Concepts and Evolution of Muslim Law

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.
The Muslim Women (Protection of Rights on Marriage) Act, 2019.
The Muslim Women (Protection of Rights on Divorce) Act, 1986
THE HISTORICAL BACKGROUND
Based on application of a particular branch of law upon persons, laws may be either territorial or
personal.
A territorial law is that branch of law which is applied in a particular territory and is applicable upon
persons of all communities living in that territory.
A personal law is that branch of civil law which applies upon the persons of a particular religious
community. Thus, the Mohammedan Law applies upon the Muslims and the Hindu Law applies upon
the Hindus.
At present some of the main provisions of Hindu Law have been codified. The codified Acts are the
Hindu Succession Act, 1956, Hindu Marriage Act, 1955, Hindu Minority and Guardianship Act, 1956 and
the Hindu Adoptions and Maintenance Act, 1956.
Parsis and Christians are also 33 governed by separate Acts, ie, the Parsi Marriage and Divorce Act,
1936, 27 Indian Christians Marriage Act, 1872, Indian Succession Act, 1925.
Apart from these Acts, there is an Act, ie, the Special Marriage Act, 1954. The Special 26 Marriage Act,
1954 is applicable to all Indians who have decided to marry under this Act irrespective of their religion
Muslim Law in India means "that portion of Islamic Civil Law which is applied to Muslims as a persona
lLaw" (Fyzee).
It consists of the injunctions of Quran, of the traditions introduced by the 'practice' of the Prophet
(Sunna), of the common opinion of the jurists (lima), of the analogical deductions of these three(Qiyas),
and of the pre-Islamic customs not abrogated by the Prophet Mohammad. Further, it has been
supplemented by:
the juristic preference (Istihsan), public policy (Istislah),
precedents (Taqlid) and independent interpretation (ljtihad).
It has been further supplemented and modified by State Legislation and modern judicial
precedents of the High Courts and the Supreme Court of India and also of the Privy Council.
Quran, the foundation of Mohammedan Law.
Muslim Law is founded upon ‘Al-Quran' which is believed by the musalmans to have existed from
eternity, subsisting in the very essence of God. Prophet Mohammad himself. Pre-Islamic Arabia-
(Ayyam-e-jahiliya -the period of ignorance)
Before Mohammad became Prophet (ie. after the advent of Islam), there was no general law of the
race Quran inhibiting the Arabian Peninsula.

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Each tribe was governed by its own laws, and matters in dispute were either referred to the Chief, or
decided by an appeal to the sword.
The conduct of the Arabs was regulated by customs.
Most of the customs of the Arab people were barbarous and inhuman.
Often the parents buried alive their female child.
Usury, ie, taking a very high interest on the debts, was common.
Gambling, superstition and idolatory were common
The position of women was not much better than that of animals they had no legal rights; in youth they
were the goods and chattels of the father, after marriage the husband became their lord and master.
Polygamy was universal, divorce was easy and female infanticide was common.
Such was the condition of the Arabian society in which reforms were introduced by Islam to bring
about a complete transformation of the society.
The Arabs themselves were so much conscious of this change, that they began to refer to the period
before Mohammad as the Ayyam-e-jahiliya, ie, the period of ignorance or rather wildness or savagery
in contrast to the moral reasonableness of a civilised man.
History of Islam
The Prophet and the advent of Islam.
Prophet Mohammad was born at Mecca in 571 A.D. The Prophet was a posthumous child. His father
Abdullah, while returning from Syria, where he had gone for some business, died at Medina.
The Prophet was brought up by his mother Amina. On his mother's death, while he was six years old,
the Prophet passed into the care of his grandfather, Abdul Muttalib.
Two years later the grandfather also died and the boy was then brought up by his uncle Abu Talib
After the age of twenty-five years he spent much of his time in a solitude making a lonely cave named
Hira, his abode, where he is said to have been occupied in prayer and meditation.
He became a Prophet at the fortieth year of his age, when he received his first-wahi or message from
God.
From that time he devoted himself in replanting the only true and ancient religion, professed by Adam,
Noah, Abraham, Moses, Jesus and all the Prophets of the past.
He succeeded in spreading his religion over a great portion of the Roman Empire, in converting the
people.
Flight from Mecca-The Hijrat
As a result of the Prophet's condemnation of the paganism, then prevalent in Arabia, he was compelled
to leave Mecca and to take refuge among his followers at Medina.
The flight of Prophet known as 'Hijrat marks the beginning of Muslim era.
Now the years of humiliation, of persecution, of failures came to an end and the years of success, the
fullest that has ever crowned one man's endeavours, had begun.
The Hijrat makes a clear division in the story of Prophet's mission which is evident in the Quran. Till
then he had been a preacher only.

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Later he was crowned as the ruler of a State, which later grew in ten years to be the empire of Arabia.
This absolute supremacy continued till his death in 632.
What is Islam?
1. In the religious sense Islam means 'submission to the will of God' and in secular sense Islam means
the establishment of peace.
2. Islam means peace, greeting, safety and salvation.
3. Those who follow this path are Muslims.
4. The root, asalam, from which Islam is derived, signifies,
to be tranquilled at rest;
to have done one's duty;
to have paid up to be at perfect peace;
and finally to surrender oneself to him with whom peace is made.
The teachings of Islam
Prophet Mohammad regarded religion as a straight natural law for man to follow, wherein was no
perplexity or ambiguity.
In Islam all humanity is one vast brotherhood, with one God as their creator or master who looks them
all as equal.
Hence, all men are equal in Islam. It enjoins a duty to surrender to the will of God.
Succession to Caliphate
The Prophet Mohammad (PBUH) left to heavenly abode from this world in 632 A.D. and as he left with
no son, the succession of the early Caliphs was not without friction and bloodshed.
The first three Caliphs-Abu Bakar (632 A.D.), Umar (634 A.D.), and Usman (644 A.D.) were his disciples
and early companions.
British Period and afterwards in India
By Section 27 of the Famous Regulation 11 of 1772, it was enacted that "in all suits regarding
inheritance, succession, marriage and caste and other religious institutions, the laws of the Quran
with respect to Mohammedans, and those of the Shastras with respect to Hindus, shall be invariably
adhered to".
Meanwhile, the Muslim Criminal Law modified from time to time by the Company's regulations
governed not only Muslims, but the entire native population outside the Maratha ditch.
Matrimonial disputes were dealt with according to the laws of the Quran or the Shastras, as the case
might be, while "matters of contract and dealing between party and party" were left to be determined
according to the principle of "justice, equity and good conscience".
Origin of Muslim Law
1. The place of Muslim Law's origin is Arabia where Mohammad promulgated Islam.
2. Basically it is of divine origin, that is to say, Muslim Law originates from divinity.

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3. It is that law which is established by a communication (Khitab) from God with reference to men’s
acts, expressive either of demand or indifference on his part or being merely declaratory.
4. The entire system of Muslim Law is built upon two foundations-
The Quran and
The Traditions' (Sunnah and Hadis). Sunnah means practices of Prophet and Hadis means
traditions.
The Quran
The Quran is the divine communication and revelation to the Prophet of Islam, was the first and the
great legislative Code of Islam. “It professes to report verbatim a series of communications made to the
Prophet through the angel Gabriel, on a great number of different occasions during the last twenty
years of his life 'Shariat-Meaning The word Shariat literally means "the road to the watering place or
the path to be followed".
Quran, Hadis, Sunna, Ijma and Qiyas form the body of Muslim common law known as Shariat. It is used
to denote the whole of Muslim religious law. It embraces in its orbit all human acts. “It is not law in the
modern sense, but contains an infallible guide to ethics"
1. Shariat is law in the wider sense. It means the totality of Allah's commandment.
2. Each one of such commandments is called hukum(doctrine of duties)
3. Shariat says that religious injunctions are of five kinds, al-ahkam, all- khamsa, farz, Haram, makruh.
The Shariat is totalitarian; a human activity is embraced in its sovereign domain.
Who is a Muslim?
The term Muslim means submission. A Muslim is a person who follows Islam. Muslim law applies to a
born Muslim or a person who is a convert Muslim.
Muslim law even applies to certain other categories of people also such as the Khojas, Halai Memons,
Sunni Bohras of Gujarat Daoodi, and Sulaimani Bohras and to Molesalam Broach Girasis
In Azima Bibi v. Munshi Samalanand, (1912) 17 CWN 121, it was observed that a child born out of a
Muslim couple would be Muslim, even if he by choice goes to a Hindu temple. The person would be a
Muslim, till the time he does not renounce his religion and converts to another religion.
In Bhaiya Sher Babadur v. Bhaiya Ganga Baksh Singh, (1914) 41 MIA 1, it was held that if a Muslim
woman has a child from a Hindu man but the child from the time he was born was brought up as a
Hindu, then, in this case, he would be called a Hindu.
Skinner v. Orde (1922) 45 Mad 986 held that the child is presumed to belong to the religion of the
father.
Jiwan Khan v. Habib (1933) 14 Lahore 518 in this case Lahore High Court held that people of Shia
Community boycott first three Caliphs but they trust in one God and Prophetship of Mohammad
therefore, they too are Muslims.
The right to convert is given under Article 25 of the Constitution of India, which guarantees every
citizen of India, freedom to practice, profess and propagate one's religion.
If a Hindu man who intends to get married for a second time, which is prohibited under their set of
family laws, purposefully converts to a Muslim to misuse it and escape from the punishment given
under section 494 (bigamy) of Indian Penal Code, 1860.

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The Supreme court in Sarla Mudgil v. Union of India (AIR 1995 SC 1531) and Lily Thomas v. Union o
India (AIR 2000 SC 1650), has held that, if a Hindu married man converts his religion to Muslim just
because of the reason as to marry a second time then it will be void and he will be punished under
Section 494 of IPC for committing bigamy.
Sources of Muslim Law
Sources of Muslim law is classified into two categories that is primary sources and secondary sources.
Primary Sources
Primary sources are those on which Muslim law relied on. These sources are the foundation of Muslim
law.
Primary sources of Muslim law are: Quran, Sunnat, Ijma, Qiyas.
Shias consider Quran, Ahadis and Ijma as source of Muslim Law.
1.Quran. The Islamic religion and Islamic society owes its birth to the word of Quran.
It is a paramount source of Muslim law in point of importance because it contains the very word of god
and it is foundation upon which the very structure of Islam rests Quran regulates individual; social,
secular, and spiritual life of Muslims.
It contains the very words of god as communicated to prophet mohammad through angel Gabriel. It
was given to the world in fragmentary forms, extending over a period of 23 years.
2. Sunnat. The word sunna means the trodden path & as this meaning shows it denotes some kind of
practice and precedent.
It is belief of Muslim that revelations were two kinds- manifest (zahir) and internal (batin). Manifest
revelation is communication which is made by angel Gabriel under the direction of god to Mohammad
in the very words of god.
Quran is composed of manifest revelations. Internal revelation. is opinions of the prophet which is
delivered from time to time on questions that happened to be raised before him. Sunna means the
model behavior of the prophet. The narrations of what the prophet said, did or tacitly allowed is called
hadis or traditions.
Kinds Of Traditions
The traditions are of two kinds:
1. Sunnat
These two have been classified into the following three classes on the basis of mode or manner in
which it has actually originated:
Sunnat-ul-fail i.e., Traditions about which prophet did himself.
Sunnat-ul-qaul i.e., Traditions about which he enjoined by words
Sunnat-ul-tuqrir i.e., The things done in his presence without his disapproval.
2. Ahadis
The three class of Ahadis:
Alhadis -i-mutwair i.e., Traditions that are of public and universal propriety and are held as absolutely
authentic. In such hadis the chain is complete.

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Ahadis -i-mashhoor i.e., Traditions which known to a majority of people, do not possess the character
of universal propriety.
Ahadis-i-wahid i.e., Traditions which depend on isolated individuals.
3. Ijma
It was equally binding on the people to act on a principle (not contrary to the Quran or hadis) which
had been established by agreement among highly qualified legal scholars of any generations. Ijma has
been defined by Sir Abdul Rahim as agreement of the jurists among the followers of Prophet
Mohammad in a particular question of law. The validity of ijma, as containing a binding precedent, is
based upon a hadis of the prophet which says that god will not allow His people to agree on an error.
Ijma thus become a source of law.
Kinds Of Ijma
Ijma is of three kinds:
1. Ijma of the companions of the prophet is the consensual opinion of companion, which is universally
acceptable, throughout the Muslim world and is unrepealable.
2. Ijma of jurists- is the consensual opinion of jurists which is believed that its best ijma after ijma of
companions. All the jurists should sit together and discussed the reasoning, and majority of the jurists
is of the view that unanimity to form ijma.
3. Ijma of the people is the opinion of Muslim population as a whole may have any importance but in
actual practice ijma of Muslim public had no value with regard to legal matters but in matters related
to religion, prayer and other observances have more value attached to it.
Essential Ingredients is a valid Ijma
1. The consensus
2. The Jurists
3. Jurists of a Particular period
4. Jurists to be Muslims
5. Consensus on a religious matter
4) Qiyas
This is a last primary source of Muslim law.
Qiyas means reasoning by analogy from above 3 sources i.e., Quran, Sunna and Ijma. In Qiyas rules are
deduced by the exercise of reason.
Qiyas does not purport to create a new law, but merely to apply old established principles to new
circumstances.
Conditions of Validity of Qiyas:
The original source from which Qiyas is deduced must be capable of being extended, that is it should
not be of any special nature.
The original order of the Quran or hadith to which the process of Qiyas is applied should not have
been abrogated or repealed.
The result of Qiyas should not be inconsistent with any other verse of Quran or any established Sunna.

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Qiyas should be applied to ascertain a point of law and not to determine the meanings of words used.
The deduction must not be such as to involve a change in the law embodied in the text.
Secondary Sources
These sources are not basic sources of Muslim law but the supplementary sources of Muslim law.
The secondary sources of Muslim law are: 1. Urf or Custom 2. Judicial decision 3. Legislation 4.
Equity, Justice, & Good conscience
There are number of judicial decisions which have given new dimension to Muslim law
In Maini Bibi v. Choudhry Vakil Ahmad, the privy council held that a widow possesses the right to retain
the property of her husband till her dower money was paid
In Bai Tahira v. Ali Hussain, the Supreme Court gave a new line of approach to the law of maintenance.
The Supreme Court held that a woman will be entitled for maintenance undersection 125 of criminal
procedure code even though she has received a lump-sum amount under her customary law. A similar
view also taken in Shah Bano's case.
Development of Muslim Law
The process of the development of Muslim Law may be divided into five periods and may be discussed
under the following periods:
(1) The period of Quranic precepts
This period ranges from 1 to 10 A.H. (ie, after Hijra or between 622-632 A.D.)
From the time of that memorable flight, which marks the commencement of the Hijra era, the Prophet
took the full responsibilities of a temporal sovereign, first over the city of Madina and ultimately over
Arabia. Thus the 'Hijra' or 'flight' from Mecca marks the beginning of the Muslim era, for Mohammad
(PBUH) rallied his followers and defeated the Mecca in the battle of Badar (A.D. 623).
The ten years of success (1A.H. to 10 A. H.) had begun. The Hijra makes a clear division in the story of
Prophet's mission, which is evident in the Quran.
(2) The period of Orthodox Khilafat
This period begins from 10 A.H. and ends with 40 A.H. (ie, 632 to 661 A.D.). The Prophet died without
leaving any son and without appointing any successor.
After his death the question arose as to who the successor of the Prophet would be. This question
divided the Muslim community into two groups.
One group was headed by the Prophet's daughter Fatima. This group contended that Ali, who was the
cousin and son- in-law of Prophet Mohammad (husband of Fatima, daughter of the Prophet) was the
rightful successor of the Prophet.
The other group, headed by Ayesha (widow of the Prophet and daughter of Abu Bakr) advocated the
cause of election.
Accordingly, an election was held in which Abu Bakr was elected. Thus, Abu Bakr became the first
Khalifa or Caliph. He died in 634 A.D.
Then Omar was elected as the second Caliph. Omar was assassinated in 644 A.D.

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Osman became the third Caliph through election. He was also assassinated in 656 A.D. A collection of
whole Quran was put into writing during Caliph Osman
Ali was then elected as the fourth Caliph. According to the Shias, Ali was the first caliph and Abu Bakr,
Omar and Osman were not rightful successors, they were merely usurpers.
Ali was assassinated in 661 A D. After the death of the Prophet, this first four successors (called
"Khulafai-Rashidin" or "the Just Khalifa") carried on the Government of the Muslim Empire in much the
same manner as the Prophet had done. This period ended with the assassination of Ali the fourth
Khalifa followed by the accession of Muavia (40. A.H.) and the beginning of the Ummayyad Dynasty (as
the defendants of Muavia were called Ummayyads.
(3) Period of theoretical study and collection
This period ranges from 40A. H. to the 300 A. H. During this period, in the reign of the Ummayyads the
full possibilities of the traditions as a source of law began to be realized.
Muwatta of Malik Ibn Anas (who died in 179 A.H.) that we get a Musannaf, i.e., a collection of
Traditions arranged and classified according to subjects. This book has been called the first great
Corpus of Mohammedan Law.
During the earlier part of this period there appeared four schools of Sunni law.
(4) Period of evolution of Ijtihad and Taqlid
This period begins with the establishment of the four Sunni Schools (that is from the third century of
the Hijra) and extends upto 1924 A.D
During this period there emerged two parallel doctrines, namely, the Ijtihad and Taqlid.
The word Ijtihad means 'labouring hard' or 'studying intensely to arrive at a sound opinion or
judgment'. The persons, who were doing this were known as Mujtahids. It must, however, be noted
that the authority of the Majtahid is not based on his holding any office in the State, but it is derived
purely from the learning and reputation of the individual.
The power of forming one's own opinion (Ijtihad) was however, cut down by the parallel doctrine of
Taqlid which connotes "following the opinion of another person without knowledge of the authority for
such opinion”
(5) The Fifth Period (1924 A. D. to the present day)
This period may be called Modern Period. In 1924 A.D., the Caliphate was abolished. Therefore, since
1924 A. D. there has been no Caliph who in his capacity of religious head can execute and enforce
Shariat (Muslim's religious law).
Shariat has now become merely a moral and religious code of conduct and has lost its juristic sanction.
In modern Islamic countries like Tunisia, Turkey, Egypt, etc., the laws have been codified in such a
manner that they should fulfil the needs of modern society without losing the inherent character of
Shariat.