What is the Islamic notion of Law? Should the Muslim Law of marriage and divorce be substantially changed? Has the parliament of India the power to do so? Give reasons for your answer.

Question: What is the Islamic notion of Law? Should the Muslim Law of marriage and divorce be substantially changed? Has the parliament of India the power to do so? Give reasons for your answer. [RJS 1979]

Find the question and answer of Muslim Law only on Legal Bites. [What is the Islamic notion of Law? Should the Muslim Law of marriage and divorce be substantially changed? Has the parliament of India the power to do so? Give reasons for your answer.]

Answer

The Qur'an is the principal source of Islamic law, the Sharia. It contains the rules by which the Muslim world is governed (or should govern itself) and forms the basis for relations between man and God, between individuals, whether Muslim or non-Muslim, as well as between a man and things which are part of creation. The Sharia contains the rules by which a Muslim society is organized and governed, and it provides the means to resolve conflicts among individuals and between the individual and the state.

There is no dispute among Muslims that the Qur'an is the basis of the Sharia and that its specific provisions are to be scrupulously observed. The Hadith and Sunna are complementary sources to the Qur'an and consist of the sayings of the Prophet and accounts of his deeds. The Sunna helps to explain the Qur'an, but it may not be interpreted or applied in any way which is inconsistent with the Qur'an.

Islamic Notion of Law

One of the origins of Muslim law is the idea of fairness, justice, equity, and excellent conciseness. These Islamic legal doctrines are known as 'Istihsan' or 'Juristic Equity.' Istihsan means "liberal construction" or "juristic choice," or what we now refer to as "equity law." To respond to various conditions in India, a number of Muslim provinces have been transformed. Although the British originated this notion of equity, it has been adopted by various Muslim law schools. This notion of equity was used in most of the matters handled by British courts under Muslim law.

Though there are other sources of law—i.e., ijma', (consensus), qiyas, (analogy), ijtihad, (progressive reasoning by analogy)—the Qur'an is the first and foremost source, followed by the Hadith and Sunna. Other sources of law and rules of interpretation of the Qur'an and the Hadith and Sunna follow in accordance with a generally accepted jurisprudential scheme.

The Qur'an contains a variety of law-making provisions and legal proscriptions interspersed throughout its chapters (suwar) and verses (ayat). A number of rules exist for interpreting these provisions, such as the position of a given ayah within the context of the surah, which in turn is interpreted in accordance with its place in the sequence of revelations, its reference to other revelations, and its historical context in relation to particular conditions which existed at the time of the given revelation. These and other rules are known as the science of interpretation (ilm usul aI-fiqh).

According to these rules, for example, one initially is to refer to a specific provision and then to a general provision dealing with a particular situation. No general provision can be interpreted to contradict a specific provision, and a specific rule will supersede a general proposition. A general provision, however, is always interpreted in the broadest manner, while a specific provision is interpreted in the narrowest manner. Reasoning by analogy is permitted, as are applications by analogy, except where expressly prohibited. Simplicity and clear language are always preferred. Similarly, the clear spirit of certain prescriptions cannot be altered by inconsistent interpretations. A policy-oriented interpretation within the confines of the rules of jurisprudence is permissible and even recommended, as is the case with the doctrine of ijtihad (progressive reasoning by analogy).

Should the Muslim Law of marriage and divorce be substantially changed?

Marriage according to Mohammedan law is not a sacrament but a civil contract. All the rights and obligations it creates arise immediately and, are not dependent on any condition precedent such as the payment of a dower by the husband to a wife.

For a very informative consideration of the concept of marriage and divorce, the judgment of the Pakistan Supreme Court in Khurshid Bibi v. Mohd Amin P.L.D., 1967 S.C. 97, is relevant to be noted. In this case, Justice S.A. Rahman who wrote the judgment says that "among Muslims, marriage is not a sacrament, but is in the nature of the civil contract. Such a contract undoubtedly has spiritual and moral overtones and undertones but legally, in essence, it remains a contract between the parties." This judgment does not say that marriage is pure, a civil contract, or for that matter, a civil contract. It merely regards to be in the nature of a civil contract.

The complexity of modern society and its possible consequences such as fast-changing socio-economic conditions, the disintegration of the joint family structure, the rapid development of industrialization and urbanization, education and employment and laws giving equal status and rights to women, led to tremendous impact on the institution of marriage. A few decades ago divorce was considered an evil, the grounds for divorce were very limited and it was sought only under compelling circumstances. Positions have, however, changed now. Marriage is no longer treated as an indissoluble union. In fact, there has been considerable legislative and judicial interference in the sphere of matrimonial laws during the past few decades all over the world. In view of the changing times, divorce laws are being substantially modified and liberalized.

The Muslim marriage law also states that to have a valid marriage under Muslim law, if a person is of sound mind, normal and has attained puberty at the age of 15 his or her marriage cannot be performed without his or her consent. There are certain prohibited relationships, whose marriage is considered void. Like mother and son, grandmother and grandson, uncle and niece, brother and sister and nephew and aunt.

i) An acceptance of such proposal or offer by or on behalf of the other party;

ii) The offer and acceptance, both, must be expressed in the same meeting. There is no prescribed form for proposal and acceptance. However, a proposal, made at one meeting and an acceptance, made at another meeting, will not constitute a valid marriage;

iii) The offer and acceptance must be made in the presence of two male witnesses, or one male and two female witnesses, who must be adult Mohammedans of sound mind;

iv) A marriage, contracted without witnesses, is not void but is considered irregular. Such irregularity can be cured by consummation. However, according to Shia law, the presence of witnesses is not necessary for any matter

Muslim Marriage Act also has a provision for separation under the name of the dissolution of Marriage act, of 1939. Both parties to the marriage contract have an opinion for divorce, but the husband`s right in this respect is much greater than that of the wife. In case of divorce, a husband can leave his wife without any reason merely by pronouncing the word "Talak" thrice.

Like in the Hindu marriage act, divorce can also take place due to mutual agreement between the husband and the wife which is known as Mubarat. The husband can dissolve the marriage tie at his will. A divorce can also take place by mutual agreement. But the wife cannot divorce herself from her husband without his consent.

The Muslim women, meanwhile, continued to suffer because of polygamy, oral unilateral divorce, low Mehr amounts, lack of maintenance and other ills which plague Muslim law. In the last two decades except for some pro-women judgments, there has been no forward movement in the effort to reform the Muslim law by codifying it and making it uniformly applicable to the entire Muslim population across the country. Therefore a reform should be brought in Muslim law to uplift the position of women. More women's organizations should be encouraged because of the fact that women's organizations have played a remarkable role in highlighting the plight of Muslim women.

Power of Parliament to amend Islamic Personal law

The importance of legislation may be seen in the fact that, on the one hand, it establishes rules and procedures through the parliament, while on the other hand, it has state-level authority. Some parts of the legislation were approved by the Hanbali school under the names Nizam (Ordinance/Decree), Farmans, and dastarul amals, but they were not connected to personal laws. The British were never allowed to interfere with personal laws, and Muslim law suffered greatly as a result of the lack of effective regulatory frameworks. There were just a few laws in this area, including the Shariat Act of 1937 and the Mussalman Wakf Validating Act of 1913. The Dissolution of Muslim Marriage Act of 1939 was a breakthrough in Muslim law since it granted a Muslim wife the right to a judicial divorce on particular conditions. Following independence, in 1963, a motion to change Muslim personal law was introduced in Parliament, sponsored by progressive Muslims but opposed by the orthodox, resulting in few modifications in this area.

Despite the fact that most of it is uncodified, Muslim personal law has the same legal significance in India as other religions' codified personal laws, such as the Hindu Marriage Act of 1955 and the Christian Marriage Act of 1872. The Hon'ble Supreme Court of India has taken into account that women's rights are not being neglected or discriminated against on any grounds by delivering progressive judgments.

This has developed in contribution to Muslim law to have a newer perspective with the landmark cases. Adding more to this, the judgments have set up a platform of a level playing field and thus, leading to the formation of an egalitarian society. And it is noted that the Parliament is well within its power to make changes or modify the Islamic Personal Law as per the growing needs of the society so that its basic notion of imparting justice, equity, and good conscience is served at its best.

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