MOHAMMEDAN LAW
Sources of Muslim Law
Q. 1 (a). Who is a Muslim? In what matters the Muslim law is applicable to a Muslim?
Ans. A Muslim is a person who believes that-
(1) There is one and only one God, and
(2) Mohammad is the Prophet of God.
According to Amir Ali- “Any person who professes the religion of Islam, in other words, accepts the unity of God and the prophetic character of Mohammad is a Muslim.” This view of Amir Ali was accepted in Narantakath v. Prakkal, (1992) 45 Madras 986. In this case it was held that the essential doctrine of Islam is that there is one God and Mohammad is the Prophet and any belief in excess of this is, atleast for law Courts, a redundancy. Thus, to be a Muslim, only two things are necessary (a) the belief that Allah is one, and (b) the belief that Mohammad is the Prophet of Allah.
It is not necessary that a Muslim be so by birth. In fact, Islam depends upon belief. A man can be Muslim by conversion. In Skinner v. Orde. (1871) 14 Μ. Ι. A. 309, one Helen Skinner was married in Christian form to George Skinner. After the death of her husband, Helen Skinner cohabited with other Christian. The subsequent husband was already married and his first wife was alive. In order to legalize their union, both went through the ceremony of conversion to the Muslim faith. It was held by the Privy Council that their conversion was not bona fide and it was illegal.
A person born as a Muslim continues to be a Muslim until he has renounced Islam after attaining majority.
The application of Muslim Personal law is generally regulated by the provisions of the Muslim Personal Law Application Act, 1937 (Shariat Act, 1937). Section 2 of this Act lays down that in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, marriage, dissolution of marriage, maintenance, dower, guardianship, gift, trust and wakf the rule of decision in cases where the parties are Muslims, shall be the Muslim Personal Law
According to Section 3 of the Muslim Personal Law Application Act, any person who satisfies the prescribed authority-
(a) that he is a Muslim, and
(b) that he is competent to contract, and
(c) that he is a resident of a territory to which this Act extends may by declaration before the prescribed authority declare that he desires to obtain the benefit of the provisions of this section and thereafter the provisions of Section 2 shall apply to the declarant and all his minor children and their descendants, as if in addition to the matters enumerated therein adoption, Wills and legacies were also specified.
The principle of equity, Justice and good conscience applies to the Muslims in the matter of pre-emption.
Q. 1 (b). Discuss the various sources of Muslim Law.
Ans. Sources of Muslim Law
Sources of Muslim Law may be divided into two categories:
(a) Primary Sources, and
(b) Secondary Sources.
(A) Primary Sources. – Those sources of Muslim Law, which the Prophet Mohammad regarded as the sources of law may be called primary sources.
Primary sources are the following:
(1) Quran
(2) Ahadis or Sunna
(3) Ijma
(4) Qiyas
1. Quran. – The Quran is composed of such express revelations as were made in the very words of God to Mohammad when he was bestowed with the office of Prophet and messenger of God.
Quran is in the form of a series of communications addressed by God to the Prophet through the Angel Gabriel. The communications were declared to the people on a large number of different occasions during the last years of the life of the Prophet. Quran deals with a variety of subjects. Only few verses (Ayats) of Quran deal with rules of law. Of the verses which embody rules of law, some seek to repeal objectionable customs. Some seek to make reforms in the cases of women, succession and inheritance, while some lay down punishment. It also contains general injunctions.
The Quran is the first source of Muslim Law in point of time as well as in point of importance.
2. Ahadis or Sunna (Traditions). – Just as Quran is the express revelation through Angel Gabriel to Prophet Mohammad, the Ahadis and Sunna are implied revelations in the precepts and sayings and actions of the Prophet, not written down in his lifetime, but preserved by traditions and handed down by authorised agents.
Traditions are second source of law coming next in importance to the Quran. The traditions should not be contrary to the Quran as they are the implied revelations of God.
Classification of Sunna. – (i) Sunnat-ul-Qaul-Utterings preaching and sayings of the Prophet.
(ii) Sunnat-ul-Fail.-His actions, and daily practice.
(iii) Sunnat-ul-Taqrir. His silence implying a tacit approval of what was done in his presence-
From the point of view of their importance and authority, traditions may be classified as under:
(i) Ahadis-i-mutwatir- Those traditions which are of public and universal notoriety and are held absolutely authentic come under this category. These traditions are accepted as genuine and authentic by all the sects of Muslim. Abdur Rahim aptly remarks that traditions of this class, like verse of the Quran, ensure, absolute certainty as to their authenticity and demand implicit belief.
(ii) Ahadis-i-mashhura-Those traditions which though known to the majority, do not possess the character of universal authority are known as Ahadis-i-mashhura.
(iii) Ahadis-i-wahid-Those traditions which were narrated by very few narrators are called Ahadis-i-wahid. Most of the Muslim jurists do not accept these traditions as a source of law.
3. Ijma Meaning. – Ijma means the consensus of the jurists (Mujtahids) among followers of the Prophet. Abdur Rahim defines it as “the agreement of the jurists among the followers of Mohammad in a particular age on a particular question of law.” After the death of the Prophet, as the expansion of the Islamic influence took place, a large number of new situations and new problems cropped up which could not be decided by reference only to Quran and Ahadis. The jurists then took the recourse to the principle of Ijma, that is, the consensus of opinion of jurists on any question. The authority of Ijma, as a source of law is based upon tradition, “My followers can never agree upon what is wrong”.
Ijma is the third source. It ewes its authority to the tradition, “My people can never agree upon what is wrong”.
Classification. (1) ljma of the companions of the Prophet- This kind of lima is universally accepted throughout the Muslim World and is unrepealable Companions are those Muslims who had the privilege of being in contact with the Prophet. Though there is great difference of opinion among the important Muslim Jurists with regard to the requirement of a valid ljma, there is general agreement that Ijma of the companions of Prophet should invariably be accepted. The reason behind it was that those associated with the Prophet as his companions must have known. as by instinct, the policy of the Islamic Law and whether a particular rule or decision was in harmony with its principles. Ijma of the companions can not be repealed or modified by the ijma of a subsequent age. The Ijma of the companions of the Prophet Mohammad is deemed to be the best guide and is universally accepted as an authority next to Quran and Ahadis.
(ii) Ijma of the jurists other than companions. It is the opinion of majority of the jurists (Mujtahids) who are learned in the traditions of the Prophet and well acquainted with the meaning of the Arabic words and the passages in the Quran. The Muslim jurists (Mujtahids) alone are competent to participate in Ijma.
(iii) Ijma of the People. As a source of law, this kind of Ijma has not much importance.
Ijma, as a matter of fact, was intended to be a source of law, for all times to come, but the extreme uncertainty of the procedure to regulate it made it a thing of doubtful utility.
According to Hanafi Law Ijma cannot be confined or limited to a particular age or country. It is completed when the jurists after the deliberation come to a finding. It cannot then be questioned or challenged by any individual jurist. Ijma of any age may be reversed or modified by the Ijma of same or the subsequent age.
The Shia jurists do not recognise Ijma as a source of law. They acсерь only those traditions which had come from the members of the Prophet’s family.
4. Qiyas (Analogical Deductions). -Etymologically Qiyas means “measuring”, “accord” or “equality”. In Muslim jurisprudence it means an extension of law from the original text by means of common sense. According to Jung, “it is a process of deduction applying the law of the text to the cases which, though not covered by the language of the text, are nevertheless covered by the reason of the text.”
Qiyas is subsidiary source of law. Qiyas is analogical deduction derived from a comparison with law in one of the first three sources when they do not apply directly to a particular case and occupies a place next to Qaran, Ahadis and Ijma. Analogical deduction should not be opposed to Quran. Ahadis and Ijma but must be based upon either of these sources. There are some jurists who do not recognise Qiyas. This gave rise to a rigid school of law represented by Az-Zahir, who undertook the scientific study of the Quran, and its interpretation. But the majority of the jurists agree to take recourse to the pure reasoning as a supplement to the three sources of law in case of necessity.
Correctives to Qiyas. (i) Istehsan -II the Qiyas was opposed to the habits of the people and was therefore inapplicable or otherwise likely to cause hardship, Abu Hanifa gave to the Judges option to override Qiyas and apply that law which suited the circumstances of a case in question. The use of option was known as Istehsan.
(ii) Istidlal. It is a doctrine of public good which enables a jurist to override Qiyas which is positively harmful to general public. Istidlal means inferring a thing from another thing (Abdur Rahim Mohammadan Jurisprudence, p. 166).
Under Shia Law, the primary sources of law are :
(i) Quran
(ii) Traditions-Only such traditions which are handed down from the Prophet’s household, and
(iii) Reason.
Shias do not recognise Ijma and Qiyas as sources of law.
(B) Secondary Sources. – Secondary sources of Muslim law are the following-
(1) Custom;
(2) Judicial Precedents,
(3) Legislation; and
(4) Equity, justice and good conscience
(1) Custom (Urf): Meaning. – The Muslim jurists do not expressly describe custom as a source of law but those customs and usages which were not modified or abrogated by the Prophet, remained good and valid. The primeval customs were regulated by Mohammad.
The custom is not an independent source of Muslim Law. During the British regime, Courts in India recognised the legal force of customs on some occasions in spite of the fact that they were opposed to the clear texts of a primary text of Muslim Law. Muslim Personal Law Application Act (Shariat Act), 1937, abolishes most of the customs from the Muslims Personal Law. Section 2 of this Act lays down that if the parties are Muslims, only Muslim Personal Law will be applied to them in the following matters-
(i) inheritance, (ii) special property of females, (iii) marriage, (iv) dower, (v) divorce, (vi) maintenance, (vii) guardianship, (viii) gift, (ix) waqf and (x) trust.
In respect of these matters customs or usages have no place But customs are still applicable in matters of agricultural lands, charities and religious and charitable endowments.
(2) Judicial Precedents.- Interpretation of Mohammedan Law by the Judges of the Indian High Courts and Supreme Court continues in modern times to supplement and modify the Islamic Law, as such they are continuing sources of Mohammedan Law. These include the decisions of the Privy Council, the Supreme Court as well as of the High Courts of India These decisions are regarded as precedents for future cases
(3) Legislation. The following legislative enactments which have considerably amplified, altered or modified the original Muslim Law:
(i) The Guardians and Wards Act, 1890.
(ii) The Mussalman Waqf Validating Act, 1913.
(iii) The Mussalman Waqf Act, 1923.
(iv) Child Marriage Restraint Act, 1929. (Repealed by Prohibition of Child Marriage Act, 2006).
(v) Muslim Personal Law Application Act, 1937 (Shariat Act, 1937).
(vi) The Dissolution of Muslim Marriages Act, 1939.
(vii) The Muslim Women (Protection of Rights on Divorce) Act,1986.
(viii) Waqf Act, 1995.
(ix) Prohibition of Child Marriage Act, 2006.
(x) Muslim Women (Protection of Rights on Marriage) Act, 2019.
(4) Justice, equity and good conscience-Sometimes analogical deductions failed to satisfy the jurists owing to the narrowness and inadaptability of the habits or due to hardship to the public. In such a case, according to the Hanafis, a jurist could use good conscience.
With regard to the applicability to rules of justice, equity and good conscience to Muslim Law, the Privy Council observed, “The chapter on the duties (Adab) of the Qazi in the principal works on Mussalman Law clearly shows that the rules of equity and equitable considerations commonly recognised in the Courts of Chancery in England are not foreign to the Mussalman system, but are in fact often referred to and invoked in the adjudication of cases”.
Q. 1 (c). Write a detailed note on Ijma and Qiyas as a sources of Muslim Law.
Ans. Ijma as a source of Muslim Law. According to Abdur Rahim, “Ijma is the agreement of the jurists among the followers of Mohammad in a particular age on a particular question of law. Ijma as a source of Muslim Law is founded upon certain texts of Quran, and Traditions
For example-Obey God and obey the Prophet and those amongst you who have authority (a Quranic verse)
‘If you yourself do not know then question those who do (a Quranic verse).
Whatever Muslims hold to be good is good before God (Tradition).
My followers will never agree upon an error (Tradition).
In a Quranic verse it is laid down that God has completed the Islam and it is also laid down that Islam is an eternal religion. It is argued in support of lima that on many matters Quran is silent and Prophet Mohammad is no more. Therefore for new problems arising in the society, no guidance can be taken from the Prophet or by reference to Quran. It is therefore argued that any rule of law, which is not expressly provided in Quran or in Traditions must be deduced from these sources by the concurrent opinion of the learned Muslims.
Kinds of Ijma:
(i) ljma of the companions of the Prophet-This kind of Ijma is universally accepted throughout the Muslim world and is not repealable. This kind of Ijma is invariably accepted by all Muslims, the reason behind it is that those associated with the Prophet as his companions must have known as by instinct, the policy of Islamic Law and whether a particular rule or decision was in harmony with its principles.
(ii) ljma of the jurists other than companions-It is the collective opinion of the Muslim jurists (Mujtahids) other than the companions. Such Ijma may be reversed or repealed by subsequent Ijma.
(iii) Ijma of the Muslim Community- This kind of Ijma has not much importance as a source of law.
Place of ljma as a source of law. Ijma as a source of law is universally accepted as an authority next after the Quran and Ahadis.
Ijma, as a matter of fact was intended to be a source of law for all time to come, but the extreme uncertainty of the procedure to regulate it made it a thing of doubtful utility.
Shia jurists do not recognise Ijma as a source of law.
Qiyas as a source of Muslim Law. – Qiyas is a subsidiary source of Muslim Law. According to all the four sub-schools of Sunni Law, in those matters on which no provision has expressly been given in Quran, Sunna or Ijma, the law may be laid down by the use of Qiyas (analogy).
The word Qiyas means ‘measuring’, ‘accord’, ‘equality’
By analogical deduction the law of the text (i.e., Quran, Sunna or ljma) is extended to cases not falling within the purview of its terms. By means of Qiyas, the law is discovered from these texts. The function of Qiyas is not to formulate the new principle of law, but only to extend the law of the text in new situations.
Schools and sub-schools of Muslim Law
Q. 2 (a). Describe various schools and sub-schools of Muslim Law.
Ans. Schools (Sects) of Muslim Law. – There are two main schools of Muslim Law-the Sunni and the Shia. In India the majority of the Muslims are Sunnis and hence it is presumed that the parties to a suit are Sunnis unless proved otherwise.
After the death of the Prophet, the question arose as to who would be his successor. On this point, the Muslim community was divided into two factions.
One party advocated the principle of succession, while another pressed the election of the successor. The Shias advocated that the office should go by the right of succession and thus the Imamat (headship) should be confined to Prophet’s own family as his nominees. This group was represented by Fatima, daughter of the Prophet. The Sunnis advocated the principle of election by the Jamat and chose out their Imam by means of votes. The Shias repudiate the authority of the Jamat while the Sunnis advocate it. The majority of Muslims suggested that there should be election to choose successor of the Prophet. This group was led by Ayesha Begum, the youngest wife of the Prophet. Thus the difference between the two lies in political events, not in law or jurisprudence.
Sunni-Sub-Schools: (i) Hanafi School. This is the most famous school of Sunni Law. Abu Hanifa was the founder of this School. Abu Hanifa placed little reliance on the oral traditions, which had not yet been reduced to writing and laid more stress on Ijma and Istehsan. He recognised the authority of the custom (urf) also. According to Abdur Rahim. Abu Hanifa recognised Qiyas and Traditions as the Primary Sources, Ijma coming next to them and analogy, juristic preference and local customs being regarded as secondary sources
(ii) Maliki School- It was founded by Imam Malik Ibu Anas. Malik leaned more upon traditions and the usages of the Prophet and the precedents established by his companions. The powers of the head of the family over his wife’s property and over his children are the main features of this school. It is the only school in which a married woman is not the complete mistress of her own property. The doctrines of Malik were not essentially different from those of Abu Hanifa
(iii) Shafei School. – Imam Shafei was the founder of this school. Не was noted for his balance of judgment and moderation of views. He relied more upon traditions than Abu Hanifa but less than his master Malik. He was the founder of the doctrine of Qiyas which must be based upon Quran, Ahadis or Ijma. Like Malik, he also regarded Istadlal as the fifth source. The doctrines of this school are less favourable to women. There are very few followers of this school in India but a number of the followers of this School may be found in Indonesia, Malaysia and South East Asia.
(iv) Hanbali School. – It was founded by Ibn Hanbali. He laid much stress on traditions and allowed very narrow margin to the doctrine of analogy. This fourth and the latest of the jurists, was a saintly reactionary and his teaching was characterised by blind reliance on tradition.
Shia-Sub-Schools. – The sub-schools of Shia sect are the following-
(i) Ithna Asharia School. – The supporters of this school are followers of twelve Imams and regard themselves as their descendents.
The Ithna Asharia Shias are sub-divided into two schools, namely, Akhbari and Usuli schools.
(ii) Ismailia School. – The sixth Imam Jafar-us-Sadiq had two sons-(i) Ismail and (ii) Musa-ul-Kazim. The followers of Ismail are called Ismailias.
(iii) Zaidia School- Zaid, who was the son of fourth Imam (Imam Ali Ashgar) was the founder of this school.
Morazilas- Only the Sunni and Shia sects have their schools and Motazilas have no such school, Ameer Ali says “Motazilas are taken sometimes as an independent sect, and sometimes as an early offshoot of the Shia sect closely alike to the Usuli school. They must be treated as dead schools that have played its part in history.
Q. 2 (b). Narrate some important points of differences between the Shia School and Sunni Schools of Muslim Law.
Ans. Differences between Shia School and Sunni School:
Shia School
1. Marriage
(i) Muta or temporary marriage is recognised.
(ii) Only the father and grand-father are recognised as legal guardians for marriage. Marriages contracted by other persons have no legal effect.
(iii) Presence of two witnesses is essential at the time of dissolution of marriage, while presence of witnesses is not necessary at the time of marriage.
(iv) Marriage cannot be cancelled on the ground of inequality between the two parties.
(v) The doctrine of valid retirement (i.e., the presumption of the consummation of marriage if the husband and wife retire into the nuptial chamber and there is no impediment, to sexual intercourse) is not recognised. Ten months is the longest period of gestation.
(vi) Ten months is the longest period of gestation.
(vii) Marriages are either valid or void.
2. Dower (Mahr)
(i) The minimum amount for dower is not fixed.
(ii) Presumption of 500 dirhams as the maximum in case there is no stipulation.
(iii) Presumption of entire prompt dower in absence of any stipulation.
3. Divorce
(i) Talaq must be pronounced It may be oral or in writing orally in Arabic language.
However after the decision of Shamim Ara v. State of U.P.. IT (2002) 7 SC 520 pronouncement of Talaq must be oral.
(ii) Divorce under compulsion or threat or intoxication is void.
(iii) Talaq pronounced in implied or ambiguous terms is void.
4. Maternity
A child born of fornication is deemed to have no parents at all.
5. Guardianship
The mother is entitled to the custody of boy upto two years and of a girl upto seven years
6. Maintenance
(i) It is not obligatory to maintain the father if he is able to earn.
(ii) In case there are more persons than one who are liable to maintain, the burden is shared according to the means and ability of each.
7. Waqf
(i) Without delivery of possession of the property, the Waqf is invalid. Mere declaration of endowment is not enough.
(ii) Settlor cannot reserve for himself a life interest in the income of Waqf property or provide for the payment of his personal debt.
8. Gift
A gift of undivided share (Musha) in the property is valid provided it is capable of partition.
9. Pre-emption
Recognizes the right of pre- emption only in case of co- sharers and that too if the number does not exceed two.
10. Wills
(i) A person can bequeath one third of his estate to his heir with out the consent of the other heirs.
However in Bhau Ram v. Baij N Supreme Court held that pre-emption unconstitutional.However in Bhau Ram v. Baij Nath, AIR 1962 SC 1476 the Supreme Court held that pre-emption on the ground of vicinage is unconstitutional.
(ii) In case of the legatee’s death in the lifetime of the testator the legacy passes to his heirs unless it is revoked by the testator.
11. Inheritance
(i) There are only two classes of heirs, namely, sharers and residuaries.
(ii) According to the law of primogeniture, the eldest son gets the deceased father’s garment, the signet, ring, the sword and the Quran.
(iii) A Shia childless widow is not permitted to take any share in her husband’s immovable property.
(iv) Only the husband and not the wife is entitled to return.
(v) A man is excluded from inheritance if he has intentionally caused the murder of the person whom he is going to inherit.
Sunni School
1. Marriage
(i) Muta marriage is not recognised.
(ii) Besides father and father’s father how high-so-ever, brothers, other paternal relations, mother and maternal uncle, etc. are also recognised legal guardians for marriage.
(iii) Presence of two witnesses is not necessary at the time of dissolution of marriage, but necessary at the time of marriage.
(iv) Marriage can be cancelled on the ground of inequality between the two parties.
(v) The doctrine of valid retirement is recognised.
(vi) The period of gestation is two years.
(vii) Marriages may be irregular or valid or void.
2. Dower (mahr)
(i) 10 dirhams is the minimum amount of dower.
(ii) No upper limit is prescribed.
(iii) In the absence of any stipulation, the presumption is that the part is prompt and the part is deferred.
3. Divorce
(i) It may be oral or in writing.
(ii) Divorce under compulsion or threat or intoxication or jest is not void.
(iii) Not void if proved that it was clearly intended.
4. Matternity
Maternity is established in the woman who give birth to the child whether by fornication (Zina) or by valid marriage.
5. Guardianship
She is entitled to the custody of the boy upto seven years, and of a girl until she attains puberty.
6. Maintenance
(i) It is obligatory to maintain the father even if he is able to earn himself.
(ii) The liability of maintenance is shared equally.
7. Waqf
(i) Mere declaration is enough for a valid Waqf.
The settler may-
(i) provide for his maintenance out of the income of the Waqf property; or
(ii) reserve the whole income for himself, and for his wife; or
(iii) provide for the payment of his own debts.
8. Gift
A gift of undivided share in the property is invalid if it is undivided and incapable of partition.
9. Pre-emption
Besides a co-sharer, a participator in the appendages or an owner of the property in the vicinity can also claim the right of pre-emption.
10. Wills
(i) Consent of the heirs is essential in case of legacy in favour of an heir.
(ii) In Sunny law it lapses.
11. Inheritance
(i) There are three classes of heirs-
(a) Sharers.
(b) Residuaries.
(c) Distant kindred.
(ii) The doctrine of primogeniture is not recognised.
(iii) There is no such distinction between real and personal property and the childless widow can inherit even the immovable property.
(iv) Both husband and wife can take by return.
(v) He is excluded from inheritance no matter the murder was intentional or unintentional.
The Muslim Personal Law Application Act, 1937 (Shariat Act, 1937)
Q. 3 (a). The Muslim Personal Law Application Act, 1937 or ‘The Shariat Act, 1937 which invalidates all customs in derogation of Muslim Law, has brought in uniformity and unanimity in Muslim Law. Comment.
Ans. Shariat Act, 1937 or the Muslim Personal Law Application Act, 1937. According to the preamble of the Shariat Act. 1937 (The Muslim Personal Law Application Act, 1937) the object of the Act is “to make provision for the application of the Muslim Personal Law to Muslims in India.”
The main provision of the Act is contained in Section 2 of the Act. It lays down that, notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding the ten different topics of personal law enumerated in the section “the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)”. The ten topics given in the section are :-
1. Intestate succession.
2. Special property of females, including personal property inherited or obtained under contract of gift or any other provision of personal law.
3. Marriage
4. Dissolution of marriage including talaq, ila, zihar, lian, khula and mubarat
5. Maintenance.
6. Dower.
7. Guardianship
8. Gift.
9. Trust and trust properties, and
10. Waqf
The scope and purpose of Section 2 is to abrogate customs and usages in so far as these have displaced the rules of Mohammedan Law. It is now considered that the Act has the effect of repealing expressly or implicitly any enactment other than those specified under Section 6 of the Act.
Section 3 of the Act provides that any person who satisfies the prescribed authority :-
1 that he is a Muslim.
2. that he is competent to contract within the meaning of Section 11 of the Indian Contract Act, and
3. that he is the resident of India.
may by a declaration in a prescribed form and filed before a prescribed authority, declare that he desires to obtain the benefit of this Act, and thereafter the provision of Section 2 shall apply to the declarant and all his minor children and their descendants as if, in addition to the matters enumerated therein adoption, wills and legacies were also specified.
Section 4 of the Shariat Act empowers the State Government to make rules to carry into effect the purpose of this Act. In particular such rules may provide: (a) for prescribing authority before whom and the form in which declarations under this Act may be made; (b) for prescribing the fees to be paid for the filing of declarations and for the attendance at private residences of any person in the discharge of his duties under this Act; and (c) for prescribing the times at which such fees shall be payable and the manner in which they shall be levied.
Effect of Conversion to Islam and Apostacy from Islam
Q.3 (b). What is the effect of conversion to Islam and apostacy from Islam.
Ans. Effect of conversion to Islam. Conversion is renunciation of one’s religion and adoption of another religion. On conversion to Islam the status of the convert comes under Mohammedan Law. The effect of conversion is prospective and not retrospective. A bona fide conversion to and from Islam substitutes the new religion of the party for his or her previous religion. We shall consider the effect under the following heads:
1. Effect on marital rights- (a) Conversion of husband. If the conversion to Islamic religion is bona fide it may bring the convert under the rules of Mohammedan Law. If the conversion is not bona fide and it is merely pretended in order to take advantage of the personal law so adopted. the Court will not allow the validity of such conversion. Thus, a Christian man who had a Christian wife living, cohabited with a native Christian woman. In order to legalise his relation with the latter, he and the woman both embraced Islam and went through the ceremony of marriage. The marriage was held to be invalid, as the man had tried to escape the consequences of bigamy by embracing Islam which recognizes plurality of wives. [Skinner v. Orde. (1871) 14 Moor 1.A. 309). In Sarla Mudgal v Union of India. [(1995) 3 S.C.C. 653) a Hindu male, without divorcing his Hindu wife embraced Islam and married with a second wife. The Supreme Court observed that conversion was mala fide and second marriage was bigamous punishable under Section 494 LPC Conversion does not amount to dissolution of the marriage under the original personal law. This view was confirmed by the Supreme Court in Lily Thomas v. Union of India (AIR 2000 SC 1650).
(b) Conversion of wife-A non-Muslim wife cannot merely by conversion to Islam legally marry a Mohammedan during the lifetime of her non-Muslim husband and her marriage with the non-Muslim male which was solemnized before conversion is not dissolved merely by the fact of her conversion to Islam.
(c) Effect of conversion on previous marriage. If one of the spouses becomes convert to Islam, the conversion will not dissolve the marriage validly contracted. Thus, if a husband becomes converted to Islam, his marriage with his non-Muslim wife is not dissolved.
Similarly, if a non-Muslim wife embraces Islam the marriage would not be automatically dissolved.
2. Effect on right of inheritance. – When a person is converted to Islam, the succession to his estate will be governed by Mohammedan Law. Thus, if a married Hindu embraces Islam, his Hindu widow or Hindu children will have no right to succeed to him as the non-Muslim may not succeed to a Muslim according to Mohammedan Law. [Chedambrian v. Ma- Ne. Me, (1928) 6 Rang 243]. A convert to Islam is not governed by his original religion, but is presumed to have accepted the tenets of the Prophet as well as Muslim Personal Law. According to the Shariat Act. 1937, which has abrogated customs and usages of the Muslim Law, a convert cannot set up any custom relating to intestate succession.
Retention by the converts of their old law. – In certain cases general rule (a convert to Islam to be governed by the Muslim Law) does not apply and the converts retain their old Personal Law. In a case of community conversions, the converts may retain a portion of their original personal law. unless they consciously adopt another. Thus, Sunni Bohras of Gujarat, Khojas and Kutchi Memons, the Lubbai Mohammedans of Coimbatore all of whom were originally Hindus, had retained the Hindu Law of inheritance and succession. Thus, before the Kutchi Memons Act, 1938 a Kutchi Memon could make a valid bequest of the entire property, though under Mohammedan Law a testator cannot dispose of more than one third by Will However the Kutchi Memons Act, 1938 applies Muslim Law to the Kutchi Memons as regards (both testate and intestate) succession, thus making their position the same as that of all other Muslims in all respects.
Effect of Apostacy- Apostacy is the giving up of one’s religion. Thus if a Muslim converts to Hinduism, he is an apostate.
Mere deviation from non-fundamental provisions of Mohammedan religion does not amount to apostacy from Islam. Even if a Muslim gives up the ceremonial practices, it does not matter, because so long as he is prepared to accept the fundamental tenets of Islam, he is not an apostate Even Ahmadiyas who believe also in another Prophet are not apostates.
Consequences- Inheritance Under Muslim Law a non-Muslim has no title to the inheritance of the deceased Muslim. But the Caste Disabilities Removal Act of 1850 has made a variation to the Muslim Law It supersedes the Muslim Law by which apostates were excluded from inheritance of deceased Muslims. In accordance with the provisions of this Act, apostacy does not deprive a person of his right to inheritance. That Act abolishes so much of any law or usage as affects any right of inheritance of any person by his or her renunciation of religion.
Marriage.- Formerly, if either of the spouses converted from Islam to another religion, the marriage stood ipso facto dissolved. But since the Dissolution of Muslim Marriages Act, 1939, mere conversion of wife does not dissolve the marriage Conversion of husband dissolves the marriage even now. Section 4 of the Act lays down-
“The renunciation of Islam by a married Muslim woman or her conversion to a faith other than Islam shall not by itself operate as dissolution of her marriage:
Provided that after such renunciation or conversion, the woman shall be entitled to obtain a decree for the dissolution of her marriage on any of the grounds mentioned in Section 2:
Provided further that the provisions of this section shall not apply to a woman converted to Islam from some other faith who re-embraces her former faith.”
Illustrations – (a) W., a Muslim wife married to a Muslim male later on adopts Hinduism. Her marriage with the Muslim husband is not dissolved merely by reason of her apostacy.
(b) W. who was originally Hindu later on embraces Islam and marries a Muslim male She again re-embraces Hinduism. Her marriage with the Muslim husband is dissolved, because in such a case provisions of Section 4 of the Dissolution of Muslim Marriage Act. 1939 will not apply.
But when a Muslim married couple renounce Islam and convert to another religion, their marriage remains intact and is not dissolved.
Guardianship. There is no clear law on the point whether the right to dispose ose of a minor in marriage is lost by apostacy of the guardians from the Mohammedan faith. Under the Mohammedan Law, an apostate has no right to contract a minor in marriage (Hedaya, 392). But it was held by Bengal High Court in the case of Nuchon v Arzoon (1866), that no law or usage shall inflict on any person forfeiture of right to the custody of the children merely on the ground of conversion.
Nature and essentials of a valid marriage
Q. 4 (a). According to the Muslim Law marriage is not sacrament but a civil contract”. Elucidate.
OR
Define ‘nikah’ and discuss its nature under Muslim Law.
Ans. Nature and essentials of a valid marriage.- According to Hedaya “Marriage is a contract for the purpose of legalizing sexual intercourse, and for procreation and legitimation of children, and the regulation of social life in the interest of the society by creating the rights and duties between the parties themselves, between each of them and the children born from the union.”
Objects of marriage.- Thus, we see that a Muslim marriage is a civil contract for the fulfilment of the following objects-
1. Legalising sexual intercourse.
2. Procreation of legitimate children or increase of family
3. The ordering of domestic and social life.
4. The upbringing of virtuous children.
5. The discipline of the family in the cares and respectability of wife and children.
Hedaya speaks of the ends of a Muslim marriage as-
(i) cohabitation; (ii) society; (iii) equal friendship.
Eminent authorities hold different views with regard to the nature of Muslim marriage. Dr. Jang says that-Marriage under Muslim Law though essentially a contract is also a devotional act; its objects are right of enjoyment and procreation of children and regulation of social life in interest of society.
Abdur Rahim in his work Mohammedan Jurisprudence says that the Mohammedan jurists regard the institution of marriage as partaking both of the nature of ibadat or devotional acts and muamlar or dealings among men.
Most of the jurists and Judges hold that Muslim marriage is purely a civil contract. Thus in Saburannessav. Sabdu Sheikh, (61 Cal. 814), Justice Mitter observed “The marriage under Muslim Law is a civil contract and it is like a contract of sale. Sale is a transfer of property for a price. In the contract of marriage the wife is the property and dower is the price.”
Like any other contract it is constituted by proposal, acceptance, consideration or price.
Justice Mahmood also observes in Abdul Kadir v. Salima (8 All. 149) “Marriage is a civil contract upon the completion of which by proposal and acceptance, all the rights and obligations which it creates arise immediately and simultaneously.”
Baillie also observed that “marriage like other contracts is constituted by ijab wa Kabul or declaration and acceptance.”
There are following similarities between an ordinary contract and a Muslum marrriage:-
(i) It is a civil contract where like other contracts the proposal is made by the one and acceptance is made by the other party and dower is the consideration (price) given by one party to another.
(ii) The object of the marriage contract is the legalizing of the sexual intercourse and the procreation of legitimate children.
(iii) Like any other contract, it can be contracted through an agent
(iv) No religious ceremony is needed for its validity.
(v) Like all other contracts it can be terminated by mutual consent.
On the other hand, some jurists do not admit that a Muslim marrriage is purely a civil contract devoid of all religious shades. Marriage is Sunnat Muwakkidah, that is, it is an act which gives spiritual benefit in the next world to the person who performs it, but punishes those who abstain from it. Abdur Rahim observes that “a Muslim marrriage partakes of the nature of both ibadat (worship) and muamalat (worldly affairs).” According to Fyzee Prophet Mohammad has once remarked, “There is no monkery in Islam This tradition of the Prophet implies that “marriage is obligatory for all Muslims.” Dr. Jung, observes that marriage is like a civil contract and i religious rite and further that it is an act, the compliance with which considered as a virtue and a deviation from which is regarded as sin.”
The Prophet has said “Marriage is my Sunnat and those who do no obey it are not my followers.”
But Fitzgerald cleared the point when he observed: “Although religious duty. marriage is emphatically not a sacrament. There are ni sacraments in Islam, nor is it coverture.”