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Sources and Schools (Muslim Law)

Sources and Schools (Muslim Law)
Sources and Schools (Muslim Law)


Muslim Law: Sources and Schools   

Muslims, for the purpose of the application of Muslim law, can be categorized into two distinct groups: 

(a) Muslims by birth or origin, and 

(b) Muslims by religion or conversion. 

The latter category includes individuals who profess Islam or those who undergo the formal ceremony of conversion to Islam.

According to the Shariat, the Islamic legal framework, a child is considered Muslim if either parent is Muslim. However, under Hindu law, if one parent is Hindu and the other is Muslim, and the child is raised as a Hindu, the child is regarded as Hindu. This suggests that in such scenarios, the rule of Muslim law may defer to the rules established by Hindu law.

Mulla, a renowned scholar of Islamic jurisprudence, identifies four primary sources of Muslim law: the Quran, Hadis (traditions of the Prophet Muhammad), Ijmaa (consensus among Islamic jurists), and Qiyas (analogical reasoning).

The Quran, with about 6,000 verses, serves as the cornerstone of Islamic legal principles, although only around 200 verses pertain to legal matters, with just 80 addressing personal status law.

While Muslim law in India remains largely uncodified, specific legislations such as The Muslim Personal Law (Shariat) Application Act, 1937, and The Dissolution of Muslim Marriages Act, 1939, regulate certain aspects. "Shariat" refers to the Canon law of Islam, encompassing Allah’s commandments.

It is a comprehensive code of obligations where legal considerations are secondary. Indian courts strive to balance traditional Islamic jurisprudence with modern legal and social paradigms, ensuring the application of Muslim law remains both faithful to its sources and relevant to contemporary realities.

The Shariat Act of 1937, which came into effect on October 7, 1937, provides statutory recognition to the Islamic rule that its laws apply to all individuals who profess the religion of Islam.

This Act explicitly makes Muslim law applicable to all Muslims. It effectively abrogated prevailing customs that contradicted Islamic principles and reinstated the application of personal Islamic law to Muslims in almost all cases.

Consequently, Muslim law as applied in India is essentially the Shariat, but it is modified by the principles of equity, justice, and good conscience.

The application of Muslim law by Indian courts is selective, governing certain matters but not all. It has been established that, in the context of marriage and divorce, the Shariat Act mandates the application of Muslim law only if both parties involved are Muslims.

In instances where only one party is a Muslim, the Act does not apply, as demonstrated in the case of Noorjahan v. E. Tiscenko (AIR 1941 Cal 582). This legal precedent underscores the conditional applicability of the Shariat Act, thereby ensuring that Muslim law governs matrimonial matters exclusively when both parties adhere to Islam.


Nature of Muslim Marriage  

In Muslim law, marriage, known as "nikah" in Arabic, is defined as a contract with the primary objectives of procreation and the legal recognition of children, as stated by Mulla.

Justice Mahmood characterizes a Muslim marriage as a civil contract, which, upon completion through proposal and acceptance, immediately and simultaneously confers all rights and obligations. These rights and obligations are not contingent upon any conditions precedent, such as the payment of dower.

A Muslim marriage is akin to any other contract stipulated under the Contract Act and must attract all its typical incidents. For instance, a marriage cannot occur without the free consent of both parties, and such consent must not be procured through coercion, fraud, or undue influence.

Similar to contracts entered into by a guardian, which can be repudiated by the minor upon reaching majority, a marriage contract in Muslim law can be annulled by a minor upon attaining the age of puberty.

The contracting parties in a Muslim marriage may enter into any ante-nuptial or post-nuptial agreements, provided these agreements are reasonable and not contrary to the policy of Islam.

The provisions of Section 64 of the Indian Contract Act are applicable in instances where a marriage is unilaterally rescinded. Section 64 mandates that the party who rescinds the contract must return the benefits received under it.

This principle was upheld in the case of Md Abasbhai Usaf Bidiwaley Hurbanu Mansur Atar (1978) Mah. LJ 26, where the court ruled that benefits conferred under the marriage contract must be returned if the contract is annulled at the discretion of one party.

The contractual nature of Muslim marriage underscores the significance of mutual consent and equitable agreements, ensuring that the rights and duties arising from the marriage are clear and enforceable. This approach aligns Muslim marriage contracts with broader contractual principles, ensuring they are governed by the same legal standards that apply to other types of contracts.

This framework reinforces the importance of consent and fairness, providing a mechanism for the annulment of marriages that do not meet these standards and ensuring that any benefits conferred are appropriately returned.

Under Muslim law, marriage is not considered a permanent and eternal union. A Muslim man possesses the right to divorce his wife at his discretion. Additionally, under Shia law, marriages for a fixed duration (such as a day, a month, etc.) are also recognized. Among Muslims, marriage is not viewed as a sacrament but rather as a civil contract.

Although it is typically solemnized with the recitation of certain verses from the Quran, Muslim law does not mandate any specific service unique to the occasion. Conversely, Abdul Rahim suggests that a Muslim marriage embodies both the nature of ibadat (a devotional act) and muamalat (a dealing among men).

Marriage is acknowledged in Islam as the cornerstone of society. While it is undeniably a contract, it is also regarded as a sacred covenant. The Prophet Muhammad once delivered a sermon on marriage, which continues to be recited (albeit with minor variations) during Muslim marriage ceremonies, offering practical advice and conveying noble sentiments.

Essentials of Muslim Marriage 

  • Every Muslim of sound mind who has reached the age of puberty (baligh) is eligible to enter into a contract of marriage. A marriage conducted without the consent of such a Muslim is considered void. 

  • There must be an offer or proposal (ijab) made by or on behalf of one of the parties, and an acceptance (qubul) of the proposal by or on behalf of the other party. The offer and acceptance of marriage must occur in the presence and hearing of two male witnesses or one male and two female witnesses, all of whom must be Muslims of sound mind and majority. However, under Shia law, witnesses are not necessary.

  • Muslim law does not prescribe specific words to be uttered during the ceremony, but the words used in the offer and acceptance must clearly and unequivocally convey the intention to be married. If the proper words are not used, the consummation of the marriage can rectify this deficiency.

  • The offer and acceptance must occur simultaneously and in the same meeting. A proposal made in one meeting and an acceptance made in another does not constitute a valid marriage. If the parties are of legal age, they must personally make the offer and acceptance; however, for minors and those of unsound mind, guardians can perform this function.

  • Neither a written document nor any religious ceremony is essential for the validity of the marriage, although it is customary for a kazi or mulla to be present to recite certain Quranic verses during the occasion. 

  • This framework ensures that the principles of mutual consent and clarity are upheld in Muslim marriages, emphasizing the importance of direct communication and the presence of witnesses to validate the union. The flexibility regarding the necessity of specific words and the rectification through consummation

In the deed of marriage, all conditions pertinent to the union are meticulously detailed. These conditions include the amount of dower, arrangements regarding children's custody, and other stipulations such as the wife's right to divorce if her husband takes a second wife, and provisions for the wife's maintenance. Typically, Muslim marriages are celebrated at the residence of the bride's father or guardian. 

Certain conditions, however, cannot be validly stipulated in the nikah-nama. These include clauses stating that the husband must live with the wife at her parents' house, any provision that strips the husband of his power to divorce, agreements regarding future separation, or terms allowing the wife to permanently reside with her parents.

The procedure for marriage as per Muslim personal law involves several steps. First, the girl is asked, in the presence and hearing of witnesses, whether she consents to the marriage and agrees to the dower offered by the husband. Upon the girl affirming her consent, either verbally or through another method, the mulla then asks the husband if he agrees to marry her.

When the husband consents, the mulla asks a relative of the girl, acting as her agent, whether he concurs. The relative's affirmation completes this part of the process. The presence of witnesses ensures that there is clarity and authenticity regarding the authorization of the girl's agent, as illustrated in the case of Mst. Gulam Kubra Bibi v. Mohd. Shafi Mohd. Din (AIR 1940 Pesh. 4).

The completion of this marriage contract, which begins with the proposal and concludes with mutual consent, is referred to as aqd. This structured process underscores the contractual nature of Muslim marriage, ensuring that all parties are in agreement and that the marriage is conducted with transparency and mutual consent.


Schools of Muslim Law  

Two major sects of Muslims in India are the Shias and the Sunnis. The Sunnis base their doctrine on the entirety of the traditions and consider the decisions of the Imams and the general body of jurists to supplement the Quranic rules, holding equal authority to them.

In contrast, the Shias reject the decisions of the jurists and all traditions not handed down by Ali (appointed by the Prophet Muhammad as his successor) or his descendants. Consequently, they are referred to as "Shia-t-i-Ali" or the faction of Ali.

The Sunni sect is divided into four major schools: Hanafi, Shafei, Maliki, and Hanbali. The Shia sect comprises two primary schools: Ismaili and Ithna Ashari.

The Hanafi School, one of the Sunni sect's schools, encompasses a vast majority of Muslims throughout India. It is generally presumed that the parties are Sunnis, reflecting the majority of the Muslim population in the country. Muslims adhering to the Shafei School, another Sunni school, are predominantly found in southern India.

Following the Sunnis, the Shias constitute the next largest group of Muslims in India, with most adhering to the Ithna Ashari School. The Ismaili School of the Shias represents the smallest minority group among Muslims in India.

Under Muslim law, there is no prohibition against inter-sect or inter-school marriages. Thus, a Shia male or female may contract a valid marriage with a Sunni female or male. Such marriages do not imply a change of sect or school.

For example, a Sunni woman marrying a Shia man does not thereby become subject to Shia law. In legal matters, if the parties to a suit belong to different schools of thought, the law of the defendant will apply.

This framework highlights the flexibility and inclusivity within Muslim personal law, allowing for marriages across different sects and schools without necessitating a change in religious or legal affiliation.

This approach respects the diversity within the Muslim community, ensuring that personal beliefs and legal principles are upheld in a manner that accommodates intersect unity.

Proof/ Presumption of Marriage 

The question of a Muslim marriage is a factual issue that can be proven through direct evidence, such as calling witnesses who were present at the time of the marriage or producing a nikah-nama signed by the parties involved. Alternatively, it can be proven by indirect evidence that raises a presumption of marriage.

Under Muslim law, similar to Hindu law, prolonged and continuous cohabitation raises a presumption of a valid marriage. However, it must be demonstrated that the man treated the woman as his wife and recognized her as such, with the intention and knowledge of conferring upon her the status of a wife, as established in the case of Roshanbai v. Suleman (49 Bom. LR 328).

Additionally, there must be conduct on the man's part that amounts to an acknowledgment of the legitimacy of any child born after the commencement of cohabitation. It should be noted that a woman who is merely a concubine holds no legal status in Muslim law.

This principle ensures that the intentions and behaviors of the parties involved are considered when determining the validity of a marriage, providing a safeguard for the rights and status of the woman within the relationship.

Capacity for Marriage 

Every Muslim of sound mind, who has attained puberty, and who is not within the prohibited degrees of relationship with the party he or she contracts to marry, may enter into a contract of marriage.

In Muslim law, the age of majority is understood in reference to attaining the age of puberty. Puberty is presumed, in the absence of evidence, to occur upon the completion of 15 years of age.

Therefore, a Muslim girl is considered to have reached majority if she has completed 15 years of age or has attained puberty at an earlier age, as established in the case of Mst. Atika Begum v. Mohd. Ibrahim (AIR 1916 PC 250). The 'age of puberty' is the age at which a person is presumed to acquire sexual competency.

However, the requirement for attaining the age of puberty is essential not only for competency for consummation but also because it is considered the age at which individuals can provide their own consent for marriage.

Lunatics (persons of unsound mind) and minors who have not attained puberty may be validly married by their guardians. If there is no consent from the guardians, then such a marriage is invalid. Thus, under Muslim law, the parties to the marriage should have either the capacity to marry or the capacity to be married.

This principle ensures that individuals entering into marriage possess the requisite maturity and ability to provide informed consent, thereby safeguarding their rights and welfare within the marital relationship.

Leading Case Law

  • In the case of Mt. Gulam Kubra Bibi v. Mohd. Shafi Mohd. Din (AIR 1940 Pesh. 4), the court ruled that there is no valid marriage if the consent of the major girl is not obtained, and all formalities, such as the presence of adult witnesses, must be properly observed for the solemnization of a Muslim marriage. 

A 17-year-old girl was given in marriage by her grandfather without her consent, and there were no adult witnesses to testify that her consent was duly obtained. The husband sought the restitution of conjugal rights, while the wife claimed she was never married to him. Since the girl was a major, her consent was necessary, and the court held that no valid marriage had taken place.

The Mullah testified that he performed the nikah at the grandfather's request but denied that anyone sought the girl's consent. One witness vaguely claimed to be present at the nikah but failed to provide details. Two other witnesses were later produced, but they did not give any specifics about the ceremony.

According to Mohammedan law, it is essential for the man or his representative to agree to the marriage in one meeting, witnessed by two adults. These witnesses ensure the Mullah can verify the authorization of the girl's guardian.

In this case, the girl, being 17 and having reached puberty, could not be validly married off by her grandfather, who mistakenly believed she was still a minor under 18.


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