Shariah law is a religious law that lays down governing principles for spiritual, mental, and physical behaviour that must be followed by Muslims. Regarded as God’s command for Muslims, Sharia law is essentially Islam’s legal system. Muslims believe sharia refers to the perfect, immutable values understood only by God, while Islamic laws are those based on interpretations of sharia. The Shariah prescribes both religious and secular duties and sometimes retributive penalties for lawbreaking. Sources of Muslim Law are classified into two kinds a) Primary sources and b) Secondary sources. By sources of any law means the original materials where the contents of that law are to be found and are made available to us. Study of these sources is necessary because without having any knowledge of the origin of a particular law, its proper explanation and interpretation are not possible. The Quran, The Sunnah, Ijma, and Qiyas are the primary sources of Muslim Law. In this article, we shall study secondary sources of Muslim Law.
The secondary sources of Muslim Law are:
- Urf or Custom
- Judicial decision
- Legislation
- Equity, Justice, & Good conscience
Urf or Customs:
Before the emergence of Islam in Arabia, customs were the basis of entire social life, religion, morality, trade and commerce. Customs are fundamentally rehearsed that individuals follow ceaselessly for an extensive period. Customs was never recognized as a source of law but was sometimes considered supplementary. Not every custom holds importance in Muslim law. Custom must meet following mentioned characteristics:
- It must be ancient.
- It must be territorial.
- It must be applicable to everyone.
- It must be continuous and noticeable.
- It must not oppose the public policy.
- It must not oppose the Quran or Ijma.
Judicial Precedents:
Judicial precedent refers to the procedure by which judges follow earlier decisions in cases with relatively similar facts. The idea of judicial precedent is based on the principle of stare decisis, or conforming to what has already been declared. It includes the decisions given by the Privy Council, the Supreme Court and the High Courts of India. It acts as precedents for future cases. Judicial decisions are supplementary to Muslim law. To some extent, judicial decisions have modified Muslim law. In India, the plan of Warren Hastings of 1772 made provision that it was only judiciary which introduced new set rules in personal laws of Hindus and Muslims.
There are number of judicial decisions which have given new dimension to Muslim law:
In Maini Bibi V. Choudhry Vakil Ahmad, (1925) 27 BOMLR 796 case, the privy council held that a widow possesses the right to retain the property of her husband till her dower money was paid.
In Bai Tahira v. Ali Hussain, AIR 1979 SC 362 case, the Supreme Court gave a new line of approach to the law of maintenance. The Supreme Court held that a woman will be entitled for maintenance under section 125 of criminal procedure code even hough she has received a lump-sum amount under her customary law. A similar view also taken in Shah Bano’s case.
In Shayara Bano vs Union of India, the Triple Talaq practise was held unconstitutional, being arbitrary in nature.
Thus, the courts in India have tried to modify the rules of Muslim personal law as applied in India. Unless overruled or negative by some legislative enactment, these rules through the decisions, continue to be a source of Muslim law.
Legislation:
Legislation as per Cambridge Dictionary has been defined as “a law or set of laws suggested by a government and made official by a parliament. The importance of legislation may be seen in the fact that, on the one hand, it establishes rules and procedures through the parliament, while on the other hand, it has state-level authority. Muslims are governed by various legislations passed by many legislatures, which have considerably supplemented the Muslim law. Some of them are:
- Guardian and Wards Act, 1890
- Shariat Act, 1937
- Muslim Women Protection of Right and Divorce Act, 1986
- The Mussalman Waqf Act, 1923
- The Dissolution of the Muslim Marriage Act, 1939
These and many other Acts have considerably affected, supplemented and modified the Muslim law. According to the need of time and circumstances Indian legislature enacted the law to fulfill the need.
Justice, Equity and Good Conscience:
One of the origins of Muslim law is the idea of fairness, justice, equity, and excellent conciseness. These Islamic legal doctrines are known as ‘Istihsan’ or ‘Juristic Equity. According to Abu Hanifa, the man has been endowed with intelligence to use his common sense to do what he thinks fit. Several portions of Muslim law have been modified so as to meet the changing conditions in India.
There is a range of judicial decisions that have given a new dimension to Muslim law.
- In Shah Bano Begum v. Md. Ahmed Khan,1985 (2) SCC 556 case, the apex court held that Muslim women have a right to ask for maintenance under Section 125 of CrPC irrespective of Muslim Personal Law.
- In Shayara Bano v. Union of India, 22 August, 2017 case, the apex court held the system of instantaneous divorce by the utterance of the phrase ‘Talaq’ thrice orally unconstitutional because the proper to instant divorce is only with the men and now not women. Besides, the system is unfair, and for this reason, violative of Article 14. Consequently, the judiciary has assisted with the improvement of Muslim personal regulation.
Conclusion:
Primary Sources are the sources from which the original content of the law is taken and secondary sources are subsequent the primary sources that are made or formed with the changing needs of the society. Secondary sources of Muslim Law are those sources that are advancements in the establishments set somewhere around the primary sources. These sources are not essential sources of Muslim law but rather the strengthening source of Muslim law. These sources clarify or change the primary sources. The secondary sources of Muslim law are Urf or Custom, Judicial decision, Legislation, and Equity, Justice, & Good conscience