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The Qur'an is the principal source of Islamic law, the Sharia. It contains the rules by which the Muslim world is governed (or should govern itself) and forms the basis for relations between man and God, between individuals, whether Muslim or non-Muslim, as well as between man and things which are part of creation. The Sharia contains the rules by which a Muslim society is organized and governed, and it provides the means to resolve conflicts among individuals and between the individual and the state.
There is no dispute among Muslims that the Qur'an is the basis of the Sharia and that its specific provisions are to be scrupulously observed. The Hadith and Sunna are complementary sources to the Qur'an and consist of the sayings of the Prophet and accounts of his deeds. The Sunna helps to explain the Qur'an, but it may not be interpreted or applied in any way which is inconsistent with the Qur'an.
Copy-boards held safely out of view on their heads, students in Djenné, Mali recite a Qur'an passage from memory. (Aramco World Magazine, September-October, 1991; photo Brynn Bruijn).
Though there are other sources of law—i.e., ijma', (consensus), qiyas, (analogy), ijtihad, (progressive reasoning by analogy)—the Qur'an is the first and foremost source, followed by the Hadith and Sunna. Other sources of law and rules of interpretation of the Qur'an and the Hadith and Sunna follow in accordance with a generally accepted jurisprudential scheme.
And nor shall we be punishing until we had sent them an Apostle.
Qur'an 17:15
The Qur'an contains a variety of law-making provisions and legal proscriptions interspersed throughout its chapters (suwar) and verses (ayat). A number of rules exist for interpreting these provisions, such as the position of a given ayah within the context of the surah, which in turn is interpreted in accordance with its place in the sequence of revelations, its reference to other revelations, and its historical context in relation to particular conditions which existed at the time of the given revelation. These and other rules are known as the science of interpretation (ilm usul aI-fiqh). According to these rules, for example, one initially is to refer to a specific provision and then to a general provision dealing with a particular situation. No general provision can be interpreted to contradict a specific provision, and a specific rule will supersede a general proposition. A general provision, however, is always interpreted in the broadest manner, while a specific provision is interpreted in the narrowest manner. Reasoning by analogy is permitted, as are applications by analogy, except where expressly prohibited. Simplicity and clear language are always preferred. Similarly, the clear spirit of certain prescriptions cannot be altered by inconsistent interpretations. A policy-oriented interpretation within the confines of the rules of jurisprudence is permissible and even recommended, as is the case with the doctrine of ijtihad (progressive reasoning by analogy).
"Avoid condemning the Muslim to Hudud whenever you can, and when you can find a way out for the Muslim then release him for it. If the Imam errs it is better that he errs in favor of innocence (pardon) than in favor of guilt (punishment)."
The Prophet's Hadith
"Were people to be given in accordance with their claim, men would claim the fortunes and lives of (other) people, but the onus of proof is on the claimant and the taking of an oath is incumbent upon him who denies."
The Prophet's Hadith
Muslim scholars do not consider Islam to be an evolving religion, but rather a religion and legal system which applies to all times. It is, therefore, the application that is susceptible to evolution. Indeed, the provisions of the Qur'an are such that by their disciplined interpretation, with the aid of the Hadith and Sunna and other sources of interpretation, Islam can, as intended, provide the solution to contemporary social problems.
Fourteen centuries ago Islam was a spiritual, social, and legal revolution. Its potential for effecting progress remains unchanged. This is essentially the belief of enlightened fundamentalist Muslims. Islamic fundamentalism is not, therefore, a regressive view of history and contemporary reality. Islam at the height of its civilization, between the seventh and eleventh centuries, was neither repressive nor regressive. It was a progressive, humanistic, and legalistic force for reform and justice.
Lo! Allah commandeth you that ye restore deposits to their owners, and , if ye judge between mankind, that ye judge justly. Lo! comely is this which Allah admonisheth you. Lo! Allah is ever Hearer, Seer.
Qur'an 4:58
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Lawjure > Blog > Legal > INTRODUCTION TO MUSLIM LAW
In India, every religious community in personal business is governed by its own laws. Even as the Hindus, the Christians, the Parsis and therefore the Jews are governed by their own personal laws, so are the Muslims. The Hindus and therefore the Muslims have, all along, claimed that their laws are of divine origin. However, in Hindu law it’s been a longtime proposition that a legitimate custom overrides the sacred law. Custom has never been a crucial aspect of Muslim law, although, at just one occasion , the council held in the view that a legitimate custom overrode Muslim law. During the long period of Hindu rule, Hindu law was all pervasive. All aspects of the lifetime of a private law were regulated by it. When the Muslims ruled the country, most areas of Hindu law, except the Hindu personal law, were superseded.
The same happened when the Britishers came to rule this country. Every religious community was allowed to retain its personal law in personal business . That continues to be the position in modern India. In India, whenever personal business precede a court of law, the primary question that arises is: Which law applies to the parties to litigation? If the parties are Hindus, Hindu law will apply; then on.
Since here we are concerned with the question of application of Muslim law, we might answer that question under Muslim law. In modern India, Muslim law means portion of shariah which governs the Indian Muslims in their personal business . Since Muslim law applies to the Muslims alone, we’ve to define who may be a Muslim. In modern Hindu law, the term “Hindu” has not been defined strictly in terms of faith , whereas the term “Muslim” in Muslim law has always been defined in terms of faith , albeit the orthodoxy or heterodoxy of belief is not any concern of the court.
For Prevailing Muslim Law, The Muslims fall under the following two categories:
Muslims by conversion could also be further divided into the subsequent categories:
b. Muslims who undergo formal conversion.
No person can be a Muslim who does not subscribe to the basic tenet of the Islam. A person, who subscribes the basic tenets of Islam, is a Muslim. The basic tenets of Islam are the following two:
a) The principle of the unity of God, i.e., God is one i.e. Allah.
b) Muhammad is the Prophet of God. Prophet Mohammed is the messenger of God.
According to Islamic theology, other essential beliefs of a Muslim are : the holy book, the Quran, is the only revealed book of Allah, Hazrat Muhammad was the last rasul (prophet), and there is a day of judgment (Keyamat) followed by life after death (Akhirat).
A person, who subscribes to the basic tenets of Islam, will be a Muslim by origin if it is not established that he is a convert to Islam. If a person is born of Muslim parents, he will be a Muslim; and it is not necessary to establish that he observes any Islamic rites or ceremonies, such as performance of five prayers, observance of the Ramazan fast.
It is not at all necessary to establish that he is an orthodox believer in Islam. Such a person will continue to be a Muslim till he renounces Islam.
Mere observance of some of rituals of Hinduism, or for that matter, of any other religion, will not by itself make that person a non-Muslim. Conversely, a person will not become a Muslim just because he calls himself a Muslim, or is considered by others a Muslim.
In Muslim law, a child born to Muslim parents is presumed to be a Muslim. The Shariat lays down that if one of the parents is a Muslim, even then the child will be a Muslim. The ordinary rule in India is that the child takes to the religion of his father, unless the contrary is proved. This rule is now subject to the rule of modern Hindu law, viz., if one of the parents is a Hindu and the child is brought up as a Hindu, then the child will be a Hindu.
To this category of Muslims, Muslim personal law applies in its totality and no rule of Muslim law can be modified by custom
A non-Muslim may become a Muslim by professing Islam, i.e., by acknowledging that there’s just one God and Muhammad is his prophet, or by undergoing the ceremonies of conversion to Islam.
A convert of Islam is ordinarily governed by Muslim law. Till 1937, it had been possible for a convert to be continued to be governed by his personal law, including customary law. After the approaching into force of the Shariat Act, 1937 [1] , the generality of that statement stands modified, though, it’s submitted the appliance of custom to the Muslims has not been totally abrogated.
A non-Muslim may become a Muslim by professing Islam.
“Profession with or without conversion is important and sufficient to get rid of the incapacity of getting another religion”. Thus, observed Lord McNaughton in Abdul Razak v. Aga Mahommed Jaffer Bindanim [2] during this case, a wealthy Muslim, Abdul by name, had died, apparently, with none heir.
But, one Abdul Razak made a claim to his estate on the plea that he was the son of the pre-deceased brother of Abdul. The brother of Abdul had married a Burmese woman, Mah Thai, a Buddhist by religion, but it had been not established that she had been converted to Islam either before, or after, the wedding.
It was established that she was to recite the Muslim prayers. The court came to the conclusion that, since the wedding of Abdul’s brother with the Buddhist woman was void under Muslim law, Abdul Razak, though a Muslim couldn’t succeed to Abdul’s estate, being a bastard.
The converse situation arose in Reshma Bibi v. Khuda Baksha [3] , where a Muslim wife, with a view to ending an unhappy marriage, renounced Islam, and prayed to the court that Muslim law of apostasy should be applied to her, and her marriage should be deemed to possess been automatically dissolved from the date of her apostasy.
Curiously enough, the District Judge Ordered a plate of pork to be brought within the court room, and therefore the wife was asked to eat it. On her refusal, the court concluded that her apostasy was insincere.
Accepting the appeal, the appeals court observed: “One may relinquish a faith which is a simple thing try to do , but one might not acquire liking for those things which one has been taught to detest throughout one’s life”. The court accepted the wife’s statement that she not believed in Allah, in Muhammed as her Prophet and within the Quran, and thus ceased to profess Islam.
The court then said: “a person’s religion isn’t a tangible thing which may be seen or touched. it’s the mental condition of one’s believing in certain articles of religion that constitutes one’s religion and if one ceases to believe them, which again may be a mere mental condition, one automatically ceases to profess that religion”.
In this case, Din Mohammad J . remarked that the motive of the declarer was also immaterial; an individual might renounce his faith for love or avarice; one might do so to urge obviate his present commitments or truly to hunt salvation elsewhere, but that might not affect the factum of change of religion . And, in matters like these, it had been the factum alone that matters and not the latent spring of action which resulted there from.
Whether mere profession of Islam is sufficient to form a non-Muslim a Muslim isn’t entirely free from doubt. it’s true, as Lord McNaughton had stated, no court of law can test or gauge the sincerity of spiritual belief.
In all cases where, consistent with Muslim law, unbelief, or difference of creed, may be a bar to marriage with a real believer, it’s enough if the alien in religion embraces Islam. it’s submitted that a non-Muslim will become a Muslim by professing Islam, as long as it’s not Colorable or mala fide or made with a view to perpetrating fraud upon law.
b. Muslims who undergo Formal Conversion:
It appears to be a well-established proposition of law that a non-Muslim, on undergoing the ceremonies of conversion prescribed under Islam, becomes a Muslim.
In Islam, the ceremonies of conversion are very simple. an individual seeking conversion to Islam may attend a Muslim mosque. On the Imam asking him, “Are you voluntarily embracing Islam”, if he answers affirmatively, he’s given the Kalma to recite. On the completion of the recitation of the Kalma, the conversion ceremony is over, and therefore the non-Muslim becomes a Muslim.
The Imam then confers a Muslim name on the convert. In most of the mosques, a register is kept during which the name of the person embracing Islam is entered and therefore the convert puts his signature thereto.
Conversion of a Muslim from one sect to a different doesn’t amount to apostasy, and an individual changing from- one sect to a different continues to be a Muslim.
The genuineness of belief within the new faith is immaterial, and even when a convert doesn’t practice the new faith, he will still be a Muslim. But it’s necessary that the conversion should be real , honest, and will not be colorable, pretended or dishonest.
In the leading case, Skinner v. Orde [4] , a Christian woman was cohabiting with a married Christian man. With a view to legalizing their cohabitation as husband and wife, both of them underwent a ceremony of conversion to Islam. After conversion, they married.
Later on, when the question of validity of this marriage arose, the council held that the wedding was null and void on the bottom that conversion wasn’t real . Moreover, it had been a fraud upon the law, since the parties underwent the ceremony of conversion with a view to eluding their personal law.
The question of Colorable, fraudulent and dishonest conversion has come up before the Indian High Courts during a number of cases, where a non-Muslim has embraced Islam, either to say divorce on the bottom of apostasy, or to enter into a polygamous marriage.
Thus, within the matter of Ram Kumari v. Unknown [5] , a Hindu wife adopted Islam, and assuming that this meant automatic dissolution of her marriage, took a second husband. She was prosecuted and convicted for bigamy.
In Rakeya Bibi v. Anil Kumar Mukherjee [6] , this aspect of the matter has been ve
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