FAMILY LAW

Assignment
On
NATURE AND SCOPE OF MUSLIM
LAW

Submitted to: Submitted by:

Dr. Sandeep Name: Rohit Panwar
Roll No. 20490
Course: LLB 3year (2 Semester)
College: MDUCPAS, Gurugram
 INDEX
Sr. Particulars Page No.
No.
1 Introduction 1
2 NATURE AND SCOPE OF MUSLIM LAW 2
3 FAMILY LAW OF MUSLIMS IN THE MODERN WORLD 5
4 THE COUNTRIES WHERE TRADIDONAL FAMILY LAW IS 6
FOLLOW
5 THE COUNTRIES WHERE SECULAR FAMILY LAW IS 8
FOLLOWED
6 Conclusion 11
7 Bibliography 12

INTRODUCTION
 NATURE AND SCOPE OF MUSLIM LAW

Muslim Law, a part of the Islamic code of life, has been one of the great legal
systems prevalent on the globe for the last about thirteen centuries. Contrary
to the concepts of modern jurisprudence. this system of law proceeded from a
high Divine source. The Quranic revelation as, interpreted by the Prophet
through his speech and conduct, was regarded as the fountain of this law.
However, the details of the legal system were to be worked out by the jurist-
theologians. For that purpose, they developed the sources of law and
formulated certain principles of legislation. according to the guidelines given
by the Quran and the Prophet. through which the fabric of Islamic law was
woven during the first few centuries following the emergence of the new
religion. The Muslim legal system so developed by Arab jurists was adopted
throughout the length and breadth of the world of Islam. The intercontinental
expansion of the Ottoman Empire in Asia, Africa and Europe and the influence
of the Mughals in the Indian sub-continent strengthened the prevalence of
Islamic laws in all these parts of the globe. By the end of the medieval ages, the
Islamic legal system stood the stress and strain of political vicissitudes and
socio-economic upheavals in several parts of the world. The repercussions of
the two world wars. the fall of the Ottoman Empire and abolition. of the
Caliphate in Turkey. colonial expansion of the Great Britain and France,
emergence of sJ1~all sovereign states in West Asia resulting into the growth of
Arab nationalism, the rise of communism in Central Asia and some parts of
Europe ceded by the Ottoman rulers, the social reform movements in Egypt,
lran and Indonesia, independence and partition of the Indian sub-continent,
and numerous other events of history led to revolutionary changes in the
jurisdiction and scope of the traditional law of Islam. There was a time when
the traditional legal system of Islam exclusively regulated all aspects of human
conduct in those parts of the world which were ruled or dominated by
Muslims. Criminal law and procedure,
contracts, judicial administration, trade and commerce, were all governed by
Islamic laws. History, then, underwent a momentous change. Subject after
subject was gradually excluded from the purview of the traditional Islamic law
in several parts of the Muslim world. Eventually, the scope of Islamic law was
considerably narrowed down. Modern codes of civil and criminal laws were
enacted in many countries inhabited or ruled by Muslims. Consequently, there
are only a few countries at present, e.g., Saudi Arabia, where all civil, criminal
and revenue laws, as originally developed by the Muslim jurists during the
early days of Islam, have survived. Among those aspects of life which presently
continue to be governed, in a major portion of the Muslim world, by some
form of the traditional Islamic law, there are personal status and family
matters including marriage, divorce, rights and obligations relating to
maintenance, legitimacy. guardianship, intestate and testamentary succession.
The status of Islamic law, thus, stands relegated, except in a few countries, to a
law of personal status or a law of family rights. Both these terms, as used in
different parts of the Muslim world, cover all the aforementioned subjects and
can, therefore, be regarded as substitutes for family law,2 To the question
whether Muslim citizens of the various nations presently existing on the world
map continue to be governed by the Islamic family law, no uniform answer is
possible. In a few countries Islamic family law has been totally wiped out. On
the contrary, a large number of countries have preserved its various traditional
forms, whereas some of them have recently reformed many of its principles.
There is, therefore, no uniformity today in the international Islamic society in
respect of the system of family law.

FAMILY LAW OF MUSLIMS IN THE MODERN WORLD

With regard to the family law presently followed by the Muslim citizens of
various countries, the latter may be classified into three different groups as
follows:
1. the countries where the classical family law of Islam, according to its
various schools, remains unchanged and uncodified till the present day,
2. the countries where Islamic family law has been completely abandoned
and replaced by the modern statute law applicable to all citizens
irrespective of their religion, and
3. (the countries where the locally prevalent forms of Islamic family law
have been reformed through. modern legislative process, c either by
adopting provisions of the various other schools of Islamic law itself or
by subjecting some of its institutions to certain regulatory measures.
A brief survey of the existing position of Muslim family law in each of these
three groups of countries is given below.

THE COUNTRIES WHERE TRADIDONAL FAMILY LAW IS FOLLOW

Numerous countries among those where Islam is the state or the predominant
religion have preserved, till this day, the various traditional forms of the
uncodified Muslim law as locally followed. The prominent centres in the Arab
world adhering to the classical family law of Islam are Saudi Arabia, the two
Yemen’s, Bahrain, Kuwait and the seven crucial States. In Saudi Arabia,
according to a constitutional directive, all legislation must conform to the
Qur'an, the Sunna (Traditions) and the conduct of the Prophet's companions. '
In that country, therefore, the traditional legal system of the Hanbali school of
Islamic law is "not only valid without restriction; it is even its only law in the full
meaning of the term" A move made in the Hejaz in 1927 for the codification of
Islamic law had failed and no such attempt has hitherto been repeated Same is
the status of the Hanbali law in another Arab State, Qatar.
n the Yemen, the traditional family law of the Zaydi school is applicable. An
attempt to reform its principles made a few years ago could not succeed.
Muslims in the People's Republic of the Southern Yemen follow the classical
Shafi or the Hanafi law. The principles of these schools of Islamic law have
neither been codified nor reformed in that country in Bahrain, the Maliki, the
Shafi and the Shia Muslims are governed by the traditional laws of their
respective schools which are still uncodified Kuwait continues to be a centre of
the classical family law of Islam, generally of the Malik; school.t! Also in the
seven trucial Arab States the uncodified laws of the several Sunni schools,
generally those. followed by the local ruling families. are applicable.
Besides the aforementioned Arab States. two more Islamic countries in Asia
where the traditional Islamic law continues to be followed are Afghanistan and
the Maldives Sultanate, Under the constitution of Afghanistan. Islam is the
state religion and the religious rites are performed by the State according to
the Hanafi doctrine." No reforms have been introduced into the Islamic law as
customarily interpreted in different parts of Afghanistan. In the Maldives
Sultanate, where the entire population is Muslim. the S/uifi'; family law is
dominant. In Africa. among those countries where Islam is the predominant
religion. Chad. the Gambia, Guinea, Mali. Mauritania. Niger. Senegal and
Somalia have not, till the present day, undertaken any legislation to reo form
the principles of the Islamic family law as locally applicable & In Northern
Nigeria where till recently Islamic law constituted the native law of the land in
all matters of civil and criminal law section 15 of the Short’s Court of Appeal
Law (Cap. 122) provides The Court shall administer. observe and enforce the
observance of the principles and provisions of the Moslem Law of the Maliki
school as customarily interpreted at the place where the trial at first instance
took place.16 In the remaining parts of Nigeria, too, the classical Malik; law is
applicable to Muslims in matters of family law and succession. Leaving aside
the countries where Islam has a strong hold, when we travel to those parts of
Asia, Europe and Africa where the Muslims constitute big religious minorities
we find that there, too, many countries have left the principles of Islamic
family law unchanged. Certain reforms introduced into the classical family law
in Thailand apply only to the Buddhist majority; the Thai Muslims are exempt
from these reforms and continue to follow the shafi family law The same is 'rue
about the Muslim minority in Burma.
In Europe. Greece and Yugoslavia are under a treaty obligation to take All
necessary measures in relation to Moslems to enable questions of family law
and personal status to be regulated in accordance with Moslem usage.
Therefore, in Greece the traditional Islamic law as administered by the Muftis
has remained applicable to the Muslims in matters of personal status, wakes
and inheritance, in the territories ceded by the Ottoman Empire in 1913. The
Yugoslav" Muslims, too, are governed in these matters by the law of Islam
subject to certain national laws.t' In Africa, the classical principles of Islamic
family law, as locally interpreted, still govern the Muslim citizens of Ethiopia,
Ghana, the Geld Coast, Uganda and Sierra Leone. Many among the
aforementioned countries which have preserved the traditional Islamic law, it
may be noted, have secular constitutions and the governments in some of
them are guided by communist ideology

THE COUNTRIES WHERE SECULAR FAMILY LAW IS FOLLOWED

In a few countries Muslims are now governed by the local general enactments
relating to family law and succession. which they share with other local citizens
professing different religions. The Islamic family law has been gradually
abandoned in these States. In most of them revolutions significantly affecting
religious life of the citizens have taken place in the recent past. As regards
some of these countries, not much is known to the outside world about the
family law applicable to their Muslim citizens. Among the countries where
Islamic law has been completely abandoned only two have a majority of
Muslim citizens, these are Turkey and Albania. Civil codes based on certain
Western laws were adopted in these countries after the fall of the Ottoman
Empire. The source of the Turkish Civil Code, 1916 was the Civil Code of
Swaziland, 1912 as adapted in certain matters to Islamic principles. The family
law, excluding the law of succession, under the new Turkish Civil Code does
not, however, seriously confect with the Islamic traditions." No account of the
nature and the sources of the Albanian Civil Code of 1928 is available In
Tanzania where one of the constituent units, namely, Zanzibar is
predominantly Muslim, a uniform marriage law has recently been enacted. In
Kenya, too, where Muslims are in a minority, a new law of marriage applicable
to' all citizens has been adopted. In these countries, therefore, the Muslim law
of marriage stands replaced by the new codified laws, whereas the other parts
of Islamic family law continue to be applicable to the local Muslim citizens.
However, the newly-enacted marriage laws of these two countries do not
conflict with the basic principles of Islamic family law.
The Muslim minorities in the Philippines and the Soviet Union are now
governed by secular family laws having a general application. The Philippine
Muslims were given a period of respite by the Republic Act No. 394 of 1949
which saved the local Shaft'; family law for a period of twenty years. In the six
Central Asian Republics of the Soviet Union, the Islamic law was gradually
abandoned during the decade following the Bolshevik Revolution of 1917.
 THE COUNTRIES WHICH HAVE REFORMED ISLAMIC FAMILY LAW
The third group of countries as classified above would include those in which
reforms-substantive, regulatory or both-have been introduced into Muslim
family law during the recent years. The introduction of substantive law-reforms
in these countries should be described as a reform of the locally prevalent
schools of Muslim law, and not of Muslim law in its entirety. The technique
generally employed for such reforms has been the adoption and enforcement
of the principles and juristic opinions under the schools of Islamic law other
than those followed in a particular country. The newly enacted rules of family
law in these countries generally had their basis in one or the other juristic
opinion, or in a combination of two or more such opinions. found within the
framework of Islam Reforms of this nature wise introduced II1to the Islamic
family law, first, in Turkey. The Ottoman Law of Family Rights, 1917 enacted
there for that purpose is now applicable to Muslims in Lebanon. Between 1920
and 1946, Egypt undertook sporadic legislation to reform. by the same
method, the Hanafi Shift, family laws then followed by the local Muslims. The
other countries which have introduced similar reforms are the Sudan. Jorhat,
Syria, Tunisia, Morocco. Algeria, Iraq, Iran and Pakistan. All these, it may be
noted, are Islamic countries. The only State with a minority of Muslims where a
part of the Muslim family law, namely, that relating to married women's right
to dissolution of marriage by the court, was reformed by the aforesaid
technique was India However, also in Israel and Cyprus, the Muslim minorities
are presently governed by substantially reformed and codified family laws
adopted from some other countries. The Ottoman Law of Family Rights, 1917
is shared with the Lebanese Muslims by the Muslim minority in Israel, In
Cyprus, the Muslim law of marriage and divorce was codified, in 1951, on the
pattern of the corresponding provisions of the Turkish Civil Code. In most or
the countries mentioned above, the reforms have been achieved partly by
amending the substantive law. On the other hand, many aspects of family law.
e.g. divorce by husband, have been reformed by imposing certain regulatory
measures, leaving the substantive principles intact. This has been done by
conferring pros of interference with family matters upon judicial, quasi-judicial
or administrative bodies. For instance, in Pakistan most of the newly enforced
reforms arc of a regulatory nature. In five countries of South and South-East
Asia, the Muslim family law. although not substantially reformed, has not been
left wholly uncodified. In three of them, namely, Brunei, Malaysia and
ldoneasia. the Muslims are in majority, but in the other two, Singapore and
Ceylon, they constitute religious minorities. In all these States, comprehensive
laws relating to administration of Muslim family law have been enacted. Tease
enactments do not generally affect the substantive provisions of the Muslim
family law as locally applied. They, however. include several regulatory
measures aimed at preventing the misuse of certain institutions, e.g.,
polygamy and divorce. The areas of reforms, both substantive as well as
regulatory, differ from country to country. In Lebanon, Jordan, Algeria, Iran,
Malaysia. Brunei, Indonesia and Ceylon, the reforms relate only to marriage,
divorce and the matters incidental thereto. The traditional laws of Islam
relating to intestate and testamentary succession remain unchanged in these
countries. On the other hand, in there are two enactments separately dealing
with inheritance and wills. A few provisions of these. laws have been enforced,
mutates mutandis, also in the Sudan and Syria. Some aspects of the law of wills
have been reformed in Iraq as well. Tunisia and Morocco, while codifying
nearly the whole of the Maliki laws relating to inheritance and wills, have
adopted some non-Malik; principles. In India, the solitary reform measure
applicable in the whole country is confined to Muslim wives' right to
dissolution of their marriage by the 'Court. Among the reforms introduced in
Pakistan only a single provision, enforced in 1961, relates to intestate
succession; the rest of them are concerned with marriage and its dissolution.
An Ordinance enforced in Singapore in 1961 deals also with certain aspects of
succession, in addition to marriage and divorce.
The reform of Muslim family law in about twenty countries mentioned above
has had its repercussions in some other parts of the world as well. A draft code
of Muslim family law is reported to be under consideration in Libya. In India, a
controversy has been going on, since long, over a possible modernization of
those parts of Islamic law which are applicable to the local Muslims under the
provisions of the Muslim Personal Law Application Act, 1937
 Conclusion
The present study is aimed at a survey of the various substantive and
regulatory reforms introduced into the Muslim family law in all those countries
which have been included in group 'C' in the above classification. The principles
of the traditional and the uncodified Islamic law, as currently applicable in the
countries mentioned in group 'A' as well as the enactments which have
replaced Islamic law in the countries put under group 'B' above, are out of its
scope. Turkey; which strictly falls in that group of countries which have
abandoned Islamic law has, however, been included in the survey. The reasons
for its inclusion are, first, that Turkey has played a. creative role in the history
of family law reform in. West Asia and, secondly, that since many aspects of
her present family law (excluding, of course, succession) still conform to
Islamic principles the same can be regarded as a modified form of the
traditional Muslim law.
The survey is confined to the family law including inheritance and wills but
excluding subjects like wake and shul’s (pre-emption). The has been divided
into two parts. The West Asian and North African countries, 'which include
Turkey, Cyprus, Israel. Tran and nine Arabic-speaking
States (Egypt, Lebanon, Sudan Jordan, Syria, Tunisia, Iraq, Morocco and
Algeria) form the subject of Part I. The laws of these countries. with the
exception of Cyprus, are not available in the English language. As far as
possible, English translation or paraphrase of those portions of their laws
which arc relevant to the present study has been appended to the various
chapters under this Part. Part 1I of the study covers the codified family laws
governing the Muslims of India, Indonesia, Malaysia, Brunei, Singapore, Ceylon
and Pakistan. These seven countries have been under the influence of either
the English common law or the Roman-Dutch law. The texts of their laws
relevant to the present study are generally available in the English language. 1
he chapters under Part H include authentic texts of sheer laws or the necessary
extracts therefrom. The laws of each country have been surveyed in a separate
chapter, except in a few cases. where either the same enactments are
applicable in more than one country or where the basis and nature of the laws
are, to a large extent. identical. Thus. Cyprus has been combined with Turkey.
travel with Lebanon, and Brunei and Singapore with Malaysia. The
arrangement of chapters in both the Parts is. as far as possible, in the
chronological order of the enactments

Bibliography
Family Law (By R.K Bangia)
Legal point-india.blogspot.com
en.wikipedia.org