Muslim law or Islamic law is known to be originated from the divine and not like other laws that are passed by the modern system of laws because Muslims believe that there is only one God, Allah. The traditional Islamic law is well known as Sharia. In the case of Narantakath v.Prakkal(1922) ILR 45 Mad 986, it was observed that there are two basic beliefs of Muslims, first, the existence of God, and second was the belief in the truth of Mohammed’s mission.
WHAT ARE THE SOURCES OF MUSLIM LAW?
The primary sources of Muslim Law are the Quran, the Sunna, the Ijma, and the Qiyas. And judicial decisions, customs, and legislation are secondary sources.
HOLY QURAN
The holy Quran is the holy book of Islam and it is believed that it contains the direct words of God. It is like a Constitution for the Muslims and it contains all the principles used in the personal laws including marriage, divorce, succession, etc. The book is divided into chapters.
SUNNAH
The word basically means ‘path’ as the Muslims are divided into two sects; the first is Shia Muslims and the other is Sunni Muslims. So, basically, Sunna is followed by the Shia Muslims in their day-to-day lives to get the answers to the questions that they face.
IJMA
Ijma is a concept of law made by the consensus of all Islamic jurists or other persons of knowledge and skill. In simple words, when the Quran and other traditional sources were not able to provide any rule of law for a particular problem, the jurists unanimously gave their decision and this was referred to as Ijma. There are two types of Ijma.
1- Ijma al-ummah(community consensus).
2- Ijma al-aimmah(religious authorities consensus).
QIYAS
Qiyas means analogical reasoning. The term in the literal sense is known for measuring or ascertaining the length, quality, and weight of something. There are no clear authorities of Qiyas in the Quran.
SECONDARY SOURCES
1- JUDICIAL DECISIONS: – Judicial pronouncements have played a prominent role in the development of Muslim Law. The case titled as Shah Bano Begum vs. Md. Ahmed Khan was the first landmark judgement governing the Muslim Personal Laws, wherein the apex court held that Muslim women have a right to maintenance under Section 125 of the Cr.P.C. even if the Quran or their personal laws have provided for an alternate remedy.
2- CUSTOMS: – The term custom connotes the practices that are being followed by some sect of society for a long period of time. There is an end of number of customs that are being followed by the Muslim people, thus, some of them become a source of Muslim Law.
3- LEGISLATION: – There are numerous legations enacted by the Parliament relating to Muslim Law. The Shariat Act, 1937 was the first piece of legislation dealing with marriage, divorce, and succession etc. The Dissolution of Muslim Marriage Act, 1939 is another important legislation, which gives the right to a Muslim Woman to get a divorce on various grounds postulated under the Act. Recently, the Govt. has passed the Muslim Women (Protection of Rights on Marriage) Act, 2019 commonly known as the Triple Talaq Act, which declares the practice of triple talaq as void and makes it an offence as well.
MUSLIM NIKAH
In Islam, marriage is a legal contract between a man and a woman. Both the groom and the bride give consent to the marriage of their own wills. In Islam, Mahr is the obligation in the form of money or possessions paid by the groom, to the bride at the time of Islamic marriage.
GENERAL ESSENTIALS OF MUSLIM NIKAH:-
1 – Parties must have the capacity to marry.
2- Proposal and acceptance.
3- Free consent of both parties.
4- A consideration.
5- No legal impediment.
6- Sufficient witnesses.
MAHR
Mahr is also known as Dower, and it is classified into two categories:-
1 – Specified Dower (Mahr-i-Musamma): As per this category, the amount of dower is specified in the marriage contract. It is further divided into two sub-categories i.e. Prompt Dower and Deferred Dower. Prompt dower is paid immediately after the performance of a marriage. On the flip side, the deferred dower becomes payable on dissolution of marriage.
2- Proper Dower (Mahr-i-Misl): Under this category, the amount of dower is not specified in the marriage contract. Its amount is decided according to the amount of dower paid to the female members of the father’s family.
WHAT SHOULD BE THE AMOUNT OF MAHR?
Mahr should be in accordance with the financial position of the husband.
WHAT IF ONE CANNOT AFFORD MAHR?
Even if a husband cannot afford the amount in Mahr or does not have even a small material thing to gift, in that case also, Mahr can be given in some other form.
CLASSIFICATION OF MARRIAGE:-
1- Valid marriage (Sahih Nikah).
2- Void marriage (Batil Nikah).
3- Irregular marriage (Fasid Nikah).
4- Muta marriage.
VALID MARRIAGE (SAHIH NIKAH)
When all the legal requirements are fulfilled and there are no prohibitions affecting the parties, then the marriage is correct. The prohibitions can be permanent and temporary, in case of permanent the marriage will be void and in case, it is temporary then the marriage is irregular.
VOID MARRIAGE (BATIL NIKAH)
The marriage being void creates no rights or obligations, and the children born out of such marriage are illegitimate. A marriage with the wife of another or a divorced wife during the iddat period is also void.
IRREGULAR MARRIAGE (FASIL NIKAH)
Due to lack of some formality, a marriage becomes irregular; however, this irregularity is not permanent in nature and can be removed.
MUTA MARRIAGE
Muta marriage is a temporary agreement for a limited time period, upon which both the parties agreed. There is no minimum or maximum time limit; it can be for a day, a month, or years. This type of marriage is seen as prostitution by the Sunni Muslims and therefore it is not approved by Sunnis. But it is considered legitimate by the Shia sect. However, India constitutes 90 percent of the Shia population.
A Muslim girl who is less than 18 years old but has attained puberty is free to marry anyone as per the Muslim Personal Law.
NIKAH-NAMA IS A LEGAL DOCUMENT THAT CONTAINS:
1- Full name of the parties
2- Place of marriage.
3- Age.
4- Address details of the parties.
5- Full name of the parents of the parties.
6- Civil condition of the bridegroom at the time of marriage whether- Unmarried, divorced, married, and if so, how many wives are alive.
7- Signature or thumb impression of the parties/ guardians/ witnesses/ officiating priest.
8- Amount of dower fixed.
9- Manner of payment of dower.
10- Name of witnesses along with parentage and residential address.
-Urvashi Singh
Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali
