Introduction

• Muslim law is a personal law which is applicable only to

‘Muslims’.
• In the Indian judicial context, courts apply Muslim law
specifically to individuals identifying as Mohammedans in
certain specified cases.
• Derived from the Quran and other documented teachings of
Prophet Muhammad, Muslim law encompasses a set of legal
principles and regulations.
• In a religious context, 'Islam' signifies the act of submitting to
the divine will of 'God' while in a literal sense, 'Islam' denotes
the establishment of peace.
• Muslims Personal Law covers the matters related to marriage,
divorce, succession, inheritance etc.
• Concept of Equity, Justice, and Good Conscience
• One of the ideas behind the evolution of ‘Muslim law’ is the
idea of fairness, justice, equity, and good conciseness.
• These ‘Islamic’ legal doctrines are known as ‘Istihsan’ or
‘Juristic Equity.’
• Istihsan: It means law of equity.
Primary Sources of Muslim Law in India

1) The Quran
➢ It is the original or primary source of ‘Muslim Law’.
➢ The 'Quran,' revered by Muslims as their sacred scripture,
comprises direct revelations from 'God' to 'Prophet
Mohammed.'
➢ It is believed that these revelations are conveyed through the
archangel Gabriel, acting under the guidance of 'God' to
communicate either the exact words of 'God' or indications of
knowledge acquired by the 'Prophet' through divine
inspiration (Ilham).
➢ This sacred text forms the basis of all Islamic laws, serving as
the source from which all tenets, teachings, principles, and
practices of 'Islam' emanate.
 ➢ The 'Quran' encompasses verses of a religious nature and
offers guidance on regulating human conduct. As Islam's holy
book, it holds the ultimate authority in matters of 'Muslim law.'

2) Sunna (Traditions or Ahadis)

➢ Sunnat and Traditions was the teaching of the holy prophet
(peace be upon him) and it is considered as the second source
of Muslim law. When the Holy Quran was silent on some topics
Sunnat and Tradition provided the legal principles and helped
them to solve the legal issues. The Sunnat and Traditions was
the internal(batin) revelation by the Holy Prophet[3].

Kinds of Sunnat:[4] There are three kinds of Sunnat:

➢ Sunnat-Ul-Fail (which the Holy Prophet did by himself)

➢ Sunnat-Ul-Kaul (which the Holy Prophet urged by words)
➢ Sunnat-Ul-Tuqrir (things done in his presence without his
disapproval).
Kinds of Traditions (Ahadis): There are three kinds of Ahadis:

➢ Ahadis-e-mutawatir (these were authentic and categorized by

the public);
➢ Ahadis-e-Mashoor (these were highly recognized by the
majority but didn’t consist of universal authority);
➢ Ahadis-e-Wahid (these were solely dependent upon a single
individual)[5].

3) Ijma (Consensus)

• The Muslim community made a consensus that the words of

Muslim jurists will run the religion after the Prophet.
 • Hence the Quran, Sunna, and Hadis will be interpreted by the
Mujtahids (jurists with knowledge of Islam).
• Ijma means agreement of the ‘Muslim Jurists’ of a particular
age on a particular question of law, in other words, it is the
consensus of Jurist’s opinion.
Essential Ingredients of Valid Ijma

❖ The consensus – For the valid Ijma this condition was an

essential requirement. The Ijma must be by unanimity and the
opinion of the jurist must be by the majority.

❖ The Jurists – For the validity of Ijma, the essential requirement

was that Ijma must be given by the Jurists, who possess
extensive knowledge and are experts in their field.

❖ Jurists of a particular period – Ijma of one age may be

reversed by the Ijma of another age.

❖ Jurists to be the Muslims – For valid Ijma the jurists must be

the Muslim and the opinion of the non-Muslims was not
admissible.

❖ Consensus must be on religious matters – The Ijma must be on

point of fact and not on point of law.

• There are three kinds of Ijma:

• Ijma of Companions: The prevailing view among the Prophet's
companions held the utmost authority and could not be
overturned or altered.
• Ijma of the Jurists: The unanimous decision of the jurists
(other than companion) is known as Ijma of Jurists.
• Ijma of the people or masses: Opinion of majority that is
accepted as law is Ijma of people. But this kind of Ijma has little
value.

4) Qiyas (Analogical deductions)

 • The word ‘Qiyas’ marks its origin from the word ‘Hiaqish’
which means ‘beat together.’
• It also means ‘measurement, accord, and equality.’
• It was used to establish an analogy between set to similar
materials.
• In situations where the Quran, Sunna, or Ijma do not explicitly
address certain matters, legal principles can be derived by
applying analogy, a process known as 'Qiyas.'
• The method believes to drag conclusion from existing legal
provision rather than new law.
• It is not intended to establish entirely new laws. When
compared to other legal sources, 'Qiyas' holds a relatively
lesser significance in the overall legal framework.
• The primary purpose of 'Qiyas' is to expand the scope of
existing legal principles to cover cases that are not explicitly
covered by the original texts.

Secondary Sources of Muslim Law in India

1) Legislation

• The importance of legislation may be seen in the fact that, on

one hand, it establishes rules and procedures through
parliament, while on the other hand, it has state-level
authority.
• Muslim law is uncodified in India, but the Parliament of India
has passed several legislations to aid the Muslim community.
• Some parts of the legislation were approved by the ‘Hanbali
school’ under the names Nizam (Ordinance/Decree),
Farmans, and dastarul amals, but they were not connected to
personal laws.
• The marriage, succession, and inheritance issues are
goverened under Muslim Personal Law (Shariat) Application
Act, 1937.
• The Dissolution of Muslim Marriages Act, 1939 covers the law
related to divorce.
2) Judicial decisions – (Precedent)
 • Judicial precedent are cases already decided by courts which
aids judges to apply their decisions on coming related cases.
• The principle of stare decisis, applies as judicial precedent.
• The precedent refers to the fact that Lower Courts are bound
to follow the procedural rules established by higher Courts in
previous decisions.
3) Customs
Custom was never formally recognised as a source of Muslim Law,
though it has been
occasionally referred to as supplementing the law. The Muslim Law
includes many rules of
pre-Islamic customary law, which have been embodied in it by
express or implied recognition.
Following are the requirements of a valid Custom :
(1) General prevalence in the country is necessary. The practice of
a limited number of
individuals cannot be recognised as custom;
(2) It must be territorial;
(3) It need not be existing from the time of the Prophet’s
companions. All that is necessary
is that it should be immemorial. The word ‘immemorial’ means
beyond human
memory. Customs springing up within living memory, will be
enforced if prevalent
among the Muslims of the country in which the question of their
validity arises;
(4) It must be ancient and invariable; and
(5) It should not be opposed to public policy.
.
Case Laws
Chand Patel v. Bismillah Begum (2008):

The Supreme Court ruled that if a ‘Muslim’ man is married to his

wife’s sister while still married to his first wife, the marriage will be
considered irregular, not unlawful or void.
The court directed Chand Patel to pay maintenance within a period
of six months from the date of judgment and the respondent’s legal
fees for arguing the case and setting up a landmark judgment.

Shayara Bano v. Union of India (2017):

The SC, in a unanimous decision pronounced on 22nd August 2017,

held that the act or practice of ‘Triple Talaq’ to be a violation of
Article 14 of the Constitution, a put an end to the practice of divorce
through triple talaq.

CONCLUSION

The evolution of Muslim law through its sources was one of the best
for the development of personnel laws in the Indian legal system.
The sources of Muslim law provide the effective working of the
Muslim law and show on which principle the Muslim laws are based.
These sources of Muslim law provide how Muslim law should work
further and on which principle it was based regardless of any doubt
and give authentic reasons for it.
INTRODUCTION
➢ The concept of the option of puberty, also known as “khayar-
ul-bulugh” in Islamic law, plays a pivotal role in certain
contractual matters, particularly marriage contracts.
➢ This legal provision allows an individual who was below the
age of puberty at the time of entering into a marriage contract
to affirm or nullify that contract upon reaching puberty.
➢ Derived from Islamic legal principles, this concept is designed
to protect the rights of individuals who might not have had the
capacity to understand or consent to contractual obligations
due to their young age.

➢ In Islamic law, puberty, or “bulugh,” signifies the transition

from childhood to adulthood, bringing a set of rights and
responsibilities.
➢ Puberty is generally recognized as the point when an
individual reaches physical and sexual maturity, although the
exact age can vary.
➢ According to Islamic jurisprudence, once a person reaches
puberty, they are considered legally responsible (mukallaf)
for their actions and are accountable for fulfilling their
religious and legal obligations.

➢ This option of puberty is particularly relevant in the context of

marriage contracts.
➢ If a marriage is solemnized with the consent of guardians for
individuals who have not attained puberty, those individuals,
upon reaching puberty, may repudiate the marriage with the
guardian’s consent, provided the marriage has not been
consummated.
➢ Islam places great emphasis on consent in marriage,
underscored by the Prophet Muhammad (PBUH), who
emphasized the importance of seeking mutual consent in
marriage contracts.
 ➢ However, child marriages, often lacking the full consent or
understanding of the minor involved, are not uncommon in
certain cultural contexts.
➢ To address this issue and protect minors, Islamic
jurisprudence allows those who enter into a marriage
contract before puberty to exercise the option of puberty
upon reaching maturity.
➢ This means that upon reaching puberty and understanding
the implications of the marriage contract, the individual has
the right to either affirm or nullify the marriage.[4]

SIGNIFICANCE
The option of puberty serves several crucial purposes within
Islamic law:

Protection of Minors: By allowing minors to nullify a marriage

contract upon reaching puberty, Islamic law aims to protect them
from being forced into marriages without their full understanding
or consent. This ensures that individuals can make informed
decisions about their marital status once they can do so.
Preservation of Consent: Islam places a strong emphasis on the
importance of mutual consent in marriage. The option of puberty
upholds this principle by giving individuals the right to affirm or
nullify a marriage contract based on their own free will and
understanding.
Safeguarding Rights: The option of puberty ensures that individuals
are not bound by contractual agreements entered into before they
can fully comprehend their implications. This helps prevent
exploitation and ensures that individuals’ rights are respected
within the legal framework of Islamic law.[5]
For the option of puberty to be valid, the individual must have
reached puberty and attained the capacity to understand the
consequences of the contract.
The exercise of this option must be done within a reasonable period
after attaining puberty. Specifically, this right can be exercised
within three years from the moment of attaining puberty.
Failure to repudiate the marriage within a reasonable timeframe
after being informed of this right results in forfeiture of the right.
Additionally, the option of puberty becomes void upon the marriage
being consummated or upon the acceptance of the dowry,
indicating approval.[6]

AGE OF PUBERTY
➢ In the Indian legal system, specific activities are regulated by
prescribed ages to ensure that individuals have attained
majority and possess the capacity to comprehend the
implications of their actions.
➢ The Indian Majority Act of 1875[7] designates 18 years as the
age of majority. However, in the realm of Muslim personal law
governing marriage, the Indian Majority Act does not apply.
➢ Under Muslim personal law, marriage is governed by the
concept of puberty, typically set at 15 years. Consequently,
the minimum age for contracting marriage within the Muslim
religion is 15 years.

➢ For a marriage to be valid under Muslim law, both parties must

be of sound mind, capable of providing free consent, and
considered major as per their law.
➢ If a marriage is contracted by guardians before either party
reaches puberty, it remains valid, and neither party has the
right to annul the marriage upon reaching puberty.

In the case of Abdul Karim v. Amina Bai[10], it was declared that the
repudiation choice provided to the wife is based on values
emphasized in the Qur’an. Islam aims to alleviate the effects of pre-
Islamic practices that oppressed women and children. Upon
reaching puberty, the individual must exercise the choice of
repudiation promptly. This choice is lost if the marriage is
consummated.

Islamic law outlines different stages of childhood and puberty

concerning marriage:

Saghir: Under the age of 7, where marriage is invalid ab initio.

Sariri: Between 7 and 15 years, where a valid marriage can occur if
performed by guardians.
Bulugh: Above 15 years, where individuals can marry with their free
consent.

LEGAL FRAMEWORK AND JUDICIAL APPROACH

➢ Sharia permits marriages contracted by guardians of minors,
with the option for the minor to repudiate the marriage upon
reaching puberty.
➢ The preference for marriage guardianship is given to the
father, then the paternal grandfather, and then other agnatic
relations, and finally to the mother and other maternal
relations.

➢ Section 2(vii) of The Dissolution of Muslim Marriages Act[12],

1939 states that a woman given in marriage by her father or
guardian before attaining 15 years can repudiate the
marriage before 18 years, provided the marriage has not been
consummated.

Judicial rulings in India have examined the option of

puberty within the context of Muslim marriages.
 ➢ In Behram Khan v. Akhtari Begum[13], it was determined that
if a marriage is consummated before the wife reaches
puberty, it does not eliminate her right to choose.
➢ In Bismillah Begum v. Nur Mohammad[14], it was ruled that
the wife’s ability to exercise this choice only arises once she
becomes aware of her entitlement.
➢ This legal principle was further upheld by the Patna High
Court in Mst. Ayesha v. Muhammed Yunus[15], which held that
a minor wife retains her right to annul the marriage within a
reasonable timeframe after discovering her entitlement.

➢ The Bombay High Court in Abdul Karim v. Amina Bai[16]

stated that the consummation of marriage only terminates the
option if it is consensual and post-puberty.
➢ There is disagreement on whether the wife could exercise the
option under the 1939 Act alone or in other legal proceedings
like restitution of conjugal rights.
➢ The Calcutta High Court[18] ruled that the option is only valid
within the Act, while the Madhya Pradesh High Court[19]
allowed it in conjugal rights suits.

➢ In Pakistan, exercising the option ends the marriage without

court intervention, and a decree merely affirms the decision.
➢ The option of puberty follows Hanafi law, aligning puberty with
the majority for marriage, while the overall majority relies on
reaching the age of discretion.

CONCLUSION
• The option of puberty, deeply embedded in Islamic law, is a
crucial safeguard within Muslim marriages, particularly
regarding contract validity and personal autonomy.
• It ensures protection for minors by allowing them to nullify
marriage contracts upon reaching physical and sexual
maturity, aligning with the Islamic emphasis on consent and
individual rights.
• This concept preserves mutual consent, upholds fairness and
justice in Islamic jurisprudence, and reflects the nuanced
application of the puberty option within diverse legal systems.
• From judicial interpretations in India to the legal framework in
Pakistan, the option of puberty underscores Islam’s
commitment to protecting the vulnerable and ensuring
equitable treatment within marriage and contractual
relationships.