Sources of Muslim Law according to Shia and Sunni Laws (Legal Answers- Family Law- Mohammedan Law)

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In this article, we are writing an easy answer to the question...... What are the sources of Muslim Law according to Shia and Sunni Laws?

(This question can be asked under the Legal Topic- Family Law- Mohammedan Law)

The sources of Muslim Law are divided into two (2) categories-

1) Primary Sources

2) Secondary Sources

The primary sources are further divided into-

i) The Quran

ii) Traditions- a) Sunnat

                       b) Ahadis

iii) Ijma

iv) Qiyas

The secondary sources are further divided into-

i) Urf/ Custom

ii) Judicial Decisions

iii) Justice, Equity, Good conscience

iv) Legislation

Now, we will discuss about them all....

1) Primary Sources-

i) The Quran 

The word Quran is derived from the Arabic word- "Qurra", which means to read. The Quran, the holy book of the Muslims contains verses of religious nature as well as the teachings which regulate the human conduct. It contains revealations of the God through the Prophet Mohammed through angel Gabriel. It is the foundation of all the Islamic Laws. All the tenets, teachings, principles and practices of the Islam originate from the Quran. It is the final authority on the Muslim Law. Earlier it was not codified. It was written on leaves, but it was codified later. The acclouds of codification goes to Abu Bakar and Khaliffa Usman. It is divided into 30 Chapters now. Public prayers, Namaaz, Pilgrimages, fasts etc. along with the matters of marriage, divorce, succession, prevention of intoxicating drinks, etc. have been highlighted in the Quran. It is also called as a Book of Law. Out of the many commentaries on the Quran, the commentaries of Tawasi and Fakkruddin are prominent.

Case Reference:

1) In the case of Govind Dayal vs Inaytullah (1885, Allahabd 775), it was said that the Muslim has so strong relation to Islam that it cannot be severed and since Islam is mainly based on Quran, therefore, it is the primary source of Muslim Law.

2) In the case of Kunhi Mohammed vs Ayisha Kutty (AIR 2010, NOC 992 Kerala), it has been stated that although under Muslim law, the husband may divorce his wife on his own, and no reason is required for any sort of explantion but the holy Quran says it should not be self-willed. A reasonable procedure is required.

ii) Traditions

a) Sunnat

 People believe that the Prophet's sayings and actions derive inspiration from the God. The precedents of the Prophet are Ahadis and their legal deductions are Sunnat. Sunnat translates the path, practices, traditions and precedents of the Prophet Mohammed. The Prophet's words and actions become the authority when the Quran did not explain on something. 

At the time of death, the Prophet said that, "So long as you hold fast on to two things which I have left among you, you will not go astray, God's book and his messengers Sunna".

Sunnat has been classified in the following three (3) classes:-

        (i) Sunnat-ul-fail - Prophet did himself

        (ii) Sunnat-ul-qual - which he enjoyed by words

        (iii) Sunnat-ul-Tuqrir - things done in his presence without his disapproval. It is also called Sunnat of Medina.

b) Ahadis is also classified in three (3) classes. They are:-

        (i) Ahadis-i-muturatir - traditions are of public and universal propriety and held as absolutely authentic.

        (ii) Ahadis-i-mashoora - though known to a majority of people, do not possess the character of universal propreity

        (iii) Ahadis-e-wahid - traditions which depends on isolated individuals

Ahadis are also called as Hadis.

iii) Ijma (Consensus of Opinion)

Ijma means a consensus of opinion of the jurists of a particular era on a question of law. When the Quran, Sunnat, Ahadis were silent for resolution of a question then that question was resolved with a consensus of opinion of jurists. Sunni school gives special importance to Ijma. 

It is of three (3) kinds:-

         (i) Ijma of the Companions of the Prophet - is universal. It is based on the principles of the Quran. Some branches recognise them as the successors of them living in Medina. According to Abdul Rahim, great weight attached to this as the companions adopted the same way of reasoning as the Prophet.

         (ii) Ijma of Jurists - According to Abdul Rahim, yhe Ijma of such jurists can only be considered important when they are wholly qualified for it and not altering opinion in their life.

         (iii) Ijma of the People - is agreeing upon a question by general public. The law has been constituted by Ijma of people on matters related to religion, prayer, fasting, etc.

Principles of Ijma have been used to solve various problems related to religion, constitution, political, etc.

 example- Appointment of Abu Bakar as a Calif(Khalifa) after the death of the Prophet.

iv) The Qiyas (Analogical Deduction)

When the Quran, Sunnat, Ahadis and Ijma were silent for resolution of a question then that question was resolved by the comparative study of the above sources. This was called as the Qiyas. The problems are solved on the basis of discrimination, reasoning power, logical ability. It is essential to take care that the solution is not in contrast to the Quran, Sunnat, Ahadis and Ijma.

example- Once the Prophet sent Mu'adh as Governor and Judge of the place. At that time, the Prophet asked Mu'adh that on what basis the decisions will be based to the problems on which the Quran and the traditions are silent? Mu'adh replied, "On the basis of my own reasons". The Prophet said that, "Praise thee to God, who guides the messenger of his Prophet in what he pleases".

The Qiyas do not purport to create new law, but merely to apply the old established principles to new circumstances.

Since the beginning customs are being considered as an important source of Muslim Law. Even today the Muslim Law includes many rules of pre-Islamic customary law. Those customs and usages which were not expressly repealed during the lifetime of the Prophet are held to have been sanctioned by the law-giver.

According to Hedaya, in the absence of an express text customs hold the same rank as Ijma. However, many customs have now been abolished by the Shariat Act.

A valid custom should be::

• ancient
• prevailing
• logical
• reasonable
• as per public policy

2) Secondary Sources-

i) Urf / Custom

Custom is never recognised as a source of Muslim Law formally but occasionally, it is referred to as the supplementing law.

    Requirements of a valid custom:-

• must be universal
• must be ancient
• must be territorial
• must be continous
• must be certain
• must be invariable
• must not oppose to public policy
• must not contradict the Quran and Ijma

The following are governed by customary law:-

• Agricultural Land
• Charities other than Wakfs
• Testametry succession in ceratin communities

Case Reference:

1. In the case of Smt. Bibi vs Smt. Ramkali (AIR 1982 Allahabad 248), the Allahabad HC held that the customs of caste and sub-caste require it to be proved for their validity that they are ancient, reasonable and definite.
2. In the case of Yamaji H. Jaddav vs B. Nirmala (AIR 2002 Sc 971), the Supeme Cout said that a valid custom requires it to be well established.
3. In the case of Amar Singh vs Kehar Singh (AIR 1995 Himachal Pradesh 82), it has been held by the Himachal HC that for the validity of a custom, it is required that it should be ancient, reasonable, definite and unchangeable and in continuum. The validity of the custom will be lost in the absence of any.

ii) Judicial Decisions

The judicial decisions pronounced from time to time constitute the law. They are also an important source of Muslim Law. The decisions are regarded as precedents for future cases. The decisions become an authority for subsequent cases arising in the subordinate courts. Thus, the decisions of the Supreme Court are binding upon all the courts of India.

Case Reference:

1. In the case of Pandu Rang Kaloo Patil vs State of Maharashtra (AIR 2002 SC 733), the Supreme Court has held that the decisions of Privy Council are binding upon High Courts if they are not modified by the Supreme Court.

ratio decidendi (A Latin term referring to the reason for a court or jury coming to a particular legal decision) has an important role in the decisions of the court. Like in Messers Ansal Housing and Construction Limited, New Delhi vs State of Uttar Pradesh (AIR 2004 SC 5152)

iii) Justice, Equity, Good conscience

These principles are an important source of Muslim Law. Judicial decisins are taken on the basis of these principles of natural justice when no law is available on a subject.

iv) Legislation

Various legislations passed by the Parliament or State Legislature come under this source of Muslim Law. The following acts are the instances of Legislation:-

1. Mussalman Wakf Validating Act 1913 and 1930
2. Sharial Act 1936
3. Dissolution of Muslim Marriage Act 1939
4. Wakf Act 1954

According to the country, time and circumstances, modifications, enhancements and amendments are being made in these Acts by the legislation.

Note: This answer is written by Advocate Dr. Anu Yadav. She is an experienced educator and an ex-CBSE School Principal.

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