8th September, 2021

Who is a Muslim?

The term Muslim means submission. A Muslim is a person who follows Islam. Muslim applies
to a born Muslim or a person who is a converted Muslim. A Muslim is one, who believes in the
mission of Muhammad PBUH as a prophet or one who says that there is one God and that
Muhammad is His Prophet.

In other words any person who professes the religion of Islam, in other words accepts the unity
of God and the Prophetic character of Muhammad is a Muslim

In Azima bibi v Munshi Shamlanand (AIR 1912), it was observed that a child born out of a
Muslim couple would be Muslim, even if he by choice goes to a Hindu temple. The person
would be a Muslim, till the time he does not renounce his religion and converts to another
religion.

In Bhaiya Sher Bahadur v Bhaiya Ganga Baksh Singh (AIR 1940), it was held that if a Muslim
women has a child from a Hindu man but the child from the time he was born he was brought up
as a Hindu then in this case he would be called a Hindu

So the right to convert is given under the article 25 under the constitution of India, which
guarantees every citizen of India freedom to practice, profess and propagate one’s religion.

The Supreme court in Sarla Mudgal v the union of India (AIR 1995) and Lily Thomas v The
Union of India(AIR 2000), has held that if a Hindu married man converts to Islam just because
of the reason as to marry a second time then it will be void and he will be punished the section
494 of the IPC for committing bigamy. Thus, it may be seen that a Muslim is one who beliefs in
the mission of Muhammad as the prophet PBUH and one who says that there is one God and
Muhammad PBUH is his prophet.

Application of Muslim Law in India and Its interpretation.

Muslim in India are governerd by their own personal law and this provision is not absolute.
Some of the legislative enactments direct civil court to apply Muslim law to Muslim and Hindu
law to Hindus. Apart from this article 225 of the Indian constitution provides that the High
Courts will administer the same law as it existed at the commencement of the constitution.

Extent of application

The rules of Muhammadan Law falls under three division viz.

 i- Those which have been explicitly directed from the legislatures to be applied to the
Muhammadans, such as rules of succession and inheritance.

ii- Those which are applied to Muhammadan as a matter of Justice, equity and good
conscience.

iii- Those which are not applied at all, though the parties are Muhammadan such as the
Muhammadan Criminal Law, and the Muhammadan law of evidence.

The only parts of the Muhammadan law applied by the courts in India to Muhammadans are
those mentioned in (I,II). In other respect, the general law of India will be applied.

I. Matters where Muslim law is applicable

There certain matter of Muslim where only Muslim law will be applicable and other enactments
will not be applied. In the following cases Muslims will be governed by their personal law:
marriage, dower(mehr), divorce, family matters, adoption, minority, guardianship, succession,
inheritance, female’s property, wills, legacy, gifts, joint family, partition, and any other religious
usage or destitution.

10th September, 2021

II. Matters where the Muslim law will be applied as the matter of justice, equity and good
conscience.

There are certain matters where the provisions of Muslim Law will not be applied as a matter of
justice, equity and good conscience. But the rules that have been expressly directed by the
legislature to be applied to Muslims, must be applied though they may not be in the opinion
with the court confirm with justice, equity, and good conscience.

III. Matters where is personal law is applicable to Muslims:

Muslim law is applicable to Muslim only in the first two categories. In the matter of law of
crimes and law of evidence, Muslims are not governed by their personal law

Interpretation of Muslim law:

I. Interpretation of Quran:

When the question arised as to how it takes the Quran is to be interpreted, it is the duty of court
to see as to how a text of the Quran is to be interpreted, it is the duty of court to see how the
text under consideration has tobe interpreted by the Muslim jurists of recognised merit and
authority. And the exosision of the jurists who are regarded as authoritative should be followed.
 Case law:

Aga Muhammad Zafar Khan v. Koolsum Beebee 1897, there lordship of privy council held that
where a passage of Quran has been interpreted in a particular manner both in the work of Sunni
law as well as in the work of Shia law, it is not open to a court to interpret the passage of Quran
in a different manner

II Interpretation of Hadith:

As regard Hadith, it can be said that in case of the difference of opinion among the Muslim
Jurists, the point in dispute can not be decided by the court itself but reliance should be placed
on the opinion of recognised jurists, who alone could have undertaken the task of shifting the
tradition, and in case of divergence, on their comparative superiority.

III Interpretation of Hanafi law:

The great Imam, Abu hanifa and his two disciples, Abuyusuf and Imam Muhammad, are the
chief authorities of the Hanafi system of Jurisprudence. There is no difficulty if they all agree,
but in case of their conflicting views, the matter of interpretation becomes very intricate and the
questions of their comparative authority would arise.

15th September, 2021

The Muslim Personal Law (Shariat) Application Act,1937
The act applies to the Muslim Personal Law in a number of important matters, in those cases, were
parties are Muslims
A. Application of the Personal Laws of the Muslims
Section 2 of the Act expressly declares the subjects in which the Muslim Personal Law(shariah)
shall be applied:
I. Intestate succession
II. Special properties of Females
III. Marriage
IV. Dissolution of Marriage
V. Maintenance
VI. Dower
VII. Guardianship
VIII. Gifts
IX. Trust and trust properties
X. Waqfs
Section 3 of the Act provides that any person who satisfies the prescribed authority-
a. That he is a Muslim,
b. That he is competent to contract within the section 11 of the Indian Contract Act, 1872.
c. That he is a resident of India
May, by declaration in the prescribed form and filed before the prescribed authority, declare that he
desires to obtain the benefit of the Act, and thereafter the provision of Section 2 shall apply to the
declarant and all his minor children as if in addition to the enumerated adoptions,will, legacies will also
specified.
B. Where the Shariah Act, 1937 doesnot apply
In the following cases the Shariah Act 1937 is not applicable
i. Questions relating to agricultural lands
ii . Questions relating to kinds of Waqfs
Iii. Doctrine of Pre-emption in which custom would prevail
Section 4 of theAct empowers the State government to make rules to carry into effect the purposes of this
act.
C. Principle of Justice Equity, Justice and good conscience
The rules of equity and equitable consideration commonly recognised in the courts of equity in England
are not foreign to the Muslims system but are in fact often referred to and invoked in the Adjudication of
the cases under the system.

22nd September, 2021

Ijtehad and Taqlid:
Ijtehad means the physical and mental effort to understand and Islamic legal term referring to independent
reasoning. Or through the use of Jurist’s mental reasoning in finding a solution to a legal question.
According to classical Sunni theory Ijtehad requires expertise in the Arabic language, theology, relealed
text and the principle of jurisprudence. Ijtehad is considered to be a religious duty for those who are
qualified to perform it. An Islamic scholar who is qualified to perform Ijtehad is called a Mujtahid.
Throughout the first five Islamic centuries, the practice of Ijtehad continued both theoretically and
practically amongst Sunni Muslim. The controversy surrounding Ijtehad and the existence of Mujtahid
started in primitive form, around the beginning of the 6th oblique 12th century. By the 14th century,
development of Sunni Jurisprudence prompted leading Sunni jurists to state that the main legal questions
had been to addressed and the scope of Ijtehad was gradually restricted. In the modern era, this gave rise
to a perception among western scholars and lay Muslim public that the so called “Gate of Ijtehad was
closed” at the start of the classical era. Differences amongst the jurists prevented Muslims from reaching
any consensus on the issues of continuity of Ijtehad and the existence of Mujtahid. Thus, Ijtehad remained
a key aspect of Islamic Jurisprudence throughout the centuries. Ijtehad was practiced throughout the early
modern period and claims for Ijtehad and its superiority over Taqlid where always voiced.

Taqlid is an Islamic terminology denoting the conformity of one person teaching on another. The
performs Taqlid is termed as Muqallid. The definite of the term varies depending on context and age.
classical usage of the term differs between Sunni Islam and Shia Islam. Sunni Islamic usage designates
the unjustified conformity of one person to the teaching of another. Shia Islamic usage designates the
general conformity of non Mujtahid to the teaching of Mujtahid, and there is no narrative connotation. In
contemporary usage, especially in the context of Islamic reformism, it is often called as blind imitation.
This refers to uncritical imitation of traditional religious interpretation by the religious establishment in
general.

23rd September, 2021

School of Islamic Laws
Introduction
During 8th and 9 th century there emerged four school of thoughts or the school of the jurisprudence
among the sunnis viz. The hanafi school found by Abu Hanifa, Maliki school found by Malik ibne Anas,
shaafi school founded by Muhammad Ibn idrees as shafi and the Hanbali school founded by Ahmed bin
Hanbal. All the four schools of the Muslim law has their own significance and they differ slightly from
each other on some minor matters.
Sunni School
1 hanafi school or the Kufa school
2 Maliki school or the medina school
3 Shafi school
4 Hanbali school
I- Hanafi school
The most prominent school among the four school of the sunni school is the hanafi school.Abu Hanifa
was the founder of this school. He was an eminent and most scholar of his time and mostly known for his
ability of logical reasoning and technical legal thought. So this school of sunni law is named after its
founder Abu Hanifa. This school is also called as the Kufa school. Kufa is the city which is known as the
city of learning. One of the outstanding contribution was, Abu Hanifa tried to find the law in the text of
the Quran through analogical deduction. Abu Hanifa was of the view that law must be formulated
according to the changing needs of the society. He was also in favour of interpreting the law in the light of
juristic equity. Later on, with certain improvements the doctrines were developed by his two disciples
Abu Yusuf and Imam Muhammad.
Characteristic of Hanafi school
1- It is true that the foundation of the Islamic Fiqh i.e. Islamic Jurisprudence was laid down in the epoch
making period of prophet Muhammad (PBUH) but the systematic work of codification was done by Imam
Abu Hanifa or Nouman bin Sabith in the city of Kufa
2- the legal doctrines of Imam Abu Hanifa was based on Quran and Hadith. Quran has been regarded as
the first and primary source for deducting the civil and criminal laws. Thereafter importance was given to
traditions.Imam Abu Hanifa narrated only 17 traditions and gave more preference to Qiyas.
3- One of the first Jurist who gave more prominence to the doctrine of qiyas or analogical deduction.
According to Abu Hanifa Qiyas are the result of casual occurrences. It is based on either Quran or
tradition or Ijmah.
4- Imam Abu Hanifa is also famous for the principle of Istihsan which is also known as juristic opinions.
A distinctive name and prominent position was assigned to Imam Abu Hanifa for the principle of Istihsan
through which the theory of law is modified in its application to actual facts
5- One of the greatest contribution of Abu Hanifa was the codification of laws. He constituted a
committee of some learned disciples who were Imams in their own fields. The committee headed by Aby
Hanifa discussed the practical and theoretical Questions and the conclusion which they agreed upon after
a full and free debate were duly recorded.
6- Imam Abu Hanifa also gave preference to urf or usage.Abu Hanifa recognised the authority of local
customs as a source of law. Many decision of Law are based on usage or customs, so much so that it has
been taken as a principle of law. The Quran and the tradition o f Prophet Muhammad PBUH were with
him and with all the other jurists as the primary sources, ijmah coming next to them, and analogy juristic
preference and local customs being regarded merely as secondary sources.
Thus, Imam Abu Hanifa's contribution is his distinguished and well trained disciples like Imam Abu
Yusuf and Imam Zafar. Abu Hanifa was a pious man with an independent character and never bowed
before the political authority or person in power and gave unbiased decisions on complicated issues. He
even preferred to sacrifice his life for the sake of Justice. He was a jurist of the highest rank the world has
ever seen.
29th September, 2021
II- Maliki or the Madani School of thought
Maliki or the Madani School of thought was the second school of Islamic jurisprudence which was started
from Medina the city of learning. It was founded by Imam Malik-Ibn Anas,The Maliki school originally
flourished in Medina and then later on with time it spread to the rest of Arabia from whereto Egypt and to
other countries of the world.
Malik-Ibn Anas was a great scholar and was regarded as one of the authority on tradition. Imam malik
was born in Madina, in the year 93 A.H. He learnt traditions from Abdur Rahman Ibn Hurmuz, Naafi Ib
Zakwan and Yahya Ibn Sayeed. Imam studied Islamic jurisdiction with celebrated Jurist of Medina,
Rabish Ibn Farrukh, Imam Malik dedicated his whole life for the studies of Islamic jurisprudence and
Hadith. Thus Imam Malik was a pious man with an outstanding character and never bowed before any
authority and gave decisions without any biasness.
Salient feature of Maliki School.
1- Imam Malik gave more emphasis on tradition and usages of madina. Imam Malik had a strong believe
that traditional of madina have a prepondering weight since they must have been spread from the times of
prophet
2-Another important feature of Maliki school is the agreement of Ijma. Imam Malik recognised the
authority of Ijma of the companions and the successors residing at madina.
3- Imam Malik also defined qiyas as the accord of a deduction with the original text in respect of the Illad
or effective cause of its law. The malikis makes the deduction either by a text of the Qur'an or a Hadith.
4- Imam Malik gave more prominence to juristic equity. According ti Malikis the deduction of laws
should be based on the consideration of the public good. The doctrine of Public good is also known as
Istilah
Istilah as a principle of public utility is sound one, only thing is that in its application, strict care must be
taken so that it may not exceed the limit and must be within the ambit of the textual law of Islam.
5- One of the prominent work of the Imam Malik is the Kibta-Al-Muattah. It represents rthe codification
if the fiqh and developed in the theological centre if Madina
30th September, 2021
Thus, Imam Malik’s greatest contribution is his book “Muwatta”. He was a great traditionist as well as a
profound jurist. He gave new shape to the traditions, usages and practices of Media with his pious and
independent character. Imam Malik devoted his whole life for the progress and development of Islamic
legal learning. As a great scholar of Islamic learning he got respect from public as well as form the rulers
of the time. Imam Malik’s “Muwatta” got so much respect and fame that every scholar felt proud to refer
it.
1st October, 2021
Shafi School
Imam Shafi was the founder of Shafi School of Islamic Jurisprudence. His full name was Idris As-Shafi.
He was a disciple of Malik Ibn Anas and was related to the Holy Prophet Pbuh. Imam Shafi also relied
upon the traditions of the Holy Prophet. Imam Shafi developed his ideas and principle in Baghdad in
Egypt.
He used legal reasoning and critical analysis to examine the tradition so as to have a systematic rule of
law. Imam Shagi was the first to incorporate usul or principles of law in his book kitab-ul-umm. His idea
of Islamic jurisprudence spread from Egypt to south-east Asia. And also few parts of western coast of
Indian Muslim followed the principle of this School.
Salient features of Shafi school-
i- Imam Shafi was regarded as the creator of the classical theory of Islamic Jurisprudence and was the
founder of science of usual. He also got the legacy of talents and logical reasoning. As he was highly
influenced by both Hanafi and Maliki School.
ii- According to Imam Shafi, the Quran is the best source of law. He says the Quran is the foundation of
legal knowledge. Imam Shafi was of the view that Wuran serves the double purpose of supplying raw
material for legislation and inspiring ideal for the scholar who aimed at shaping his system of Law in
harmony with that model. Imam Shafi cited 220 Quranic verses as specific rules of law.
iii- He gave more prominence to the traditions of the Prophet PUBH. Imam Shafi studied both the
doctrine of Hanafi school as well as Maliki school. He made enormous use of Hadith found from different
centres.
iv- Another important feature of Shafi school was that Imam Shafi was strong supporter of the doctrine of
Ijma. In fact he systematised and universalised the institution of Ijma for all people for all ages

6th October,2021
v-Imam Shafi was the first in point of time who gave regular rules for the deduction or Qiyas. According
to him, Qiyas is the accord with a known thing by reason of equality of the one with another in respect of
effective cause of its law.
Thus Imam was one of the greatest jurist of Islam. He adopted the middle way in giving a clear and
balanced theory of law. He was a pious man who was a lover of legal learning.

8th October,2021
Hanbali School
Hanbali School of Islamic Jurisprudence was propounded by Imam Abu Abdullah Ahmed Ibn
Mohammad Hanbal. Hanbali school was the ofuth and the last school and the last school of Sunni sect.
Mohammad Hanbal was bornin Baghdad in 780 AD, Mohammad Hanbal was highly adherent to the holy
Prophet PBUH, so he was popularly known as “traditionalist” rather than a ‘jurist’.
Salient Feature of Hanbali School:
i- Imam Hanbal was undoubtedly a more popular traditionalist than a Jurist. But he has made a
remarkable contribution towards the development of Islamic Jurisprudence. The method of formulation
the principles was simple and it was based on the principles of the Holy Qur’an.
ii- Imam Hanbal made extensive use of the Hadith. He tried to follow as it is with very little reasoning.
Moreover, he accepted even the weakest Hadith in its original form. Imam Hanbal adopted the
interpretation of Hadith.
iii- Imam Hanbal accepted the Ijma as the source of Muslim law. But as Imam Hanbal was highly
influenced by the use of hadith, he made very less use of Ijma. According to Imam Hanbal’s opinion,
Ijma is confined to the convenience of the Prophet PBUH. However, he viewed that whenever a situation
arises, Ijma can be used.
iv- According to Imam Hanbal, use fo Qiyas is merely a sheer necessity, and always tried to derive law
from the traditional sources. Hanbalis based their Qiyas on Qur’an, Hadith, Ijma or Qiyas itself and they
accept the validity of Qiya generally in matters which are the rights of man and are determined by the
application of our senses and reason.
v- Imam Hanbal also favours the law of juristic activity as the source of law, Juristic equality is also
known as Istihsan under personal law.
vi- Imam Hanbal’s method of formulating legal doctrines was of Ashab-e-Hadith so one can find
numerous works on Hadith and very few on the principles of Fiqh. One of the greatest collections of
traditions done by Imam Hanbal was known as ‘Musnad Ahmed’.
Thus Imam Hanbal was a profound traditionalist and a great jurist. He devoted most of his time to the
study of Hadith and Fiqh. He was an independent character and a pious man. The renown of his learning,
piety, justice and extreme love of tradition gathered a host of disciples and admirers around him.

SHIA SUB-SCHOOLS
The Shia sub-schools: Ali, the son of Abu Talib(Paternal Uncle of Muhammad PBUH) was the first Imam
of Shia community. He was the spiritual and temporal head of the community.
The main Shia sub-schools are:
i- Ithna Ashari
ii- Ismailia School
iii- Zaidiyyah School
I. Ithna Ashari School
The Shia sect largely followed the Ithna Ashari school. This school is also known as Imamiya School.
This school is sub-divided into two further school i.e Akhbari and Usuli School. There were 12 Imams in
the Ithna Ashari school. The followers of Ithna Ashari are prevalent in Iraq, Pakistan, India and Lebanon.