Origin of Muslim Law

Muslim law or Islamic law is known to be originated from the divine and not like the man-made laws that are passed by the lawmakers and are governed by the principles of modern systems of law. Islam signifies submission to the will of God and means peace, purity, salvation, and obedience. Muslims believe that there is only one god, Allah.

The traditional Islamic law or Islam's legal system is well known as Sharia, it is an Arabic word which in the literal sense is referred to as the way. Sharia is originated from Allah and that is the reason that Muslims consider it as holy. Muslims considered it a word of god' which regulate and evaluate human conduct. The Sharia is also derived from Prophet Mohammed's principles and by some of the Muslim legal scholars who interpreted his teachings. It is said that Islamic jurisprudence is also something that goes back to the lifetime of Mohammed. For Muslims, the Quran' is the only disclosed book of Allah.

In the case of Narantakath v. Prakkal (1922) ILR 45 Mad 986, it was stated that there are two basic beliefs of Muslims, first, the existence and oneness of God, and second was the belief in the truth of Prophet Mohammed's mission.

Sources of Muslim Law
The primary sources of Muslim law are the Quran, the Sunnat (the way of the Prophet), the Ijma (consensus of Islamic scholars), and the Qiyas (reasoning by analogy). Other secondary sources are judicial decisions, customs and legislation.

Primary Sources:

1. Quran

   The word Quran is derived from the Arabic word Qurra which means to read. Every word of Quran is the word of god, communicated to the Prophet Mohammed through angel Gabriel for the benefit of mankind, at different times, places, and situations during the period from 609 to 632 A.D (23 years).
   
   The whole body of the Quran was given to the world in small incomplete parts during the lifetime of the Prophet. The Quran was never compiled or arranged in a proper form. In the starting, it was written down on palm leaves, skin or parchment, so it was available in this form only.
   
   The Quran was structured in Arabic and it consists of 114 chapters, which are known as suras. The suras contain 6666 verses which are called Ayats and the total number of 77, 934 words. Out of these verses, 200 dealt with legal principles such as marriage, maintenance, transfer of property, inheritance, etc. The Quran was disclosed over two periods which are:
   
   1. Meccan
   2. Medinan
   The words of the Quran is divine in nature, it cannot be amended, revised, or modified by any institution or human agency. The sacred book has been translated into a number of languages as well.
   
   Aga Mohammad Jaffer v. Koolsom Beebee and others,
   It was a judgment delivered by the Privy Council on 7th April 1897.
   It was observed that where a passage of the Quran was interpreted in both Hedaya (a work of Sunni Law), and in the Imamia (a work of the Shia Law) it was not open to a judge to construe it in a different manner.
   
   The courts should not compare any traditional settled law with Quran.
    

2. The Sunnat

   Sunnat is also known as Hadis or Sunna, it is the traditions of the Prophet Mohammed. The term Sunnat means a procedure, the trodden path or a way of action. Quran consists of the words of Allah but on the other hand, Sunnat indicates some precedents, acts, language, and the practice of the Prophet. Whatever the actions of the Prophet were or the Prophet said or did was considered as a tradition. According to Islamic law, there are two types of revelations i.e. manifest (Zahir) and internal (Batin).
   
   The Traditions of Sunna comprises of:
   
   1. Sunnat-ul-Fail
   2. Sunnat -ul-Tuqrir
   3. Sunnat-ul-Qaul
   Sometimes, the Prophet gave his opinion or after consulting with some of his companions but most of his verdicts were influenced by divine authority. He was considered as a role model and others were inspired by whatever he did. This was known as Sunnat-ul-fail, which means whatever he did by himself.
   
   There were many instances when in his presence people did some acts which were in accordance with the Quran. The acts of the people which he allowed without openly expressing his consent through words were known as Sunnat -ul-Tuqrir'. All the enjoined words & the precepts of the Prophet were known as Sunnat-ul-Qaul.
    

3. Ijma

   Ijma is a consensus within Muslim jurists on a particular legal issue. In simpler words when Quran and other traditions 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.
   
   Those people who had much knowledge and learning about the law were known as Mujtahids (jurists). The Ijma derives its power and authority from both the Quran and the Sunnat due to which it can never be contradictory to anyone of them.
   
   There are two types of Ijma or consensus:
   
   1. Ijma-al-ummah (community consensus)
   2. Ijma-al-aimmah (religious authorities consensus)
       

4. Qiyas

   Qiyas is the fourth primary source of Islamic law, it means analogical reasoning. The term in the literal sense is known measuring or ascertaining the length, quality, and weight of something. There are no clear authorities of Qiyas in the Quran. However many legal jurists have provided several proofs from the Quran and Sunnat and also from the practices done by the companions as indirect evidence to support the authority of Qiyas.
   
   The Hanafi school of thought very strongly supports Qiyas.[1] As Abu Hanifa quoted - The knowledge of ours is an opinion; it is the best we have been able to achieve. He who can arrive at different conclusions is entitled to his own opinion as we are entitled to our own.

Secondary Sources

1. Judicial Decisions

   Our Indian judiciary at several instances interpreted Muslim law in several cases. All these interpretations is generally relied upon primary sources. Legislation, opinion of jurists and courts have settled many important legal anomalies using judicial interpretations.
    

2. Customs

   Customs are basically practices that people follow continuously for a long period of time. In fact, it is followed for so long that it obtains the status of law in some cases. In Muslim law there are various customs which regulate the practices of people.
    

3. Legislation

   Muslim law in India is not codified, but the parliament has made some laws to regulate Islamic practices. For ex. The Muslim personal law (Shariat) Application Act, 1939.This act deals with the marriage, succession, inheritance and charities among Muslims.

Who is a Muslim?

The term Muslim means submission. A Muslim is a person who follows Islam. Muslim law applies to a born Muslim or a person who is a convert Muslim.

Muslim law even applies to certain other categories of people also such as the Khojas, Halai Memons, Sunni Bohras of Gujarat Daoodi, and Sulaimani Bohras and to Molesalam Broach Girasis.[2]

In Azima Bibi v. Munshi Samalanand, (1912) 17 CWN 121, it was observed that a child born out of a Muslim couple would be Muslim, even if he by choice goes to a Hindu temple. The person would be a Muslim, till the time he does not renounce his religion and converts to another religion.

In Bhaiya Sher Babadur v. Bhaiya Ganga Baksh Singh, (1914) 41 IA 1, it was held that
if a Muslim woman has a child from a Hindu man but the child from the time he was born was brought up as a Hindu, then, in this case, he would be called a Hindu.

The right to convert is given under Article 25 of the Constitution of India, which guarantees every citizen of India, freedom to practice, profess and propagate one's religion. There are many instances in which a Hindu man who intends to get married for a second time, which is prohibited under their set of family laws, purposefully converts to a Muslim to misuse it and escape from the punishment given under section 494 (bigamy) of Indian Penal Code, 1860.

The Supreme court in Sarla Mudgil v. Union of India (AIR 1995 SC 1531) and Lily Thomas v. Union of India (AIR 2000 SC 1650), has held that, if a Hindu married man converts his religion to Muslim just because of the reason as to marry a second time then it will be void and he will be punished under Section 494 of IPC for committing bigamy.

Under Muslim law, if a married man renounces his religion then in that case his marriage ends immediately but this is not the case for Muslim women who convert, her marriage would not come to an end if her marriage was done according to the rituals of Muslim law. Unless and until she was a convert Muslim and again re-embraces her faith.

References:

1. Family Law-II by Dr Poonam Pradhan Saxena (2016, 3rd edn, LexisNexis), pg. 448.
2. http://www.legalserviceindia.com/article/l302-Sources-of-Islamic-Law.html