- Secondary Sources:
- (1) Custom (Urf or Taamul):
- Before Islam, the Arabs were governed by customary laws. When Islam came into existence, most of the customs were found by the Prophet to be evil and bad. Such bad customs were totally abolished by him and he declared them to be un-Islamic. But there were certain pre-Islamic customs (e.g. dower, talaq, etc.) that were good and tolerable. The Prophet did not abolish them, and they continued in the society because the Prophet sanctioned them by his silent approval. In this manner, some of the good customs became a part of the traditions of the Prophet i.e. Sunnat -ul- Tahrir.
- Moreover, there were customs on the basis of which the jurists gave their unanimous decisions on a given point of law and they formed part of Ijma. Thus, we see that custom is not any independent source of Muslim law. A customary law exists in Islam either because it has got the approval of the Prophet or, has been incorporated in Ijma.
- Presently the Shariat Act, 1937, which applies to Muslims all over India (except Jammu and Kashmir) abolishes most of the customs from Muslim law. Section 2 of this Act provides that if the parties are Muslim, only Muslim personal law (Shariat) will be applied to them in matters of inheritance, special property of females, marriage, dower, divorce, maintenance, guardianship, gift, waqf, and trust. In respect of these ten matters, therefore, customs or usages cannot be applied now.
- But customs are still applicable to Muslims in matters, relating to their (a) agricultural lands, (b) charities, and (c) religious and charitable endowments, because these matters have not been included in Section 2 of this Act.
- (2) Judicial Decisions:
- Supreme Court of India’s decision is binding on all the High Courts in so far as the law decided, in that case, is concerned. Similarly, the decision of a High Court is binding on the subordinate courts. Muslim law is no exception to this judicial practice and therefore, a point of law decided by the Supreme Court or a High Court of India becomes a ‘source of law’ for the courts subordinate to them.
- There is not much scope for judicial decisions as a source of Muslim law. But, in the absence of any clear text of Muslim law, the courts may interpret a rule of law according to their own concepts of justice. In such cases, the Muslim law becomes what the courts say.
- In Begum Subanu v. Abdul Gafoor( 1987) the Supreme Court has held that despite the fact that a Muslim husband has legal right to contract second marriage if the first wife lives separately only on the ground of husband’s second marriage, she would be entitled to get maintenance from the husband. Section 2 of the Dissolution of Muslim Marriages Act, 1939 provides eight grounds on the basis of any one of which a wife may seek dissolution of her marriage.
- (3) Legislation:
- In Islam, it is generally believed that God alone is the Supreme Legislator and no other agency or body on earth has authority to make laws. This belief is so deep-rooted that even today; any legislative modification may be treated as an encroachment upon the traditional Islamic law. The result is that as an independent source of Muslim law, the legislative enactments are almost insignificant.
- However, there are certain Acts that modify or otherwise lay down principles of Muslim law, and for the modern courts in India, these enactments are the only source of law on the points covered by them. Some important enactments on Muslim personal law are given below:
- (i) The Mussalman Waqf Validating Act, 1913:
- (ii) The Child Marriage Restraint Act, 1929:
- (iv) Dissolution of Muslim Marriages Act, 1939:
- v) Muslim Women (Protection of Rights on Divorce) Act, 1986:
4– Equity and the absolute good-— Under this head, those sources may be grouped which have their origin in Equity or absolute good. Some of these sources are following–
(1)Istihasan (Preference )
Abu Hanifa developed a new source called istihsan, or juristic preference, as a form of analogical deduction (Qiyas) as a means to seek ease and convenience.
Qiyash has been accepted as a definite source of law, and it can not be easily overridden. But in the presence of a basis stronger than Qiyash such as Quran, Hadith, or Ijma, the Qiyash would not be set aside the “stronger basis” would be adopted through juristic preference or Istihasan. The following example shall make the principle clear—
By Qiyas ( analogy )the contract of the sale of a non-existent thing is void as its benefits and services are not considered in existence at the time of the contract and hence Contract of Hire was considered as void by analogy. However, the contract of Hire was sanctioned by the Quran, the Sunnah, and Ijma. All these are bases that are more substantial than analogy. Thus analogy was set aside and transactions of Hire were considered permissible through “preference”
This sort of deduction, namely the setting aside of analogy in the presence of a stronger source, is called the Istihaan or preference.
- (ii)-Istisalah or Al-masalih al- mursalah (Public Interest )
Imam Malik developed a source called Istisalah or al-maslaha al-mursalah, which means the Public interest. According to this source of Islamic law, rulings can be pronounced in accordance with the “underlying meaning of the revealed text in the light of public interest”. In this case, the jurists use his wisdom to pursue public interest. For example- The Imposition of Taxes on the rich in order to meet the cost of the army and to protect the public is justified even though the imposition of Taxes on the public is prohibited under Muslim law. This source is rejected by the Shafi’is.
(iii) Istidlal (Textual indication )
Shafi’i accepted cases in which he had to be more flexible with the application of Qiyas. Similar to Abu Hanifa and Imam Malik, he developed a source of legislation. The Shafi’i school adopted istidlal, a process of seeking guidance from the source. Istidlal allowed the jurists to avoid “strict analogy” in a case where no clear precedent could be found.
Istidlal is an effort to reach some acting or certain basis. It connotes a special set of laws derived from reason and logic. An example of deduction by logic is as follows—
A sale is a contract. The basis of every contract is Consent. It is necessary therefore that Consent is the basis of Sale.
Sources of Muslim Law (Part 2)
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