/3.0.

Introduction to Islam
By Huda, About.com Guide

See More About:

• islamic beliefs
• islamic practices
• pillars of islam
Sponsored Links
Muslim MarriageLargest & Secure Muslim Matrimony Site. Find your Life Partner Now!
MuslimShaadi.in/Register-Free
Grace, Free Bible StudiesChallenge / Ask anything from Bible Free Downloads 50+ bible
studiessantocalarcoministries.com

God can change your lifeLearn from this true life story How God can give you new
hopewww.LifesGreatestQuestion.com

Islam Ads

Islam Dating in Islam Islam and Terrorism Islam Chat Room Muslim

What is Islam?:

The name of the religion is Islam, which comes from an Arabic root word meaning "peace" and
"submission." Islam teaches that one can only find peace in one's life by submitting to Almighty
God (Allah) in heart, soul and deed. The same Arabic root word gives us "Salaam alaykum,"
("Peace be with you"), the universal Muslim greeting.

Who is a Muslim?:

A person who believes in and consciously follows Islam is called a Muslim, also from the same root
word. So, the religion is called "Islam," and a person who believes in and follows it is a "Muslim."

• What is the difference between Muslim, Moslem and Islamic?

How Many and Where?:
Islam is a major world religion, with over 1 billion followers worldwide (1/5 of the world
population). It is considered one of the Abrahamic, monotheistic faiths, along with Judaism and
Christianity. Although usually associated with the Arabs of the Middle East, less than 10% of
Muslims are in fact Arab. Muslims are found all over the world, of every nation, color and race.

• Muslim population of the world

Who is Allah?:
Allah is the proper name for Almighty God, and is often translated merely as "God." Allah has other
names that are used to describe His characteristics: the Creator, the Sustainer, the Merciful, the
Compassionate, etc.

Muslims believe that since Allah alone is the Creator, it is He alone that deserves our devout love
and worship. Islam holds to a strict monotheism. Any worship and prayers directed at saints,
prophets, other human beings or nature is considered idolatry.

• More about the nature of God

• "Names" of Allah
What do Muslims believe about God, prophets, the afterlife, etc.?:
The basic beliefs of Muslims fall into six main categories, which are known as the "Articles of
Faith":

• Faith in the unity of God

• Faith in angels
• Faith in prophets
• Faith in books of revelation
• Faith in an afterlife
• Faith in destiny/divine decree
The "five pillars" of Islam:
In Islam, faith and good works go hand-in-hand. A mere verbal declaration of faith is not enough,
for belief in Allah makes obedience to Him a duty.

The Muslim concept of worship is very broad. Muslims consider everything they do in life to be an
act of worship, if it is done according to Allah's guidance. There are also five formal acts of worship
which help strengthen a Muslim's faith and obedience. They are often called the "Five Pillars of
Islam."

• Testimony of faith (Kalima)

• Prayer (Salat)
• Almsgiving (Zakat)
• Fasting (Sawm)
• Pilgrimage (Hajj)
Daily life as a Muslim:
While often seen as a radical or extreme religion, Muslims consider Islam to be the middle road.
Muslims do not live life with complete disregard for God or religious matters, but nor do they
neglect the world to devote themselves solely to worship and prayer. Muslims strike a balance by
fulfilling the obligations of and enjoying this life, while always mindful of their duties to Allah and to
others.

• Morals and manners

• Business ethics
• Modesty in dress and behavior
• Dietary rules
• Marriage
• Care of children and elderly
• Racism and prejudice
• Relations with non-Muslims
Suggested Reading
• Introductory Books About Islam
• Free Literature About Islam
• Glossary of Islamic Terms
Related Articles
• Religion - Islam - Moroccan Culture Series
• Islamic Beliefs & Worship
• Allah in Islam - The Concept of Allah (God) in Islam
• Myths About Islam - Top 10 Myths About Islam
• Summary - Crossroads to Islam: The Origins of the Arab Religion and the Ara...

Huda
Islam Guide

• Sign up for my Newsletter

• My Blog
• My Forum

Personal Laws
In India, most family laws are determined by the religion of the parties concerned.[1] Hindus,
Sikhs, Jains and Buddhists come under Hindu law, whereas Muslims and Christians have
their own laws. Muslim law is based on the Sharia. The personal laws of other religious
communities were codified by an Act of the Indian parliament. Other sets of laws such as
criminal laws and civil laws on contract, evidence, transfer of property, taxation were also
codified in the forms legislation.
[edit] History
This debate on Uniform Civil Code dates back to the colonial period.
The Lex Loci Report of October 1840 emphasized the importance and necessity of uniformity
in codification of Indian law relating to crimes, evidences, contract etc., but it recommended
that personal law of Hindus and Muslims should be kept outside such codification.[2]
In Hindu law there are two principal schools, Dayabhaga and Mitakshara. Mitakshara is again
subdivided into four minor schools. Besied, the custom of sadachar also occupies important
position. Attempts to reform Hindu law by legislative processes commenced during British
period. Reforms such as The Caste Disabilities Removal Act, 1850, the Hindu Widow
Remarriage Act, 1856, the Hindu Inheritance(Removal of Disabilities) Act, 1928, the Hindu
law of Inheritance(Amendment) Act, 1929, the Hindu Gains of Learning Act, 1930, the Hindu
Women's Right to Property Act, 1937, the Hindu Married Women's Right to separate
Residence and Maintenance Act, 1946 were all enacted to give relief to those who are not
content to abide by ancient shastras. The Hindu Law Committee was appointed in 1941 to
look into a comprehensive legislation covering all Hindu laws.[3] This committee ceased to
function after sometime due to war. It was revived in 1944 under the chairmanship of Sir B.N.
Rau and recommendations of Rau committee were given effect by a series of acts passes in
1955 and 1956, to regulate marriage succession, guardianship and adoption. These were the
Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, the Hindu Minority and
Guardianship Act, 1956, finally the Hindu Adoptions and Maintenance Act, 1956.[4]
Among Muslims there are Sunnies, Shias, Ismailis, Bohras, Khojas and unorthodox
Ahmadiyas. There are four different schools among Sunnies. There are also Kutchi Memons,
who retain to some extent the private laws of the Hindus.[5] Most of the legislations of were
enacted mainly to override judicial decisions and to restore shariat law. The Wakf Validation
Act, 1913 was passed to override the decision of Privy Council.[6] A number of acts from the
colonial period specifically exempted Muslims in an effort to avoid resistance from that
community. The Indian Succession Act of 1925, which dealt with inheritance and succession,
specifically exempted Muslims.[7] Muslims had a complicated inheritance system based on the
Quran. The original Indian inheritance law had been enacted in 1865 and had exempted
Hindus as well. However, the act was ultimately applied to Hindus. The Special Marriage Act
of 1872, which was essentially a secular civil marriage law, also exempted Muslims. Not all
calls to exempt Muslims were accepted. The Indian Evidence Act of 1872 included section
112, which concerned the legitimacy of children. This section was later found to apply to
Muslims, despite its inconsistency with Muslim law. Shariat Act, 1937 swept away any
custom or usage contrary to the shariat in all questions regarding succession, special property
of females, marriages and dissolution of marriages, guardianship, gifts, trust properties, wakfs
etc.[8] Muslim Dissolution of Marriage Act 1939 granted women the right to dissolution of
marriage.[9]
In the case of christians there Indian Christian Marriage Act was enacted. But this was not a
comprehensive act.[10]
Personal Law of parsis is partly codified but the machinery for dealing with divorce and other
matrimonial reliefs are not proper.
[edit] Muslims and Uniform Civil Code
[edit] 1950-1985
The framers of the Indian constitution, including men such as Nehru, were convinced that a
certain amount modernisation is required before a uniform civil code is imposed on citizens
belonging to different religions including Muslims. It was also feared that any attempt to
ignore personal laws of various religions might lead to civil war, wide-scale rioting and social
unrest. This was a rational concern coming on the backs of the events of 1948 whereby
Gandhi had been assassinated over communal issues. Syed Abdul Latif had envisioned this
problem when he wrote in 1939 a model constitution for India that included a section
"whereby the interests of Muslims, as well as other minorities, may adequately be
safeguarded." Under his article on the Judiciary, the lone comment he made was that "the
personal law of the Muslims should be administered by Muslim judges." The feeling that
India might disintegrate if not given a benign constitution was further accelerated by the
dissolution of the princely states, some of which such as Hyderabad had to be taken by force.
It is only in this atmosphere that one can judge the Indian constitution and its views on
minority rights.
India's leaders at the time wanted a secular constitution on the model of a western democracy.
However, what resulted was not secularism in the western sense of the word, but rather a
'secular' state with religious laws for its religious groups. Mushir ul-Haq points out that in
India 'secular' means "non-intervening in the matter of religion." The religious groups in India
are many, mainly consisting of a Hindu majority, a significant Muslim minority, and smaller
amounts of Buddhists, Sikhs, Jains, Christians, Jews, and tribal peoples. On the side of
creating a purely secular state, there is Article 44 which states "The State shall endeavor to
secure for citizens a uniform civil code throughout the territory of India." However, in
response to this, there exist Article 14 which guarantees the Fundamental Right of equality
before law,Article 15 which prohibits discrimination against any citizen on grounds only of
religion, race, caste, sex or place of birth and Articles 25-29 providing religious and cultural
freedom...Article 13 of the Constitution says that all laws in force in India at the time of the
commencement of the constitution, if repugnant to any of the fundamental rights, have to
cease to apply in any manner whatsoever.Article 372 at the same time requires that "all the
laws in force in the territory of India immediately before the commencement of this
constitution shall continue in force therein until altered or repealed or amended by a
competent legislature or other competent authority."
There is a basic contradiction here. On the one hand, the constitution recognizes the continued
existence of Personal Law, which is why Article 44 expects that India at some later date will
have a uniform civil code. On the other hand, there exist several articles, such as Article 14-
19 which guarantee equal rights. Since personal laws for various groups are inherently
unequal, since a divorcee in Muslim law is entitled to different things than in Hindu law,
therefore Article 15 would seem to make personal law unconstitutional. Furthermore, Article
15 also requires non-discrimination based on "sex", whereas Muslim Personal Law favors the
man in many cases, especially in the issue of divorce and in the issue of polygamy. Equality
before the law would essentially mean that Muslim women could take up to four husbands.
These issues remained unresolved in the constitution.
The High Courts of Bombay, Madras and Punjab all took a stab at understanding this
contradiction during early rulings in 1952 and 1968. The conclusion in these cases, one of
which involved polygamy, was quite convoluted. On the one hand the courts found that
Muslim Personal Law was not included under Article 372 as a 'law in force today' since
Muslim Personal Law had its roots in the Quran and therefore 'could not be said to been
passed or made by a legislature'. This of course ignores the fact that Anglo-Mohammedan
law, the great body of which remained in force after 1950, was not merely based on the Quran
but rather the Shariat Act. Secondly, the justices found that Article 13 and its requirement of
equality did not abolish personal laws, since if it had, then personal laws would not have been
mentioned elsewhere. The conclusion was that the constitution recognized personal laws in
Article 44, did not void them in Article 13, and that Article 372 did not apply to personal laws
since they were inspired by religious texts, not created by legislation. Thus, personal laws
remained outside the scope of any ruling on equality. This train of judicial thought would
remain in force until the 1980s and the advent of the Shah Bano case.
Two further points must be made regarding the Constitution and its importance for Muslim
Personal Law. The first is Article 25 which states "nothing in this article shall affect the
operation of any existing law". Like Article 372, this was trying to get at the laws that had
been passed under British rule, many of which would remain in force after the constitution
was passed. Furthermore, Article 44 expressly mandates the government to introduce a
uniform civil code, which would include such items as marriage, inheritance and divorce,
which were the main protections granted to Muslims in their personal law. Tahir Mahmood in
his excellent study, Muslim Personal Law, concludes that "Article 44 does not require the
state to enforce a uniform civil code abruptly; it rather gives a latitude for the introduction of
such a code in stages...since the Muslims and other minorities were not 'prepared to accept
and work social reform,' enactment of an all embracing civil code could be lawfully deferred."
The passage of the Hindu Code Bills in the 1950s marked a turning point in the history of the
Muslim Personal Law. Until this time, Muslim Personal Law had existed side by side with
similar religious laws for Hindus and other religious groups. The Hindu Code Bills were a
series of laws aimed at thoroughly secularizing the Hindu community and bringing its laws up
to modern times, which in essence meant the abolition of Hindu law and the enactment of
laws based on western lines that enshrined the equality of men and women, and other
progressive ideas. The Hindu Marriage Act of 1955 extended to the whole of India except the
state of Jammu and Kashmir. The affect of the Hindu Marriage Act was to prohibit polygamy
amongst Hindus and to increase the right of the divorced wife to maintenance or alimony. The
act applied to everyone in India except Muslims, Christians, Parsees, and Jews. Since Jews
are a very small minority and Parsees are as well, and since Christians were governed under
an already modern[citation needed] or progressive law[clarification needed], Muslims remained de facto the
only large community with a distinct religious law that had not been reformed to reflect
modern concepts.
The legal practice of excluding Muslims continued with the passage of the Dowry Prohibition
Act of 1961 which specifically excluded "dower or mahr in the case of persons to whom the
Muslim Personal Law (Shariat) applies". In 1973, on a debate over the revision of the
Criminal Procedure Code, it was pointed out in regard to maintenance of divorced wives that
in cases involving Muslims, the court should take note as to whether the woman had received
maintenance under the Personal Law. For Muslims, this meant the period of idda or three
months after the divorce. In essence, the parliament once again set aside Muslims, while the
law would apply to other divorced women, giving them maintenance far in excess of three
months. Shahida Lateed's comments on this period include the observation "after the passage
of the Hindu Code Bill the legal inequality between the rights of Hindu men and women was
eliminated, while the marginal inequality between the rights of Muslim women and men
remained".
While the period 1950–1985 can be summed up as one where Muslim Personal Laws were
exempted from legislation and they remained un-reformed, it can also be seen as a period
where there were secular avenues opened to Muslims, the biggest of which was the passage of
the Special Marriage Act, 1954. The idea behind this act was to give everyone in India the
ability to marry outside the personal law, in what we would call a civil marriage. As usual the
law applied to all of India, except Jammu and Kashmir. In many respects, the act was almost
identical to the Hindu Marriage Act of 1955, which gives some idea as to how secularized the
law regarding Hindus had become. The Special Marriage Act allowed Muslims to marry
under it and thereby retain the protections, generally beneficial to Muslim women, that could
not be found in the personal law. Under the act polygamy was illegal, and inheritance and
succession would be governed by the Indian Succession Act, rather than the respective
Muslim Personal Law. Divorce also would be governed by the secular law, and maintenance
of a divorced wife would be along the lines set down in the civil law.
The Muslim leadership opposed this bill vehemently and the Jamiat al-Ulama claimed that "if
a Muslim marries under the act of 1954, he commits a 'sin' and his marriage is unlawful in the
eyes of Islam." By 1972, the community had gained enough political clout to cause a secular
Adoption of Children Bill to be shelved permanently. For the Muslims, the period was one in
which, although the religious leadership was not wholly satisfied with all the government's
legislation, it did succeed in stalling reforms.
[edit] Personal Law under assault 1985-2005
The development of Muslim Personal Law did not take place in a vacuum. In order to
comprehend how Article 44 of the Constitution and its mandate for a uniform code was
ignored, it is necessary to grasp the developments in Indian politics. India is approximately
12% Muslim and has been since independence. Thus, in 1973, India had about 61 million
Muslims. Today that figure is estimated to be 135 million.[11] As the largest minority group,
India's Muslims form an integral part of the political system in a democracy with many
political parties. The government of India, which was dominated by the Congress party until
the 1990s, has pursued a policy of appeasement towards India's Muslims[citation needed], hoping to
co-opt them in political support[clarification needed]. Since the Congress Party is leftist and Muslims
in India have identified leftist parties with their best interests, there has been a symbiotic
relationship between India's Muslims and what for the most part has been India's ruling elite.
The names of the Congress Party's leaders are familiar, Nehru in the 1950s and Indira Gandhi
in the 1970s and early 80s.
The rise of the Bharatiya Janata Party (BJP), a right wing conglomerate that had allies in the
Hindu Nationalist RSS and Shiv Sena organizations, has had a major impact on the question
of a Uniform Civil Code to replace the Personal Law. Its platform in 1999 regarding religion
stated: "36. We are committed to establishing a civilized, humane and just civil order; that
which does not discriminate on grounds of caste, religion, class, colour, race or sex. We will
truly and genuinely uphold and practice the concept of secularism consistent with the Indian
tradition of 'Sarva panth samadara' (equal respect for all faiths) and on the basis of equality of
all. We are committed to the economic, social and educational development of the minorities
and will take effective steps in this regard."
The platform is a bit nebulous, and it is hard to pin down exactly what the intention is, but
from an interview with Mukhtar Abbas, the party spokesman in Delhi, it is clear that the goal
is the overhaul or abolition of Muslim Personal Law. Most likely, this would take the form of
following through with Article 44's mandate to create a uniform civil code. The BJP has seen
a steady increase in its share of the vote and held the Prime Minister post in 1996 and again
from 1998–2004. With politics as a background, we can view the changes and attempted
reforms of Muslim Personal Law in the period.
The case of Shah Bano vs. Mohammad Ahmad Khan led the Indian Supreme Court on April
23, 1985 to judge that the divorcee Shah Bano was entitled to maintenance under section 125
of the Code of Criminal Procedure. Bano was a 73 year old Muslim woman whose husband
divorced her using the triple talaq whereby the husband has the right to unilaterally divorce
his wife by saying "I divorce you" three times in three periods. When the husband stopped
paying her maintenance after the time required by Muslim law, she petitioned the court
claiming that the criminal code should apply to Muslims, and that she deserved more
maintenance than she would be given under Muslim Personal Law. The court, perhaps
anticipating a Muslim protest, then argued that even in the Quran a woman is entitled to
maintenance due to Sura 2:241-242. In its judgment, the court claimed "These Ayats(verses)
leave no doubt that the Quran imposes an obligation on the Muslim husband to make
provision for, or to provide maintenance to, the divorced wife." The interesting point here is
that the court not only felt it should rule that the criminal code applied to Muslims, but it also
felt a need to interpret the Quran.
The response to the ruling in Muslim areas was prompt and reactionary. Protestors took to the
streets, disturbances resulted, and Muslim leaders proclaimed that they would sacrifice
'everything' to protect their Personal Law. The government of Rajiv Gandhi, Indira's son,
acted quickly, passing the Muslim Women's (Protection of Rights in Divorce) Act in 1986, a
law that essentially provided for maintenance for Muslim women outside the criminal code,
thus ensuring that Muslim women were not protected under the constitutional right to
equality, and that they could no longer have recourse to section 125 of the Criminal Code.
The act was an improvement on the former divorce rights under the Shariat Act, or Muslim
Personal Law that Ms. Bano had found wanting. The Muslim Women's (Protection of Rights
in Divorce) Act provided for the return of the mahr and the standard maintenance during the
iddat period, and also provided that the:
• Subsection(1)Magistrate is satisfied that a divorced woman has not re-
married and is not able to maintain herself after the iddat period, he may
make an order directing such of her relatives as would be entitled to
inherit her property on her death according to Muslim law to pay such
reasonable and fair maintenance to her as he may determine fit and
proper, having regard to the needs of the divorced woman, the standard of
life enjoyed by her during her marriage.
• Subsection (2)... the Magistrate may, by order direct the State of Wakf
Board established under Section 9 of the Wakf Act, 1954, or under any
other law for the time being in force in a State functioning in the area in
which the woman resides, to pay such maintenance as determined by him
under sub-section (1).
Minority Rights Group International commented on the law that it "highlighted the
disjunction between constitutional law premised on the principle of sexual equality and
religious laws which discriminate on the basis of this very category." Shahida Lateef, in her
Muslim Women in India, claimed that Muslim women's "prospects were dealt a blow by the
ever vigilant conservatives, to whom Islam represents not a system of overall justice, of
carefully crafted women's rights, but merely an opportunity to assert minority differentiation
at the expense of women."
The Shah Bano case is still seen as a turning point in the question of Muslim Personal Law in
India, for it proved that despite the high courts call for equality, the legislature would do
everything in its power to keep the Personal Law off limits. The ideology behind this was one
whereby non-Muslims claimed that Muslims must themselves change and reform their
Personal Law and until the Muslim population of India and its spokesmen such as the All
India Muslim Personal Law Board or the Jumiat al-Ulama called for change nothing would be
done. At the same time, the Muslims saw their law as an essential part of their culture, a
feeling which expressed itself during the colonial era. Any attempt to dismantle the personal
law, the Muslims feared, would destroy Muslim culture on the subcontinent. The Bano case,
however, also mobilized the right wing Hindu movements in their support, not necessarily of
women's rights, but of a uniform civil code. Bipan Chandra comments in India After
Independence that the issue was "complicated by the overall communal atmosphere in which
issues of Muslim identity got entangled with the simpler issue of women's rights, and the
Hindu communalist enthusiasm for Muslim women's rights often left women rights activists
confused and helpless." Minority Rights Group International played the same theme when it
claimed "The BJP appropriated the women's rights debate by aggressively campaigning for a
Uniform Civil Code, which would replace Muslim Personal Law." The road from 1986 to the
present has mirrored this basic struggle. The Right wing parties campaigning on behalf of
Muslim Women has caused minority and women's groups to actually temper their anger over
the discrimination of women in Muslim personal Law, and Muslim conservative groups have
become more steadfast in its defense.
The 1986 law was tested in June 2000 when Shakila Parveen, whose husband divorced her
using the triple talaq method: "One fine morning in 1993, he [my husband] came to me and
pronounced talaq, talaq and talaq." Although Justice M.C. Manchanda in his 1973 text on
Divorce Law in India had pronounced the use of the triple talaq as a "disapproved form", it
was the same form used by the husband of Shah Bano and is considered an unjust divorce
technique by women's groups, although it remains common. Manchanda comments "In this
form, three pronouncements are made during a single period of purity, at one and the same or
different times." Manchanda points out that the 'approved' form of Talaq includes "three
successive pronouncements during three consecutive periods of purity." Shakila Parveen had
been granted 800 rupees a month for her iddah (three Haydh/menstrual periods) in addition to
her 2500rs mahr payment, which in many cases in India is not actually given to the wife at
marriage, in violation of the intention of the Quran. Parveen petitioned the High Court of
Calcutta under the Muslim Women's (Protection of Rights in Divorce) Act, 1986. In July
2000, Justice Basudev Panigrahi ruled that "A divorced Muslim woman is entitled to
maintenance after contemplating her future needs and the maintenance is not limited only up
to the iddat period. The phrase used in Section 3 (I) (A) of the Act, 1986 is reasonable and fair
provision and maintenance to be made to see that the divorced woman get sufficient means of
livelihood after divorce, and that she does not become destitute or is not thrown out on the
street." The reasoning in this ruling has been applied in the courts of Bombay and Lucknow
as well, and it appears as if the Muslim Women's Act, 1986 has in the long run accomplished
what the supreme courts original ruling in 1985 had been, namely that Muslim women
deserve maintenance outside their iddah period.
In addition to the rulings under the Muslim Women's Act, women's groups have challenged
the Acts constitutionality since it appears to contradict the promise of sexual equality found in
the Indian constitution. These petitions have not been taken up by the Supreme Court,
probably due to the fear of disturbances it would cause among the Muslim community. In
fact, in 1997, when one such petition seemed like it would be heard by the court, an article
appeared in the press claiming Muslim "religion in danger". On another occasion, in 1994, a
judge in Allahabad found the entire principle of triple talaq divorce unconstitutional.
However, the ruling was shelved due to extrajudicial issues. The ruling appears to have been
reinforced by a separate ruling by the Bombay high court in the case of Rahim Bi, where the
triple talaq was found to be illegal.
This has been a quick survey of the rulings pertaining to the Muslim Personal Law since the
1985 Shah Bano case. The basic message is that slowly but surely the courts have chipped
away at the most blatantly discriminatory pieces of Islamic Law. The Talaq divorce and
divorced Muslim women's rights have come under legal reevaluation. However, one major
issue remains unchanged although not unchallenged: the issue of polygamy. No part of Sharia
law is more discriminatory in its nature to women than polygamy and at the same time it is
the hardest to change since it is specifically spelled out in the Quran. In India, the law on
polygamy is ruthlessly loose because it does not require the man to prove in any way that he
can maintain more than one wife. Thus, there is unchecked access of even the poorest men to
have more than one wife. The avenues of assault on Polygamy in India have been threefold.
First, there are the relatively infrequent complaints by Muslim women petitioning the court
over a specific problem with their husband's polygamous choices. Second, there are many
groups and progressives who have argued that Muslim Personal Law should be reformed
along the guidelines of Tunisia or Turkey. The last avenue of attack has been the calls for a
Uniform Civil Code, and a doing away with the Muslim Personal Law, since it appears to be
inflexible.
Under the headline "End Polygamy, Muslim woman pleas with SC (Supreme Court)" the
Times of India reported in 2001[citation needed] that the women's lawyer Lily Thomas had argued
"The custom and usage of polygamy and extra-judicial divorce allowed to be practiced by
Muslims is a denial of equality, personal liberty and human rights guaranteed to all citizens
by Articles 14, 15 and 21 of the Constitution... [she asked the court to declare that] polygamy
practiced by Muslim community is illegal, unconstitutional and void to be simultaneously
substituted by monogamy." Despite the pleas, the court did not reverse the Muslim Personal
Law and its acceptance of Polygamy.
In 1995, the Supreme Court of India was asked to review four cases where Hindu men had
converted to Islam in order to marry a second wife. The case is Sarala Mudgal v. Union of
India, AIR 1995 SC 153, In each case, the first marriage had been solemnized under the
Hindu Marriage Act of 1954. Justice Kuldip Singh harkened back to a 1945 case where the
court had declared "If this were an Islamic country, where the Mohammedan Law was
applied to all cases where one party was a Mohammedan, it might be that Plaintiff would be
entitled to the declaration prayed for. But this is not a Mohammedan country; and the
Mohammedan Law is not the Law of the Land." Justice Singh's ruling was quite fascinating in
a number of respects. First, he pointed out that "In India there has never been a matrimonial
law of general application. Apart from statute law a marriage was governed by the personal
law of the parties." Secondly, he mentioned "that a marriage celebrated under a particular
personal law cannot be dissolved by the application of another personal law to which one of
the spouses converts and the other refuses to do so." Concluding that "Since monogamy is the
law for Hindus and the Muslim law permits as many as four wives in India, errant Hindu
husband embraces Islam to circumvent the provisions of the Hindu law and to escape from
penal consequences."
In his rather lengthy ruling, he touched on the importance of a Uniform Civil Code for India
20 times. Singh was clear in his call for a Uniform Civil Code when he remarked that "The
successive Governments till date have been wholly remiss in their duty of implementing the
constitutional mandate under Article 44." In 2003, the Supreme Court in John Vallamattam V.
Union of India, AIR 2003 SC 2902, under Chief Justice V.N. Khare made a similar call in his
remark "We would like to state that Article 44 provides that the State shall endeavor to secure
for all citizens a uniform civil code throughout the territory of India. It is a matter of great
regrets that Article 44 of the Constitution has not been given effect to. Parliament is still to
step in for framing a common civil code in the country. A common civil code will help the
cause of national integration by removing the contradictions based on ideologies." The reason
that Article 44 had not been enacted can best be summed up by Indian Prime Minister
Jawaharlal Nehru who declared in 1954 "I do not think that at the present moment the time is
ripe in India for me to try to push it through." Given that post colonial India has been
governed by the Congress party of Nehru for much of its existence, and that his daughter and
grandson have held the Prime Ministers post for 35 of India's 58 years of independence, it
becomes easier to understand why the party of Nehru did so little to tamper with India's
Muslim Personal Law.
The continuing controversy of Article 44 of the Indian constitution and its calls for a Uniform
Civil Code have not receded over time, nor has there been any attempt to amend the
constitution. The basic question has been whether Article 25 of the same constitution which
guarantees "right to freedom of conscience and free professions, practice and propagation of
religion."
The Shiv Sena party, which governed the Indian state of Maharashtra in the mid-1990s,
claimed it wanted to introduce a Uniform Civil Code in 1995 but did not pass such a bill.
Some Muslim leaders viewed the attempt as an "attempt to destroy Muslim Identity." In the
small state of Goa, a civil code based on the old Portuguese Family Laws exists, and Muslim
Personal Law is prohibited. This is a result of the occupation of Goa in 1961 by India, when
the Indian government promised the people that their laws would be left intact. A
knowledgeable person on Goa law, Margaret Mascarenhas writes that "For the most part, the
civil laws currently in force in Goa that pertain to marriage, divorce, protection of children
and succession are non-discriminatory in terms of caste, ethnicity or gender." Despite calls in
a 1979 conference for the extension of a Uniform Code based on the Goa law to the whole of
India, the state of Goa has remained the exception to the rule. It is worth mentioning that in
1978 India amended the Child Marriage Restraint Act to prohibit marriage of a man who is
less than 21 years of age and a woman who is younger than 18 years of age. The amended law
creates a slight problem, for according to the Indian Contract act of 1972 a man may contract
marriage at 18. The 1978 revision of the Child Marriage Law overrides the Contract Act.
[edit] Towards a Uniform Civil Code
Those wishing to reform the Muslim Personal Law have often cited Muslim countries as
examples that such reform is possible. Terence Farias, in his chapter The Development of
Islamic Law points out that the 1961 Muslim Family Law Ordinance of Pakistan "makes it
obligatory for a man who desires to take a second wife to obtain a written permission from a
government appointed Arbitration Council." The interesting point regarding Pakistan is that
until 1947 both India and Pakistan had governed Muslims under the Shariat Act of 1937.
However, by 1961 Pakistan, a Muslim country, had actually reformed its Muslim Law more
than India had and this remains true today. Mushir Al-Huq and Tahir Mahmood, both Muslim
writers on Islamic Law in India, have pointed out the reforms meted out in Tunisia and
Turkey where Polygamy was abolished. Iran, South Yemen, and Singapore all reformed their
Muslim laws in the 1970s, although Iran appears to have backslid in this respect. In the end
the argument is quite clear. If Muslim countries can reform Muslim Personal Law, and if
western democracies have fully secular systems, then why are Indian Muslims living under
laws passed in the 1930s?
Most writings on the subject point to the small number of Muslim intelligentsia such as Tahir
Mahmood who are in favor of either doing away with the Personal Law or reforming it.
However, the vast majority of Muslims led by the Jumiat al-Ulama and other orthodox
Muslim groups have fought tooth and nail against any change to the Personal Law. Mushir
Ul-Haq in his treatise Islam in Secular India identifies three groups, the fundamentalist,
Moderate, and Radical. In the Radical camp are those who would do away with the Personal
Law in total, and replace it with a Uniform Code. Farias describes them as "a very small
minority of Muslims...mostly western trained." In the Modernist camp, we find men, such as
A.A. Fyzee, who believe that Sharia law is malleable and can be changed, given the consent
of the community or ijma. The Fundamentalists or 'Orthodox', as previously mentioned, rely
on the arguments of Mushir Ul-Huq who argues in Islam in Secular India that the Laws of
countries such as Tunisia and Turkey or Iraq were "thrust down their throats by authoritarian
rulers" and that "there is hardly any Muslim country which has so far denied the authority of
the sources of Shariah."
Despite these reasoned arguments, the writing on the subject dates mostly from the 1970s.
Mahmood published his work Muslim Personal Law in 1977 while Ul-Huq wrote his in 1972.
The more modern sources are mostly collections of articles, such as The Musulmaans of the
Subcontinent published in 1980 or The Muslims of India published in 1988. The debate in
India itself seems to have gone the way of the secularists in this respect and the recent rulings
by the Supreme Court. Calls for a Uniform Code have not witnessed the protests and alarms
that took place following the Shah Bano case in 1985. It is quite possible that the Muslim
community sees a Uniform code as a fait accompli after almost 60 years of Indian
independence.
Personal Law has three options open to it. It may stay as it is, intact and dating primarily from
the Shariat Act of 1937, but in many respects resembling the Anglo-Muhammadan law of the
19th century. The law may be reformed but since this would require activism from the
conservative Muslim organizations, it is unlikely, as they have expressed little willingness to
do so, and in fact have fought reforms by claiming that Muslim culture in India will be
destroyed by them. The last option, that a Uniform Code will be passed seems increasingly
likely. However, given that people in the 1970s were saying the same thing and Shah Bano
got their hopes up in 1985, it may be decades away. The major legal themes of the reformists
focus around polygamy, women's rights to Divorce and women's rights to maintenance upon
divorce. The feeling is that polygamy should be banned outright, that women should have an
easier time petitioning for a divorce, that husbands should not be able to use the triple talaq
method of divorce, and that maintenance be granted as it is with non-Muslims. Basically,
what they are arguing is for the application of the Special Marriage Act of 1954 to be applied
to Muslims, rather than it being optional for people to marry under the act.
In the case argued by Lily Thomas before the Supreme Court, she drew attention to the many
'extrajudicial' methods of divorce allowed Muslims under the Personal Law. These include
the previously mentioned talaq form which only men may perform. The ila form takes place
when the Muslim man vows to abstain from intercourse for four months. Zihar takes its name
from the word 'back' and literally means when the husband decides that his wife's back is
comparable to the back of his mother thus making it a prohibited relationship. The divorce by
mutual consent or Khula takes place when the wife pays an agreed upon sum of money to the
husband in exchange for his releasing her from marriage. As noted, all these methods are at
the behest of the husband, and they are 'extrajudicial' because they do not involve the court
system the way a petition by a Muslim woman under the Dissolution of Muslim Marriages
Act of 1939 would. It is worth pointing out that despite all the legal wrangling many Muslim
women in India are not even aware of their rights, and many Muslim marriages that take place
are done in direct violation not only of Indian law but of Sharia law as well. In the book
Divorce and Muslim Women the author did several studies, focusing on the practices in West
Bengal.
In the city of Murshidabad, it was found that in one survey only 44.83% of parents got their
daughters consent to marriage.[citation needed] In the majority of these cases, the daughters were in
their teens or sometimes, as young as 10. This is, after all, India where arranged marriages are
still common and marriages of underage girls is not uncommon. We can see in these cases
that the old problem of local custom is simply trumping Islamic law, a problem that had led to
the passing of the Shariat law of 1938 in the first place. In the case of dowry, not mahr, it was
found that a majority of the Muslims are also paying dowry, in direct violation of the Muslim
law. In the case of mahr, it was usually fixed at such a high price that the men were not
paying much if any to the wife at time of marriage. Rather, it was kept as 'security' by the
husband. Should divorce take place, the wife could demand the return of her mahr. In the case
of divorce, it was found that not only were men not waiting the required three months after
pronouncing talaq, but that the majority of divorces were taking place in front of 'local people'
not Qazis (Muslim judges) or before the courts. Dr. Syed Abdul Hafiz Moinuddin concluded
his study of West Bengali Muslims by writing "Divorced/separated Muslim women in West
Bengal are living a miserable life...The gap between theory and practice is also very
evident...local people usually are not aware of the Quranic principles of talaq."
Shahida Lateef, in her own study of Muslim women, made the same point, stressing that
Muslim women in many cases were not aware of their rights. Liberal minded groups such as
Minority Rights Group International (MRGI) have actually done Muslim women a disservice
by blaming the discrimination first on the Indian government, then blaming the right wing
parties for politicizing the debate. MRGI claims "the Indian government's rejection of the
CEDAW clauses with reference to personal laws highlights its lack of commitment to
promoting women rights in the family and society, and a violation of women's constitutional
rights to equality." Always afraid of appearing too 'racist', the same publication concludes
"Nor can their[Muslim women] status be ascribed to some essential Islamic feature."
Therefore, according to groups such as this, it is the BJP that is to blame for "its inherent link
between politics and religion has threatened India's secular fabric." Furthermore, "Right wing
ascendancy with its authoritarianism...and its views on women, bodes ill for all Indian
women." The position of women's rights activists, especially those from The West is clear.
The right wing parties, who campaign for equal rights, are unacceptable whereas the Congress
party which has done little in 50 years of leadership to reform Muslim Law is called upon to
"adhere to international human rights standards and its own constitutional provisions
safeguarding the interests of women."
The 'father of the Indian constitution', Dr. Ambedkar, speaking about Article 44 and its calls
for a uniform code, observed "It is perfectly possible that the future Parliament may make a
provision by way of making a beginning that the Code shall apply only to those who make a
declaration that they are prepared to be bound by it, so that in the initial stage the application
of the Code may be purely voluntary." Dr. Ambedkar was clear in his feeling that the state
had the power to legislate over the Personal Law but he also cautioned "No government can
exercise its power in such a manner as to provoke the Muslim community to rise in
rebellion."
Rather than following the cautious approach of Dr. Ambedkar, scarred as he was by the
communal fighting in 1948 that left 500,000 Indians dead, it might be worthwhile to analyze
the feelings of Nehru, another curmudgeon when it came to implementing Article 44.
Looking at the idea of India as a 'secular' country, he opined "The word 'secular', perhaps is
not a very happy one and yet for want of a better, we have used it. What exactly does it mean?
It does not obviously mean a society where religion itself is discouraged. It means freedom of
religion and conscience." However, on the same token, the former President of India, Dr. S.
Radhakrishnan, explained "We hold that no religion should be given preferential status or
unique distinction."
There is an inherent contradiction in India, a problem that has not been solved. Among all the
problems of the vast diverse, overcrowded country lies the inherent problem any country
deals with when it has a significant Muslim minority, namely calls by that community for
special rights. In India, the experiment of personal laws for various groups has been a failure
in achieving equal treatment for all citizens. The country legislated away all of the personal
laws, with the exception of laws applying to one of its minority groups. Other minorities were
brought into line along Western standards of secular and equal rights. However, out of fears
of creating widespread rioting and rebellion, the government shelved any reforms for the
Muslim community, leaving it in a state of coagulation dating from the 1930s. The British had
done the opposite. In implementing the Mohammedan law, the British were actually raising
the standards of many of the customary laws of Indian Muslims. The Indian post-colonial
government has done the opposite. It has refused to find a legal route that would enforce
equal rights for 50 million of its Muslim female citizens.
In the end, the same people who might have been on the side of reform, namely the Western
liberals, have turned on the idea of a uniform code because they fear that it is being peddled
by the right wing. The Uniform Civil Code is seen as a "Hindu nationalist conspiracy"
contrived to suppress the minority Muslim community. The idea that the supposedly
chauvinist Hindu Nationalists care about Muslim women is seen as "disingenuous or
comical".[citation needed] The Congress party and its appeasement of the Muslim community is
directly at fault for allowing the issue to be taken up by the right wing. Had Congress acted in
the 1970s or as late as 1985 to reform Muslim Personal Law, which even Dr. Ambedkar
conceded the government had the power to do, the issue would not have become an election
winner for Vajpayee and the BJP.
The BJP is now a major force in many parts of India, particularly the 'Hindi Belt' that runs
across North and central India. Islamic Law thrived in India for 850 years. The advent of a
Hindu Majority professing secular values should have ensured that Islamic law would be
relegated to the Mosque and the ceremony. However, in its contradictory and in many places
hypocritical attempts to assuage the minority, the Indian government enacted a constitution
that at one time allowed discrimination in the Personal Law and at the same time upheld
equality. It was only a matter of time before the courts and politics caught on. Today the
Muslim community stubbornly rejects reform, and in essence its rejection may ensure that its
privileged position is simply done away with.
Contrary to the claims made by Islamists, the Uniform Civil code is supported by many
people outside the Hindu Nationalist wing, such as rationalists and humanists like the
Federation of Indian Rationalist Association, who are opposed to Hindu Nationalism.[2]
[edit] Controversy
Proponents of the Uniform Civil Code argue on two lines:
1. The code creates equality. While other personal laws have undergone
reform, the Muslim law has not. The Hindu Nationalists contend that it
makes little sense to allow Muslims, for example, to marry more than once,
but prosecute Hindus or Christians for doing the same. They demand a
 uniform civil code for all religions.
2. Gender equality. Several liberals and women's groups have argued that
the uniform civil code gives women more rights.
[edit] Subsidies
Muslims are also funded for the Hajj, a pilgrimage to Makkah and subsidies for their religious
schools (Madrassas). On one hand, Government of India provides subsidy to Muslim to
perform Haj; on other hand, Government of India bound them to fly through government
airlines and also gets subsidy from Saudi Arabia for services providing to Indian Muslims,
whereas Hindus claim they are accorded no similar privilege for their own pi
Why is a man, allowed to have more than one wife (Polygamy) in Islam?

1. Definition of Polygamy
Polygamy means a system of marriage whereby one person has more
than one spouse. Polygamy can be of two types. One is Polygamy
where a man marries more than one woman, and the other is
polyandry, where a woman marries more than one man. In Islam,
limited Polygamy is permitted; whereas polyandry is completely
prohibited.
Now coming to the original question, why is a man, allowed to have
more than one wife?
2. The Qur'an is the only religious scripture in the world that says, "Marry only one".
The Qur'an is the only religious book, on the face of this earth, that contains the phrase
'marry only one'. There is no other religious book that instructs men to have only one wife.
In none of the other religious scriptures, whether it be the Vedas, the Ramayan, the
Mahabharat, the Geeta, the Talmud or the Bible does one find a restriction on the number of
wives. According to these scriptures, one can marry as many as one wish. It was only later,
that the Hindu priests and the Christian Church restricted the number of wives to one.
Many Hindu religious personalities, according to their scriptures, had multiple wives. King
Dashrat, the father of Rama, had more than one wife. Krishna had several wives.
In earlier times, Christian men were permitted as many wives as they wished, since the Bible
puts no restriction on the number of wives. It was only a few centuries ago that the Church
restricted the number of wives to one.
Polygamy is permitted in Judaism. According to Talmudic law, Abraham had three wives,
and Solomon had hundreds of wives. The practice of Polygamy continued till Rabbi
Gershom ben Yehudah (960 C.E to 1030 C.E) issued an edict against it. The Jewish
Sephardic communities living in Muslim countries continued the practice till as late as 1950,
until an Act of the Chief Rabbinate of Israel extended the ban on marrying more than one
wife.
3. Hindus are more polygamous than Muslims. The report of the 'Committee of The Status of
Woman in Islam', published in 1975 mentions on page numbers 66 and 67 that the
percentage of polygamous marriages between the years 1951 and 1961 was 5.06% among
the Hindus and only 4.31% among the Muslims. According to Indian law only Muslim men
are permitted to have more than one wife. It is illegal for any non-Muslim in India to have
more than one wife. Despite it being illegal, Hindus have more multiple wives as compared
to Muslims. Earlier, there was no restriction even on Hindu men with respect to the number
of wives allowed. It was only in 1954, when the Hindu Marriage Act was passed that it
became illegal for a Hindu to have more than one wife. At present it is the Indian Law that
restricts a Hindu man from having more than one wife and not the Hindu scriptures.
Let us now analyze why Islam allows a man to have more than one wife.
4. Qur'an permits limited Polygamy
As I mentioned earlier, Qur'an is the only religious book on the face of the earth that says
'marry only one'. The context of this phrase is the following verse from Surah Nisa of the
Glorious Qur'an:
"Marry women of your choice, two, or three, or four; but if ye fear that ye shall not be able to
deal justly (with them), then only one." [Al-Qur'an 4:3]
Before the Qur'an was revealed, there was no upper limit for Polygamy and many men had
scores of wives, some even hundreds. Islam put an upper limit of four wives. Islam gives a
man permission to marry two, three or four women, only on the condition that he deals justly
with them.
In the same chapter i.e. Surah Nisa verse 129 says:
"Ye are never able to be fair and just as between women...." [Al-Qur'an 4:129]
Therefore Polygamy is not a rule but an exception. Many people are under the misconception
that it is compulsory for a Muslim man to have more than one wife.
Broadly, Islam has five categories of Do's and Don'ts:
1. 'Fard' i.e. compulsory or obligatory
2. 'Mustahab' i.e. recommended or encouraged
3. 'Mubah' i.e. permissible or allowed
4. 'Makruh' i.e. not recommended or discouraged
5. 'Haraam' i.e. prohibited or forbidden
Polygamy falls in the middle category of things that are permissible. It cannot be said that a
Muslim who has two, three or four wives is a better Muslim as compared to a Muslim who
has only one wife.
5. Average life span of females is more than that of males
By nature males and females are born in approximately the same ratio. A female child has
more immunity than a male child. A female child can fight the germs and diseases better
than the male child. For this reason, during the pediatric age itself there are more deaths
among males as compared to the females.
During wars, there are more men killed as compared to women. More men die due to
accidents and diseases than women. The average life span of females is more than that of
males, and at any given time one finds more widows in the world than widowers.
6. India has more male population than female due to female foeticide and infanticide. India
is one of the few countries, along with the other neighboring countries, in which the female
population is less than the male population. The reason lies in the high rate of female
infanticide in India, and the fact that more than one million female foetuses are aborted every
year in this country, after they are identified as females. If this evil practice is stopped, then
India too will have more females as compared to males.
7. World female population is more than male population
In the USA, women outnumber men by 7.8 million. New York alone has one million more
females as compared to the number of males, and of the male population of New York one-
third are gay's i.e. sodomites. The USA as a whole has more than twenty-five million gays.
This means that these people do not wish to marry women. Great Britain has four million
more females as compared to males. Germany has five million more females as compared to
males. Russia has nine million more females than males. God alone knows how many
million more females there are in the whole world as compared to males.
8. Restricting each and every man to have only one wife is not practical. Even if every man
got married to one woman, there would still be more than thirty million females in USA who
would not be able to get husbands (considering that America has twenty five million gays).
There would be more than four million females in Great Britain, 5 million females in
Germany and nine million females in Russia alone who would not be able to find a husband.
Suppose my sister happens to be one of the unmarried women living in USA, or suppose
your sister happens to be one of the unmarried women in USA. The only two options
remaining for her are that she either marries a man who already has a wife or becomes public
property. There is no other option. All those who are modest will opt for the first.
In Western society, it is common for a man to have mistresses and/or multiple extra-marital
affairs, in which case, the woman leads a disgraceful, unprotected life. The same society,
however, cannot accept a man having more than one wife, in which women retain their
honorable, dignified position in society and lead a protected life.
Thus the only two options before a woman who cannot find a husband is to marry a married
man or to become public property. Islam prefers giving women the honorable position by
permitting the first option and disallowing the second.
There are several other reasons, why Islam has permitted limited Polygamy, but it is mainly
to protect the modesty of women.
Q: If a man is allowed to have more than one wife, then why does Islam prohibit a woman
from having more than one husband?
A: A lot of people, including some Muslims, question the logic of allowing Muslim men to
have more than one spouse while denying the same 'right' to women.
Let me first state emphatically, that the foundation of an Islamic society is justice and equity.
Allah has created men and women as equal, but with different capabilities and different
responsibilities. Men and women are different, physiologically and psychologically. Their
roles and responsibilities are different. Men and women are equal in Islam, but not identical.
Surah Nisa Chapter 4 verses 22 to 24 gives the list of women with who you cannot marry
and it is further mentions in Surah Nisa Chapter 4 verse 24 "Also (prohibited are) women
already married".
The following points enumerate the reasons why polyandry is prohibited in Islam:
1. If a man has more than one wife, the parents of the children born of such marriages can
easily be identified. The father as well as the mother can easily be identified. In case of a
woman marrying more than one husband, only the mother of the children born of such
marriages will be identified and not the father. Islam gives tremendous importance to the
identification of both parents, mother and father.
Psychologists tell us those children who do not know their parents, especially their father
undergo severe mental trauma and disturbances. Often they have an unhappy childhood. It is
for this reason that the children of prostitutes do not have a healthy childhood. If a child born
of such wedlock is admitted in school, and when the mother is asked the name of the father,
she would have to give two or more names!
I am aware that recent advances in science have made it possible for both the mother and
father to be identified with the help of genetic testing. Thus this point, which was applicable
for the past, may not be applicable for the present.
2. Man is more polygamous by nature as compared to a woman
3. Biologically, it is easier for a man to perform his duties as a husband despite having
several wives. A woman, in a similar position, having several husbands, will not find it
possible to perform her duties as a wife. A woman undergoes several psychological and
behavioral changes due to different phases of the menstrual cycle.
4. A woman who has more than one husband will have several sexual partners at the same
time and has a high chance of acquiring venereal or sexually transmitted diseases, which can
also be transmitted back to her husband even if all of them have no extra-marital sex. This is
not the case in a man having more than one wife, and none of them having extra-marital sex.
The above reasons are those that one can easily identify. There are probably many more
reasons why Allah, in His Infinite Wisdom, has prohibited polyandry. Why a woman can't
marry more than one husband?

lgrimages or religious schools by the Government of India.

[edit] Case Details

MOHD. AHMED KHAN versus SHAH BANO BEGUM & ORS
Supreme Court Cases
1985 AIR 945 1985 SCR (3) 844 1985 SCC (2) 556 1985 SCALE (1)767

Case Law Search

Indian Supreme Court Cases / Judgements / Legislation
Top of Form

00628637084483 0 FORID:9 Case Law Search

Bottom of Form

Judgement
Category: Home \ Family law
Article: An Overview of Concept of Marriage in Muslim Law
Islam, unlike other religions is a strong advocate of marriage. There is no place of
celibacy in Islam like the Roman Catholic priests & nuns. The Prophet has said
“There is no Celibacy in Islam”.
Marriage acts as an outlet for sexual needs & regulates it so one doesn’t become
slave to his/her desires. It is a social need because through marriage, families are
established and the families are the fundamental entity of our society. Furthermore
marriage is the only legitimate or halal way to indulge in intimacy between a man
and woman.
Islamic marriage although permits polygamy but it completely prohibits
polyandry. Polygamy though permitted was guarded by several conditions by
Prophet but these conditions are not obeyed by the Muslims in toto.
Marriage:-Pre Islamic Position
Before the birth of Islam there were several traditions in Arab. These traditions
were having several unethical processes like:-
(i) Buying of girl from parents by paying a sum of money.
(ii) Temporary marriages.
(iii) Marriage with two real sisters simultaneously.
(iv) Freeness of giving up and again accepting women.
These unethical traditions of the society needed to be abolished; Islam did it and
brought a drastic change in the concept of marriage.
Marriage Defined
It is quiet relevant to know whether the Muslim marriage is a sacrament like the
Hindu marriage, for this let us get acquainted with some of the definitions of
Muslim marriage.
(a) Hedaya 1: - Marriage is a legal process by which the several process and
procreation and legitimation of children between man and women is perfectly
lawful and valid.
(b) Bailies Digest 2:- A Nikah in Arabic means “Union of the series” and carries a
civil contract for the purposes of legalizing sexual intercourse and legitimate
procreation of children.
(c) Ameer Ali 3:- Marriage is an organization for the protection of the society.
This is made to protect the society from foulness and unchestity.
(d) Abdur Rahim 4:- The Mahomedan priests regard the institution of marriage as
par taking both the nature of “Ibadat” or devotional arts and “Muamlat” or
dealings among men.
(e) Mahmood J. 5:- Marriage according to the Mahomedan law is not a sacrament
but a civil contract.
(f) Under Section 2 of Muslim Women (Protection of Rights on Divorce) Act,
1986 Marriage or Nikah among Muslims is a ‘Solemn Pact’ or ‘Mithaq-e-ghalid’
between a man & a woman ,soliciting each others life companionship, which in
law takes the form of a contract or aqd.
It’s a matter of query still existing whether Muslim marriage is only a civil
contract or an Ibadat & Muamlat. While unleashing the various definitions it’s
quite a big problem to say which one is the most appropriate, in my opinion
although the essentials of a contract is fulfilled yet marriage can never be said to
be a contract because marriage always creates a bondage between the emotions
and thinking of two person.
J Sarsah Sulaiman6 has said “In Islam , marriage is not only a civil contract but
also a sacrament.”
Muslim marriage can also be differentiated from a civil contract on the basis of
following points:-
(a) It cannot be done on the basis of future happenings unlike the contingent
contracts.
(b) Unlike the civil contract it cannot be done for a fixed period of time. (Muta
Marriage being an exception.)
Purpose of Marriage
The word “Zawj” is used in the Quran to mean a pair or a mate. The general
purpose of marriage is that the sexes can provide company to one another,
procreate legitimate children & live in peace & tranquility to the commandments
of Allah. Marriage serves as a mean to emotional & sexual gratification and as a
mean of tension reduction.
Marriage compulsory or not ?
According to Imams Abu Hanifa, Ahmad ibn Hanbal & Malik ibn Anas, marriage
in Islam is recommendatory, however in certain individuals it becomes Wajib or
obligatory. Imam Shafi considers it to Nafl or Mubah (preferable). The general
opinion is that if a person , male or female fears that if he/she does not marry they
will commit fornication, then marriage becomes “Wajib”. However, one should
not marry if he does not possess the means to maintain a wife and future family or
if he has no sex drive or if dislikes children, or if he feels marriage will seriously
affect his religious obligations.
Prophet said:-
“When a man marries he has fulfilled half of his religion, so let him fear Allah
regarding the remaining half.”
This very wording of Prophet marks the importance of marriage, thus it could be
well concluded that marriage in Islam is must.
Capacity for Marriage
The general essentials for marriage under Islam are as follows:-
(i) Every Mahomedan of sound mind and having attained puberty can marry.
Where there is no proof or evidence of puberty the age of puberty is fifteen years.
(ii) A minor and insane (lunatic) who have not attained puberty can be validly
contracted in marriage by their respective guardians.
(iii) Consent of party is must. A marriage of a Mahomedan who is of sound mind
and has attained puberty, is void, if there is no consent.
Essentials of Marriage
The essentials of a valid marriage are as follows:-
(i) There should be a proposal made by or on behalf of one of the parties to the
marriage, and an acceptance of the proposal by or on behalf of the other party.
(ii) The proposal and acceptance must both be expressed at once meeting.
(iii) The parties must be competent.
(iv) There must be two male or one male & two female witnesses, who must be
sane and adult Mahomedan present & hearing during the marriage proposal and
acceptance. (Not needed in Shia Law)
(v) Neither writing nor any religious ceremony is needed.
Essentials Explored
(i) A Muslim marriage requires proposal ‘Ijab’ from one party and acceptance
‘Qubul’ from the other side. This must be done in one sitting.
(ii) The acceptance must be corresponding to what is being offered.
(iii) The marriage must be effectively immediate. If the Wali says “ I will marry
her to you after two months”, there is no marriage.
(iv) The two parties must be legally competent; i.e. they must be sane and adult.
(v) The women must not be from the forbidden class.
(vi) The consent given must be free consent,. It must not be an outcome of
compulsion, duess, coercion or undue influence.
Kinds of Marriage
Under Muslim generally two types of marriage is recognized
(i) Regular Marriage (essentials discussed earlier)
(ii) Muta marriage
Muta Marriage: -
Muta marriage is a temporary marriage. Muta marriage is recognized in Shia only.
Sunni law doesn’t recognize it. (Baillie, 18). A Shia of the male sex may contract a
Muta marriage with a woman professing the Mahomedan, Christian or Jewish
religion, or even with a woman who is a fire worshipper but not with any woman
following any other religion. But a Shia woman cannot contract a Muta marriage
with a non muslim.
The essentials of Muta marriage are:-
(1) The period of cohabitation should be fixed.
(2) Dower should be fixed.
(3) If dower specified, term not specified, it could amount to permanent or regular
marriage.
(4) If term fixed dower not specified, it amounts to void marriage.
Aspects of Marriage
(i) Valid or Sahih
(ii) Irregular or Fasid
(iii) Void or Batil
(i) Valid or Sahih Marriage: - Under the Muslim law, a valid marriage is that
which has been constituted in accordance with the essential conditioned prescribed
earlier. It confers upon the wife; the right of dower, maintenance and residence,
imposes on her obligation to be faithful and obedient to her husband, admit sexual
intercourse with him & observe Iddat.
(ii) Irregular or Fasid Marriage: - Those marriages which are outcome of
 failures on part of parties in non fulfillment of prerequisites but then also are
marriages; to be terminated by one of the party is termed to be Irregular marriages.
They are outcome of-
(a) A marriage without witness (Not under Shia Law)
(b) Marriage with fifth wife.
(c) Marriage with a women undergoing Iddat.
(d) Marriage with a fire-worshipper.
(e) Marriage outcome of bar of unlawful conjunction.
An irregular marriage has no legal effect before consummation but when
consummated give rise to several rights & obligations.
(iii) Void or Batil Marriage:- A marriage which is unlawful from it’s beginning.
It does not create any civil rights or obligations between the parties. The offspring
of a void marriage is illegitimate. They are outcome of-
(a) Marriage through forced consent.
(b) Plurality of husband.
(c) Marriage prohibited on the ground of consanguinity.
(d) Marriage prohibited on the ground of affinity.
(e) Marriage prohibited on the ground of fosterage.
Effect of Marriage (Sahih)
The lawful obligations which arise after marriage are as follows-
(i) Mutual intercourse legalized and the children so born are legitimate.
(ii) The wife gets power to get ‘Mahr’
(iii) The wife entitles to get maintenance.
(iv) The husband gets right to guide and prohibit the wife’s movement(for valid
reasons only)
(v) Right of succession develops.
(vi) Prohibition of marriage due to affinity.
(vii) Women bound to complete Iddat period & not to marry during Iddat period;
after divorce or death of husband.
The obligations and rights set between the two parties during and after the
marriage are to be enforced till legality. On the basis of a marriage husband and
wife do not get the right on one another’s property

Sources of Islamic law

This article is part of the series:
 Islam
Beliefs

Allah · Oneness of God

Prophets · Revealed books
Angels

Practices

Profession of faith · Prayer

Fasting · Charity · Pilgrimage

Texts and laws

Qur'an · Sunnah · Hadith

Fiqh · Sharia · Kalam · Sufism

History and leadership

Timeline · Spread of Islam

Ahl al-Bayt · Sahaba
Sunni · Shi'a · Others
Rashidun · Caliphate
Imamate

Culture and society

 Academics · Animals · Art
Calendar · Children
Demographics · Festivals
Mosques · Philosophy
Science · Women
Politics · Dawah

Islam and other

religions

Christianity · Judaism
Hinduism · Sikhism · Jainism · Mormonism

See also

Criticism
Glossary of Islamic terms

Islam portal

Various sources of Islamic law are used by Islamic jurisprudence to elucidate the Sharia, the
body of Islamic law.[1] The primary sources, accepted universally by all Muslims, are the Qur'an
and Sunnah. The Qur'an is the holy scripture of Islam, believed by Muslims to be the direct and
unaltered word of Allah. The Sunnah consists of the religious actions and quotations of the
Islamic Prophet Muhammad and narrated through his Companions and Imams- (as per the
beliefs of the school of Ahle-Sunnah and Ahle-Shia).[1] However, some schools of jurisprudence
use different methods to judge the source's level of authenticity.
As Islamic regulations stated in the primary sources do not explicitly deal with every conceivable
eventuality, jurisprudence must refer to resources and authentic documents to find the correct
course of action.[1] According to Sunni schools of law, secondary sources of Islamic law are
consensus among Muslims jurists, analogical deduction, al-Ra'y; independent reasoning, benefit
for the Community and Custom.[2] Hanafi school frequently relies on analogical deduction and
independent reasoning, and Maliki and Hanbali generally use the Hadith instead. Shafi'i school
uses Sunnah more than Hanafi and analogy more than two others.[1][3] Among Shia, Usuli school
of Ja'fari jurisprudence uses four sources, which are Qur'an, Sunnah, consensus and 'aql. They
use ijma under special conditions and rely on 'aql (intellect) to find general principles based on
the Qur'an and Sunnah, and use usul al-fiqh as methodology to interpret the Qur'an and Sunnah
in different circumstances, and Akhbari Jafaris rely more on Hadith and reject ijtihad.[1][4]
According to Momen, despite considerable differences in the principles of jurisprudence between
Shia and the four Sunni schools of law, there are fewer differences in the practical application of
jurisprudence to ritual observances and social transactions.[5]

Contents
[show]
• 1
Prima
ry
sourc
es
○ 1
.
1

Q
u
r
’
a
n
○ 1
.
2

S
u
n
n
a
h
• 2
Secon
dary
sourc
es
○ 2
.
1

C
o
n
s
e
n
s
u
 s
○ 2
.
2

A
n
a
l
o
g
i
c
a
l

d
e
d
u
c
t
i
o
n


 

○ 2
.
3

R
e
a
s
o
n
○ 2
.
4
 C
o
m
m
o
n

p
r
a
c
t
i
c
e
• 3 See
also
• 4
Notes
• 5
Refer
ences
○ 5
.
1

E
n
c
y
c
l
o
p
e
d
i
a
s
• 6
Furthe
r
readin
g
• 7
Exter
 nal
links

Primary sources
Qur’an

A copy of the Qur'an, one of the primary sources of Islamic law.

The Qur'an is the first and most important source of Islamic law. Believed to be the direct word
of God as revealed to Muhammad through angel Gabriel in Mecca and Medina, the scripture
specifies the moral, philosophical, social, political and economic basis on which a society should
be constructed. The verses revealed in Mecca deal with philosophical and theological issues,
whereas those revealed in Medina are concerned with socio-economic laws. The Qur'an was
written and preserved during the life of Muhammad, and compiled soon after his death.[6]
Muslim jurists agree that the Qur'an in its entirety is not a legal code (used in the modern sense);
rather its purpose is to lay down a way of life which regulates man's relationship with others and
God.[7] The verses of the Qur'an are categorized into three fields: "science of speculative
theology", "ethical principles" and "rules of human conduct". The third category is directly
concerned with Islamic legal matters which contains about five hundred verses or one thirteenth
of it. The task of interpreting the Qur'an has led to various opinions and judgments. The
interpretations of the verses by Muhammad's companions for Sunnis and Imams for Shias are
considered the most authentic, since they knew why, where and on what occasion each verse was
revealed.[1][6]
[edit] Sunnah
Main article: Sunnah

See also: Hadith

The Sunnah is the next important source, and is commonly defined as "the traditions and
customs of Muhammad" or "the words, actions and silent assertions of him". It includes the
everyday sayings and utterances of Muhammad, his acts, his tacit consent, and acknowledgments
of statements and activities. According to Shi'ite jurists, the sunnah also includes the words,
deeds and acknowledgments of the twelve Imams and Fatimah, Muhammad's daughter, who are
believed to be infallible.[1][8]
Justification for using the Sunnah as a source of law can be found in the Qur'an. The Qur'an
commands Muslims to follow Muhammad.[9] During his lifetime, Muhammad made it clear that
his traditions (along with the Qur'an) should be followed after his death.[10] The overwhelming
majority of Muslims consider the sunnah to be essential supplements to and clarifications of the
Qur'an. In Islamic jurisprudence, the Qur'an contains many rules for the behavior expected of
Muslims but there are no specific Qur'anic rules on many religious and practical matters.
Muslims believe that they can look at the way of life, or sunnah, of Muhammad and his
companions to discover what to imitate and what to avoid.
Much of the sunnah is recorded in the Hadith. Initially, Muhammad had instructed his followers
not to write down his acts, so they may not confuse it with the Qur'an. However, he did ask his
followers to disseminate his sayings orally. As long as he was alive, any doubtful record could be
confirmed as true or false by simply asking him. His death, however, gave rise to confusion over
Muhammad's conduct. Thus the Hadith were established.[8] Due to problems of authenticity, the
science of Hadith (Arabic: `Ulum al-hadith) is established. It is a method of textual criticism
developed by early Muslim scholars in determining the veracity of reports attributed to
Muhammad. This is achieved by analyzing the text of the report, the scale of the report's
transmission, the routes through which the report was transmitted, and the individual narrators
involved in its transmission. On the basis of these criteria, various Hadith classifications
developed.[11]
To establish the authenticity of a particular Hadith or report, it had to be checked by following
the chain of transmission (isnad). Thus the reporters had to cite their reference, and their
reference's reference all the way back to Muhammad. All the references in the chain had to have
a reputation for honesty and possessing a good retentive memory.[8] Thus biographical analysis
(`ilm al-rijāl, lit. "science of people"), which contains details about the transmitter are
scrutinized. This includes analyzing their date and place of birth; familial connections; teachers
and students; religiosity; moral behaviour; literary output; their travels; as well as their date of
death. Based upon these criteria, the reliability (thiqāt) of the transmitter is assessed. Also
determined is whether the individual was actually able to transmit the report, which is deduced
from their contemporaneity and geographical proximity with the other transmitters in the chain.
[12]
Examples of biographical dictionaries include Ibn Hajar al-Asqalani's "Tahdhīb al-Tahdhīb"
or al-Dhahabi's "Tadhkirat al-huffāz."[13]
Using this criteria, Hadith are classified into three categories:[8]
1. Undubitable (mutawatir), which are very widely known, and backed up by
numerous references.
2. Widespread (mashhur), which are widely known, but backed up with few
original references.
3. Isolated or Single (wahid), which are backed up by too few and often
discontinuous references.

[edit] Secondary sources

All medieval Muslim jurists rejected arbitrary opinion, and instead developed various secondary
sources, also known as juristic principles or doctrines[clarification needed], to follow in case the primary
sources (i.e. the Qur'an and Sunnah) are silent on the issue.[14]
[edit] Consensus
Main article: Ijma

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 legislation.[15][16] Muhammad himself said:
• "My followers will never agree upon an error or what is wrong",
• "God's hand is with the entire community".[15][17]
In history, it has been the most important factor in defining the meaning of the other sources and
thus in formulating the doctrine and practice of the Muslim community.[18] This is so because
ijma' represents the unanimous agreement of Muslims on a regulation or law at any given time.
[19]

There are various views on ijma' among Muslims. Sunni jurists consider ijma' as a source, in
matters of legislation, as important as the Qur'an and Sunnah. Shiite jurists, however, consider
ijma' as source of secondary importance, and a source that is, unlike the Qur'an and Sunnah, not
free from error.[20] Ijma' was always used to refer to agreement reached in the past, either remote
or near.[18] Amongst the Sunni jurists there is diversity on who is eligible to participate in ijma' ,
as shown in the following table:

School of
jurispruden Formation of ijma' Rationale
ce

through public agreement the jurists are experts on legal

Hanafi
of Islamic jurists matters

through agreement of the

the people cannot agree on
Shafi'i entire community and
anything erroneous
public at large

through agreement
Islamic tradition says "Medina
amongst the residents of
Maliki expels bad people like the furnace
Medina, the first Islamic
expels impurities from iron"
capital

through agreement and they were the most

Hanbali practice of Muhammad's knowledgeable on religious
Companions matters and rightly guided

only the consensus of the consensus is not genuinely

ulama of the same period binding in its own right, rather it is
Usuli
as the Prophet or Shia binding in as much as it is a
Imams is binding. means of discovering the Sunnah.

Source:[1][20]

In modern Muslim usage it is no longer associated with traditional authority and appears as
democratic institution and an instrument of reform.[18]
[edit] Analogical deduction
Main article: Qiyas
Qiyas or analogical deduction is the fourth source of Sharia for the Sunni jurisprudence. Shiites
do not accept qiyas, but replace it with reason (aql). Qiyas is the process of legal deduction
according to which the jurist, confronted with an unprecedented case, bases his or her argument
on the logic used in the Qur'an and Sunnah. Qiyas must not be based on arbitrary judgment, but
rather be firmly rooted in the primary sources.[21]
Supporters of qiyas will often point to passages in the Qur'an that describe an application of a
similar process by past Islamic communities. According to Hadith, Muhammad said: "Where
there is no revealed injunction, I will judge amongst you according to reason."[22] Further, he
extended the right to reason to others. Finally, qiyas is sanctioned by the ijma, or consensus,
amongst Muhammad's companions.[21]
The success and expansion of Islam brought it into contact with different cultures, societies and
traditions, such as those of Byzantines and Persians. With such contact, new problems emerged
for Islamic law to tackle. Moreover, there was a significant distance between Medina, the Islamic
capital, and the Muslims on the periphery on the Islamic state. Thus far off jurists had to find
novel Islamic solutions without the close supervision of the hub of Islamic law (back in Medina).
During the Umayyad dynasty, the concept of qiyas was abused by the rulers. The Abbasids, who
succeeded the Ummayads defined it more strictly, in an attempt to apply it more consistently.[21]
The general principle behind the process of qiyas is based on the understanding that every legal
injunction guarantees a beneficial and welfare satisfying objective. Thus, if the cause of an
injunction can be deduced from the primary sources, then analogical deduction can be applied to
cases with similar causes. For example, wine is prohibited in Islam because of its intoxicating
property. Thus qiyas leads to the conclusion that all intoxicants are forbidden.[21]
The Hanafi school of thought very strongly supports qiyas. Imam Abu Hanifa, an important
practitioner of qiyas, elevated qiyas to a position of great significance in Islamic law. Abu Hanifa
extended the rigid principle of basing rulings on the Qur'an and Sunnah to incorporate opinion
and exercise of free thought by jurists. In order to respond suitably to emerging problems, he
based his judgments, like other jurists, on the explicit meanings of primary texts (the Qur'an and
sunnah). But, he also considered the "spirit" of Islamic teachings, as well as the whether the
ruling would be in the interest of the objectives of Islam. Such rulings were based on public
interest and the welfare of the Muslim community.[21]

The knowledge of

“ ours is an
opinion, it is the
best we have
been able to
achieve. He who
is able to arrive
at different
conclusions is
entitled to his

”
own opinion as
we are entitled to
our own.
 —Abu Hanifa[21]

The Shafi'i school of thought accepts qiyas as a valid source. Imam Shafi'i, however, considered
it a weak source, and tried to limit the cases where jurists would need to resort to qiyas. He
criticized and rejected analogical deductions that were not firmly rooted in the Qur'an and
sunnah. According to Shafi'i, if analogical deductions were not strictly rooted in primary sources,
they would have adverse effects. One such consequence could be variety of different rulings in
the same subject. Such a situation, he argued, would undermine the predictability and uniformity
of a sound legal system. [23]
Imam Malik accepted qiyas as a valid source of legislation. For him, if a parallel could be
established between the effective cause of a law in the primary sources and a new case, then
analogical deduction could be viable tool. Malik, however, went beyond his adherence to "strict
analogy" and proposed pronouncements on the basis of what jurists considered was "public
good".[23]
[edit] Preference
Abu Hanifa developed a new source called istihsan, or juristic preference, as a form of
analogical deduction (qiyas).[24] Istihsan is defined as:
• Means to seek ease and convenience,
• To adopt tolerance and moderation,
• To over-rule analogical deduction, if necessary.[25]
The source, inspired by the principle of conscience, is a last resort if none of the widely accepted
sources are applicable to a problem. It involves giving favor to rulings that dispel hardship and
bring ease to people.[23] This doctrine was justified directly by the Qur'an: "Allah desires you ease
and good, not hardship".[25] Though its main adherents were Abu Hanifa and his pupils (such as
Abu Yusuf), Malik and his students made use of it to some degree. The source was subject to
extensive discussion and argumentation,[26] and its opponents claimed that it often departs from
the primary sources.[23]
This doctrine was useful in the Islamic world outside the Middle East where the Muslims
encountered environments and challenges they had been unfamiliar with in Arabia.[24] One
example of isthisan is cited as follows: If a well is contaminated it may not be used for ritual
purification. Istihsan suggests that withdrawing a certain number of buckets of water from the
well will remove the impurities. Analogical deduction (qiyas), however, says that despite
removing some of the water, a small concentration of contaminants will always remain in the
well (or the well walls) rendering the well impure. The application of analogical deduction
means the public may not use the well, and therefore causes hardship. Thus the principle of
istihsan is applied, and the public may use the well for ritual purification.[25]
[edit] Public good
Imam Malik developed a tertiary source called al-maslaha al-mursalah, which means social
benefit. 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 uses his wisdom to pursue public interest. This source is rejected by the Shafi'is.[23]
[edit] Textual indication
Shafi'i accepted cases in which he had to be more flexible with the application of Qisas. Similar
to Abu Hanifa and Imam Malik, he developed a tertiary 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. In this case, public
interest was distinguished as a basis for legislation.[23]
Scholars divide istdilal into three types. The first is the expression of the connection existing
between one proposition and another without any specific effective cause. Next, istidlal could
mean presumption that a state of things, which is not proved to have ceased, still continues. The
final type of istidlal is the authority as to the revealed laws previous to Islam.[27]
[edit] Reason
Main article: Ijtihad

Shi'ite jurists maintain that if a solution to a problem can not be found from the primary sources,
then aql or reason should be given free rein to deduce a proper response from the primary
sources. The process, whereby rational efforts are made by the jurist to arrive at an appropriate
ruling, when applied is called ijtihad (literally meaning "exerting oneself"). Shi'ite jurists
maintain that qiyas is a specific type of ijtihad. The Sunni Shafi' school of thought, however,
holds that both qiyas and ijtihad are the same.[28]
Sunni jurists accepted ijtihad as a mechanism for deducing rulings. They, however, announced
an end to its practice during the thirteenth century. The reason for this was that centers of Islamic
learning (such as Baghdad, Nishapur, and Bukhara) had fallen into the hands of the Mongols.
Thus, the "doors to ijtihad", were closed.[28] In Sunni Islam, thus, ijtihad was replaced by taqlid
or the acceptance of doctrines developed previously.[29] Later in Sunni history, however, there
were notable instances of jurists using reason to re-derive law from the first principles. One was
Ibn Taymiyya (d. 728/1328), another was Ibn Rushd ̲ ̲ (Averroes d. 595/1198).[29]
There are many justifications, found in the Qur'an and sunnah, for the use of ijtihad. For
example, during a conversation with Mu'ādh ibn Jabal, Muhammad asked the former how he
would give judgments. Mu'ādh replied that he would refer first to the Qur'an, then to the Sunnah
and finally commit to ijtihad to make his own judgment. Muhammad approved of this.[30]
A lawyer who is qualified to use this source is called a mujtahid. The founders of the Sunni
madhabs (schools of law) were considered such lawyers. All mujtahid exercise at the same time
̲
the powers of a mufti and can give fatwa. Some mujtahid have claimed to be mujaddid , or
"renewer of religion." Such persons are thought to appear in every century. In Shi'ite Islam they
are regarded as the spokespersons of the hidden Imam.[29]
[edit] Common practice
Main article: Urf

The term urf, meaning "to know", refers to the customs and practices of a given society.
Although this was not formally included in Islamic law,[31] the Sharia recognizes customs that
prevailed at the time of Muhammad but were not abrogated by the Qur'an or the tradition (called
"Divine silence"). Practices later innovated are also justified, since Islamic tradition says what
the people, in general, consider good is also considered as such by God. According to some
sources, urf holds as much authority as ijma (consensus), and more than qiyas (analogical
deduction). Urf is the Islamic equivalent of "common law".[32]
Urf was first recognized by Abū Yūsuf (d. 182/798), an early leader of the Ḥanafī school.
̲ ̲ (d.
However, it was considered part of the sunnah, and not as formal source. Later al-Sarakhsī
483/1090), opposed it, holding that custom cannot prevail over a written text.[31]
According to Sunni jurisprudence, in the application of urf, custom that is accepted into law
should be commonly prevalent in the region, not merely in an isolated locality. If it is in absolute
opposition to Islamic texts, custom is disregarded. However, if it is in opposition to qiyas
(analogical deduction), custom is given preference. Jurists also tend to, with caution, give
precedence to custom over doctoral opinions of highly esteemed scholars.[32] Shia does not
consider custom as a source of jurisprudence.