What is islamic law?

Islamic Law i.e. Shariahis the Divine Law or divine will of Almighty Allah revealed to Prophet Muhammad (SAW) the Last and final Messenger in the latest and most perfect form.' Ac-cording to the classical belief of the Muslims the word of God is law and law is the command of God. This law is known as sharia. Fiqh, which is Jurisprudential in character, is the ascertainment of the right principle. In the word of God is included, of course, the Koran, but the divinely inspired Sunnah of the Prophet ranks equal. These two are immutable and the only room for the exercise of human reason is in their under-standing. These two sources, namely, the Quran and Sunnah may thus be said to form the fundamental roots of Islamic Law. The word Shari'ah itself is derived etymologically forms a root meaning 'road'. It is the road which leads to God, the concrete embodiment of the Divine Will according to which man should live in both his private and social life. The most profound reason for the need of revelation is the presence of obstacles before the intelligence of man which prevent its correct functioning. The proper conception of law requires a complete perception of the totality of human life, which means the entire human life on the earth for all time to come, and the type of human life Hereafter. The main trouble with the man is that he cannot have before him the complete pic-ture of human life and nature. In the words of Kant, perception without conception is blind and conception without perception is empty. Rumis has given the example of five blind persons who conceived of an elephant to be exactly like that part of its body on which each of them could lay his hands. Therefore, for Muslims, the source of the law is revelation because it is possible for Almighty Allah alone to know with precision what rules of conduct are most expedient for the majority of humanity in his world. Islamic Law was the most far reaching and effective agents in moulding the social order and the community life of the Muslim peoples. By its very comprehensiveness, it exerted a steady pressure upon all private and social activities, setting a standard to which they conformed more closely as time went on, in spite of the resistance of ancient habits and time honoured customs, especially amongst the more independent nomadic and mountain tribes. Moreover, Islamic Law gave practical expression to the characteristics Muslim quest for unity. In all essentials it was uniform, although the various schools' differed in points of details. Law in the eyes of the Muslim scholars was not in fact an independent or empirical study. It was the practical aspect of the religious and social doctrine preached by Mohammed SAW) For the early Muslims there was little or no distinctions between legal and religious. In the Koran the two aspects are found side by side, or rather interwoven one with the other, and so likewise in the Hadith. The study and the interpretation of the Koran involved sometime the one and sometimes the other, and nearly a century elapsed before scholars began to specialize in one or the other aspect. The connection between law and religion thus established by Mohammad (SAW) and adopted by his followers persisted throughout all later centuries. The Divine Law is like a network of injunctions and attitudes which govern all of human life and in their totality and all-embracing nature are able to integrate man and society according to the dominating principle of Islam itself, namely unity or tawhid. Law is therefore in Islam an integral aspect of the revelation and not an alien element." According to the Islamic view religions should not be reformed to con-form to the ever changing and imperfect nature of men but men should reform so as to live according to the tenants of revelation. Holy Qur'an is the fundamental source of revelation and Prophetic Tradition and Practices the second at the starting point.

From Islamic Law to Muslim Personal Law

In the Prophet's own time and then during the period of Righteous Caliphate- the most exemplary, and glorious periods of human history the Divine Law in its perfect form and true spirit held complete sway over the whole gamut of life, individual and collective. This resulted in the emergence of the ideal people, the ideal society and the ideal state. This was the time when all the problems that the Ummah faced were solved one by one and it reached the pinnacle of glory as well as piety and righteousness, the kind of which was never before attained by any other people. Formal scrapping of the provisions of the Islamic law commenced with the political and intellectual domination of the West as well as the internal rifts of Muslims. A little after the establishment of the British rule in India, civil and criminal Islamic law was enforced in the country till 1790. Afterwards the British regime gradually started scrapping and replacing the provisions of the Islamic Law with those of its own laws. By the middle of the 19th century, almost the whole Shariah was scrapped, leaving behind only the Muslim Personal Law concerning marriage, divorce, dower, inheritance and endowment. Later the same was adopt-ed in the form of Shariat Act and made part of the Indian stat-ue." The scope of Islamic Law can be judged by the fact that there was a time when the traditional legal system of Islam regulated all aspects of human conduct in those parts of the world which were ruled or dominated by Muslims, though its hold was strongest on the family law. But the repercussions of two world wars, the fall of the Ottoman Empire and abolition of Caliphate in Turkey and numerous other events of history considerably narrowed down the scope of Islamic Law in twentieth century. "Thus Islamic law became restricted to private life. Muslim Family Law or Muslim Personal law or Muslim Law thus means the law which deals only with the matters and issues in the families of the Muslims like marriage, divorce, guardianship, maintenance, inheritance etc. and also laid down certain principles in these areas. Such law has been outlined in the basic sources of Shariah i.e. Quran and Sunnah and further progressed in the form of Ijma and Qiyas by the different schools of Islamic jurisprudence.

Difference between Islamic Law and Muslim Law

Very often both the terms are used interchangeably but le-gally and strictly speaking both the terms have different legal connotations. Islamic Law is a larger canvas and Muslim Law is just a part of it. The former is a tree while as the latter is a branch of it. Islamic Law is a legal system which embraces all the areas of human conduct like constitutional, criminal, social, commercial, economic and international laws while as Muslim Law limits itself only to such matters which are fundamentally private and personal in nature, like marriage, divorce, maintenance, guardianship, inheritance. Islamic Law has since been driven out of operation as a public law and has been restricted to the matters of family only i.e. in the nature of personal law only. Legally speaking, Muslim law means only the Muslim personal law and Islamic law mean overall holistic spheres of Shariah including its own public law. In other words Muslim Personal Law is a restricted form of Islamic Law. So presently Muslims all over the world are governed by a dual system of laws: personal laws based on Islamic legal doctrines and public law based on western legal systems. Muslim Law is still recognized by many countries as a civil law, but Islamic Law is now replaced by a western legal system in almost all the Muslim populated countries. Muslim Law can operate even in a secular state, but Islamic Law needs state based on Islam.

Family is the basic human institution of any civilization and Family Law is that branch of the Law, which deals with the matters pertaining to this institution including the regulation and governance of relationship among its members. Husband, wife, parents, children and relatives form important members of any family structure. The rights and du-ties of spouses, children and relatives which arise on account of marriage, divorce, maintenance, inheritance, adoption, guardianship, bequests and other related matters are governed under this law. Family law is also known as personal law as it applies to a certain class or group of people or community on the basis of their faith, culture, custom or religious identity. It is a community specific law which has its roots inherent in faiths and customs, even though many personal laws are now codified and reformed by legislations. The reformation of laws takes place on this argument that old laws hinder the progress of the community. Hindu laws were reformed by legislative intervention in the backdrop of gender prejudices, casteism, untouchability, social evils, prevalent in the society for centuries. The Hindu Marriage Act 1955, The Hindu Adoptions and Maintenance Act, 1956, The Hindu Succession Act 1956, The Hindu Minority and Guardianship Act 1956 form the basis of modern Hindu family laws. The Indian Divorce Act 1869, The Indian Christian Marriage Act 1872, The Marriage Validation Act 1892 are the examples of Christian Family Laws. The Muslim Personal Law (Shariat) Application Act, 1937, The Jammu and Kashmir (Application of Shariat) Act 2007, The Dissolution of Muslim Marriages Act 1939 are the examples of Muslim Family Law or MPL. The Parsi Marriage and Divorce Act, 1936 is an example of the Parsi Family Law. The Jew Matrimonial Law is still governed by customs.

Personal Law is quite different from public law, i.e. the law which is applicable to the citizens of any state in general, irrespective of their faith, culture, or religion. The law of Marriage is an example of family law or personal law while as the law of contract or law of crime is an example of public law or general law. The issues which fall under the domain of personal law are limited as compared to public law or general law. Family Law is civil in nature. It is recognized by the State through constitutional guarantees. The Courts enforce Family Law and decide matters according to the personal law of the parties.

It is to be noted that Family Laws are not always based on religion. They can be secular as well, e.g. The Special Marriage Act, 1954; The Foreign Marriage Act, 1969, Indian Succession Act 1925. Family Laws are at times on the borderline, i.e. in the domain of the general law of the land (lex loci) or in the do-main of personal law. Many European countries have made family laws as part of general law. In this regard, Article 44 of the Constitution of India requires the State to secure for the citizens a Uniform civil Code throughout the territory of India. It envisages of such nature of personal laws by enacting Uniform Civil Code i.e common family law for all the citizens of India irrespective of their faith, religion, custom, etc. It is pertinent to mention that freedom of religion is guaranteed fundamental right under Article 25 of the Constitution of In-dia. Those who are in favor of retaining personal laws without any intervention rely on this provision. However, it is to be noted that under Constitution freedom of religion is not abso-lute but subject to public order, health, morality and other pro-visions relating to Fundamental Rights. The judicial role in this area has been described by the Supreme Court of India as follows: "the court, therefore, while interpreting Article 25 and 26 strikes a careful balance between the freedom of the individual or the group in regard to religion, matters of religion, religious belief, faith or worship, religious practice or custom which are essential and integral part and those which are not essential and integral and the need for the State to regulate or control in the interest of the community." As the Supreme Court has observed in the case noted below:" "What constitutes an essential part of a religions or religious practice has to be decide by the courts with reference to the doctrine of particular religion and includes practices which are regarded by the community as a part of its religion".

Judicial Approach in determining the Personal Laws in India

It is interesting to see how Courts in India have approached towards determining the validity and interpretation of personal laws. Traditionally the courts in India show reluctance in interfering with personal laws. The cautious approach of the courts towards personal laws owes much of the literal approach of courts to interpret the laws. Over the years the Supreme Court has taken different and inconsistent views while dealing with personal laws. In some cases it has held that personal laws of the parties are not susceptible to Part III of the Constitution dealing with fundamental rights. Therefore, they cannot be challenged as being in violation of fundamental rights, especially article 14, 15 and 21 of the Constitution of India. On the contrary, in many other cases the Apex Court tested personal laws on the touchstone of Part III of the Constitution of India.

Non Intervening Approach:

In the State of Bombay v/s Narasu Appa Mali'the court held: that the framers of the Constitution wanted to leave the personal laws outside the ambit of part III of the Constitution. They must have been aware that these personal laws needed to be reformed in many material particulars and in-fact they want to abolish these different personal laws and to evolve one common code. Yet they did not wish that the provisions of the personal laws should be challenged by reason of fundamental rights.

In Krishna Singh v Mathura Ahir Supreme Court ruled that, part III of the Constitution does not touch upon the personal laws.

In Ahmadabad Woman Action Group v. Union of India' PIL was filed through a writ petition to declare MPL which allows polygamy as void as offending Art. 14 and 15. The Supreme Court refused to take cognizance of the matter.

In P.E Mathew v. Union of India Section 17 of the Indian Divorce Act was challenged as arbitrary and discriminatory. The Court held personal laws are outside the scope of Fundamental Rights.

In Maharishi Avadhesh v/s Union of India the court held that personal law could not be challenged for being in contravention of the provisions of Fundamental Rights.

Intervening Approach:

In Shah Bano case the Supreme Court held that Muslim women are entitled to maintenance beyond the Iddat period. Section 125 of Cr.pc was given preference and wide interpretation over law of maintenance given in Shairah. This is the most famous case relating to personal laws in India as it shifted over all interpretative approach of the courts towards personal laws. In this case Supreme Court directed Shah Bano's former Hus-band to pay her maintenance, according to the laws applicable to other Indian citizens. The court rejected the argument of Shah Bano's former husband that since she was paid maintenance during the period of iddat, now she was not entitled to any further maintenance under the Muslim Personal Law.

The very next year, the Supreme Court will has decided another case relating to Christian Personal Law in the Mary Roy Case." The Court ruled that Syrian Christian women were entitled to an equal share in their father's property. Before the Supreme Court order, the Syrian Christian community settled property inheritance issue as per the Travancore Succession Act, 1916 and Cochin Succession Act, 1921 while other Christians followed the Indian Succession Act of 1925 for the same. As per the Travancore and Cochin Acts, women received only a quarter of their male siblings or Rs. 5000 which-ever was less.

In Mudliar Case the Court held personal laws are void to the extent of Fundamental Rights. In this case sale of property by Hindu widow was challenged by a one Hindu religious organization as being invalid under section 14(2) of Hindu Succession Act of 1956. Section 14(1) of the Act states that any property possessed by a Hindu woman, whether acquired before or after the bill's passage, is owned fully by her. She does not hold limited ownership. However, Section 14(2) forbids Section 14(1) from applying to "any proper-ty acquired by way of gift or under a will." Therefore, Hindu women only have limited property rights if they received the property as a gift or from a will. The Court notes that as the legislature's intention in Section 14(1) was trying to stop gender discrimination, Section 14(2) must be to read and to comply with this goal. The Court also notes that Section 14(2) can only apply where there is a gift or will, but not where there is any existing right or duty. The Court finds that because maintenance is a right, property gifted to provide maintenance falls under the protection of Section 14(1) instead of Section 14(2). The Court held that the Constitution and its Preamble was intended to remove discrimination. Because person-al laws are derived from religious tradition rather than the Constitution, they are void under Article 13 of the Constitution if they violate the fundamental rights de-scribed by the Preamble.

In the Sarla Mudgal v Union of India" the Supreme Court has directed the then government to indicate the steps taken and efforts made by the Government towards securing a uniform civil code for the citizens of India. In this case the question for consideration before the court was whether a Hindu husband married under Hindu law, after conversion to Islam, without dissolving the first marriage, could solemnize a second marriage. The Court held that such a marriage would be illegal and the husband could be prosecuted for bigamy under section 494 of IPC.

In Noor Saba Khatoon v Mohd. Quasim's the Supreme Court held that a Muslim woman is entitled to claim maintenance for her children till they become major. Both under the MPL and under section 125 of the Criminal Procedure Code, 1973 the obligation of the father is absolute when the children are living with the divorced wife.

In Danial Latifi v/s Union of India", the validity of Muslim Women (Protection of Rights on Divorce) Act, 1986 was chal-lenged as being violative of Arts. 14, 15 and 21 of the Constitution. It is to be noted that this Act was passed in order to undo the effect of Shah Bano judgment. Muslims in India had raised the voice against the Shah Bano judgment calling it interference in the sharia. The Supreme Court in this case held that the provisions of the Act do not offend the provisions of the Constitution. However, the Court interpreted the provisions of the act widely and held that Muslim, divorced women has right to maintenance even after the iddat period under the 1986 Act. The court said that a Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife, which clearly extend beyond iddat period in terms of sec-tion 3(1)(a) of the Act.

In Seema v/s. Ashwani Kumar the Supreme Court has held that all marriages irrespective of their religions, be compulsorily registered. The Court felt that this ruling was necessitated by the need of time as certain unscrupulous husbands deny marriages, leaving spouses in the lurch, be it for seeking maintenance custody, of children or inheritance of property.

In Shayara Bano v Union of India and others Supreme Court of India by 3:2 majority judgment declared the practice of in-stant Triple Talaq as 'unconstitutional', 'arbitrary' and 'not part of Islam. The Court said, "What is bad in theology is bad in law as well". The Court said', "Triple Talaq was against the basic tenets of Quran The Court also gave Government six months to come with legislation on Triple Talaq.

In Sabarimala Temple case the Supreme Court struck down the age old tradition-rule that disallowed girls and women in the 10-50 age groups from entering the Sabarimala temple in Kerala. Chief Justice Dipak Misra-headed Constitution bench in a 4-1 verdict said the temple rule violated their right to equal-ity and right to worship. The court held that the provision in the Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965, which authorized the restriction, violat-ed the right of Hindu women to practice religion.

It is also interesting to note down that Justice Indu Malhotra, a female judge in this case, who wrote the dissenting judgement said that the notions of rationality cannot be brought into matters of religion. She added that the shrine and deity are protected under Article 25 of the Constitution and that it was not upto the court to decide which religious practices should be struck down, except in issues of social evil like 'Sati'. The learned Justice was of the view that the petition does not deserve to be entertained.

Origin and Development of Muslim Personal Law in India

Before the advent of British rule, the Islamic laws were ap-plied as (lex loci) law of the land." The Sultans of Delhi were strict adherents to the Islamic Law (Shariah). The reign of Iltumish was noted for jurists well versed in law and practice of Sharia. It was the 'Hedaya' of central Asian lawyer, Burhan-ud-din al-Marghianani, which was the standard legal text book in Muslim India under the Delhi Sultans. This great work remained the basis of Muslim Law for centuries and finally translated in English by the officials of the East Indian Company. The criminal justice system was also governed by Shariah. The Ulemas had considerable influence on the legal decisions. The position of Islamic Law remained unchanged during the Mughal period with the sole exception of Akbar's reign when he tried to interpret Muslim law according to his own notions. An effort to apply the whole of Islamic Law was made under Aurangzeb's rule. He was considered to be strict adherents of Shairah. On his insistence a compilation of law 'Fatwa-e-Alamgiri' was compiled by around 500 experts in Islamic Jurisprudence. This compilation was based on Sunni Hanafi Jurisprudence and served as the basis of law. It consists of legal code on personal, family, slaves, war, property, in-ter-religious relations, transactions, taxation, economic and other law for a range of possible situations and their juristic rulings by the Hanafi Jurists." Hanafi law was, in the Mughal times, the law of the land. "After the initiation of British domination and political power in India the Islamic Law, in its limited sense, together with the associated Kiza (judicial) system was kept intact. Later, however, even these limited matters were transferred to the jurisdictions of the ordinary courts, but the Shariat Law was allowed to continue to govern the matters relating to the Muslims." In civil laws, both Hindu and Muslim laws were applied, but in criminal law only Mus-lim Law was applied. The Regulation 110f 1772 by section 27 enacted that "in all suits regarding inheritance, succession, marriage and caste and other religious usages or institutions, the laws of the Quran with respect of Mohammdan and those of the Shastras with respect to Gentoos (Hindus) shall be in-variably adhered to." This was according to the judicial plan of 1772 of Warren Hastings. Gradually these laws were replaced by statues borrowed from English Law and were left to be ap-plied only in 'Personal matters. The Muslim Law, though successively replaced, remained the basis of criminal law applicable to all inhabitants in Bengal and other Muslim parts of British India until 1862.5 The Islamic criminal law, although successively modified, remained in force somewhat longer; and not till the year 1862 when the Indian Penal Code and the Code of Criminal Procedure came into force did it entirely dis-appear. As regards evidence, the Islamic Law was not entirely abolished till the passing of the Evidence Act, in 1872.26 The introduction of modern nation state in British India established the monopoly of the state on legislation, displacing the traditional status of Muslim Jurists as the sole legal authority in Muslim society. Scholars describe this change in the nature of Islamic law during the colonial period as the transformation of Sharia from Jurists' law to state law."

In the early 20th century, the British India yielded to the demands for the representation of local Indians in the Legislative institutions and introduced an electoral system in India.

The Indian Councils Act 1909 envisaged a separate electorate system. Under this system Muslims voted for Muslim candidates. In this way separate identity of Muslims became politically significant and distinct from other religious communities of India. This separate identity, however, was to be defined in legal terminology. A Muslim from a legal perspective was the one who followed Islam and Islamic Law. However, in many parts of India, Muslims followed customary law which was prioritize over Muhammadan Law (later called Muslim Personal law). For instance, under the Punjab Laws Act 1872, all family law matters were to be decided according to custom or Muhammadan Law modified by custom. Generally Punjabi Muslims did not strictly follow the Islamic Inheritance law, especially in rural area; female relatives did not get their prescribed share in Inheritance in agricultural land, and wives were given only life interests in land in order to keep the land within the ownership of a particular family or clan. Moreover, there were some Muslim communities such as Khojas and Memons, who followed the Hindu Law of inheritance as a customary practice. In this way, personal law and customary law existed side by side, however, legally, the latter had preferred over the former. The introduction of the separate electoral system for Muslims and Hindus, however, required a clear distinction on the basis of religious identity. For Muslims this meant the greater adherence to their personal law. The enactment of the North West Frontier Province Muslim Personal Law (Shariat) Application Act 1935 at the provincial level and the Muslim Personal Law (Shariat) Application Act 1937 at the federal level should be seen in this context.28

The enactment of Shariat Act, 1937 was the most significant legislation in the closing years of the British period in India.

With the enactment of Shariat Act, 1937 the Muslim laws' of marriage, divorce, dower, legitimacy, guardianship, gifts, wakfs, wills and inheritance were applied to Muslims every-where in India. More important protection of women's right to property was guaranteed. Similarly Dissolution of Muslim marriages Act, 1939 was passed to extend women's right to divorce. Interestingly contrary to popular belief, ulama played a key role in the promulgation of these Acts to promote the rights of Muslim women in British India.

What is family law?

Family law is a legal field that deals with matters related to family relationships, including marriage, divorce, child custody, adoption, and domestic violence. It ensures legal rights and responsibilities are maintained among family members.

What types of cases are covered under family law in India?

Family law in India covers divorce, child custody, maintenance (alimony), guardianship, adoption, domestic violence, and inheritance. These matters are often governed by religion-specific personal laws such as Hindu Law, Muslim Law, and Christian Law.

Can family disputes be resolved without going to court?

Yes, many family disputes can be resolved through mediation or mutual settlement without court intervention. Courts also encourage Alternative Dispute Resolution (ADR) methods to save time, cost, and preserve family relationships.