What are the various sources of the Muslim Law? Discuss the relevance of modern sources in present scenario.

Question: What are the various sources of the Muslim Law? Discuss the relevance of modern sources in present scenario. [BJS 2021]

Find the question and answer of Muslim Law only on Legal Bites. [What are the various sources of the Muslim Law? Discuss the relevance of modern sources in present scenario.]

Answer

The sources of Muslim law can be classified into two categories, i.e. (a) Primary Sources and (b) Secondary Sources. Primary sources are those sources that are based on religious beliefs mentioned in Holy Scriptures or books. And here the legislatures and judiciary are the secondary sources.

Primary Sources of Muslim Law

Primary sources are those sources that are based on religious beliefs mentioned in Holy Scriptures or books. These sources are universally accepted as authentic and they are primary which means these sources shall be relied on before any other source. It means that for any question relating to their personal life or family, Muslims shall resort to these primary sources of law to understand the legal opinion in such situations. The known five primary sources of Muslim law are:

Holy Quran

The Holy Quran is the holy book of Islam which is believed to contain the direct words of God as perceived by Prophet Muhammad. The Quran is like a Constitution for Muslims and it contains all principles to be used in personal laws including marriage, divorce, succession, etc. In case of any question concerning the personal laws of Islam, the Quran is the first source which needs to be looked into.

The Quran is the final authority on any issue related to Muslim personal law. In a strict sense, the Quran cannot be called a legal code and Muslim jurists agree that it contains verses explaining the way of living and the morals of life and it is not a legal code backed by sanctions.

Sunnah

The word Sunnah means ‘path’. It connotes that the path that the Prophet followed should be followed by his people after him. Sunnah is second in priority after the Quran. Therefore, whenever there is a situation where the Holy Quran is silent and the people are unable to make a decision.

After the demise of Prophet Muhammad, the Muslims were divided into two sects on the issue of a worthy and competent successor; the first being Shia Muslims and the second being Sunni Muslims. The division of the religion also led to several books and scriptures becoming sources of Muslim law. One such source is the Sunnah. Sunnah is followed by the Shia Muslims in their day-to-day lives to comprehend answers to questions that they face.

Hadith

Hadiths are the books containing the Sunnah. It means that Sunnah is the actions and words spoken by the Prophet and Hadith is the Scripture where these are recorded. To ensure the authenticity of the books, the Muslim scholars wrote the Hadith with the reference of their source and the reference of the reference so that all the references link in some way to the Prophet or an Imam. All measures were taken to maintain the veracity of the wordings in the Hadiths.

Ijma

The term ijma means a consensus, i.e. the agreement between all on a particular point of fact or law. jma is a concept of law made by consensus of all Islamic jurists or other persons of knowledge and skill.

There are three kinds of Ijma

a) Ijma of companions

b) Ijma of jurists

c) Ijma of people It is based on the belief that when all the most revered persons of the society have maximum knowledge of the Quran and have together taken a decision, it should be for the benefit of the Muslim community.

Qiyas

As Islam spread in different parts of the world, they rendezvous with several other communities such as Byzantines and Persians and with time new difficulties arose. The Holy Quran was not capable of dealing with new emerging difficulties arising from contact with the outside world.

To resolve this problem, the Muslim jurists commenced referring to the Quran and Sunnah to compare the situations and deduce an answer to the problem based on some analogy. When the answer is found and all the jurists together agree to it, it is called the Qiyas. Thus, Qiyas are Ijmas based on deductive logic. They are the analogical deductions from the existing sources. Qiyas can only explain or interpret the law but cannot change the law.

Secondary Sources of Muslim Law

Now, as aforementioned, the legislatures and judiciary ought to be the primary source of any law. Nevertheless, since Muslim personal law is a law based on religious ethics and principles, the legislature takes a back stand. The following are the secondary sources that have led to the development of Muslim personal law:

Custom

Customs are practices that people follow continuously for a long period of time and because of that, it becomes a source of law. So there are two important conditions of custom

a) Continuous and

b) Without any influence

In the case of Abdul Hussain v. Bibi Sona Dero, (1918) 20 BOMLR 528, Plaintiff claimed property based on the custom that in their family women were denied inheritance if married. The judges were convinced that the custom was prevalent and gave the judgment which preferred custom to the Islamic law of Inheritance.

Legislations

Legislations mean statutes enacted by the Parliament or the State legislature for the regulation of human actions in a particular aspect. There have been several legislations enacted by the Parliament to lay the foundation of Muslim law in India.

The first law that was passed was the Shariat Act, of 1937. In Islam, the entire body of law that governs their day-to-day personal laws, marriage, divorce, etc. is collectively called the Sharia. Thus, based on Sharia and with the object of making it a complete body of Muslim laws, the Act was titled the Shariat Act.

Judicial Pronouncements

It is said that the law protects only the vigilant. This is very much right in the case of Muslims in India. The development of Muslim law by the judiciary came to its full development in the 1980s because till then, Muslim men and women have been sleeping on their rights or were ignorant about their rights. The first landmark judgment that deals with Muslim personal law was the 1986 judgment in Shah Bano Begum v. Md. Ahmed Khan, [1985 (2) SCC 556.].

In this case, the apex court held that Muslim women have a right to maintenance under Section 125 of the CrPC even if the Quran or their laws have provided for an alternate remedy. The same ratio was upheld by the apex court in Daniel Latifi v. Union of India, (2001) 7 SCC 740.

Muslim law derives its authority from a combination of traditional and modern sources that reflect a rich interplay between historical principles and contemporary interpretations. Traditional sources such as the Qur'an, Sunnah, Ijma, Qiyas and Ijtihad form the basis of Islamic jurisprudence, while modern sources such as legislative enactments, judicial precedents and international conventions adapt these principles to contemporary legal needs.

The integration of modern sources ensures that Muslim law remains relevant and effective in today's world. It provides a balanced approach that respects tradition while taking into account modern values and challenges.