Muslim Law
Dr. Farid Khan
Assoc. Prof. Dept. of Law
S.V. College Aligarh
Affiliated to Dr. B.R. Ambedkar University Agra
Muslim Law in India is known by
many names-
-Muslim Law
-Mohammadan Law
-Family Law
-Personal Law
-Islamic Law
-Sharia Law
-Quranic Law
-It is known as Muslim law because it is applied to
Muslims.
-Some
authors has written as Mohammadan Law which is not proper because Prophet Mohammad(PBUH)
has never said that it is my religion he always narrated as the religion of
Allah.
It
is also known as family law because most of the matters cover under it belongs
to family such as marriage, dower, divorce, inheritance, women`s estate,
maintenance, guardianship, legitimacy, wakf and gift etc.
It
is also called Personal Law because most of the matters are of personal nature.
Some
Jurists have also called it as Islamic Law because above mentioned topics
belong to Islam and govern by Islamic, Sharia and Quranic Law such as
recitation of Quranic verses at the time of Nikah. Dower wakf etc. are Islamic
concepts.
Who
is a Muslim?
A
person who believe in one Allah and Mohammad(PBUH) as a prophet of Allah is a
Muslim.
la illaha illal la Mohammad-ur
rasool allah
Muslim
+ Iman= Musalman /Musallam Iman
A
Muslim professing Islam means believing in oneness of God and Prophet Mohammad(PBUH),
has also to follow certain other norms as a part of Iman such as;
1. Tauheed- Being Muslim it is necessary to believe in
one and only Allah and Mohammad(PBUH) as
Prophet and none else, if he add any one else in it, he is not a Muslim but
becomes kafir.
2. Namaz- It is a prime duty of every Muslim to pray 5
times namaz every day at 5 prescribed times and have fast in the month of
Ramadan.
3. Roza- It means to have fast. For a sick person and a
person below the age of 10 years, it is exempted. A Women is also exempted
during tuhr. While travelling one is also exempted but these exemptions are
temporary means they have to be completed later on. For example a sick person
when becomes healthy, a traveler reaches his destination or women after a
period of tuhr has to complete his/her namaz/roza as the case may be.
4. Zakaat- Alms- Donation to the poor. It is a duty of
every Muslim (major and earning) that 2.5% of his savings to the poor or the
needy people.
5. Haj- A Muslim who has fulfilled his responsibilities
or has enough amount to get his formalities done. If he is in debt he must get
rid of debt first. But business debt is not included in it.
There
are five other injunctions/commandments to be followed by every Muslim.
1.
Farz- It is a prime duty to be performed
by every Muslim such as namaz, roza, taking care of parents,
nurturing of kids and mercy to the poor and needy.
2.
Haram- Means strictly
prohibited, all those activities which are declared prohibited or haram comes under this category. Such as
taking liquor or eating pork.
3.
Mandoob- It means specific orders
for specific occasions. For example praying Eid and Bakra Eid namaz etc.
4.
Makrooh- It is a kind of
prohibition in ought form. For example eating some specific fish is makrooh-
one should not eat.
5.
Jaiz- It means permitted-
photos for education, license, for passport is permitted but the photo of a dead person for mala or to make
statue is not permitted.
Origin
of Muslim
1.
By birth- Every person whose parents are Muslim is considered
as Muslim unless after attaining majority they embrace any other
religion or denounce Islam. If a person whose
mother is Muslim and is brought up as a Muslim is also considered as a Muslim.
2.
By conversion- Any person having any faith/religion can embrace
Islam after attaining majority but there would be no ill-will in
embracing the religion such as for
bigamy.
Skinner
vs
Orde
1871 14 MIA 309
He embrace Islam for having more wives at a time was
held mala fide.
Sarla Mudgal
vs
Union of India
(1995), 3 SCC 635
After
embracing Islam second marriage without divorcing first held illegal and
conversion mala fide.
Islam
The word Islam has derived from the
word salama means to keep calm, to have patience, to be dutiful, to pay his
debts and submission to Allah.
The word Islam means
·
Peace
·
Greeting
·
Security
·
Salvation
Why
Muslim law is taught?
Muslim
law is taught in India and applies its principles on Muslims because Muslim
constitutes the second largest population in India and-
1.
India being a secular country, having no religion of its own therefore, in
personal matters like marriage, dower, divorce and inheritance personal laws
are applied.
2.
Constitutional guarantee- There is a constitutional guarantee in the form of
fundamental rights under article 25-28 right to freedom of religion practice,
profess and prorogate their own religion. The preamble of the constitution also
stipulates the same by declaring the secular country.
3. Statutory provisions- The
Application of Sharia Act, 1937 and
The
Regulating Act, 1972.
Empower Muslim to be governed by their personal Laws
in personal and family matters.
Note: In a personal and family matters if the
parties are of different religion the personal law of defendant is
applied.
Muslim
law not applied to Muslims
·
Marriage- If a
person got married or get his/her marriage registered u/s 4 or 15 respectively
under The Special Marriage Act, 1954.
·
The Child
Marriage Restraint Act, 1929 would apply in case of a marriage performed
between minors.
·
Legality of
Children- If there is a question of legality of children before the court Sec.
112 of Indian Evidence, Act would apply.
·
Maintenance- The
court in family matters relating to maintenance applies Sec. 125 Cr.P.C.
Muslim
law applied to Non-Muslims-
·
Law of defendant
in a family/personal matter where the parties are of different religion the
suit would be decided according to defendant’s religion.
·
Pre-emption
though is a weak law with many restrictions is applied to Non-Muslims.
·
The Dissolution
of Muslim Marriage Act, 1939- A person being Muslim denounces Islam and
converted to any religion ceases to be a Muslim but he gets his divorce u/s 4
of the Act as Muslim.
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