Introduction

Islamic jurisprudence draws on a variety of source materials of Islamic law to explain Sharia,
meaning the framework of Islamic law. The Quran and Sunna (also referred to as ‘Sunnah’) are
the fundamental sources, both of which are uniformly recognized by all Muslims. The Quran is
Islam’s Holy Scripture, which Muslims consider to be Allah’s direct message. The Sunna is a
collection of the Islamic Prophet Muhammad’s religious activities and quotes as recorded by his
Followers and Shia Imams. Some schools of law, on the other hand, adopt alternative approaches
to determine the validity of a source.

The main sources do not address every possible scenario, jurisprudence must rely on sources and
genuine texts to determine the appropriate course of action. Secondary sources of Muslim law as
per Sunni schools of law are Muslim jurists’ customs, judicial decisions, legislation, equity,
justice and conscience. The Hanafi school typically employs representational reasoning and
logical reasoning, whereas Maliki and Hanbali tend to rely on Hadith. The Quran, Sunna,
consensus, and aql (intellect) are the four sources used by the Usuli school of Ja’fari
jurisprudence among Shia. They focus on aql to find broad concepts founded on the Quran and
Sunna and employ usul al-fiqh as a method to understand the Quran and Sunna in various
contexts, while Akhbari Jafaris depend more on Hadith and do not follow ijtihad. According to
Muslim law, there are fewer differences in the actual application of jurisprudence to ceremonial
traditions and social interactions between Shia and the four Sunni schools of law, despite crucial
differences in jurisprudence foundations.

Muslim personal law is based on Islam which originated in Arabia and it was introduced in India
from there. In Arabia, Prophet Hazrat Mohammed, an Arab, established Islam and laid down the
foundation of Islamic law. The main groundwork of Islamic legal system was nourished and
developed by Arab-jurists, and the real fountainhead of Islamic Jurisprudence is to be found in
the pre-Islamic Arabian customs and usages of the 7th century of the Common era.

Historical background of Muslim Law

Muslim Law, or Sharia, is a legal system that has originated from its primary sources,
the Quran and Sunna. The evolution of Muslim law is interconnected with the history of Islam
itself, beginning in the 7th century Arabian Peninsula and developed through subsequent
centuries across different regions and cultures. For proper understanding of the development of
Islamic law and religion, a brief reference to the conditions of Arabia in pre-Islamic days is
paramount.
Law in Pre-Islamic Arabia

The Pre-Islamic Arabians lived in a crude and primitive paganism. The law prevailing at that
time was nothing but a mass of undigested and uncertain custom which in some cases were
revoltingly bad. The Muslim Law was introduced by Prophet Muhammad mainly through the
revelations of the Quran and through his own directions during his lifetime. It is apparent that the
pre-Islamic customs form the groundwork of the Muslim law. Through the Quran, Prophet
Muhammad provided clear guidelines on various aspects of life. It emphasised on justice,
equality, etc. The Sunna, comprising the Hadith served as a guiding light for Muslims. It
complemented the Quran by addressing specific issues such as conduct and legal matters.

Islamic law was introduced in India through various means such as trade, migration and
conquest. The first significant Muslim rule in India was established during the Mughal Empire
which introduced Muslim law to the Indian community.

Primary sources of Muslim Law

The Muslim law has been derived from various primary sources. These are classified as:

1. Quran
2. Sunna or Ahadis
3. Ijma
4. Qiyas

The Quran

The Quran is the fundamental source of Muslim law and is the holy book of Islam. It is believed
to contain direct revelations from God delivered to the Prophet through the angel Gabriel. These
revelations were under the direction of God either in the very words of God or by hints of the
knowledge which the Prophet acquired through the inspiration (Ilham) of God. All the principles,
ordinances, teachings and the practices of Islam are drawn from the Quran. It is believed that the
contents of the Quran were not written down in a single compiled book form during the lifetime
of the Prophet, but these were presented to him over a period of approximately 23 years, and
many of his companions memorise these revelations. After the Prophet’s demise, his companions
compiled the written fragments and the memorised verses into a single book to ensure its
preservation and accurate transmission in the upcoming future.

The essential postulates of the Islamic faith are:

 1. That there is but one God; and
2. That Muhammad is his prophet.
The verses in the Quran are not arranged systematically but are scattered throughout the text. It
outlines the fundamental principles that govern human life. The major portion of the Quran is
dedicated to deal with theological and moral reflections. The Quran is believed to be of divine
origin having no earthly source. It is the first and the original legislative code of Islam. It is
deemed to be the final and supreme authority governing the Muslims all over the world.

Muslim law is so intimately connected with religion that it cannot be readily dissevered from it.
The Quran reveals God’s will communicated to the Prophet by the angel Gabriel from the
original text kept in the seventh heaven. The contents were treasured up in the memories of the
faithful and were also committed to writing on palm leaves and skins. It was revised in the time
of Usman in 13 A.H. It has been translated into many languages of the world. It is the root of not
only Islamic religion but also of the Islamic law. It consists of a large number of communications
addressed by God to the Prophet during the last twenty three years of his life. It deals with a
variety of subjects. Many parts of the Quran focus on theological and moral reflections
emphasising on the unity of God and condemnation of idolatry. The Medinese suras which form
one-third of the contents of the Quran relate to the period of victory and power and are rich in
legislative materials. They cover the institutions of public prayers, fasting, pilgrimage,
prohibition of wine, marriage, divorce, adultery, inheritance, and many such more topics
governing the life of the humans. Although the Quran is not in the form of any definite Code but
in all matters with which it deals, it is the primary and final authority.

Commentaries on Quran

Many scholars have done extensive research on the Quran and have tried to provide
interpretation by a regular system of tafsir (explanation). A vast collection of ahadis ( traditions)
as also sunna (acts of the Prophet) were used for the purpose.

The most important commentaries on the Quran are of Tabari whose work extended to thirty
volumes, Kashhaf of Zamakhsari who show a more progressive tendency and Fakhruddin-ar-
razi. The other important commentaries are of Baidawi which is best known to Europe and of
Ghazali.

Sunna and Ahadis

The term ‘Sunna’ literally means ‘the trodden path.’ It refers to the practice and precedents set
by the Prophet, encompassing whatever he said or did without reference to God, and is treated as
his traditions. It is the second source of Muslim law. Traditions are injunctions of Allah in the
words of the prophet. Where the words of Allah did not provide a basis for a given legal rule, the
Prophet’s words served as authority as it is believed that even his sayings derived inspiration
from Allah.

During his own time, when Prophet Muhammad sat as a judge among the primitive Muslim
community of Medina, his own rulings were absolute. In matters, which did not require any
change, he was guided by the local usage and customs of the Arabs. Many Quranic verses were
revealed with reference to cases which actually arose for decision. In the absence of any
revelation on any question which had to be decided, the prophet used to decide it by his own
judgement in consultation with his companions. The decision was considered final unless it was
altered by some subsequent revelations. After the death of Muhammad, the living source of
inspiration terminated and a reference to him was no longer available. Hence, reliance was made
on the provisions of the Quran by facts from the life of the Prophet and from his sayings. Stories
of occurrences concerning the Prophet given by eye-witnesses are known as ahadis.

According to Muslim law, there are two types of revelations i.e. manifest (Zahir) and internal
(Batin). Manifest or express revelations were the very words of Allah and came to the Prophet
through the angel Gabriel. Such revelations became part of the Quran. On the other hand, the
internal revelations were those which were the ‘Prophet’s words’ & did not come through
Gabriel, but Allah inspired the ideas in his sayings. Such internal revelations formed part of
Sunna. Traditions, therefore, differ from the Quran in the sense that the Quran consists of the
very words of God whereas a Sunna is in the language of the Prophet.

Sunna

Sunna along with ahadis is counted as a second source of law. Sunna is sometimes used in a very
wide sense as including not only the decisions and precepts of the Prophet but also his conduct
and practice. It is often extended to pre-Islamic customs which had received the approval of the
Prophet. It is called sunna of Median (sunnat-ul-taqrir).

Sunna is the practice of the Prophet. Ahadis and Sunna from the foundations of the law during
the period of the first Caliphs who were the companions and relations of the Prophet.

Sunna or traditions consists of:

 Sunnat-ul-Qual (word spoken): Sunnat-ul-Qual refers to the saying and verbal

instructions of the Prophet Muhammad. These spoken words, recorded as Hadiths,
provide direct guidance on a wide range of topics, including ethical conduct, religious
beliefs, legal rulings, etc. For example, the Prophet’s statement, “The best of you are
 those who learn the Quran and teach it.” This statement is considered Sunnat-ul-
Qual.
 Sunnat-ul-Fail (conduct): Sunnat-ul-fail comprises the actions and behaviours of the
Prophet Muhammad. It includes his day-to-day practices, habits and interactions with
others. Observing the Prophet’s conduct helps Muslims idealise his character and
apply his methods to their own lives. For example, the Prophet’s habit of praying five
times a day, acts of charity etc. fall under Sunnat-ul-Fail. When examples from the
Prophet’s conduct were not available, people used to learn the attitude, conduct and
saying of the companions of the Prophet because they had received the favour of
visiting and consulting the Prophet.
 Sunnat-ul-Tahrir (silence): Sunnat-ul-Tahrir consists of the instances where Prophet
Muhammad remained silent or refrained from commenting on certain actions or
statements made by others, thereby implying his approval. This form of Sunna
indicates consent and shows that the behaviour or statement in question is permissible
in Islam. For example, if an act is performed in the presence of the Prophet and he did
not object, it is considered as a silent endorsement making that act permissible in
Islam.

Collection of Ahadis

Ahadis is the plural form of the Arabic word hadith. Hadith refers to the sayings, actions, and
approvals of the Prophet Muhammad. While hadith is singular, ahadis is the plural form. Both
these terms are used interchangeably.

The Quran is the manifest (zahir) revelation communicated by Gabriel under God’s directions,
the opinions of the Prophet expressed by him from time to time were the internal (batin)
revelations conveyed to the Prophet by angel Gabriel or occurred to his mind through inspiration.
Considering the sanctity of the sayings of the Prophet, his immediate companions started to note
or memorise everything said by him. Records of all his decisions started to be compiled. Many
people made the collections of his sayings either in writing or in memory. Later on they were
passed from generation to generation.

Since there was no authoritative collection of the ahadis, a rise in false traditions was observed.
Many traditions were forged. The growing knowledge about the increasing false traditions gave
rise to the development of regular science of ahadis which devoted itself for the purpose of
checking the authenticity and genuineness of the traditions which were in circulation. Efforts
were made to determine the authority by reference to the chain of isnad (reporters) and only after
vigorous examination were the ahadis finalised. Bukhari retained around 7,000 out of 6 lakh
traditions and declared the rest to be entirely apocryphal.
The authentic ahadis were noted to different authoritative collections. Some of them classified
them according to isnad, each hadis being placed under the last testator into a chain of isnad (
e.g. Ayesha, Fatima, etc.). This kind of collection is called musnad (a collection of hadith).

Several authoritative collections are recognised in the Muslim world for their authenticity and
comprehensiveness. The most esteemed collections of Hadiths are:

 Sahih al-Bukhari– This collection of traditions was made by Abuo-Ismail-al-

Bukhari, a disciple of Hanbal (who passed away in A.D. 869). It is regarded as the
most authentic collection of hadiths, covering various aspects of Islamic life and law.
It includes over 7,000 hadiths which were collected by Al-Bukhari in a span of sixteen
years.
 Sahih Muslim– It is an important work on traditions by Muslim Ibn-al-Hajjaj. It is
considered the second most authentic collection of Hadith. It contains around 4,000
hadiths, selected for their strong chains of transmission and reliability.
 Sunan Abu Dawood– This collection by Abu Dawud al-Sijistani focuses on hadiths
related to Islamic jurisprudence (Fiqh). It contains around 4,800 hadiths providing
valuable insights into legal precedents and practices.
 Sunan al-Tirmidhi– It was compiled by Muhammad Ibn al-Tirmidhi and is known
for its critical analysis of hadiths. It contains around 4,000 hadiths categorised based
on their legal implications and authenticity.
 Sunan an-Nasa’i– It is compiled by Imam Ahmad an-Nasa’i. This compilation is one
of the six canonical collections of hadiths. It comprises 5,700 hadiths emphasising on
authenticity and practical application.
 Sunan Ibn Majah– It is a compilation by Imam Muhammad bin Yazid Majah al-
Qazvini. It is generally recognised as the sixth book in the canonical collection of
hadith, known as Kutub as-Sittah of the Sunna of the Prophet. It contains 4341 hadiths
including some that are not found in the other major collections, thereby offering
unique insights.
Other than the aforementioned, there are many collections of hadiths such as Muwatta Imam
Malik, Musnad Ahmad ibn Hanbal, Riyal as-Salihin, etc. that guide muslims in their daily lives,
morality, spirituality and ethics. These collections form the core of Islamic jurisprudence
providing essential guidance on religious, legal and ethical matters.

Ijma (consensus)

The Quran and the traditions continued to have legislative effect but with changing times and the
demise of the prophet, the original law-making process ended, so the questions, which could not
be solved either by the principles of the Quran or the Sunna, were decided by the Jurists with the
introduction of the institution of Ijma. Ijma means agreement of the Muslim Jurists of a
particular age on a particular question of law, in other words, it is the consensus of Jurist’s
opinion.

Those persons who had knowledge of law were called Mujtahids (Jurists). When the Quran and
traditions could not supply any rule of law for a fresh problem, the jurists unanimously gave their
common opinion or a unanimous decision and it was termed as Ijma. Not each and every Muslim
was competent to participate in the formation of Ijma, but only Mujtahids could take part in it.

There are three kinds of Ijma:

 Ijma of Companions: The concurring opinion of the companions of the Prophet was
considered most authoritative and could not be overruled or modified. The iIjma of
companions is considered higher than the ijma of other jurists. The Maliki school
recognised the validity of ijma of the companions and their successors who were
residing at Medina. The ijma of the companions was considered to be conclusive and
could not be altered by ijma of a later date. According to the Sunni school, individual
jurists cannot question a decision reached by ijma but except in the case of the ijma of
the companion, the ijma of one age may be reversed by that of another age.
 Ijma of the Jurists: This was the unanimous decision of the jurists (other than
companions). The Ulemas (alim scholars) were more on the morality tilt than
professional jurisconsults for the purpose of jurisprudence. The ijma of jurists was
necessary. A kind of legislative power was recognised in the jurists acting in a body.
 Ijma of the people or masses: Basically, Ijma is the consensus of the masses. In
certain matters of religious practices, (such as fasting, prayer, etc.) the law was
established by the consensus of the opinion of the masses. It is the opinion of the
majority of the Muslims which was accepted as law. But this kind of Ijma has little
value.The principles of ijma were used for the settlement of various legal, political,
and ethical problems. The important case is that of the selection of the
first caliph (successor) after the death of Prophet Muhammad. The selection of Abu
Bakr was based on Ijma. Once a valid Ijma is constituted, it is regarded equal to
Quranic verse i.e. it is equally binding on people. Without Ijma, these rules of Islamic
law would have been diffused and incomplete. Its principles cover the vast subject.
Ijma authenticated the right interpretation of the Quran and the Sunna.
Qiyas (analogical deductions)

The word Qiyas originates from the term ‘Hiaqish’ which means ‘beat together.’ In Arabic Qiyas
means ‘measurement, accord, and equality.’ In simpler words, it involves measuring or
comparing a thing to a certain standard, or to ‘establish an analogy.’ Those issues which have not
been covered by Quran, Sunna or Ijma, the law may be deducted from what has been already laid
down by these three authorities by the process of analogy (Qiyas).

The Qiyas is a method of deduction aimed at discovering existing law rather than making a new
law. Its main role is to extend the law of the text, to cases which do not fall within the purview of
the text. For Qiyas to be valid, it must fulfil the following:

 The process of the Qiyas can only be applied to those texts that can be extended. The
texts should not be confined to particular facts or rules having a specific reference.
 The analogy drawn must be consistent with the principles of the Quran and authority
of Sunna.
 The Qiyas should be applied to discover a point of law and not to determine the
meanings of the words used in the text.
 It must not bring a change in the existing law.
 If there is a conflict between two deductions, a jurist can choose any one of them. One
analogy cannot override the other.
Qiyas hold less importance compared to other sources. This may be because analogical
deductions rely on human reasoning which is prone to error. Zahirites called qiyas as only proof
instead of a source (asl) of law. An early traditionalist said that, “analogy is like carrion, when
there is nothing else, you eat it.”

It may be concluded that the Islamic Jurisprudence is built on Quranic verses and traditional
sayings of the Prophet, yet other sources have also helped a lot in developing the sacred law in
its present form. It is the collective contributions of all the sources of Islamic law that an orderly
and systematic theory of the personal laws of Islam came into existence.

Secondary sources of Muslim Law

Customs

Custom (aadat) is an important source of law and has existed as law in almost all the countries.
Hindus recognised as early as 1868 that a legitimate custom could take precedence over a
provision of sacred law. In the instance of Muslim law, the Privy Council conveyed the same
sentiment concerning conversions who prefer to adopt Islam but keep their rules, but the
Orthodox refused this viewpoint, and the Shariat Act, 1937 was enacted. Despite the fact that all
schools trust in the four ancient sources, they do not reject the concept of customs. The Prophet
also kept existing Arabian customs, as long as they did not contradict Muslim law. Customs are
recognised as an addition to Muslim law. Since there was no Islamic law code at the time, the
Prophet and his followers had to rely on conventions to resolve some issues. For example, foster
mother remuneration, civil wrongs recompense, and so on. According to Muslim jurists, a
legitimate Custom must meet four characteristics which are mentioned below:

1. A custom must be repeated regularly, i.e. it must be continuous and noticeable.

2. It should be applicable to everyone and should be rational.
3. It must not contradict any implied text of the Quran or the Sunna.
4. It does not have to be very old.

Judicial decision (precedents)

Judicial precedent refers to the practice by which judges follow the earlier decisions in cases
with similar facts. The concept of judicial precedent is based on the principle of stare decisis, or
conforming to what has already been declared. In reality, this implies that lower courts must
follow the procedural rules established by higher courts in previous decisions. This ensures that
the law is satisfactory to both parties. However, it is to be considered that the concept of
‘precedent’ is not covered under Muslim law. Kazis (judges) judgements were never regarded as
precedents under English law. ‘Fatwas’ (a ruling on a point of Islamic law given by a recognized
authority) which has both moral and legal authority, is the closest approach to this theory in
Muslim law. But while a Mufti (a professional jurist who interprets Muslim law) would
declare Fatwa on a scholar, the Kazi was not obligated by it. Several Fatwa compilations exist,
the most notable of which is Fatwa-al-alam-giriyya. Many gift and Wakf practices have been
altered to safeguard women, and there is a cluster of precedent under Muslim law. Today, the
doctrine of stare decisis is incorporated into Muslim law.

Legislations

Legislation as per Cambridge Dictionary has been defined as ‘a law or set of laws suggested by a
government and made official by a parliament’. 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 (irrevocable royal
decrees and dastar amals (manual of regulations) but they were not connected to personal laws.
The Britishers were never allowed to interfere with personal laws, 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, 1937 and the Mussalman Wakf Validating Act, 1913. The Shariat Act,
1937 is concerned with issues like marriage, divorce, inheritance, and family relationships.
Further, the purpose of Mussalman Wakf Validating Act, 1913 is to validate and regulate the
creation of waqfs (Islamic endowments) for religious, pious, or charitable purposes.
The Dissolution of Muslim Marriage Act,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.

Now, post-divorce maintenance rights are governed by both Muslim personal laws and statutory
laws. Section 125 of the Criminal Procedure Code, 1973 (now covered under Section 144 of the
Bharatiya Nagarik Suraksha Sanhita, 2023) provides for maintenance for wives, children and
parents. It applies to women of all religions including Muslims. After the case of Mohd. Ahmed
Khan vs. Shah Bano Begum (1985), the Supreme Court held that a Muslim woman is entitled to
maintenance under Section 125 of CrPC. This sparked a significant debate and led to the
enactment of the Muslim Women (Protections of RIghts on Divorce) Act, 1986. This act
provides for a reasonable and fair provision and maintenance to be provided by the former
husband within the iddat period (a period of purification).

In the case of Shayara Bano vs. Union of India (2017), the Supreme Court held that the practice
of instant triple talaq (talaq-e-biddah) was unconstitutional by a majority of 3:2. The Court held
that triple talaq violated the fundamental rights of Muslim women and was neither an essential
part of Islam nor safeguarded by Article 25 of the Constitution. Additionally, the Court
concluded that the practice was arbitrary and contradicted the core principles of the Quran and
Shariat.

Equity, justice and good conscience

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. Some of the examples of the principles of equity are:-
  Istehsan: It literally means referring or considering a thing to be good at ‘holding for
better’. Istehsan is the equitable principle of juristic preference. With the expansion of
Muslim rule in the other countries the local conditions had to be taken into
consideration. This principle was reduced to a definite rule by Abu Hanifa. In cases in
which a law deduced by analogy was found to cause hardship or inconvenience, the
jurist was at liberty to adopt a rule which was more in the interest of justice and
welfare of the society.
 Istidlal: This means inferring one thing from another. The Hanafi justists use it more
or less in this sense in connection with the rules of interpretation. The Malikis held it
to be a principle of juristic deduction.
 Istislah: This doctrine was introduced by Malik and is based on the conception of
common welfare. Public advantage was considered to be a basis for reference.
 Shariat and Fiqh: ‘Shariaf’ (literally means the path to be followed) means the canon
law of Islam, the totality of God’s commands. Shariat embraces all human actions. All
human conduct whether it be ethical, legal is covered by the term. Fiqh, the science of
jurisprudence has been comprehensively defined as the knowledge of one’s right and
obligations derived from the Quran or Sunna or about which the learned scholars have
agreed.

Important precedents

Judges emphasise the law when they investigate specific cases. These rulings appear to set a
precedent for future cases, and the courts will certainly follow the precedents. The rulings are
binding on all lower courts and it follows a framework in terms of its application wherein
decisions taken by the Supreme Court will by default apply to High Courts and they can’t deny
rulings cited by the Supreme Court.

Mohd. Ahmed Khan vs. Shah Bano Begum (1985)

Facts

In this case, Shah Bano, a 62-year-old Muslim woman was divorced by her husband, Mohd.
Ahmed Khan. He refused to provide maintenance to her. Shah Bano filed a claim for
maintenance under Section 125 of CrPC. The lower court and High Court awarded her
maintenance but the husband appealed and argued that he was not obliged to pay maintenance
beyond the iddat period according to Muslim personal law. The husband filed a Special leave
petition in the Supreme Court.
Issues

1. Whether Section 125 of CrPC applies to Muslim women seeking maintenance?

2. Whether Muslim personal law can override the provisions of CrPC?

Judgement

The Supreme Court upheld the judgement of the High Court and affirmed Shah Bano’s right to
maintenance under Section 125 of CrPC. The Court ruled that Section 125 of CrPC is a secular
law and applies to all citizens of the country. Further, the Court stated that the provisions of
CrPC can take precedence over personal law when the personal law does not provide adequate
maintenance. This judgement highlighted the tussle between personal law and secular law. It
reiterated the applicability of secular law over personal laws in matters of fundamental rights.

Danial Latifi vs. Union of India (2001)

In Danial Latifi vs. Union of India (2001), the Supreme Court’s decision in Mohd. Ahmed Khan
v. Shah Bano Begum (1985) appeared to be overruled by the Muslim Women (Protection of
Rights on Divorce) Act, 1986 (hereinafter referred to as MWPRDA, 1986).

Facts

A Muslim husband was only liable for keeping his divorced wife during the iddat period,
according to a prima facie interpretation of the MWPRDA, 1986, and after that term, the
responsibility of keeping the lady shifted to her relatives. The issue came to the light when the
constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986 was
questioned on the grounds that the law was discriminatory and violative of Articles 14 and 21 of
the Indian Constitution. The fact that Article 14 was being violated because Muslim women were
being deprived of the maintenance benefits of Section 125 of Criminal Procedure Code, 1973.
Also, it was pointed out that the right to life guaranteed under Article 21 was being violated as
the law will leave Muslim women in a state of helplessness.

Issues

Whether the Muslim Women (Protection of Rights on Divorce) Act, 1986, was constitutional
and provided adequate protection and maintenance for divorced Muslim women?

Judgement

The Supreme Court maintained the validity of the MWPRDA, 1986, based on critical analysis. It
was decided that a Muslim husband is responsible for making appropriate and equitable
arrangements for his divorced wife’s future beyond the iddat period. This approach was founded
on the term ‘provision’ in the MWPRDA of 1986, which said that, “at the time of divorce the
Muslim husband is required to contemplate the future needs (of his wife) and make preparatory
arrangements in advance for meeting those needs”. The court clarified that the Act does not
negate the applicability of Section 125 of CrPC. Rather, it provides an alternative mechanism
specially for divorced muslim women. The interpretation by SC ensured that divorced Muslim
women received fair and reasonable provision for their maintenance. This judgement harmonised
personal laws with the broader equitable framework to protect the rights of divorced muslim
women.

Chand Patel vs. Bismillah Begum (2008)

Facts

In this case, the appellant married Mushtaq bee who was the elder sister of the respondent.
Further, with the consent of his 1st wife (Mushtaq bee); he (the appellant) even decided to marry
his wife’s sister (Bismillah Begum). In response to this, the respondent stated that a child was
born out after they consummated in their marriage. Bismillah Bano claimed that she had been
lawfully married to Chand Patel for the past eight years and that a ‘Nikahnama’ had been
performed. She mentioned in her petition that she and her daughter shared a home with Chand
Patel’s first wife and that the appellant had knowledge about the same and he had raised the
daughter. However, after a few years of marriage, her relationship with her husband began to
worsen to the point where he began to ignore her and their small daughter. But the appalling
argument found was that Chand Patel claimed that the two had never married.

Issues

The following were the issues that court considered adjudicating upon:

1. Whether marriage in Islam with a wife’s sister will be considered void?

2. Another issue found was whether the wife will be entitled to maintenance even after
marriage with her sister is void or irregular?

Judgement

The Supreme Court ruled that if a Muslim man is married to his wife’s sister while still married
to his first wife, the marriage will be considered irregular, not unlawful or void. The Supreme
Court validated the lower court’s verdict, ruling that the illegal marriage would continue to exist
and that the Muslim man would be obligated to support his wife until his marriage was
pronounced void by a court of competent jurisdiction. The Court ruled that the irregular marriage
between the appellant and respondent remains valid as it has not been annulled by any authorised
body. Consequently, the respondent is entitled to maintenance under Section 125 of the CrPC.
Chand Patel was directed by the Court to pay maintenance within six months of the date of the
judgement, as well as the respondent’s legal fees for arguing the case and setting up a landmark
judgement.

Shayara Bano vs. Union of India (2017)

Facts

In this case, Rizwan Ahmed and Shayara Bano were a married couple and they were living
together for 15 years. In 2016, Shayara Bano was divorced through immediate triple talaq (talaq
-e-bidat) in response to this she filed a writ petition in the Hon’ble Supreme Court of India
praying for holding three practices talaq-e-bidat, polygamy, and nikah-halala as unconstitutional
as they infringe Article 14 (Right to equality), 15 (Prohibition of discrimination on grounds of
religion, race, caste, sex or place of birth), 21 (Right to life), 25 (Right to freedom of religion) of
the Constitution.

The practice of talaq-e-bidat allows a man to leave his wife by saying ‘talaq’ three times in one
sitting without his wife’s agreement. Nikah Halala is a Muslim custom in which a divorced
woman who wishes to remarry her spouse must first marry and divorce a second husband before
returning to her first husband. Polygamy, on the other hand, is a practice that allows Muslim men
to have many wives.

On February 16, 2017, the Court requested detailed responses from Shayara Bano, the Union of
India, several women’s rights organisations, and the All India Muslim Personal Law Board
(AIMPLB) on the issues of talaq-e-bidat, nikah-halala, and polygamy. Ms Bano’s claim that
these practises are unlawful was recognized by the Union of India and women’s rights
organisations such as Bebaak Collective and Bhartiya Muslim Mahila Andolan (BMMA). The
AIMPLB has maintained that uncodified Muslim personal law is not available for judicial
examination under the Constitution and that these are vital Islamic religious traditions
safeguarded under Article 25 of the Constitution.

Issues

1. Whether the practice of instant triple talaq (talaq-e-bidat) is constitutional?

2. Whether instant triple talaq violates the fundamental rights of Muslim women?
3. Whether triple talaq is an essential practice of Islam that is protected under Article 25,
which guarantees freedom of religion?
Judgement

The Supreme Court’s 5 Judge Bench issued its verdict in the triple talaq case on August 22,
2017, ruling the system unlawful by a 3:2 majority. The aforementioned practice of divorce is
arbitrary, in respect that a Muslim husband might break the marital tie unfairly and thoughtlessly
without making any effort to communicate to safeguard the marriage. The Supreme Court, in a
unanimous decision pronounced on August 22, 2017, declared instant Triple Talaq to be a
violation of Article 14 of the Constitution, putting an end to the practice of divorce. Further, the
Court held that instant triple talaq violated the right to equality and right to life and personal
liberty (Article 21) of muslim women. The Court examined various Islamic texts, teachings, etc
and concluded that triple talaq was not fundamental to the practice of Islam. This decision paved
the way for the enactment of the Muslim Women (Protection of Rights on Marriage) Act, 2019,
which criminalised the practice of instant triple talaq.

Mohd Abdul Samad vs. The State of Telangana (2024)

Facts

In this case, a deserted wife sought maintenance under Section 125 of CrPC from the family
court in Telangana, which granted her 20,000 rupees per month. The husband then divorced her
arguing that she could no longer claim maintenance under Section 125 as her rights were
governed by the Muslim Women (Protection of Rights on Divorce) Act, 1986. He claimed that
the Act offered a more effective remedy and should take precedence over CrPC as special law
prevails over general law. The Telangana High Court rejected this argument but reduced the
maintenance to Rs 10,000 per month. The husband then appealed to the Supreme Court.

Issues

1. Whether Section 125 of CrPC applies to divorced muslim women?

2. Whether the Muslim Women (Protection of Rights on Divorce) Act, 1986 bars
Muslim women to claim maintenance under Section 125 of CrPC?

Judgement

The Supreme Court dismissed the ex-husband’s appeal and upheld that divorced muslim women
are entitled to maintenance under Section 125 of CrPC as CrPC is a secular law and applies to all
women, irrespective of their religion. It reaffirmed that the MWPRDA, 1986 does not override
the maintenance under CrPC. The SC relied on the case of Daniel Latifi and Anr vs. Union of
India (2001) which upheld the constitutional validity of the MWPRDA, 1986 and said that its
provisions do not violate Article 14,15 and 21 of the Constitution of India. However, it
interpreted the Act in a way that Muslim women could receive maintenance until they remarry
beyond the iddat period. SC also referred to the case of Shabana Bano vs. Imran Khan (2009),
where the SC held that divorced muslim women can claim maintenance under Section 125 of
CrPC, even beyond the iddat period, as long as they do not remarry.

Conclusion

Muslim law is a comprehensive legal system that governs various aspects of a Muslim’s life. The
sources of Muslim law are rooted in divine revelations, traditions and practices of the Prophet
Muhammad, providing a robust framework for legal, moral and social conduct. As the holy book
of Islam, the Quran is considered the foremost source of Muslim law. It is considered reliable
and serves as the ultimate authority in the Islamic jurisprudence. The Sunna includes the
practices, sayings and approvals of the Prophet. These traditions offer real life examples of how
the principles in the Quran should be applied. The Hadith complement the Quran by providing
context and detailed instructions on various aspects of law and life. Ijma ( consensus of Islamic
scholars) serve as guiding principles in those aspects where the Quran and Sunna do not have an
explicit answer. Qiyas ( Analogical reasoning) is another source that derives legal rulings for
new situations by drawing analogies with established principles from the Quran and Sunna. It
ensures that the Muslim law addresses contemporary issues while remaining connected to the
primary texts.

Muslim law is an integral element of Indian laws and must be understood and implemented in
the similar manner as any other law in the country. 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, 1955 and the Christian Marriage Act, 1872.
Recent Supreme Court judgements have played a crucial role in expanding Islamic
jurisprudence. Lately, the Indian judiciary has been interpreting the Muslim personal laws in a
manner that aligns with the constitutional principles such as equality, justice, non-discrimination.
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 judgements. This
has developed in contribution to Muslim law to have a newer perspective with the landmark
cases. The recent judgements have emphasised on the need for reforms in the Muslim personal
laws to protect the rights of women and marginalised sections of the Muslim community. The
judgements have set up a platform of a level playing field and thus, leading to the formation of
an egalitarian society. As our country’s legal principles and ideals continue to evolve, it is very
important to uphold the principles of justice,equality and basic fundamental rights guaranteed
under the Indian Constitution to ensure that the rights of all individuals are protected. It can be
noted that the legal framework of Islamic jurisprudence has sustained diverse cultures and eras
demonstrating its adaptability with changing times.