DEPARTMENT OF LAW - DR FARID KHAN

 

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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