INTRODUCTION
The development of Mahomedan jurisprudence in India is a rich and complex narrative that reflects the confluence of Islamic principles with the local sociocultural landscape. Originating with the advent of Islam in the 7th century, Mahomedan law, derived primarily from the Quran and Hadith, began to shape the legal framework for Muslim communities across the subcontinent. Initially, the legal practices followed by Indian Muslims were influenced by various schools of thought, particularly the Hanafi and Shafi schools for Sunnis and the Ithna Ashari and Ismaili traditions for Shias. As Islam spread, local customs and practices began to integrate with these religious doctrines, leading to a unique hybrid of law that catered to the needs of diverse communities.
The establishment of various Muslim dynasties in India, such as the Delhi Sultanate and the Mughal Empire, further entrenched Islamic law within the political and judicial systems. During this period, scholars contributed significantly to the codification and interpretation of Islamic law, creating a rich jurisprudential tradition that addressed contemporary legal issues while remaining rooted in religious texts. With the advent of British colonial rule in the 18th and 19th centuries, Mohammedan law underwent significant changes. The British recognized the importance of personal laws and allowed Muslims to retain their legal practices, leading to a formalization of Muslim family law through various legislations. The passage of acts like the Muslim Personal Law (Shariat) Application Act of 1937 aimed to align customary practices with Quranic principles, further shaping the legal landscape for Muslims in India.
Today, Mahomedan jurisprudence continues to evolve, grappling with modern challenges while remaining anchored in its foundational texts. This dynamic legal framework not only addresses personal and family matters for Indian Muslims but also reflects broader societal shifts, ensuring its relevance in contemporary India.
PRE-ISLAMIC PERIOD
Before the advent of Islam, the Arabs lived as nomadic tribes and tribal customs were observed. According to these customs, idol worship was practiced. The religion was primitive paganism. There was no restriction on the number of females a male could marry. Disputes were settled by the tribal chiefs and there was no established system of law.
‘Islam’ means peace or submission to God’s will. The spiritual movement culminating in the foundation of Islam (known after the Prophet as Mahomedanism) is the inspired work of Mohammed the Prophet. The Prophet was born in Mecca, around 570 A.D. In his fortieth year (610 A.D.), he became inspired and received the first message from God. He began preaching against paganism and idol worship. He was joined in this by his father-in-law Abu Bakar and his son-in-law Ali, and other disciples. The orthodox people of Mecca opposed the Prophet, who had to flee from Mecca to Medina in 622 A.D. This flight is the starting point of the Mahomedan era. The Prophet rallied his forces and defeated the Meccans in the battle of Badr. After this victory, the Prophet’s supremacy was acknowledged both temporarily and spiritually at Mecca as well as Madina and in Arabia generally. Until his death, Prophet Mohammed consolidated Islam and his followers under the faith of Islam to be considered as Muslims.
During the last ten years of his life, some utterances of Mohammed were presented as revelations of God, relating to legal matters surrounding the laws of inheritance, marriage, and divorce, which was broadly crystalized in the Quran, the Holy Book of Islam. Hazaral bin Sabit was the scribe who took down the revelations as and when dictated. Disputed points were settled, which gave rise to Sunna or Tradition, in the form of Ahadis (practices or precedents).
A.H. 10 TO A.H. 40
During the 10th year of the Hegira to the 40th year, a period spanning three decades was a significant epoch in the development of Muslim jurisprudence. The death of the Prophet witnessed a schism in the Muslim Brotherhood. The Prophet left no sons, only daughters. At the time of the Prophet’s death, there were those who supported the claims of his son-in-law Ali for succession to the Caliphate. They did not favor the ideas of election. There was also Abbas, a consanguine paternal uncle who was one degree nearer to the Prophet. But the supporters of Ali introduced an exemption to the rule of inheritance and regarded the consanguine paternal uncle as lower in rank to the full paternal uncle’s son (Ali) for purposes of inheritance. The supporters of Ali came to be called Shias and the supporters of the principle of election came to be called Sunnis. The Shias were prepared to treat the claims of the daughter’s son as next only to that of the children. Under the Sunni scheme of inheritance, the daughter’s son is classed as distant kindred who can take only after sharers and residuaries. The preferential treatment of the Daughter’s son under the Shia system is also traceable to the Shia preference for the claims of the family of Ali.
A.H. 40 TO 3RD CENTURY OF THE HEGIRA
It was during this period that the various schools of law with doctrinal differences arose. The Shia School was founded by Jafar-as-Sadiq. Abu Hanifa founded the Hanafi School of Sunni law (also known as the Kufa School). When the Umayyad Dynasty fell, it was succeeded by the Abbasids. The Abbasids, who traced their lineage to Abbas, uncle of the Hanafi School of Law, and so its doctrines predominated in the Mahomedan Empire. The Abbasids ruled from Baghdad, founded by their second caliph.
It was during this period that the Muslim jurisprudence attained maturity and rose to the height of its glory. Law was developed by (ijmaa) consensus in the Hanafi School. The Shias accepted the consensus to be binding only if it was the consensus of the family of the Prophet. The jurists of the Maliki School extended it to the consensus of ancient scholars. The Hanafi’s were more liberal for they accepted the consensus of jurists of any age. Opinions, however, could be expressed only by Mujtahids, i.e., scholars of the highest legal learning who can originate legal principles by ‘ijtihad,’ i.e., by individual effort or application of one’s own reasoning powers.
SUBSEQUENT DEVELOPMENTS
The Abbasid Caliphate lasted for five years until it was overthrown by the Mongols, who destroyed Baghdad in 1258 A.D. The Caliphate was re-established in 1261 A.D. at Cairo in Egypt without temporal power but with spiritual authority to invest rulers with temporal authority. The Shias consider the Caliph as the Supreme Law-Giver. According to the Sunnis, it is subject to the law and is only the administrator. Since the Quran itself is the word of God, it cannot, of course, be altered.
MODERN LEGISLATIONS
Some examples of modern legislation in modern times are as follows:
- Muslim Wakf Validating Act, 1913
This Act was passed to supersede the decision of the Privy Council. In the case of the Managing Committee of Ekra Mosque v. State of Bihar,[i] the Court held that the Wakf Act was special legislation and, as such, ousts the applicability of general law like the Associates Legislation Act, 1860. In this case, the Court further held that with reference to the legislation of Wakf, there is no provision under the Act vesting the power to hear the appeal in the State Government or any minister against an order passed under Section 25. Under Section 43 (4-A), an appeal against the removal of the mutawalli could be held and not against the order of registration of the Wakf.
- Shariat Application Act, 1937
Provides for the laws regarding specified topics such as inheritance, special property of females, marriage, dissolution of marriage, maintenance, dower, guardianship, gifts, trusts, and Wakfs.
- Dissolution of Muslim Marriage Act, 1939
A woman married under the Muslim law acquired under this Act the right of divorce on certain grounds specified.
CONCLUSION
The development of Mahomedan jurisprudence in India is a testament to the adaptability and resilience of Islamic law within a diverse cultural context. From its origins in the 7th century, shaped by the Quran and the teachings of the Prophet, to its evolution through the complexities of historical dynasties and colonial rule, Mohammedan law has continually integrated local customs while remaining rooted in religious principles. The emergence of various schools of thought, along with significant legislative acts such as the Shariat Application Act of 1937 and the Dissolution of Muslim Marriage Act of 1939, underscores the dynamic nature of this legal framework. Today, Mahomedan jurisprudence not only governs personal and family matters for Muslims in India but also reflects broader societal changes, ensuring its ongoing relevance and adaptability in a modern context. This intricate legal tradition serves as both a guiding principle for the community and a reflection of the historical interplay between faith and law in India.
[i]Managing Committee of Ekra Mosque v. State of Bihar, AIR 2004 Jhar. 3.
