INTRODUCTION

The Indian Muslims are governed by the uncodified Muslim law of inheritance, enjoined in the Holy Quran, the teachings of the prophet, legislative enactments, and judicial decisions. The Sunni Muslims follow either the Hanafi or the Shafi law, while the Shias adhere to the Ithna Ashari or the Ismaili’i law.i]

Some centuries ago, the Hindu inhabitants of North Malabar were converted en masse to Islam but continued to follow the Marumakkathayam law, especially in matters relating to property among family members. The law administered by the courts to these communities was subject to a body of customs and usages that received judicial recognition. Since the enactment of the Madras Marumakkathayam Act (Act 22 of 1933), if a member of the Mappilla Marumakkathayam family married a person not governed by the Marumakkathayam law, the property of the person governed by the Marumakkathayam law devolved accordingly to that system of law, whereas the property of a person governed by the Islamic law devolved according to the Islamic law of succession. The result was that whereas the interests of a Mappilla governed by the Marumakkathayam law devolved by survivorship, his separate property descended by inheritance in accordance with the Islamic law. [ii]

The Muslim Personal Law (Shariat) Application Act, 1937, expressly directs courts in India to apply the Muslim law of inheritance to all Indian Muslims. This statute had the effect of abrogating all customs relating to personal law and inheritance, which were at variance with the Quranic law.[iii]

ORIGIN AND DEVELOPMENT OF MUSLIM LAW

Ancient or Pre-Islamic Arabia and its Customs

Arabs were descendants of Ibraheem and Qahtan. His pedigree is given as Ibraheem bin Tarah bin Nahoor bin Saroogh bin Rawoo bin Falakh bin Aibar Bin Shalakh bin Arphakhshaz bin Sam bin Nooh. Because of this, Arabs call themselves the original Semites. Geographically, the main land of Arabs consists of Hejaz, Nejd, Asir, and Yemen. Arabs were [iv] in general very proud of their pedigree (Nasb-Nama) and they used to remember them by heart.

Arabia was basically a tribal society governed by tribal leaders and sometimes by tribal councils. From a very distant past, there was one Darul Nadwa (council house to hold meetings) in Mecca, where council meetings took place and decisions were taken.

Arabs lived as nomadic tribes. The Arab roams about in the desert sans in search of water or pasturage, and doing so, the spirit of independence and freedom is born in him. Courage and bravery are qualities greatly admired by everyone. The three Arabian virtues are hospitality, fortitude, and manliness.

According to Islamic law, law is considered to be of divine origin. Hence, law is intimately connected with religion. There is in Islam a doctrine of certitude (ilm-al-yaqin) that is related to good and evil. The terms ‘Muhammadan Law’ and ‘Mohammadan Law’ are synonyms to Islamic law and mean ‘that portion of the Islamic Civil Law which is applied in India to Muslims as a personal

The origin of Mohammadan Law is ‘Al-Quran’ or ‘Koran,’ which is considered the word of God. The Prophet himself declared that it was revealed to him by the angel Gabriel in various portions and at different times. Besides including religion and theology, the ‘Quran’ also contains passages that are applicable to law and form the principal basis of the ‘shara.’. The Quran, which is the doctrine of communication and revelation to the Prophet of Islam, may be aptly said to be the first and the great legislative code of Islam. Supplementary to the Quran, we have hadith, which are traditions of the Prophet—the record of his actions and his sayings—from which we must derive help and inspiration in arriving at legal decisions. The entire system of Muslim law has been built upon two foundations—the Quran and the traditions (sunnah and Ahadis) and a supplementary source of urf (local usage).

Nature of Mohammadan Law

1. Shariat (Sharia)

The canon law of Islam is shariah. The literary meaning of it is ‘the road to the watering place, the path to be followed.’. It is the totality of Allah’s commandments. Each one of such commandments is called ‘hukm’ (pl’ahkam). The shariat embraces all human actions. It contains an infallible guide to ethics. It is fundamentally a doctrine of duties.

According to the shariat, religious injunctions are of five kinds:

1. Those strictly enjoined (fard)
2. Those strictly forbidden (haram)

• Those advised to do (mandub)

1. Those advised to restrain (makruh)
2. Those are different (jaiz)

For all effects of individual and collective actions of humans, causes are found in ShaRIAT. All moral, legal, ethical, theological, philosophical, and political problems are dealt with in Shariah, and as such, solutions to any problem are religious in nature. The basic source of Shariat is the Quran, which is supplemented by Sunna.

2. Ijma (Consensus)

Ijma refers to the consensus of Islamic scholars on a particular legal issue. When a consensus is reached on a matter, it becomes a binding source of law. This principle is based on the belief that the collective agreement of the Muslim community is a form of divine guidance, ensuring that the interpretations of Islamic law reflect the collective wisdom of its scholars.[v]

3. Qiyas (Analogy)

Qiyas is the process of analogical reasoning used to derive legal rulings for new situations based on established precedents found in the Qur’an and Sunnah. By drawing parallels between similar cases, scholars can extend existing laws to address new circumstances. This method allows for the application of timeless principles to evolving societal contexts.[vi]

4. Istihsan (Preferential Jurisprudence)

Istihsan allows for a preference to be made for a particular legal ruling over another when the former is deemed to be more just or beneficial. This principle emphasizes the importance of welfare (maslahah) and justice in legal decision-making, enabling scholars to prioritize ethical considerations in their rulings.[vii]

5. Maslahah Mursalah (Public Interest)

Maslahah Mursalah refers to the establishment of laws and regulations that serve the public interest, even if they are not explicitly derived from the Qur’an or Sunnah. This source reflects the dynamic nature of Islamic law, allowing it to adapt to the needs and welfare of society while maintaining adherence to core Islamic principles.[viii]

6. Urf (Custom)

Urf pertains to established customs and practices within a community that can influence legal rulings. When these customs align with Islamic principles, they can be recognized as a source of law, provided they do not contradict the Qur’an or Sunnah. This principle acknowledges the cultural context in which Islamic law is applied.[ix]

7. Sadd al-Dhara’i (Blocking the Means)

Sadd al-Dhara’i involves prohibiting actions that may lead to harm or sin, even if the actions themselves are not explicitly forbidden. This precautionary principle aims to prevent potential misdeeds by closing off avenues that could lead to undesirable outcomes, thereby safeguarding the moral and ethical fabric of society.[x]

CONCLUSION

Muslim family law in India reflects a complex interplay between religious tenets, historical customs, and contemporary legal frameworks. Rooted in the Quran and the teachings of the Prophet, the law has evolved through various sources, including ijma, qiyas, and local customs, to address the diverse needs of Muslim communities. The enactment of the Muslim Personal Law (Shariat) Application Act, 1937, marked a significant shift, reinforcing the application of Quranic principles over traditional customs. This evolution illustrates the dynamic nature of Islamic law, as it strives to balance religious obligations with the realities of modern society. Understanding these legal frameworks is essential for navigating personal and family matters within the context of Islamic jurisprudence, ensuring that the principles of justice and equity are upheld in accordance with both divine guidance and contemporary societal needs.

[i]Mulla’s Principles of Mahomedan Law, (19^th ed. 1990).

[ii] N Venugopala Ravi Varma Rajah v. Union of India, 1969 1 SCC 681.

[iii] Puthiya Purayil Abdurahiman v. Thayath Kancheentavida Avoomma (1956) 1 MLJ 119.

[iv] N Venugopala Ravi Varma Rajah v. Union of India, 1969 1 SCC 681.

[v] Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, 2003.

[vi] Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, 2003.

[vii] Saim Kayadibi, Istihsan—The Doctrine of Juristic Preference in Islamic Law, 2019.

[viii] Adi Nur Rohman, The Existence of Maslahah Mursalah as the Basis of Islamic Law Development in Indonesia, 13(2) Jurnal Krtha Bhayankara, 2019.

[ix] Syed Ameer Hassan & Hafiz Muhammad Khan, A Comparative Study Of Urf As A Source Of Islamic Law

And Custom As A Source Of Western Law, 20(2) Elementary Education Online, 2021.

[x] Ahmad Dahlan Salleh et al., Theory and Application of Sadd al-Dhara’i (Blocking the Means) in Shafi’iyya School, 9(1) International Journal of Academic Research in Business and Social Sciences, 2019.