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Unit-1
Q. who is a Muslim ? can muslim law be treated as an integral part of the indian legal system ?
give legal justification of your answer .

Ans:- Who is a Muslim?

A Muslim is a person who professes the religion of Islam, believes in the oneness of God (Tawhid), and in Prophet
Muhammad (PBUH) as the last messenger of Allah.

Under Indian law, the term "Muslim" is not rigidly defined, but a person will be considered a Muslim if:

1. They are born to Muslim parents, or

2. They convert to Islam in accordance with recognized customs and practices.

🔹 Case Law: Syed Masood Ahmad v. State of U.P., AIR 1965 All 236
The court held that a person who declares belief in Islam and follows its tenets is a Muslim.

Is Muslim Law an Integral Part of Indian Legal System?

✅ Yes, Muslim personal law (Shariat) is treated as an integral part of India’s legal system, particularly in matters
of marriage, divorce, inheritance, succession, guardianship, and waqf.

Legal Justifications:

1. Statutory Recognition – Shariat Act, 1937

 The Muslim Personal Law (Shariat) Application Act, 1937 provides that Muslim personal law shall govern
Muslims in matters like marriage, dower, divorce, inheritance, etc.

🔹 The Act formally recognizes Shariah law in personal matters and mandates courts to apply it to Muslims.

2. Indian Constitution – Article 25 & 26

 Article 25 guarantees freedom of religion to all citizens, allowing them to profess, practice, and
propagate their religion.
 Article 26 allows every religious denomination to manage its own affairs in matters of religion.

🔹 These provisions give constitutional backing to Muslim personal law being followed by the community.

3. Judicial Recognition

 Indian courts have consistently applied and enforced Muslim law in personal matters for Muslim citizens.

🔹 Case Law: Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945
While ruling on maintenance under Section 125 CrPC, the court recognized the validity of Muslim personal law but
held that it must conform to constitutional principles of justice.
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4. Plural Legal System

 India follows a pluralistic legal system where different religious communities are governed by their
personal laws in civil matters.
 This includes Hindu, Muslim, Christian, and Parsi personal laws.

5. No Uniform Civil Code (UCC) Yet

 In the absence of a Uniform Civil Code, the Muslim community is governed by its own personal laws, which
form part of the Indian legal system.

Conclusion:

Muslim law is not just a religious code but a recognized part of Indian statutory and judicial law. The Shariat Act,
constitutional protections, and judicial enforcement confirm that Muslim personal law is an integral and
enforceable part of India’s legal system, especially in matters of personal and family law.

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.

✅ Sources of Muslim Law

Introduction:Muslim law, also known as Islamic law or Sharia, is a religious legal system derived from
divine sources and interpretative traditions. In India, Muslim law governs Muslims in personal matters such as
marriage, divorce, inheritance, and waqf.
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The sources of Muslim law can be classified into primary and secondary sources.

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

1.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.

2. The Sunnat and Ahadis (Traditions):

Sunna means the model behaviour of the Prophet. The narrations of "what the Prophet said, did or tacitly allowed" is called
Hadis or Traditions. The Traditions, however, were not reduced to writing during the lifetime of Mohammad. They have been
preserved as Traditions handed down from generation to generation by authorised persons. That is why a minute inquiry is
necessary to accept a Hadis. Thus when a Hadis is confirmed by one person, it is known a Khabar-al wahid and is a weak
Hadis. When a Hadis, is proved by several declarations, it becomes a strong Hadis. The Shias do not believe in a Hadis. which
is not derived from the house of the Prophet, particularly from the house of Ali.

Kinds of Traditions-The Traditions are of two kinds :-

1. Sunnat: and

2. Ahadis.

These two have been classified into the following three classes on the basis of the mode or manner in which it has
actually originated:-
(i) Sunnat-ul-fail i.e., Traditions about which the Prophet did himself.
(ii) (ii) Sunnat-ul-qaul ie., Traditions about which he enjoined by words.
(iii) Sunnat-ul-tuqrir ie, The things done in his presence without his disapproval.
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Above are enumerated the three kinds of Sunnat. The three classes of Ahadis are given below. This classification
unlike the above, has been made on the basis of the authenticity of the traditions which in its turn is dependent in
the manner in which each particular tradition has been preserved :
(1) Alhadis-i-mutwatir ie., Traditions that are of public and universal propriety and are held as absolutely authentic.
In such Hadis the chain is complete.
(ii) Ahadis-i-Mashhoor, i.e., Traditions which though known to a majority of people, do not possess the character of
universal propriety.
(iii) Ahadis-e-wahid ie., Traditions which depend on isolated individuals.

3.The Ijma (consensus of opinion)

The Quran and the traditions continued to have legislative effect but with changing times and the demise of the
prophet, the onginal 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
apply 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

a.Ijma of Companions: The concurring opinion of the companions of the Prophet was considered most
authoritative and could not be overruled or modified. The iljma of companions is considered higher than the igma 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 ijm of the companion, the ijma of one age may be reversed by that of another age.

b.Ijma of the Jurists: This was the unanimous decision of the jurists (other than companions). The Ulemas (alım
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.

c.Ijma of the people : 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
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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.

4.The 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
1.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.
2.The analogy drawn must be consistent with the principles of the Quran and authority of Sunna.
3.The Qiyas should be applied to discover a polyt of law and not to determine the meanings of the words used in the
text
4.It must not bring a change in the existing law.

Secondary Sources of muslim law

1. Urf or Custom.-Custom was never formally recognised as a source of Muslim Law, though it
has been occasionally referred to as supplementing the law. The Muslim Law includes many rules
of pre-Islamic customary law, which have been embodied in it by express or implied recognition.

Requirements for Valid Custom:

For a custom to be recognized in Islamic Law, it must generally be:
1.Territorial: It must be practiced in a specific geographic area.
2.Ancient: It must have been practiced for a long period of time.
3.Continuous and Certain: It must be practiced consistently and without significant variation.
4.Not Opposed to Public Policy: It should not contradict the principles of justice and public order.
5.Not Contradictory to the Quran and Ijma: It must not violate the fundamental principles of
Islam as revealed in the Quran and the consensus of Islamic scholars.

2.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
Kazıs (judges) judgements were never regarded as precedents under English law Fatwas (a ruling on a
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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 Farwa 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.

3.Legislation.
In India, Muslims are also governed by the various legislations passed either by the Parliament or
by State Legislature. The following are the instances of the legislation in India. The Usurious
Loans Act, 1918, Religious Toleration Act, Freedom of Religion Act, 1850, the Guardians and
Wards Act, 1890, the Mussalman Wakf Validating Act, 1913, the Mussalman Wakf Validating
Act, 1930, Wakf Act, 1954, the Child Marriage Restraint Act, 1929, the Shariat Act, 1937, and the
Dissolution of Muslim Marriage Act, 1939, the Indian Contract Act, 1872, have considerably
affected, supplemented and modified the Muslim Law. In 1986 an Act i.e., Muslim Woman
(Protection of Rights on Divorce) Act, 1986 to provide separate law in respect of divorced Muslim
women was enacted by the Indian Parliament.

4.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 junstic 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.

Some case laws

Hamira Bibi v. Zubaida Bibi
In Hamira Bibi v. Zubaida Bibi, (1916) 43 I.Α. 294, the Privy Council held that the Act of 1855, which
governed usury, had been abrogated by the Mussalman Law. The court also established that dower, a
sum paid to a wife upon marriage, ranks as a debt, and the wife is entitled to have it satisfied from the
husband's estate upon his death. Furthermore, the court allowed the defendant (Zubaida Bibi) equitable
compensation in the form of interest at 6% per annum on the unpaid dower debt. The appeal was
ultimately dismissed, upholding the defendant's possession of the estate and requiring the plaintiffs to
pay costs.