MUSLIM LAW

Q.1 What are the sources of Muslim Law?

Ans:- Muslim law, also known as Islamic law or Shariah, has several sources. These
sources are known as the primary sources of Islamic law, and they include:
1. Quran: The Quran is the holy book of Islam and is considered the most authoritative
source of Islamic law. It contains the teachings of Allah as revealed to the Prophet
Muhammad through the Angel Gabriel.
2. Sunnah: The Sunnah refers to the actions and sayings of the Prophet Muhammad. It
includes his actions and behaviour, as well as the sayings and decisions that he made
during his lifetime. The Sunnah is considered the second most authoritative source
of Islamic law.
3. Hadith: Hadith are the recorded sayings and actions of the Prophet Muhammad as
reported by his companions. They provide a more detailed explanation of the
Sunnah and help to clarify Islamic law.
4. Ijma: Ijma is the consensus of Islamic scholars on a particular issue. It is considered a
source of Islamic law because it reflects the collective wisdom and understanding of
the Islamic community.
5. Qiyas: Qiyas refers to the process of analogical reasoning. It involves the application
of legal principles to new situations by analogy with existing cases.
6. Ijtihad: Ijtihad refers to the process of independent reasoning and interpretation of
Islamic law. It is used by Islamic scholars to address new issues and challenges that
may arise in the modern world.

Q.2 What are the schools in Muslim Law?

Ans:- In Islam, the people have been divided into two sects having different views regarding
certain aspects of Islam. Thus, the schools of Muslim law can be broadly classified into two
categories:
1) Sunni Schools
2) Shia Schools
Sunni Schools
In Sunni sect, there are four major schools of Muslim law which are as follows;
Hanafi School: The Hanafi School was founded by Abu Hanifa (d. 767 CE) and is one of the
oldest and most widely followed schools of Islamic law. It is known for its emphasis on
reason and independent thinking, and its interpretation of Islamic law is characterized by a
liberal approach. This is because the Prophet had disallowed codification of his words and
sayings. Hence, whenever the Quran did not explain something, this school relied on the
Prophet’s traditions.
Maliki School: The Maliki School was founded by Malik ibn Anas (d. 795 CE) and is based in
Medina. It is known for its reliance on the practices and customs of the people of Medina
and its emphasis on the use of reason and consensus in the interpretation of Islamic law.
While the Hanafi school relies on Ijma (interpretations of jurists), the Maliki school
originates from Sunna and Hadis. These two important sources give importance to the
sayings, teachings, customs and traditions of Prophet Mohammed.
Shafi'i School: The Shafi'i School was founded by Muhammad ibn Idris al-Shafi'i (d. 820 CE)
and is based in Mecca. It is known for its emphasis on the Sunnah and the use of analogical
reasoning in the interpretation of Islamic law. The Shafi school is basically a combination of
the Maliki school and the Hanafi school. Ijma, i.e. the interpretations of jurists is the most
important source of law in the Shafi school. It also relies on the customs of the Muslim
people. The Qiya source of law, which depends on analogical interpretations by people,
originates from this school.
Hanbali School: The Hanbali School was founded by Ahmad ibn Hanbal (d. 855 CE) and is
known for its strict adherence to the Quran and the Sunnah. It emphasizes the literal
interpretation of Islamic texts and is characterized by a conservative approach. Instead, he
insisted on going back to Sunna and Hadis to interpret the Quran and other laws. This was
because in his opinion the teachings and traditions of Prophet Mohammed matter more
than peoples’ interpretations.

Shia Schools
1) Ithna-ashari school
The Ithna Ashari school gets its name from its belief in the Twelve Imams, who are believed
to be the rightful successors of the Prophet Muhammad in the leadership of the Muslim
community. These Imams are believed to have been divinely appointed and endowed with
special knowledge and authority. The Ithna Ashari school places a strong emphasis on the
authority of the Imams and their teachings, and considers them to be the primary source of
guidance for Muslims after the Prophet Muhammad. The school also emphasizes the use of
reason and independent judgment (ijtihad) in legal interpretation, and considers consensus
(ijma) to be less important.

2) Ismaili School
The Ismaili school, also known as the Seveners, is a sub-branch of Shia Islam that recognizes
the first seven Imams as the rightful successors of the Prophet Muhammad, rather than just
the first twelve as in the Ithna Ashari school. In India, the Ismaili school is followed by a
small minority of Shia Muslims, primarily in Gujarat. The Ismaili community in India is led by
the Aga Khan, who is recognized as the spiritual leader and guide of the community. The
community has its own distinct religious institutions and practices, including jamatkhanas
(community centers), ginans (hymns and prayers), and the practice of voluntary service
(sewa). The Khojas and Bohras of Mumbai (Bombay) belong to this school. They are
identified with esoteric and gnostic (having special knowledge) religious doctrines.
3) Zaidy School
The Zaidi school places a strong emphasis on social justice and political activism, and has
historically been associated with political movements seeking to establish just and equitable
societies. The school also emphasizes the use of reason and independent judgment in legal
interpretation, and considers the consensus of the community (ijma) to be an important
source of guidance.
In India, the Zaidi school is followed by a small minority of Shia Muslims, primarily in the
state of Jammu and Kashmir. The school has its own distinct legal and theological traditions,
and is known for its emphasis on social justice and political activism. The Zaidi community in
India is also known for its role in the struggle for independence and autonomy in Jammu
and Kashmir.
Q.3 Types of Marriages in Muslim Law?
Ans:- Marriage under Islam is a matrimonial relation and an institution which legalizes the
sexual activities between a male and female for the object of procreation of kids, promotion
of love, mutual support and creation of families which are considered an essential unit in a
society. According many philosophers, marriage in Islam is a religious duty. Everyone must
marry in order to fulfil one’s desire of procreation of kids legally.
1) Sahih (Valid)
When all the legal requirements are fulfilled and there are no prohibitions affecting the
parties, then the marriage is correct or ‘sahih’. The prohibitions can be permanent as well as
temporary, in case of permanent prohibitions: the marriage will be void and if the
prohibitions are temporary then the marriage is irregular.

 Consent: Both the bride and groom must give their free and voluntary consent to the
marriage.
 Mahr: The groom must pay a mahr, which is a gift or a sum of money that is agreed
upon by the parties and given by the groom to the bride.
 Witnesses: The marriage must be witnessed by at least two witnesses who are sane,
adult, Muslim, and of good character.
 Capacity: Both the bride and groom must be legally and mentally capable of entering
into the marriage contract.
If all of these conditions are met, the marriage is considered to be sahih or valid in Muslim
law. It is important to note that in Muslim law, marriage is a legal contract between two
parties, and it is considered to be a serious and important commitment. Therefore, it is
important for both parties to enter into the marriage contract with full understanding and
free consent.

2) Batil (Void)
The marriage being void ab initio creates no rights or obligations and the children born out
of such marriage are illegitimate. A marriage forbidden by the rules of blood relationship,
affinity or fosterage is void. Similarly, a marriage with the wife of another or a divorced wife
during iddah period is also void.

 Lack of consent: If one or both parties did not give their free and voluntary consent
to the marriage, the marriage is considered to be batil.
 Prohibited relationship: If the parties are closely related by blood or marriage, such
as between siblings, the marriage is considered to be batil.
 Absence of witnesses: If the marriage is not witnessed by at least two witnesses who
are sane, adult, Muslim, and of good character, the marriage is considered to be
batil.
  Non-observance of required conditions: If any of the required conditions for a valid
marriage are not met, such as the payment of the mahr, the marriage is considered
to be batil.
 Non-compliance with legal procedures: If the marriage is not performed in
accordance with the legal procedures and requirements, the marriage is considered
to be batil.

3) Fasid (irregular)
Due to lack of some formality, or the existence of an impediment which can be rectified, a
marriage becomes irregular, However, this irregularity is not permanent in nature and can
be removed. Thus, the marriage itself is not unlawful. It can be made valid once the
prohibitions are rectified. Marriage in such circumstances or with following prohibitions are
called ‘Fasid’.
Some common reasons why a marriage may be considered fasid include:
Non-observance of recommended conditions: If a recommended condition for a valid
marriage is not met, such as the presence of a wali (guardian) for the bride, the marriage
may be considered fasid.
Non-compliance with cultural customs: If the marriage does not comply with certain
cultural customs or practices, it may be considered fasid.
Temporary inability to perform marital obligations: If either party is temporarily unable to
fulfill their marital obligations due to illness or other factors, the marriage may be
considered fasid.
Defect in witnesses: If one or both of the witnesses to the marriage contract are found to
be invalid or unreliable, the marriage may be considered fasid.

4) Muta or nikkah Mutha

The term literally means “pleasure marriage”. Muta marriage is a temporary agreement for
a limited time period, upon which both the parties agreed. There is no prescribed minimum
or maximum time limit, it can be for a day, a month or year(s). The marriage dissolves itself
after the expiration of the decided period, however if no such time limit was expressed or
written, the marriage will be presumed permanent. This type of marriage is seen as
prostitution by the Sunni Muslims and thus, is not approved by Sunnis.

Q.4 Types of divorce in muslim law?

Ans:- Divorce by husband
There are four ways a husband can give divorce.
Talaq-ul-Sunnat
This form of divorce is based on Muslim Personal Laws. It is further sub-divided into the
following categories:
Ahsan
Husband has to make an announcement of divorce in a single sentence when the wife is
free from the menstrual cycle.
After divorce women have to observe Iddat for a certain period of time, during which the
husband cannot indulge in any form of sexual intercourse, if he indulges then revocation of
talaq becomes impliedly revocable, otherwise, it becomes irrevocable.
This type of talaq can be pronounced even when the wife is undergoing menstruation, but
for that marriage must not be consummated between the parties.
It is the most approved form of talaq.
Hasan
It is a less approved form of Talaq Ahasan.
There is a provision for revocation of divorce.
The word talaq is to be pronounced three times simultaneously.
Three announcements should be made in the three states of purity if the wife has not
crossed the age of menstruation.
If the wife has crossed the age of menstruation, pronouncement must be made at the 30
days interval between the successive pronouncements.
During the period of three pronouncements, no sexual intercourse should take place, if it
happens divorce is revoked.
After completion of the iddat period, this type of divorce becomes irrevocable.
Talaq-ul-Biddat
it is this disapproved/sinful form of divorce.
It is also known as triple talaq, after pronouncing talaq three times it becomes irrevocable
immediately.
This form of divorce is only recognised under Sunni Law and not by Shias and Malikis.
Parties can remarry only after performing nikah halala by the female partner, under which
she has to marry another man and then get divorced from him.
This type of divorce is unconstitutional in India
Divorce by wife
Talaq-e-Tafweez
It is also known as delegated divorce.
The husband has the power to delegate such power to the wife, he must be of sound mind
and above 18 years of age.
This type of talaq is also called an agreement, which may be entered between the parties
before or after marriage.
If the terms of an agreement are not fulfilled, the wife can ask for a divorce.
It is the only way through which a woman can ask for a divorce.
The right of the husband to divorce his wife remains intact, it does not deprive the husband
of his right to pronounce the divorce.

Divorce by mutual consent

Khula
It means ‘laying down’, where the husband lays down the authority over his wife.
This is done through mutual consent between husband and wife, where the wife pays the
consideration from her property to the husband, for her release.
Wife releases Mehr and other rights for the benefit of her husband.
Thus, divorce is purchased from husband by wife.
There is an offer from the wife, which is accepted by the husband.
Women are required to observe iddat after Khula.
Mubarat
It means ‘release’, it releases/discharges parties from marital rights.
Divorce is with mutual consent among parties to become free from one another.
Its formalities are the same as Khula, where there is an offer from one party and acceptance
from another.
Women are required to observe Iddat.

Q.5 What is Dower?

Ans:- In Islamic jurisprudence or Muslim law, dower (also known as mahr) refers to the
amount of money or property that the husband is required to pay to his wife as a form of
marriage gift or consideration. It is a mandatory obligation for the husband to provide the
dower to his wife as a part of the marriage contract.
The dower serves several purposes in Muslim marriages. Firstly, it signifies the husband's
willingness and commitment to fulfill his obligations towards his wife. Secondly, it acts as a
form of financial security for the wife, ensuring that she has some financial support in the
event of a divorce or the husband's death. Thirdly, it helps to establish the financial
independence of the wife and recognizes her rights to own and control her own property.
The amount of dower is typically negotiated and agreed upon by the husband and the wife
prior to the marriage. The amount can vary depending on the financial status and
circumstances of the couple. The dower can be paid in full at the time of the marriage or in
installments over a period of time.
It is important to note that the dower is the exclusive property of the wife and cannot be
taken away or decreased by the husband without her consent. The wife also has the right to
demand the payment of the dower at any time, even in the event of a divorce. The payment
of the dower is considered to be a fundamental obligation of the husband in Muslim
marriages.
The dower may be classified into:

Specified dower: In this kind of dower, the amount of dower is stated in the marriage contract. The
dower may be settled between the parties either before the marriage or at the time of marriage or
after the marriage. If the marriage takes place of a minor or lunatic boy then the amount of dower
can be fixed by the guardian. The husband can settle any amount of dower. However, he cannot
settle the amount of dower less than ten Dirhams according to Hanafi law and three Dirhams
according to Maliki law. Shia law does not state any minimum amount of dower. In the case of those
husbands who are very poor and are not in a position to pay ten Dirhams, then according to the
Prophet, they are directed to teach the Quran to the wife instead of the dower. There is no
maximum limit on the amount of dower. The specified dower can be classified into:

Prompt dower: It is payable immediately after marriage on demand.

Deferred dower: It is paid after the dissolution of marriage either by death or divorce.

Q.6 What is Guardianship in Muslim Law?

Ans:- The guardianship of a child means that overall oversight of the kid throughout its
minority. Father or his executor or in his absence, the paternal grandfather, being the
natural guardian, is in charge of the minor’s person. On the opposite hand, ‘custody of the
child’ simply means a physical possession (custody) of the child upon a certain age.
Although the mother is not the natural guardian of the child under Muslim law, she has a
right to the custody of the child, until the child attains a specific age. But the father or the
paternal grandfather encompasses control over the minor throughout the complete interval
of the minority.
Muslim law recognizes the following kind of guardianship:

 A natural or legal guardian:- Natural guardian is a one that encompasses a right to

regulate and supervise the activities of a minor. Father is recognized as the natural
guardian of his kid underneath all the schools of Muslim law. The father’s right to act
as guardian of a minor is an independent right and is given to him underneath the
substantive law of Islam.
A natural guardian is additionally known as a legal guardian. But within the absence
of the father, the father’s executor might also act as a legal guardian. The executor
could be one who is appointed by the father or grandfather to act as the guardian of
his minor kid on his behalf.

 Testamentary guardian:- A testamentary guardian may be a one that is appointed as

guardian of a minor beneath a will. Only father or, in his absence, paternal
grandfather has the right to appoint a testamentary guardian.
A non-Muslim and a feminine might also be appointed as a testamentary guardian.

 Guardian appointed by courts or statutory guardian:- In case of the absence of a

natural and legal document guardian, the court is authorized to appoint a guardian
for the aim of the minor’s person or property or for both. The appointment of a
guardian by the court is ruled by the Guardianship and Wards Act, 1890 which is
applicable to all the Indians irrespective of their religion. Such guardians are also
called Statutory Guardian.

 De-facto guardian:- A de-facto guardian is a person who is neither a legal guardian

nor a testamentary guardian or statutory guardian, but has himself assumed the
custody and care of a child. According to Tyabji a de-facto guardian means that an
unauthorized person who, as a matter of fact, has custody of the person of a minor
or his property. A de facto guardian could be a person having no authority for the
guardianship however underneath the circumstances has taken the responsibility to
act as the guardian of a minor.