INTRODUCTION TO MOHAMMADAN LAW BY MOHAMMAD KHALEEL AHMED,ADVOCATE HYDERABAD HIGH COURT ,INDIA MAKKAH BEFORE THE RISE OF ISLAM After the demise of Prophet Ibrahim, the people of Arabia were turned to believe in different Gods , and KABA (HARAM) is located at MAKKAH was the place of worship of one God almighty Allah was turned to idol worship of multiple Gods. Infact KABA (HARAM) was originally built by prophet Ibrahim and his son Hazrath Ismail, who were known as believers in one God the Almighty Allah. It was a holy place of annual pilgrimage for all the people of the world. After the demise of Prophet Ibrahim and his son Hazrath Ismail. The people of Arabia placed idols in KABA against the will of Prophet Ibrahim. There was three sixty idols in and around the holy KABA was under the control of the Quraysh community. The premises of KABA consist of 20 miles radiating limit for non violent zone. It is fact that, the Abyssinian Christian ruler of Yemen King Abraha, attacked Makkah with African elephants. Abraha’s intention was to demolish the KABA. He wanted to build a Christian church at Sana as a new religious centre of the world. The people of the Makkah had never seen elephants. Hazrath Abdul Mutallib the Grandfather of the Prophet Mohammad (PBUH) was the custodian of the holy KABA. The people of Makkah ran to the mountains to escape them from the attack, leaving the holy KABA with no defence. Just before it was to be attacked almighty Allah sent a flock of birds viz.,( ABABIL) each carrying a stone in its beak, suddenly they dropped the stones on the invader army of King Abraha and caused to destroy the entire force. Mohammad (PBUH) was born in 570 AD in Makkah. His father was Hazrath Abd Allah and mother Hazarath Aminah. Mohammad (PBUH) was orphaned at the age of six when his mother died, and went to live with his grandfather Hazrath Abd-Al-Muttalib, who was the custodian of holy KABA and in charge of providing the water of the Zam-Zam to pilgrims. Unfortunately when he was eight years old, his grandfather, too, had died and he was taken in the guardian ship of by Uncle Hazrath Abu Talib and engaged him in his successful caravan business. In a story that resembles that of Samuel in the Old Testament and others of that genre, it was on a trading expedition to Syria, when Mohammad was only nine years old, that a Christian monk named Bahira recognized him as “the Messenger of the Lord of the Worlds.” Mohammad (PBUH) was 25 years unmarried young man, he met a rich above thirty years old widow a successful businesswoman belongs from respectable Quraish family of Makkah. In spite of his tenuous social circumstances, according to Ibn Hisham, Mohammad (PBUH) had a reputation for “truthfulness, reliability, and nobility of character,” and Khadija entrusted him to take a caravan of goods to Syria and sell it. When he returned home with more profits than she expected, she proposed marriage to him and he accepted., Mohammad (PBUH) and Khadija were in a monogamous marriage for twenty-five years until her death. They had six children. He was aware of meditation. He always took simple food and water for himself, and then head directly for the hills and ravines in the neighbourhood of Makkah, particularly to the cave named Hira in the Mount An-Nur two miles away from the city. According to the historian Tabari, there he would perform devotions and distribute alms to the poor who visited him. One day, when he was about forty years old, he was alone in the cave when suddenly a man in a white dress appeared to him. Mohammad (PBUH) himself described what happened: “Then he took me and squeezed me vehemently and then let me go and repeated the order ‘Recite.’ ‘I cannot recite said I, and once again he squeezed me and let me go till I was exhausted. Then he said, ‘Recite. I said, ‘I cannot recite.’ He squeezed me for a third time and then let me go and said: ‘Recite in the name of your lord who created – From an embryo created the human. Recite your lord is all-giving who taught by the pen. Taught the human what he did not know before .The human being is a tyrant. He thinks his possessions make him secure .To your lord is the return of everything’ Qur’an: 96:1-8 In September 622 AD, warned of a plot to assassinate him, Muhammad (PBUH) secretly slipped out of Makkah with Abubakar (RA). Muhammad (PBUH) and his followers emigrated to the city of Yathrib, 320 kilometres (200 mi) north of Makkah, in several steps. Yathrib was soon renamed Madinat un-Nabi, literally the City of the Prophet, but un-Nabi was soon dropped, so its name in English is Madina, meaning the city. The Muslim year during which the Hijra occurred was designated the first year of the Islamic calendar by Umar (RA) in 638 AD. After the Death of Prophet Mohammad (PBUH) Mohammad (PBUH) related his revelations verbatim to Zayd (RA) or an available scribe. “The order in which the verses were to stand was arranged by the Prophet Mohamed (PBUH) himself, so that at the time of his demise the entire Koran was in complete written form.” The verses were memorized by the believers and collected into a single volume about six months after his death. Other sources suggest that the recitations were stored in the chest of the companions, and parts of it were written on the leathery sheets, white stones and palm’s sheets and ostrich bones. Others disagree, and their researches indicate that Mohammad’s revelations were not gathered into the single source we know today as the Qur’an until after his death. One historical tradition holds that the prophet dictated some revelations to Zayd (RA)and other scribes, while others were remembered and repeated by his closest followers who learned them by heart. Shortly after the Prophet died in 632 AD, Arab tribes revolted against the State of Medina. After the bloody Battle of Yamamah in which a large number of those who had committed the Qur’an to memory perished, recording became a more urgent task. The Caliph Abu Bakr assigned the task to Zayd (RA), who, it is said, collected the revelations “from pieces of papyrus, flat stones, palm leaves, shoulder blades and ribs of animals, pieces of leather and wooden boards, as well as from the hearts of men.” By the time of the third Qalifa Osman (RA) (644 AD – 656AD) differences in reading the Qur’an in the many dialects of the Arabic language became troublesome, and he was urged to “save the Muslim ummah before they differ about the Qur’an.” Osman (RA) asked a team of companions led by Zayd to collect and compare all available copies and oral versions of the revelations and to prepare a single, unified text. Copies were sent to the main provinces and people were told to burn earlier versions in order to eliminate variations or differences. During the next few centuries, while Islam solidified as a religious and political entity, a vast body of exegetical and historical literature evolved to explain the Koran and the rise of Islam, the most important elements of which are sunna, or the body of Islamic social and legal custom; sira, or biographies of the Prophet; tafsir, or Koranic commentary and explication and the hadith, or the collected sayings and deeds of the Prophet Mohammad (PBUH). Successors of Prophet Mohammad (PBUH) Sunni Islam Sunnis believe that Abu Bakr (RA) the father of Aisha (RA) the last wife of Prophet Mohammad (PBUH), was Muhammads rightful successor and that the method of electing leaders (Shura) endorsed by the Holy Quran is the consensus of the the Muslim community. After the demise of Abu Bakr (RA) Omer (RA) become the second Qalifa. Osman (RA) succeeded Qilafath after the demise of Omer (RA) and become the third Qalifa.Ali (RA) the cousin brother and husband Fatima (R.A) become the fourth Qalifa after the assassination of third Qalifa Osman (RA) .Since the fraction began and the Islam divided in to two sects viz., Sunni Islam and Shia Islam. The Sunni school further divided in four sub sects. 1. Hanafi, 2.Maliki, 3. Shafai, 4. Hambali. 1.Hanafi: This sect of Sunni Muslim follows the belief of Imam –e- Abu Hanifa –an-Nauman Ibn Sabit . He born in year 699 AD and demised in the year 767 AD . His birth time Omyed Qalifa Abdul Malik was in the regime. He demised during the period of Abbasi Qalifas. He had comprehensive knowledge of Islamic traditions and eliminated un authentic traditions among the Muslim society. He placed the principles of prominence to the doctrine of Qiyas, the same has become the arch key stone in the matter of Islamic system. Abu Hanifa extended the doctrine of Ijmaa. He also developed Istehsaan juristic performance. 2. Malaki: Imam Malik Ibn Annas born in 713 AD and demised in 795 AD. His birth place was Holy Madina land of Prophet Mohammad(PBUH). During his life time he searched more than three hundred traditions (Sunna of Prophet). Holy Madina the door of Prophet Mohammad’s (PBUH) traditions. He was not only the strict follower of the traditions but also a prominent Jurist. He accepted the Islamic principle of Qiyas and also he recognised the validity of principles of Ijmaa. Further he developed the concept of Ijmaa. The principle of Istidlal was introduced by him. The Muwaṭṭa is the first written collection of Ahadis comprising the subjects of Mohammadan Law compiled and edited by him. His best-known work Al Muwatta was the first legal work to incorporate and join hadis and fiqah together. 3. Shafai: Mohammad bin Idris ash Shafai was born in 767 AD and demised in 820 AD. He had decended from Abdul Muttalib the paternal uncle of prophet Mohammad (PBUH). He examined several critical problems and solved in the light of traditions (Sunna) . He was the founder of Usul. He did not accepted doctrine of istehsan of Imam Abu Hanifa and also istislah introduced by Imam e Malik. 4. Hambali: Abu Abdullah Ahmed Ibne Hambal was born in 780 AD and he demised in 855 AD . He had no intention to form fourth school in Sunni Muslims. After his demise his followers collected his disciples together . He was the strict follower of traditions (Sunna). He limited the use of Qiyas and Ijmaa. Shia Islam The word Shia means the follower. Shiatu- Ali means the followers of Ali (RA) .The faction of Ali, or party of Ali Shias believe that Prophet Mohammad (PBUH) divinely ordained his cousin and son-in-law Hazrath Ali (RA) (the father of his grandsons Imam Hassan and Imam Hussain in accordance with the command of Allah to be the next Caliph making Ali and his direct descendants as Prophet Mohammads (PBUH) successors. Hazrath Ali (RA) was married to Fatimah (RA) the daughter of Prophet Mohammad (PBUH). Shias reject first three caliphs and believe that Hazrath Ali (RA) is the second-most divinely inspired man since the demise of Prophet Mohammad( PBUH).He was the husband of Prophet Mohammads (PBUH) daughter Fathima daughter of Prophet Mohammads first wife Hazrath Khadijah, the Imams are the sole legitimate Islamic leaders. Shia Muslims believe that prophet is appointed by Allah almighty alone, only Allah almighty has the right to appoint the successor to his prophet. They believe that Allah almighty has choosen Ali(RA) as the successor of prophet Mohammad(PBUH).They believe that Prophet Mohammad(PBUH) appointed Ali (RA) as his successor. Ali was the son of Abu Thalib the paternal uncle of Prophet Mohammad (PBUH) and also the husband of Fathima (RA) the youngest loving daughter of Prophet Mohammad(PBUH).Ali (RA) was chosen fourth Muslim Qalifa after the assassination of Osman (RA) the third chosen Qalifa of the Islam. When prophet Mohammad (PBUH) demised, Ali (RA) and other closest relatives of Prophet Mohammad (PBUH) made the burial arrangements. While they were preparing his body, Abu Bakr(RA), Umar(RA), and Abu Ubayda (RA) met with the leaders of Holy Medina and elected Abu Bakr(RA) as first khalifa of Muslim world .Later Ali and his family accepted the appointment for the sake of unity among the Muslim community. After the assassination of the third khalifa, Osman (RA), the Muslims in Holy Medina elected Ali(RA) as successor in 656 AD as the fourth khalifa of Islamic world. Being a fourth Khalifa of Islamic world, Ali opted Kufah as the capital city, which is now in Iraq. Alis (RA) rule over the early Muslim world was often contested, to the extent that rebels were waged against him. Ali (RA) struggled a lot to maintain his power against the rebel groups who broke away after giving him allegiance, or those who wished to take his position. After the assassination of Alis (RA) in 661 AD when he was assassinated while offering salwath (Prayer) at mosque. Ali (RA) is regarded as the foremost authority on the Tafsir and Hadis. His main rival Mawwiya (RA) claimed the caliphate, and got the regime under the agreement with Immam eHassan (RA) the elder son of Ali (RA) the fourth Khalifa of Islamic world. Mawwiya shifted the capital to Damascus. He known as Amir Mawwiya, the father of Yazzid the killer of Imam e Hussain. The Twelve Imams Shia Muslims beleive The Twelve Imams are the spiritual and political successors to prophet Mohammad (PBUH). Prophet Mohammad and imams words and deeds are a guide and model for the Shia community to follow Islam. List of Twelve Imams 1. Ali (RA) 600 AD - 661 AD. He was the son Abi Talib the paternal uncle of Prophet Mohammad (PBUH). Known as Amir al Muminin. 2. Hassan (RA) 625 AD – 669 AD. He was the son of Ali ibn Talib and eldergrand son of Prophet Mohammad (PBUH). Known as Al –Hassan-as-Mujtaba. 3. Hussain (RA) 626 AD – 680 AD. He was the son of Ali ibn Talib and younger grand son of Prophet Mohammad (PBUH). Known as Al- Hussain ash-shaheed. 4. Zayn al Abidin 658 AD – 713 AD . Known as Ali Zayn al- Abideen 5. Mohammad Baqir 678 – 743 AD. Known as Mohammad a;l-Baaqir 6. Jafar Sadiq 703 AD-765AD . Known as Jafar as Sadiq 7. Musa Kazim 745 AD -799 AD . Known as Musa al-Kazim 8. Ali Rida 765 AD – 818 AD . Known as Ali ar Riza 9. Mohammad Taqi 810 AD- 835 AD. Known as Mohammad al Jawad 10. Ali Hadi 827 AD – 868 AD . Known as Ali al Hadiand and Ali an Naqi 11. Hasan Askari 846 AD – 874 AD. Known as Hasan al Askari 12. Mohammad Mehdi 869 AD- Known as Imam al Mahdi The Shia Islam further devided in sub sects. The three important sub sects of Shia Islam are : 1. The Athna-Ashaias 2. The Ismailyas 3. The Zaidyas Sources of Mohammadan Law Almighty Allah has given the very comprehensive legal system to mankind through Islam. Islam covers all aspects of life. Islam has its own personal, civil, criminal, mercantile, evidence, constitutional and international law. The sources of Islamic law are given under in brief to understand the Islamic Shariath Law. 1. QURAN: The Quran is the primary source of Mohammadan Law. Whic contains all the fundamental directives and instructions of Allah to all mankind. The Quran is the last and complete edition of Divine Guidance and this is the only book of Almighty Allah which has been in its original form. The Quran is not only a book of law but it is a complete right path to mankind and the universe. However, in the Quran there are more than five hundred verses which possess definite legal terms and jurisprudence. 2. HADEES: The Shias accept some of the same Hadees used by Sunnis as part of the Sunnah to argue their case. In addition, they consider the sayings of Ahle Al Bayt that are not attributed directly to Prophet Mohammad (PBUH) as hadees. Shias do not accept many Sunni hadees unless they are also recorded in Shia sources or the methodology can be proven of how they were recorded. Also, some Sunni-accepted hadees are less favored by Shias. Mainstream Sunnism has been said to be about Sahriah, sacred law. In contrast, the Shia also follow Islamic law with great vigilance, but their belief is added with Ijtihad Research in the light of teachings of the Quran. 3. IJMMA: Ijmma is a word derived from arabic which reffers to the consensus among the muslim scholars .The hadees of prophet Mohammad (PBUH) which states that My community will never agree upon an error is often cited as support for the validity of Ijma. Sunni Muslims regard as the third fundamental source of Shariath law, after the divine revelation of the Holy Quran the prophetic practice or sunna . 4. QIYAS: Qiyas is described as fourth source in Sunni Islam, which means the analogical reasoning or whereas Shia Islam uses Aql (intellect). The Qiyas as per Islamic Jurisprudence is process of deductive anology in which the teaching of the prophet Mohammad through Hadees are compared and contrasted with those of Holy Quran in order to apply a know injunction to a new circumstance and creat a new injunction. Fifth source other sources of law:- i) Equitable doctrine: The meaning of the principle of equitable doctrine is, an eye for an eye or tooth for tooth, is that a person who has injured another person receives the same injury in compensation. The exact term Latin (lex talionis) to English translation of this phrase is actually the principle or law of retaliation that , a punishment inflicted should correspond in degree and kind to the offense of the wrongdoer, as an eye for an eye, a tooth for a tooth; retributive justice. ii) ISTEHSAN: Istihsan is an Arabic term for juristic preference. Muslim scholars may use it to express their preference for particular judgements under Islamic Shariath over other possibilities. It is one of the principles of legal thought underlying personal interpretation or ijtihad. Proponents of liberal movements within Islam have used istihsan and the similar idea of istislah (Arabic for to deem proper) as ethical principles to favour feminist and reformist interpretations of the Holy Quran and thus reform Islamic law. iii) ISTIDLAL: A term used in the science of exogosis for those sentences which require certain proof. iv) ISTISLAL FIQAH : Fiqh is Islamic jurisprudence. Fiqh is an expansion of the Shariath. Islamic law based directly on the Quran and Sunnath that complements Shariath with evolving rulings ie., interpretations of Islamic jurists.Fiqh deals with the observance of rituals, morals and social legislation in Islam. There are four prominent schools Mazhab) of fiqh, within Sunni practice and two within Shia practice. A person trained in fiqh known as a Faqih. v) Customs and traditions: Custom is an important source of Mohammadan Law .A tradition is a ritual, Islamic belief or object passed down within a Islamic society, still maintained in the present Muslim society, with origins in the past. While it is commonly assumed that Islamic traditions and customs have ancient history, pre Islamic customs and traditions still form the ground of Mohammadan Law. Prophet Mohammad (PBUH) has adopted many customs and traditions of Prophet Ibrahim. For example: polygamy, pilgrimage, animal sacrifice and circumcision. Customs and traditions are the most important source of law as per the principles of Islamic Jurisprudence. Development of Mohammadan Law 622 AD -632 AD. This was the last decade of the Prophet Mohammad’s (PBUH) life. These last ten years are most important period for the development of Mohammadan law. The almighty Allah has delivered the holy Quran thoroughly to the man kind through his messenger Prophet Mohammad (PBUH). The holy Quran is the spinal cord and most important source of the Shariath law. 632 AD-661 AD. After the demise of Prophet Mohammad (PBUH) the four Qalifas ruled the Muslim world. The third Qalifa Osman (RA) issued the authorized version of Quran, which shall exist forever without any change. 971 AD-1030 AD. Mohammadan Law introduced in sub continent of India and Pakistan by Mahmud Ghazni the famous Sunni Hanafi Muslim invader. He ruled eastern Iranian lands, Afghnisthan , Pakistan and north west India. He was the first Muslim ruler to carry the title of Sulthan( Authority) signifying the power, though preserving the ideological link to suzerainty of Qalifa. British Period During the British rule in India, Mohammadan Law continued on the administration of justice for a long period. Most of the laws related to crimes, evidence, slavery etc were replaced through new enactments by the British legislation. However, the Mohammadan Law was effective in limited matters of Shia Muslims and Sunni Muslims personal matters of Marriage, Divorce, Succession, Gift and other Waqf property related matters. During the two centuries of British rule. The codifiction of personal laws has taken place during British rule. Hindus governed by the Hindu law and Muslims governed by the Mohammadan Law, Christians governed by Christian law and Parsi law for Parsi religion. Mohammadan Law in Democratic India India is a largest democratic country in the world. We have a longest written Constitution. The preamble of the constitution of India transparently assures to all its citizens. WE, THE PEOPLE OF INDIA, have solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens: JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation; IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION. The Indian Constitution state about Right to freedom of religion, covered in Articles, 25, 26, 27 and 28, provides religious freedom to all citizens of India. The objective of this right is to sustain the principle of secularism in India. According to the Constitution, all religions are equal before the State and no religion shall be given preference over the other. Citizens are free to preach, practice and propagate any religion of their choice. The Directive Principles of State Policy is guidelines to the central and state governments of India, to be kept in mind while framing laws and policies. These provisions, contained in Part IV of the Constitution of India, are not enforceable by any court, but the principles laid down therein are considered fundamental in the governance of the country, making it the duty of the State to apply these principles in making laws to establish a just society in the country. According to Article 44 of the Consitution of India, The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India. The Supreme Court of India has come out in favor of a Uniform Civil Code in the Country that is a law common to all communities in personal matters such as marriage, divorce, inheritance, and succession. The Supreme Courts observation in Shaha Banu case had to be counteracted by passing a law The Muslim Women (Protection of Rights on Divorce) Act, 1986, in the Parliament. Establishment of the All India Muslim Personal Law Board: All India Muslim Personal Law Board was established at a time when then Government of India was trying to subvert Shariah law applicable to Indian Muslims through parallel legislation. Adoption Bill had been tabled in the Parliament. Mr. H.R.Gokhle, then Union Law Minister had termed this Bill as the first step towards Uniform Civil Code. Ulema, leaders and various Muslim organisations successfully convinced the Indian Muslim community that the risk of losing applicability of Shariah laws was real and concerted move by the community was needed to defeat the conspiracy. As per the decision of the Mumbai Convention, the All India Muslim Personal Law Board was formally established at a meeting held at Hyderabad on April 7, 1973. The pioneers of this movement to protect Islamic Shariah in India, Hazrat Maulana Qari Taiyab Qasmi (Rahamatullah aley) and Hazrat Maulana Syed Shah Minnatullah Rahmani (Rahamatullah Aley) were elected founder President and General Secretary of the Board. Aims and Objectives: a. To adopt suitable strategies for protection and continued applicability of “Muslim Personal Law” i.e. Shariath Application Act in India. b. To strive for annulment or exempting the Muslims from the ambit of such direct, indirect or parallel legislation, whether already enacted or in the process of enactment or to be enacted in future, or rulings and judgements of the courts of law interfering in the application of Muslim Personal Law. c. To generate awareness about the injunctions of Islamic Shariah regarding personal and social life of Muslims, and publication of literature for the purpose. d. To formulate a comprehensive framework for promotion and enforcement of personal laws of Islamic Shariah among the Muslims. e. To constitute “Action Committees” for protection of the Muslim Personal Law from time to time, and for striving to implement of the decisions of the Board throughout the country. f. To constitute a permanent standing committee comprising Ulema and legal experts to study laws, rules, regulations and circulars issued by the central and state governments and other governmental and semi-governmental agencies or the Bills introduced in the Parliament and state legislation from the point of view of their impact on the Muslim Personal Law. g. To promote sense of harmony, goodwill, brotherhood, cooperation and unity among followers of various schools of Islamic Shariah, and to advance unity, coordination among them for the protection of Muslim Personal Law. h. To assess currently enforced “Muhammadan Law” in India in the light of Islamic Shariah, to arrange for study of various issues in the light of various schools of Islamic jurisprudence, and to find appropriate solutions to the issues facing the community, following the principles of Islamic Shariah, under the guidance of experts of Islamic Shariah and jurisprudence in the light of Holy Qur’an and Sunnah. i. To constitute Study Teams and organise seminars, symposia, public lectures, assemblies and conferences and tours, and publish literature, use mass media for the purpose of achieving the above objects.
Posted on: Tue, 24 Jun 2014 09:50:33 +0000
Trending Topics
Recently Viewed Topics
© 2015