Unit- IV

Introduction to Muslim law: historical development, who is a Muslim, ancient sources, modern

sources, concept of Hiba (Gift), sects under Muslim law

Introduction to Muslim law

Introduction

Muslim law applies only to Muslims. In India, courts use Muslim law for people who identify as Muslims in
certain situations. This law comes from the teachings of the Quran and Prophet Muhammad. It includes rules
about things like marriage, divorce, inheritance, and succession.

In religious terms, "Islam" means submitting to God's will, and in a literal sense, it means establishing peace.
So, Muslim Personal Law deals with issues important to Muslims, like marriage and inheritance.

Historical development

Islamic law started with Prophet Muhammad's teachings in the 7th century, based on the Quran and his
actions. It grew as legal scholars developed different schools of thought. During the Islamic Golden Age,
scholars made legal advancements, and Islamic law was formalized in Muslim empires. However, European
colonialism changed legal systems in colonized regions. Today, Muslim countries work to blend Islamic law
with modern legal systems. Discussions continue on how Islamic law applies to issues like women's rights and
democracy.

Who is a Muslim

Self-identifies as a Muslim: Individuals who openly profess to follow the religion of Islam and consider
themselves Muslims.

Has undergone a formal conversion: In some legal systems, individuals may officially convert to Islam through
a process that involves reciting the Shahada (declaration of faith) and may be recognized as Muslims under
the law following this conversion.

Is born into a Muslim family: Some legal systems consider individuals born to Muslim parents or having a
Muslim father as automatically being Muslims by birth.

Is recognized as a Muslim by a religious authority: In certain jurisdictions, religious authorities or institutions

may have the authority to determine an individual's status as a Muslim based on their adherence to Islamic
beliefs and practices.

Primary Sources of Muslim Law in India

1) Quran

Th The Quran is like the main rulebook for Muslims. They believe it's the word of God given to Prophet
Mohammed through an angel named Gabriel. It's the most important source for Islamic teachings and laws.
Basically, it's the ultimate guide for how Muslims should live their lives.

2) Sunna (Traditions or Ahadis)

Sunna means the way Prophet Mohammed lived and what he said and did. It's like following his example.
When the Quran doesn't give specific instructions, Muslims look to what the Prophet did or said for
guidance. They believe his actions were inspired by God too. His teachings and actions are called Hadiths,
and they help explain Sunna. Sunna includes three parts: what the Prophet said, what he did, and times
when he didn't say or do anything. It's important to remember that Sunna is different from the Quran
because the Quran is considered the direct word of God, while Sunna is what the Prophet said and did.

3) Ijma (Consensus)

After the Prophet passed away, Muslim leaders decided that Muslim scholars would be in charge of
interpreting Islamic teachings. These scholars, called Mujtahids, would use the Quran, Sunna, and Hadiths to
explain Islamic law. They would also rely on something called Ijma, which means the agreement of these
scholars on a certain issue. There are three types of Ijma:

Ijma of Companions: This is when the Prophet's companions all agreed on something. Their agreement
was considered very important and couldn't be changed.

Ijma of the Jurists: When later scholars, who weren't companions of the Prophet, all agreed on something, it
was called Ijma of Jurists.

Ijma of the people: This is when the majority of ordinary Muslims agreed on something. However, this kind
of agreement wasn't seen as very important in Islamic law

4) Qiyas (Analogical deductions)

Qiyas comes from a word that means "beat together" or "compare." It's like making a comparison. When
there's something not clearly explained in the Quran, Sunna, or Ijma, scholars use Qiyas to figure it out. They
compare it to something similar that is already explained. Qiyas isn't about making new laws; it's about
applying existing ones to new situations. It's not as important as other sources of Islamic law, but it helps fill
in the gaps. Its main job is to make sure existing laws cover everything, even if they weren't explicitly
mentioned before.

Secondary Sources of Muslim Law in India

Legislation

Legislation is important because it sets up rules and procedures through parliament and holds authority at
the state level. Even though Muslim law isn't written down in India, the Indian Parliament has passed many
laws to help the Muslim community. Some parts of these laws were approved by a certain Islamic school
called the Hanbali school, but they weren't related to personal laws.

When it comes to matters like marriage, inheritance, and succession among Muslims, the Muslim Personal
Law (Shariat) Application Act of 1937 governs them. And if there's a divorce issue, it's covered by the
Dissolution of Muslim Marriages Act of 1939.

2) Judicial decisions – (Precedent)

Judicial precedent means that judges use past court decisions to help them decide similar cases in the future.
This is known as the principle of stare decisis. It basically means "to stand by things decided." So, when a
higher court has made a decision in the past, lower courts have to follow that decision when they have
similar cases. It's like following a rulebook based on what higher courts have already decided.

3) Custom

- Customs are traditions that have been around for a long time and are followed like laws because people
have been doing them for so long.

- To become a law, a custom must make sense and not be random.

- In Islamic law, different customs guide how people behave. Back when there wasn't a formal set of Islamic
laws, the Prophet and his followers relied on these customs to deal with certain situations.

- Muslim experts say there are four things a custom need to be seen as legitimate:

1. It should happen regularly and noticeably.

2. It should apply to everyone and make sense.

3. It shouldn't go against the teachings of the Quran or the Sunnah.

4. It doesn't have to be ancient to be considered valid.

Concept of Hiba

Hiba in Islamic Law (10 Mark Question)

Introduction (1 mark):

Hiba, in Islamic law, refers to the voluntary transfer of ownership of property or assets without expecting
anything in return. It holds significant importance in facilitating wealth distribution and promoting
charitable acts within Muslim communities.

Legal Framework of Hiba (3 marks):

Hiba finds its legal basis in Quranic principles and the teachings of Prophet Muhammad. For a Hiba to be
valid, certain conditions must be met, including the donor's intention to gift, the recipient's acceptance,
and the delivery of the gifted property. Specific rules may apply regarding the types of property eligible
for gifting under Islamic law.

Significance of Hiba (3 marks):

Hiba plays a crucial role in fostering generosity, solidarity, and equitable wealth distribution in Islamic
society. It enables Muslims to fulfill religious obligations such as Zakat and Sadaqah, contributing to the
welfare of the less fortunate. Historical and contemporary practices of Hiba exemplify its importance in
promoting social welfare and economic justice.

Legal Implications and Challenges (2 marks):

While Hiba serves noble purposes, it may lead to legal implications and disputes, particularly concerning
inheritance laws and asset distribution among heirs. Disputes over the validity or terms of a Hiba may
require intervention from Islamic scholars or legal authorities to ensure adherence to Islamic principles
and fair resolution.

Conclusion (1 mark):

In conclusion, Hiba stands as a fundamental concept in Islamic law, facilitating wealth distribution,
promoting charity, and upholding social justice. Understanding its legal framework, significance, and
potential challenges is essential for maintaining adherence to Islamic principles and fostering harmonious
communal relations.
Sects under Muslim law

In Islam, there are two main groups, or sects: Sunni and Shia.

Sunni Muslims believe that leaders should be chosen by the community, based on the teachings of the
Prophet Muhammad. They follow the Quran (the holy book of Islam), the Sunnah (the Prophet's
teachings), and the Hadith (his sayings and actions).

Shia Muslims believe that leadership should have passed directly to the family of the Prophet
Muhammad, through his cousin Ali and his descendants, known as Imams. They have different religious
practices and follow different traditions from Sunnis.

Both sects have their own interpretations of Islamic law and practices, but they share a belief in one God
(Allah) and the basic teachings of Islam.