article-5493-muslim-personal-laws-in-india.html
https://www.toppr.com/guides/legal-aptitude/family-law-I/mohammedan-law-schools-of-muslim-law/
https://www.toppr.com/guides/legal-aptitude/family-law-I/mohammedan-law-marriage-in-muslim-law/
https://www.toppr.com/guides/legal-aptitude/family-law-I/guardianship-under-muslim-law/
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