Who is Muslim?

Who is Muslim?

The religious duties of the Muslim concentrate on the five pillar’s of Islam, which are:

1) Profession of full faith i.e. Shahada:

A person having “musallam imaan” means full faith is called Musalman. Full faith in Kalamah, “La ilaha illallah, Mohammad rasul-ullah” i.e. there is no god but One God and Mohammad was the prophet of God. In short, the belief in unity of God and prophetship of Mohammad. One becomes a Muslim by reciting this phrase with conviction.

2) Prayer i.e. Namaz or Salat:

The prayer is the second pillar of the Muslim religion. Five times a day (dawn, noon, mid-afternoon, sunset and night-fall) is the faithful Muslim supposed to turn his face towards Mecca and recite his prescribed prayer. The Friday noon prayer is public one and is obligatory for all male adults. Prayer includes a recitation of the opening chapter (sura) of the Quran, and is sometimes performed on a small rug or mat used expressly for this purpose. Muslims can pray individually at any location or together in a mosque, where a leader in prayer (imam) guides the congregation. Men gather in the mosque for the noonday prayer on Friday; women are welcome but not obliged to participate. After the prayer, a sermon focuses on a passage from the Quran, followed by prayers by the imam and a discussion of a particular religious topic.

3) Alms-giving (Zakat):

It is a voluntary act of love and is considered almost identical with piety. In accordance with Islamic law, Muslims donate a fixed portion of their income to community members in need. Many rulers and wealthy Muslims build mosques, drinking fountains, hospitals, schools, and other institutions both as a religious duty and to secure the blessings associated with charity.

4) Fasting (Roja of Sawm):

The month of Ramzan or Ramadan, the ninth month of Islamic calendar, has been chosen as most sacred, and every Muslim must keep fast (from all food and drink) from dawn till sunset. Through this temporary deprivation, they renew their awareness of and gratitude for everything God has provided in their lives including the Quran, which was first revealed during this month. During Ramadan they share the hunger and thirst of the needy as a reminder of the religious duty to help those less fortunate.

5) Pilgrimage (hajj):

Every Muslim whose health and finances permit it must make at least one visit to the holy city of Mecca, in present-day Saudi Arabia. The Kaba, a cubical structure covered in black embroidered hangings, is at the center of the Haram Mosque in Mecca. Muslims believe that it is the house Abraham (Ibrahim in Arabic) built for God, and face in its direction (qibla) when they pray. Since the time of the Prophet Muhammad, believers from all over the world have gathered around the Kaba in Mecca on the eighth and twelfth days of the final month of the Islamic calendar.

But courts are not concerned with all the five pillars of Islam to be practices. It has been held that for the purposes of the application of Muslim law, a person is Muslim who believes in two things – Tauhid and Rasul i.e. There is only one God Allah, and Mohammad was the prophet of God. This is the indispensable minimum.

Short Q & A: Muslim Law 5

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Q. What are the main schools or sects of Muslim law?

Ans. There are two main schools of Muslim law: 1) Sunni school 2) Shia School.

Q. Why there are two sects of Muslim community?

Ans. After demise of the prophet raised a momentous question: on party advocated the principle of succession, while another pressed the election of the successor.

Q. Who is a Shia Muslim?

Ans. The Shias advocated that the office should go by the right of succession and thus the Imamat i.e. headship should be confined to prophet’s own family as his nominees.

Q. What are the sub-schools of Shia?

Ans. a) The Ithna – Asjiaris; b) The Ismaili; c) Zaidvs.

Q. Who is Sunni Muslim?

Ans. The Sunnis advocated the principle of election by the Jamat and chose out their Imam by means of votes. The majority of Muslims suggested that there should be election to choose successor of the prophet.

Q. Enlist the sub-schools of Sunni?

Ans. a) Hanafi; b) Maliki; c) Shafei; d) Hanbali.

Q. Which school only relies on the customs and traditions of Prophet Mohammed?

Ans. Hanafi School

Q. Which School was established by Imam Malik-bin-Anas?

Ans. Maliki School

Q. Which school rejected the importance of Qiya and re-emphasised on Sunna and Hadis?

Ans. Hanbali School

Q. The Qiya source of law originates from which school?

Ans. Shafi School

Q. People consider which source to be the primary authority of Muslim law.

Ans. Quran

Q. The scholars are responsible for creating which source.

Ans. Ijma

Q. Which source relies on precedents of Prophet Mohammed.

Ans, Sunna and Hadith

Q. Which is the least important primary source.

Ans. Qiya

Schools of Muslim Law

Schools of Muslim Law:

There are two main schools of Muslim law: 1) Sunni school 2) Shia School.

The majority of Muslims are Sunnis and hence it is presumed that the parties to a suit are Sunnis unless proved otherwise. After demise of the prophet raised a momentous question: one party advocated the principle of succession, while another pressed the election of the successor. The difference between the two lies in political events, not in law or jurisprudence.

Since it was inevitable for jurists to interpret all sources differently, conflicting interpretations often emerged. Consequently, these differences of opinions led to the creation of various schools of law. Although there are differences of opinions amongst these schools, the Muslim world considers all of them to be correct. Thus, no school has more prominence over another.

1) Shia School:

The supporters of succession to the office by inheritance to the prophet are known as Shias. The Shias advocated that the office should go by the right of succession and thus the Imamat i.e. headship should be confined to prophet’s own family as his nominees. This group was represented by Fatima, daughter of the prophet and then Ali, son-in-law of the prophet became the Caliph of the Shia group.

Shia Sub-Schools:

The Shias are divided into the following three sub-schools:

a) The Ithna – Ashriyah:

They follow the ‘Ithna- Ashriyah’ law. The great majority of the Shias in India follow this of law. Their important text is ‘Shar’ya-ul-Islam’.

The followers of this School can be found in India, Iran, Iraq and Pakistan. This School was also called the Imamiyah School. This School believed in a Muta i.e. ‘temporary marriage’.

This School further subdivided itself into two:

Akbaris Sect– they follow a modern form of legal deductions and reasoning when there requires an interpretation. The traditions by the Imams hold vital importance while following this Sect. This Sect as the name suggests come from the word Akhbari which is derived from the word news and newspaper.

Usuli Sect – Which is in quite a dominance as compared to the Akbaris. This School believed in the true sources of Muslim Law. The Quran, the hadiths and the Ijmas. The word Usuli essentially means theory of jurisprudence. Meaning that the School relies on the jurisprudential principles.

b) The Ismaili:

The Khojas and Boharas of Bombay belong to this School. The followers of this School can be found in Pakistans, India and Syria. The School refers to the Nizaris who acknowledged Aga Khan the fourth as a true Imam. However, there was a division in this Sect since the ‘Khojas’ who were actually Hindus and ‘Bohras’ the other sub-Sect believed that the true Imam was different for the two Sects. The issue arose when Jafar inherited his eldest son and therefore did not believe him to be the true and divine Imam.

This Sect as a whole believed that God is one and the teachings of the prophet were vital and followed the same as well.

c) Zaidvs:

They do not exist in India, and are to be found mostly in South Arabia. The followers of this School are majorly found in Yemen only. The name of this School is from Zayd Ibn Ali who was the son of the fourth Imam. The name of the fourth Imam was Ali Ibn Husain. This School believed in responsibility and political uprise. It was believed that untrue and un-divine leaders should be revolted against.

This School is very similar to the teachings of the Sunni Muslims. Also, they believed that the Muslims should follow the true successor of the Prophet Mohammed and since Faithma was the surviving daughter only her sons should be true Imams of Muslim community.

d) Motazila School

The followers of this School are in minority and can be found in Iran. This School arose out of a different Sect. It does not co-relate itself to either of the two Sect either Sunni Sect or the Shia Sect. These Muslims were although defectors of the Shia sect. This Sect was founded by Al-Gazzal.

The followers of this Sect believed in true divine justice and unity and believed that evil could be overpowered by the good and that the Quran itself can only be the truest and divine source to overcome evil from the society

2) Sunni School:

The supporters of the principle of election came to be called Sunnis. The Sunnis advocated the principle of election by the Jamat and chose out their Imam by means of votes. The majority of Muslims suggested that there should be election to choose successor of the prophet. This group was led by Ayesha Begum, the youngest wife of the prophet. This group then lead by Abu Bakr as the Caliph.

Sub Schools or Sub-Sects:

a) Hanafi:

This is the most famous school of Sunni law. Abu Hanifa was the founder of this school. Abu Hanifa placed little reliance on the oral traditions, which had not yet been reduced to writing and laid more stress on Ijma and Istehsan. He recognised the authority of the custom (urf) also. It is followed by Muslims in the Levant, Central Asia, Afghanistan, Pakistan, India, Bangladesh, Western lower Egypt, Iraq, Turkey, Balkans, Russia etc. There are movements within this school such as Barelvis, Deobandis, Tabliqui Jamaat, which are all concentrated in South Asia and in most parts of the India. 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.

The Hedaya is the most authoritative book of this school. It covers topics like inheritance as well as succession amongst followers of this school. Sirajiyya is also an important work in this regard. The Hanafi school is the most followed school amongst all schools of Muslim law and the Muslims in India. Thus, whenever courts have to interpret Islamic law principles, they generally rely first on this school. The Hanafi school relies on Ijma (interpretations of jurists)

b) Maliki:

It was founded by Malik Ibn Anas. Malik leaned more upon traditions and the usages of the prophet and the precedents established by his companions. The powers of the head of the family over his wife’s property and over his children are the main features of this school. It is followed by Muslims in North Africa, West Africa, United Arab Emirates, Saudi Arabia, Upper Egypt, some parts of Europe, etc. Murabitun world movement follows this school.

It originates almost to the same period as the Hanafi school but it flourished first in the city of Madina. the Maliki school originates from Sunna and Hadis. These two important sources give importance to the sayings, teachings, customs and traditions of Prophet Mohammed. Imam Malik had personally collected information on thousands of recorded traditions of the Prophet. Then he codified most of them in a book, which is the most prominent Hadis today. Although there are very few followers of this school, Indian laws have derived and codified some of their provisions.

It is the only school in which a married woman is not the complete mistress of her own property. Maliki School believed that in a marriage a wife was incapable of owning and maintaining her personal properties and therefore, according to him all the property of the wife in the marriage should be owned and maintained by her husband due to this disability. This School had a very different and unique view with regards to the property and no other Schools had such an outlook.

c) Shafei:

Imam Md Ibn Idris ash-Shafei was the founder of this school. He was noted for his balance of judgement and moderation of views. He relied more upon traditions than Abu Hanifa but less than his master Malik. He was the founder of the doctrine of Qiyas which must base upon Quran, Hadith and Ijam. The doctrines of this school are less favourable to womwn. There are very few followers of this school may be found in Indonesia, Malaysia, South East Asia, Eastern lower Egypt, Somalia, Jordan, Palestine, Saudi Arabia, Thailand, Singapore, Philippines, Yemen, India, Brunei etc.

The Shafei 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 Shafei 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.

This School further stated that the wife in the matrimony was not a free tool or device. However, in cases of marriage and all even if she is an adult she needs to take the permission of her parent or guardian to guide her in such matters.

d) Hanbali:

It was founded by Ahmad Ibn Hanbal. He laid much stress on traditions and allowd very narrow margin to the doctrine of analogy. This fourth and the latest of the jurists, was a saintly reactionary and his teaching was characterised by blind reliance on tradition. It is followed by Qatar, Saudi Arabia, Syria, Iraq, etc. Salafist movement follows this school.

Imam Hanbal rejected the relying on Qiyas and 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. As a result, Imam Hanbal collected thousands of Hadis and codified them in his book, Musnath.

e) Lahiri:

The Lahiri school was founded by Dawud Al Zahiri. It is followed in Pakistan, Morocco, Mesopotamia, Portugal, Balearic Island, North Africa, Spain, etc.

Thus these are the various schools of Islamic law across the world. All these schools follow the principles laid in Quran and Quran is the only authority for all of these.

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Legislation

Legislation mean statutes enacted by the Parliament or the State legislature for the regulation of human actions in a particular aspect.

As per Islamic religious belief the prophet is the only supreme law maker; hence no one can make Muslim law. In case any change is made it is considered as invasion. In spite of this there are number of Acts passed by Indian Parliament since form British Rule.

There have been several legislation enacted by the Parliament to lay the foundation of Muslim law in India. These legislative enactments have considerably amplified, altered or modified the original Muslim law.

e.g. 1) Shariat Act, 1937: The first law that was passed was the Shariat Act, 1937. In Islam, the entire body of law that governs their day to day personal laws, marriage, divorce, etc. are collectively called the Sharia.

Thus, based on Sharia and with the object to make it a complete body of Muslim laws, the Act was titled as the Shariat Act. It contained only six provisions dealing mainly with:

a) Law relating to the succession of a Muslim person dying intestate. i.e. without a will or a testament.

b) Law relating to vesting of properties and gifts on females of the Sect.

c) Law relating to marriage, divorce, grounds of divorce, Mehr, guardianship and maintenance.

d) Law relating to wakfs i.e. any trust created for the Muslim religion.

2) The Dissolution of Muslim Marriages Act, 1939: The issue of divorce has been a major drawback in the Muslim personal law because the Holy Quran gives the right to divorce a woman to her husband but is silent on divorce by a woman. This has led to struggle by a woman in an unhappy marriage and affected by domestic violence and cruelty.

In 1939, an attempt was made to allow the woman to divorce their husbands through the Dissolution of Muslim Marriage Act, 1939. The woman could divorce their husband on three main grounds, viz.

a) Refusal from maintaining the wife, financially and emotionally,

b) Ill-treatment in the matrimonial house and

c) Desertion by the husband.

3) The Muslim Women (Protection of Right on Divorce) Act, 1986: Another issue that came after the divorce was the maintenance of the divorced wife. Since women in India are still fighting for their right to work and equal opportunity in employment, women needed certain financial security for their livelihood and their children’s well-being. Hence, the Muslim Women (Protection of Rights on Divorce) Act, 1986 was enacted that gave them the right to maintenance from their husband.

4) The Guardians and Wards Act, 1890

5) The Mussalman Waqf Validating Act, 1913

6) The Mussalman Waqf Act, 1923

7) Child Marriage Restraint Act, 1929

8) The Muslim Women (Protection of Rights on Marriage) Bill, 2019: The most recent development in legislations has been the Triple Talaq Bill, that prohibited any form of an oral or written declaration of divorce to be illegal unless it is executed with the due procedure of law.

Short Q & A: Muslim Law 4

Q. When did the development of Muslim law come to its full in India?

Ans. During the 1980’s

Q. Which is first landmark judgement in Muslim Law?

Ans. The first landmark judgement that deals with the Muslim personal law was the 1986 judgement in Shah Bano V. Md. Ahmed Khan.

Q. What is the judgement in Shah Bano V. Md. Ahmed Khan?

Ans. In this case, the Apex Court held that Muslim women have a right to maintenance under Section 125 of the Criminal Procedure Code even if the Quran or their personal laws have provided for an alternate remedy.

Q. Name the case of Triple Talaq?

Ans. case of Shayara Bano V. Union of India

Q. Why Triple Talaq was held unconstitutional?

Ans. Apex Court held the system of instantaneous divorce by the utterance of the word ‘Talaq’ thrice orally is unconstitutional because the right to instantaneous divorce is only with the men and not with women. Further, the system is arbitrary and hence, violation of Article 14.

Q. What is Legislation?

Ans. Legislations mean statutes enacted by the Parliament or the State legislature for the regulation of human actions in a particular aspect.

Q. What is Sharia?

Ans. In Islam, the entire body of law that governs their day to day personal laws, marriage, divorce, etc. are collectively called the Sharia.

Q. How many provisions are there in Shariat Act, 1937?

Ans. 6

Q. On which grounds a Muslim woman can divorce her husband as per Dissolution of Muslim Marriage Act?

Ans. a) Refusal from maintaining the wife, financially and emotionally,

b) Ill-treatment in the matrimonial house and

c) Desertion by the husband.

Q. Which act gives a right to maintenance after divorce to aMuslim woman?

Ans. Muslim Women (Protection of Rights on Divorce) Act, 1986

Q. According which bill Triple Talaq is illegal?

Ans. The Muslim Women (Protection of Rights on Marriage) Bill, 2019

Q. Enlist the Acts passed by Indian Parliament for Muslims?

Ans. 1) Shariat Act, 1937; 2) The Dissolution of Muslim Marriages Act, 1939; 3) The Muslim Women (Protection of Right on Divorce) Act, 1986; 4) The Guardians and Wards Act, 1890; 5) The Mussalman Waqf Validating Act, 1913; 6) The Mussalman Waqf Act, 1923; 7) Child Marriage Restraint Act, 1929; 8) The Muslim Women (Protection of Rights on Marriage) Bill, 2019.

Short Q & A: Muslim Law 3

Q. What is Sunna?

Ans. The Sunna are the implied revelation in the precepts and sayings and actions of the prophet, not written down in his lifetime, but preserved by traditions and handed down by authorised agents. The word Sunnabasically means ‘path’.

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Q. When Sunna is followed?

Ans. whenever there is a situation where the Holy Quran is silent and the people are unable to make a decision, Sunna i.e. the actions of the prophet are followed.

Q. What is Hadith or Hadis?

Ans. Hadis or Hadith are implied revelations in the precepts and sayings and actions of the prophet, not written down in his lifetime, but preserved by traditions and handed down by authoriesd agents.

Q. How many Hadis are recorded by Bukhari?

Ans. Near about 7000.

Q. What is Ijma?

Ans. Ijma the agreement of the jurists among the followers of the prophet in a particular age on particular question.

Q. What is Qiya?

Ans. Qiya basically means an analogical deduction from the existing sources which do not explain something.

Q. What is a custom?

Ans. A custom is a tradition passing on from generation to another, which originally governed human conduct and obtained the force of law in a particular locality. Customs are basically practices that people follow continuously for a long period of time. In fact, people follow them for so long that they obtain the status of law in some cases. It is a natural source oflaw.

Q. In which Muslim matters the customs are still applicable?

Ans. Customs are still applicable in the matters of religious and charitable endowments.

Judicial Precedents:

Interpretation of Muslim law by the judges of the Indian High Courts and Supreme Court continue in modern times to supplement and modify the Islamic law. These include the decisions of the Privy Council, the Supreme Court, High Courts in India. These decisions are regarded as precedents for future cases.

It is said that the law protects only the vigilant. This is very much applicable in the case of Muslims in India. The development of Muslim law by the judiciary came to its full development during the period of 1980’s because till then, the Muslim men and women were ignorant about their rights.

The first landmark judgement that deals with the Muslim personal law was the 1986 judgement in Shah Bano V. Md. Ahmed Khan. In this case, the Apex Court held that Muslim women have a right to maintenance under Section 125 of the Criminal Procedure Code even if the Quran or their personallaws have provided for an alternate remedy. The same ration was upheld by the Apex Court in Daniel Latifi v. Union of India.

Recently, in the leading case of Shayara Bano V. Union of India, the Apex Court held the system of instantaneous divorce by the utterance of the word ‘Talaq’ thrice orally is unconstitutional because the right to instantaneous divorce is only with the men and not with women. Further, the system is arbitrary and hence, violation of Article 14.

Therefore, the judiciary has assisted in the development of Muslim personal law.

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