Introduction to Muslim law
Schools of Muslim Law:-
The major sources of Muslim law include the Quran, Sunna, Hadis, Ijma also as Qiya. Qiya
refers to interpretations of Muslim jurists on matters that neither the Quran nor Sunna explains.
Since it had been inevitable for jurists to interpret all sources differently, conflicting
interpretations often emerged.Consequently, these differences of opinions led to the creation of varied schools of law.Sunnis and Shias are the 2 main sects of Islam and both of those sects have their own schools. Although there are differences of opinions amongst these schools, the Muslim world considers all of them to be correct. Thus, no school has more prominence over another.
The following are a number of the main schools of Muslim law:
- Hanafi School
The Hanafi school, which is that the hottest one of Muslims, derives its name from its founder,
Abu Hanafi. This schoolbasically relies on customs and precedents of the Muslim community because the traditions of Prophet Mohammed.This is because the Prophet had disallowed codification of his words and sayings. Hence, whenever the Quran didn’t explain something, this school relied on the Prophet’s traditions.The Hedaya is that the most authoritative book of this school. It covers topics like inheritance also as succession amongst followers of this school.
Sirajiyya is additionally a crucial add this regard.The Hanafi school is that the foremost followed school amongst all schools of Muslim law and thus the Muslims in India.
Thus, whenever courts need to interpret shariah principles, they typically rely first on this school.
- Maliki School
This school derives its name from its founder Imam Malik-bin-Anas. It originates almost to an
equivalent period because the Hanafi school but it flourished first within the city of Madina.
While the Hanafi school relies on Ijma (interpretations of jurists), the Maliki school originates from Sunna and Hadis.These two important sources give importance to the sayings, teachings, customs and traditions of Prophet Mohammed.Imam Malik had personally collected information on thousands of recorded traditions of the Prophet. Then he codified most of them during a book, which is that the most prominent Hadis today. Although there are only a few followers ofthis school, Indian laws have derived and codified a number of their provisions.
- Shafi School
This school originates from Muhammed bin Irdis Shafi, who was a student of both Imam Malik and Imam Hanafi. TheMuslim world considers him to be one among his most vital jurists.
The Shafi school is essentially a mixture of the Maliki school and therefore the Hanafi school.
Ijma, i.e. the interpretations of jurists is that the most vital source of law within the Shafi school. It also relies on the customs of the Muslim people. The Qiya source of law, which depends on analogical interpretations by people, originates from this school.
The Shafi school is essentially prevalent in Egypt and a few south-east Asian countries. In India,Muslims from theMalabar region of Kerala generally follow this school.
- Hanbali School
Ahmed bin Hanbal, a lover of Imam Shafi, was the creator of this school. His theory rejected the Shafi school forcounting on Qiya, i.e. the personal analogical reasonings and interpretations of the people.Instead, he insisted on going back to Sunna and Hadis to interpret the Quran and other laws. This was because in his opinion the teachings and traditions of Prophet Mohammed matter quite peoples’ interpretations.As a result, Imam Hanbal collected thousands of Hadis and
codified them in his book, Musnath. People of Saudi Arabia, Syria and therefore the surrounding regions generally follow the Hanbali school.
Shariat Act 1937
Shariat Act could even be mentioned because the Muslim Personal Law. It extends to the whole of the Republic of Indiaapart from the State of Jammu and Kashmir.Personal Law of Muslims under the Shariat ActIf any act includes any provisions which may be in contradiction to the spirit of this act, it’ll still stand. It will stand true for all questions regarding intestate succession.
The special property of females, including personal estate inherited or obtained under contract or gift or the opposite provision of private law is included during this .Marriage, dissolution of wedding, including talaq, ila, zihar, lian, khula and mubarat, maintenance, dower,guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and spiritual endowments) the rule of resolution in cases wherever the parties are Muslims shall be the MuslimPersonal Law (Shariat).
The Shariat Act provides that in a case where both the parties are Muslims then the rule for decision shall be Muslim.
Law if the case involves any of the following matters:
- Intestate succession
- A special property of the females
- Dissolution of marriage
- Trust and trust properties,
If both the parties during a case are Muslims then there shall be an application of Muslim
Personal Law.Marriage in Muslim LawIn Islam, marriage is not compulsory. Although it is recommended to marry. Also, for some individuals it becomes obligatory. Also, one shouldn’t marry when he doesn’t mean to supply for future family and wife.
Furthermore, if the person doesn’t have children or he has no sexual drive than also he shouldn’t marry. Other Conditions like if future religious obligations are affected than also that
person shouldn’t marry.There are general essentials that are required for marriage in Islam. These are:
- It is important to possess the consent of both people. If there’s no consent, then it’s considered void. Even if the person has attained puberty and is of sound mind.
- Also, a minor one that has not attained puberty and may be a lunatic than the contract are often considered valid withthe permission of their guardians.
- Every Muslim one that is of sound mind and has attained puberty can marry. Also, if there’s no proof of puberty, then the age of puberty is fifteen years.
Kinds of Marriage
There are two sorts of Muslim marriage that are generally considered valid. They are
- Muta marriage
- Regular marriage
- Muta Marriage
Muta marriage is taken into account within the Shia only. This marriage is additionally referred
to as temporary marriage. there’s no recognition fin Sunni law. A Shia male is legally obliged to marry anyone of his choice.
While a Shia woman can’t be contracted for this sort of marriage with a non-Muslim person.
Also, during this marriage, dower must be fixed. Fur cohabitation period should even be fixed.
Essentials of Marriage
There are certain essentials for marriage in Muslim. They are Both parties got to be competent.
- There must be a proposal on behalf of or made by one among the parties. Also, there must acceptance on behalf of or by another party.
- The acceptance and proposal got to be expressed in one among the meetings.
- At the time of hearing of acceptance and proposal, there’s a requirement for witnesses. This includes one male and one female or two males. The of sane mind an adult. There is no need for any religious ritual or writing.
Effects of Marriage
- Once the wedding between both the parties is over there lawful obligations which will arise.
- They are the mutual intercourse between both parties is legalized.
- Also, a toddler that’s born is legitimate.
- Furthermore, a wife has the facility to ‘Mahr’ and is entitled to maintenance.
- For valid reasons only, a husband cab prohibits the movement of a wife.
- Also, after divorce or death of a husband, a wife must complete the amount of Iddat. She cannot marry anyone during this era
- Batil Nikah (Void Marriage)
According to the Indian Contract Act, 1872, an agreement which isn’t legally enforceable may be a void agreement. Similarly, an agreement between and a groom which doesn’t meet all the essential conditions of a Muslim marriage may be a void agreement and any marriage that takes place in agreement is named a void marriage or Batil Nikah.
“[In Munshi v. Mst. Alam Bibi] the court observed that when there’s a permanent or perpetual prohibition from marriage thanks to non-adherence void marriage.”
When one or more of the pre-requisites to a legitimate marriage mentioned above aren’t fulfilled by the spouses before marriage, the wedding is the subsequent are certain situations during which a Muslim marriage is void.When a wedding takes place between persons who are absolutely incapable.
When an individual marries to the wife of another man when the wedding of the woman was subsisting.
Marrying quite four wives. In such a case, the fifth marriage then on becomes void.
Marriage with a Non-Muslim
In Tanjela Bibi v. Bajrul Sheikh, the court held that a wedding with a lady who is pregnant from before the wedding is void.
Fasid Nikah (Irregular Marriage)
In Ata Mohammed. v. Saiqul Bibi, it had been observed that when a wedding is temporarily prohibited and not certainly restricted it’s merely void. An irregular marriage has several aspects involved and various points of view.
Irregular marriages exist only just in case of Sunni Muslims whereas an irregular marriage,
under Shia law, is void marriage. When a wedding is certain or partial conditions of a legitimate marriage, it’s called an irregular marriage. the simplest instance of an irregular marriage is that the Muslim and a Christian or a Jew.
In general, an irregular marriage is voidable marriage and not void-ab-initio. If the irregularity are often faraway from an irregular marriage, when it’s removed. So, if a Muslim man of Sunni sect marries a Jewish woman but gets her converted to Islam, the wedding is valid. The social an irregular marriage depend on the question of whether the wedding was consummated or not.
These implications are:
- Unless the wedding is consummated, the wife has no right to receive dower fromthe husband within the case, he divorces her.
- The wife isn’t sure to follow the rule of iddat, i.e. prohibition from remarriage within 3 months of divorce if the wedding isn’t consummated.
- The wife has no right to say maintenance from thehusband during the iddat period of three months.
- If the irregular marriage is consummated and leads to the birth of youngsters , the youngsters are going to be considered legitimate and shall have inheritance of properties
Distinction between Shia and Sunni Law of Marriage
- Under the Sunni law, a wedding contracted within the absence of witnesses is invalid. Under the Shia law, the presence of witnesses isn’t necessary.
- A Sunnite can marry not only a Muslim woman, but also a Kitabia i.e. a Jewess or a Christian.
- However, under Shia law, a wedding between a non-Muslim female is unlawful and void.
- A Sunnite cannot marry his wife’s aunt or his wife’s niece (on the bottom of unlawful conjunction). However, a Shiite can marry his wife’s aunt;
- wife’s niece, but only together with his wife’s permission.
- 4. Under Sunni law, marriages could also be void, or they’ll be irregular. The Shia law, however, doesn’t recognise this distinction between void a
- Under Shia law, a wedding is either valid or void. So, marriages which are merely irregular.
- under Sunni law are going to be treated as void.
- 5. As regards guardianship in marriage, Shia law recognises only the daddy and therefore the paternal grand-father, how highsoever. Under the guardians also includes the brother, mother etc.
- 6. Under the Sunni law, a wedding can’t be restricted in its duration. A Shia male can, on the opposite hand, contract a short lived marriagecalled muta marriage.
Doctrine of puberty under Muslim Law
- Under Mohammedan Law Option of puberty may be a right available to repudiate a woman’s marriage—if it occurred.
- while she was a minor, which include a wedding contracted for her by her father or grandfather.
- A boy or girl who has not attained puberty isn’t competent to enter into a contract of marriage, but he or she could also be contracted in marriage by his or her guardian.
- The Option of puberty under Mohammedan Law is merely a right given to a minor wife to avoid the wedding contract, entered into by her guardian, on becoming sui juris/major.
- Anything done by the minor during the minority wouldn’t destroy the proper which could accrue only after puberty. The co-habitation of a minor girl wouldn’t thus put an end to the “option” to repudiate the wedding after puberty. The assent should come after puberty and not before, for the straightforward reason that the minor is incompetent to contract; nor should the consummation have taken place without her consent.
Author: Pragya Sinha,
Symbiosis law college,nagpur . 1st year