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LAW202 (Lecture 1)

The document provides an overview of topics to be covered in a class on Muslim family law and reforms. It discusses primary sources of Muslim law including the Quran and Hadith. Secondary sources are also examined such as custom, judicial decisions, and legislation. The major schools of Islamic jurisprudence for both Sunni and Shia traditions are defined. Finally, the Family Courts Ordinance of 1985 is introduced regarding the establishment of family courts and their jurisdiction over family law cases.

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Efaz Mahamud Azad
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44 views4 pages

LAW202 (Lecture 1)

The document provides an overview of topics to be covered in a class on Muslim family law and reforms. It discusses primary sources of Muslim law including the Quran and Hadith. Secondary sources are also examined such as custom, judicial decisions, and legislation. The major schools of Islamic jurisprudence for both Sunni and Shia traditions are defined. Finally, the Family Courts Ordinance of 1985 is introduced regarding the establishment of family courts and their jurisdiction over family law cases.

Uploaded by

Efaz Mahamud Azad
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as DOC, PDF, TXT or read online on Scribd
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Muslim Family Law and Reforms: LAW202

Lecture 1 (6th September, 2016)


Topics that are covered in the class:
1) Sources of Muslim Law
a) Primary
b) Secondary
2) Brief idea on Schools of Muslim
3) Family Courts Ordinance 1985

Class Discussions:
1) Sources of Muslim Law
Primary sources of Muslim Law: Four primary sources of Muslim law are-
1) Quran: It is the first and main source of Muslim law. Every word of Quran is
considered to be the word of God. This was communicated to the Prophet
Muhammad through Gabriel (the angel). Although, Quran is not a law book but still
the Qurans principles are known as influential Islamic legal principles.
Quran covers different subjects of Muslim law such as: Succession, marriage,
divorce, will, guardianship and many more.

2) Hadith or Sunnah (Tradition): This is considered another important source of


Muslim law. The traditions and customs of Mohammad is hadith. Author, Abdur
Rahim classified traditions into the following categories.
a) Hadith Mutwatir (Continuous): These are accepted universally and narrated by
large number of men belonging to the categories of companions, successors and
successors of successors.
b) Hadith Mashhroor (Well known): These were reported by limited number of
companions in the first instance and later it fulfilled the continuous tradition.
c) Hadith Ahad (Isolated): These rests on the testimony of the narrators, who were
limited in number and do not fall under above to category.
The Quran also acknowledged Hadiths importance. Most of the orthodox Muslim Jurists,
upheld the validity of hadith as a sources of Islamic law.

Prepared for lecture purpose only.


3) Ijma (Consensus (agreement) of opinion):

The ijma', or consensus amongst Muslim jurists on a particular legal issue, constitutes


the third source of Islamic law. Muslim jurists provide many verses of the Qur'an that
legitimize ijma' as a source of legislations.

Three types of ijma:

a) Ijma of the Companions of the Prophet; (accepted universally and incapable of


repeal)
b) Ijma of the Jurists; (Disputed) and
c) Ijma of the people. (Disputed)
Requirements of Ijma:
a) It shall not conflict with Quran and Hadith.
b) Once determined by ijma, individual jurists cannot reopen it.
c) One ijma maybe reversed by subsequent ijma.
d) When jurists of particular age proposed two views of a particular question third view
is inadmissible.

4) Qiyas (Analogy): With expansion of Islamist state and after centuries new problems
arose. The solutions of which were not provided in the other three sources. Jurists used
their own reason, logic and opinion. They were compelled as they could not find the
solution elsewhere. Thus, Analogy became the fourth source of the Islamic law.

It is applied in cases where, the other sources direct language did not cover it specifically.

Requirements:
a) The rules on which the analogy is made should be universally accepted.
b) The main reason of forbidding should be known and understandable.
c) Decisions should be taken on the basis of hadith and Quran.
d) It cannot contradict with hadith and Quran.

Counter: some groups viewed that such analogy is not required as Quran is sufficient to
deal with all situations.
Secondary sources:

Prepared for lecture purpose only.


1) URF OR TAAMUL: CUSTOM
Before Islam, customary law governed Arabia. Then the Prophet abolished most of them,
as they were un-Islamic and bad. Some customs, however, were continued due to the
Prophet’s silent approval. Some were even included in his traditions. Otherwise, some
customs survived due to their incorporation in the Ijma.

2) JUDICIAL DECISIONS
The Privy Council decided many a case related to Muslim law. These cases continue to
have a binding force on all the High courts and the lower courts of India and a persuasive
value in the Supreme Court of India. This box of precedents will lose its binding force
only if the Supreme Court overrules a particular decision. Elsewhere, an opinion seems to
be forming that judges are now making the law the way the early Muslim jurists did.

3) LEGISLATIONS
God is the Supreme legislator as per Islam. Thus, sometimes, legislative modifications
are also treated as encroachment. Still, there are a few acts that modify or lay down
principles of Muslim law and serve as a source of law for the courts with respect to the
content covered by them.
a) The Mussalman Waqf Validating Act, 1913 – It merely re-established the validity of
family-wakfs.
b) The Child Marriage Restraint Act- It makes the marriage of a boy under 21 years of
age and a girl under 18 years a ‘child marriage’ and punishable without affecting the
validity of it.
c) The Muslim Personal Law (Shariat) Application Act, 1937 – It reiterated the Muslim
Stand that custom couldn’t be an independent source of Muslim law all the time
d) Dissolution of Muslim Marriage Act, 1939 – It provided rights to judicial divorce
under the grounds mentioned in it to women who traditionally had no independent right
to seek divorce.
e) Muslim Women (protection of Rights on Divorce) Act, 1986 – The issues of
maintenance after divorce, maintenance during idddat are dealt with comprehensively.

Prepared for lecture purpose only.


2) SCHOOLS OF MUSLIMS:
All are considered to be Muslim. No divisions should be made on the basis of the
schools. Some views and way of thinking varies considering the sources of law. It is
more like, some schools validate some sources and some validate other sources. There is
some common acceptance of common sources as well. No difference is there in terms of
religion.
SUNNI SCHOOL:
 HANAFI,
 MALIKI
 SHAFII
 HANABI
SHIA SHOOL
 ITHNA ASHRIYA
 ISMAILIYA
 SAIDIAY.
3) Family Courts Ordinance, 1985
Topics covered: family courts, courts jurisdiction and plaint.
Relevant sources of this material:
From the below mentioned sources I have prepared this material.
1) Md. Joshim Uddin, Islamic Jurisprudence and Muslim Ain (Joshim Publication,
1st ed, 2014)
2) Obaidul Huq Chowdhury, Hand Book of Muslim Family Laws (Dhaka Law
Reports, 6th ed, 2005)
3) V.P. Bhartiya, Syed Khalid Rashid’s Muslim Law (Eastern Book Company, 5th ed,
2009)
4) Legislation: Family Courts Ordinance 1985.

Prepared for lecture purpose only.

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