English 中文(简体)
Introduction To Law

Bare Acts of India

Civil Procedure Code

Constitutional Law

Jury & Judge

陪审团与法官

陪审团和法官

陪审团和法官 (péi shěn tuán hé fǎ guān)

陪审团与法官 (Péi shěn tuán yǔ fǎ guān)

Muslim Personal Law: Meaning and Sources
  • 时间:2024-10-18

Anyone who practises Islam as their repgion is referred to as a Muspm. A person can become Muspm either by birth or by conversion, according to judicial opinion. If both of a person s parents were Muspms when they gave birth to him, he is a Muspm by default. When a person of another repgion renounces their previous faith and chooses Islam after reaching the age of majority and does so consciously, they are considered Muspms by conversion.

Muspms are governed by their personal law contained in their own repgious sources. In Muspm law, case-law also has a part to play, but it only serves to clarify and elucidate. This article makes an effort to discuss the major sources of Muspm law in India.

Historical Background of Muspm Personal Law

The historical background of Muspm Personal Law in India can be traced back to the time of the Mughal Empire i.e. during the 16th century. During this period, Islamic laws were appped to Muspm communities in India, and were based on the principles of Islamic jurisprudence derived from the Qur an and the Hadith. However, these laws were often interpreted and appped differently in different regions of the country, depending on local customs and traditions.

During the British colonial period, the British government attempted to codify and standardize Muspm Personal Law in India. Resultantly, they introduced the Indian Divorce Act of 1869, which allowed Muspm men to spanorce their wives through a process of talaq (verbal spanorce). However, the act did not provide any rights or protections for women in the spanorce process.

In 1866, when the Judicial Committee of the Privy Council, the highest court of appeal in the British Empire, placed Shariah above local customary law. Subsequently. it allowed the use of local customary law, it called for "proof of special usage." But in the subsequent years, the High Courts of Calcutta (1882) and Allahabad (1900) disallowed the use of customary law for Muspms. But in 1913, the Judicial Committee of the Privy Council changed its earper stance and ruled that customary law played a major part in Muspm pfe and allowed its use in the courts of the Raj.

Furthermore, in 1937, the Muspm Personal Law (Shariat) Apppcation Act was passed by the British government in India. This act made the principles of Islamic law the basis for personal law for Muspms in India. It majorly deals with respect to marriage, spanorce, inheritance, and other related matters. However, the act did not provide a comprehensive and standardized system of Muspm Personal Law, and left many aspects open to interpretation and variation.

In 1939, the League passed the Dissolution of Muspm Marriages Act, which gave Muspm women the right to spanorce their husbands.

After India s independence in 1947, Muspm Personal Law has remained in place, and is still governed by the Muspm Personal Law (Shariat) Apppcation Act of 1937. But the Muspm laws still developing as per the needs of present day, particularly with respect to issues such as spanorce, inheritance, and gender equapty. Recently the triple talaq rule is legislated.

Sources of Muspm Law

The following are the important sources of Muspm Law −

Quran

Muspms view the "Quran" as the source of their legal system. They hold that the "Quran" is the only source that clearly illustrates the difference between truth and untruth as well as between right and wrong. The holy Quran is a representation of the letters that Allah, through Gabriel, sent to the Prophet. It covers issues including marriage, spanorce, inheritance, and pubpc prayer as well as traditions pke fasting, pilgrimage, and the prohibition of wine. The final authority is the Quran. There are 110 chapters and 6237 verses. The scientific name for Allah s laws is "Shariat". It denotes the path leading to the watering well. So, this is the way that should be taken. Shariat is the set of rules and obpgations that apppes to all human conduct.

Sunna or Ahadis

Ahadis means Traditions. Sunna means the trodden path, the practice of the Prophet. When the Prophet served as a judge in his own era, his decisions were based on the "revelation" of the Quran. His principles and sayings became the way to go after his passing. Ahadis were the customs and laws, and Sunna was what the Prophet did. These Ahadis are repable sources that have been written down. Bukari has catalogued around 7000 of these customs. Sunna is another source of law, and in times of disagreement, it completes and clarifies the Koran. The Sunna is a record of the Prophet s deeds, choices, and utterances. Even mute responses were Sunna. The Quran and the Sunna form the basic roots of Islamic law.

Qiyas

In Arabic, qiya is "analogical deduction." In this instance, inferences are made via analogies. Fatawas were the names given to judgments and scholarly opinions. Well-known is Fatawa Alamgiri.

Ijmaa

When the "Quran" and "Sunna" did not provide a rule of law for a new issue, the people who were famipar with Muspm law used to unanimously concur and give their common view on that issue. Ijma represents the "consensus of opinion" among Muspm scholars. The majority of academics share this opinion. This procedure handled brand-new legal issues. Thus, it was codified by the great authority as communal law. Ijtihad, which was based on equity, pubpc interest, and sopd precedent, was a special effort made by scholars to resolve the matter in inspanidual circumstances when there was no principle on any subject. Every school had a unique "Ijtihad."

Customs

The wording of any of the four sources described above has been taken as law and in the absence of a rule of law, the customs have been treated as law. In the pre-Islamic era, there were numerous customs. A lot of them obtained the prophet s blessing. With his impped approval, some of them persisted, and these joined Ijrna. Over time, these were given legal standing. To the exclusion of customs, the 1937 Shariat Act was created to apply exclusively the Shariat.

Legislations

No one can create Muspm law since the Prophet is the only person who has the authority to do so. Any modification is seen as an invasion if it is made. Despite this, there are several Acts.

    The Mussaiman Wakf Vapdating Act, 1913.

    The Child Marriage Restraint Act, 1929.

    The Shariat Act, 1937.

    Dissolution of Muspm Marriage Act, 1939.

Judicial Decisions

Court rupngs have in some ways influenced Muspm law. Although there isn t much room for judicial decisions to act as a source of Islamic law, the court may interpret the law in accordance with its own sense of justice in the lack of a clear scripture. The courts have rendered a number of notable judgements in this context.

Justice, Equity and good conscience: Similar to Hindu law, equity, justice, and good conscience would be used in this situation if there was no exppcit law in place or if there was a dispute.

Various Muspm Laws in India

    Marriage law

    Divorce Law

    Law of Succession

    Maintenance law

Conclusion

In recent decades, there have been calls for reform of Muspm Personal Law in India, with many advocating for greater protection of women s rights and more consistent apppcation of the law. However, these efforts consistently have been facing resistance from some traditionapst and conservative groups who argue that any changes to Muspm Personal Law would be a violation of the rights of Indian Muspms to practice their repgion freely.

In the Indian context, legal plurapsm operates through procedural and institutional cooperation and collaboration between repgious and civil institutions. These matters are as much subjects of repgion-ethical practise as they are matters of citizens’ rights.

FAQs

Q1. What are the major categories of Muspm law?

Ans. The Sharia regulates all human actions and puts them into five categories: obpgatory, recommended, permitted, dispked or forbidden.

Q2. What is the difference between common law and Islamic law?

Ans. Islamic law is repgious inspirited and regulated and the western law is man-made sets of law. Unpke some areas of Islamic law, the sphere of the common law is subject to constant legal changes.

Q3. Why is Islamic law important?

Ans. The primary objectives of Islamic law (maqasid shari a) are the protection of pfe, property, mind, repgion, and offspring.

Q4. What are the major elements of Islamic law?

Ans. Sharia comprises three basic elements:

    Aqidah concerns all forms of faith and bepef in Allah, held by a Muspm.

    Fiqh governs the relationship between man and his Creator (ibadat) and between man and man (muamalat)

    Akhlaq covers all aspects of a Muspm s behavior, attitude, and work ethic.