TALAQ, QURAN AND LAW

Marriage is marriage. There is no Hindu marriage. Paris marriage, Christian or Muslim marriage. Nevertheless, concept of marriage differs and that really marks out the difference. The concept of marriage under Christian Law is that it is (1) sacrament, (2) an indissoluble union, (3) for (one) life. Similarly under Hindu Law the concept is that marriage is 91) sacrament (2) indissoluble union and (3) for seven lives. As against this concept under Muslim Law, the marriage is sacrosanct ( Sacred contract) and it is a dissoluble union. It means, marriage is not only sacrament but also a civil contract pure and simple. The terms 'pure' and 'simple' are not the terms of edifice but of legal connotations; 'pure' means free from conditions or restrictions and 'simple' means not evidenced by seal, writing or record. Thus while under Muslim  Law. Divorce is implicit in the Marriage (contract). It is not so in other legal systems is implicit in the Marriage as contract. The other legal systems have, therefore, reformed their matrimonial laws and included in it the 'Divorce'. Some of the Western Countries have begun to believe that there is no point in finding out as to where from the bitter water of matrimonial dispute flows. It is best to arrest the flow, the moment it starts and ( some of the Western Countries) prescribe Divorce on the asking. But it goes to the credit of Muslim Law only that it invented and originated Divorce on the asking in the form of Talaq. May be that Muslim Law invented and originated the Talaq a form of divorce on the asking but that does not invest any right in Muslims to misuse and abuse it grossly and with total immunity. 

Before catching Muslim Law with thorns, the other "firsts" invented and originated by Muslim Law may be enumerated. The bridegroom or their parents can enter into a marriage contract, " Marriage Deed" Kabin-Nama or Nikah-Nama. The significance and importance of such Marriage Deed is that both the parties have the 'complete freedom of contract' on terms and conditions peculiarly suitable to them. Thus, the parties can provide for maintenance and so  also for the manner and method of giving  divorce and so on. In the 'Marriage Deed' the boy can be made to agree to delegate his power of Talaq to the girl herself and/or condition/s can be stipulated in such a way that the girl can divorce her husband. It is called as the 'Delegated Divorce'-"Talaq-E-Tafweed". The power to give divorce (Delegated Divorce) can be obtained by wife from husband if not before or at the time of marriage even thereafter. It happens only in Muslim Law and those who are aware are unable to take advantage for several and diverse reasons. One of the reasons is total ignorance of Muslims themselves of such a provision. Another reason appears to be that no one wants to start with negative marriage i.e., ( Delegated Divorce) and hope to turn a new leaf in life. Yet another reason appears to be the operation of the principle of "Husband" how a woman is expected to bargain with any equality or right of divorce given by Muslim Law to women in the form of Delegated Divorce' is almost lost. But the fact remains that the Muslim Law has left no stone unturned to give counter-balancing power to women by conferring upon her the right of giving divorce under'Delegated Divorce' and thereby controlling man's equivocal power to give Talaq at his sweet will.
The Muslim Law has also invented and originated the practice of treating the demise of one spouse as the Talaq, if so desired by the surviving party for re- marriage purpose. This provision appears to be quite insignificant in today's time. But if it is seen in the spectrum of early periods when after death of husband wife was forced to live entire life singly if into douse herself n the year of her husband the importance and significance of  the provision will be loud and clear.
Yet another "first" of the Muslim Law is that it provides for 'Divorce by consent'. The Divorce by consent also appears to be quite insignificant in today's time. But it (Consent Divorce was inserted in the Hindu Marriage and Divorce Act in 1976 in the Parsi Marriage and Divorce Act in 1988 and in Indian Divorce Act(applicable to Christians only) (as late as) in 2001. But Muslims have this provision from the inception Secondly while under Muslim Law parties have not to resort to the Court proceedings because the husband has power to give Talaq in all other cases: parties have to approach Court even though they agree for divorce.
The dissolution of marriage under Muslim Law can be broadly categorized into two:-

1. Judicial and 
2. Extra-Judicial.

As far as the judicial dissolution of marriage is concerned it must be recorded that a Muslim woman is at no disadvantage to seek divorce from Court, if her husband refuses to give divorce. She can seek divorce from Court under he Dissolution of Muslim Marriages Act 1939 on the grounds that:- (1) whereabouts of husband are not known for four years (2) the husband has neglected to provide maintenance to his wife for two years (3) the husband has failed to perform marital obligations for 3 years (4) the husband is imprisoned for 7 years or more (5) the husband suffers from insanity for 2 years or leprosy or virulent venereal diseases (6) the husband is impotent and (7) the husbands treats her with cruelty. Almost the very same grounds are available to any other wife in India for seeking divorce. Therefore  it is necessary to clear out the myth that Muslim women have no legal right to seek divorce from the Court.

On extra-judicial process, the Quranic  injunction says ( Chapter-II Verse 229) " Either retain them with humanity or dismiss them with kindness. Therefore, if marriage broke sown irreparably and reached to point of no return Islam recommended extra-judicial divorce. The judicial divorce was recommended only when the marriage had broken down and they party at fault insists that the marriage tie should continue to subsist Prophet of Islam, at the first place, did into want the matter to be taken to the Court and only as a last resort did he prescribe the judicial intervention. He warned his people to keep away from the path, which would ultimately lead them to a point of no return and breaking down of the marriage tie. But where it were to happen. unavoidably, he wanted the husband or wife ( whosoever might be aggrieve) or both to act quickly and privately.

The scheme of extra-judicial divorce, (other than (1) by demise of spouse (2) by "Delegated Divorce" (3) by mutual consent, and (4) by judicial process- the Dissolution of Muslim Marriages Act, 1939 includes Divorce by Talaq. The Muslim Law gives primary and absolute power to husband to release his wife from the bondage of marriage, if she renders the married life unhappy by her indocility or her bad character. 

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ORIGIN OF MUSLIM LAW

The place of Muslims Law's origin is Arabia where Mohammad promulgated Islam. Basically it is of divine origin that is to say Muslim Law originates from divinity. It is that law which is established by a communication ( Khitab) from God with reference to men's acts, expressive either of demand or indifference on his part or being merely declaratory. The entire system of Muslim Law as well as of theology, ritual and private ethics ahve been built upon two foundations-the Quran and the 'Traditions' ( Sunnah and Ahadi's). The Pre-Islamic customs are hardly referred to by the Muslim Jurists or elucidating the law.

The Quran , The Quran which is the divine communication and revelation to the Prophet of Islam was the first and the great legislative Code of Islam. "It professes to report verbatim a series of communications made to the Prophet through the angel Gabriel on a great number of different occasions during the last twenty years of his life and the fiction is so strictly kept up that he is addressed throughout in the second person. Practically, Wilson says, "we have in it the emanations of Mohammad's own brain under conditions of abnormal strain and excitement as he concentrated his attention on one after another of the problems that he was called upon to solve."

Before going to elaborate the origin and development of law under the subject it is very essential to examine the correct denomination for it. Various terms used for the subject are 'Islamic Law' or 'Muslim Law'  or 'Mohammadan law' with its different  variants strictly speaking, the Mohammedanism; and the people who follow it are Muslims not Mohammadans.

The system of law developed by the Muslim Jurists is 'Fiqh' and the terms 'Islamic Law' or 'Muslim law' are used synonymously with it the former refers to to religion and the later refers to the followers of the religion so no controversy arises as far as the practice of the expression Mohammadan is concern though it may also be used synonymously with the terms 'Islamic Law' or 'Muslim Law' as it also refers to the Prophet Mohammad the founder of Islam and the Islamic Jurisprudence yet it is regarded that this expression rooms to be more appropriate for India as well as some other Countries where only a part of the 'Fiqh' is applied to Muslims. 

For the original term  'Muslim '(Molsem) the expressions 'Mussalman' or 'Mohammadan' are used. The word 'Muslim' or 'Moslem' denotes 'one who adopts the faith of Islam. This wordis anoun of the word Islam (Aslama) which means 'submission to the will of God'. The expression 'Mussalman' is a combination of Moslem and Iman which denotes the followers of Islam who have faith (Iman) in God. Similarly the term 'Mohammadan' refers to the follower of the Prophet Mohammad. Just like the followers fo Christ is the same meaning is hidden, behind all these. But the term 'Mohammadan' if strictly used while talking of 'Mohammadan Law' as in India or same other non-Muslim countries, then it will be looking more elegant and proper. 

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PERSONAL LAW OF INDIAN MUSLIMS

The personal law of Muslims is based on Islam. Islam had its origin in Arabia and from whence it was transplanted into India. In Arabia, the Prophet Hajrat Mohammad, himself an Arab, Promulgated Islam and laid down the foundation of Islamic Law. The main ground work of Islamic legal system was nourished and developed by Arab-jurists and the real fountain head of Islamic jurisprudence is to be found in pre-Islamic Arabian Customs and usages of 7th century of the Christianera. The impress of social history of Arabia on Islamic Law can be clearly found. The Islamic jurisprudence in fact, includes many rules and clearly found. The Islamic jurisprudence in fact, includes many rules and usages of pre-Islamic customary law of Arabia, so before going to analyse the origin and development of Islamic Jurisprudence, it is very important to study pre-Islamic Arabian Society. Its customs and usages. In  Moonshee Buzloor Ruheem v Shumsoon-niss Begum, the Judicial committee of the Privy Council dealing with certain remarks of the Judges of the Sudder Court of Calcutta, refusing to follow the Mahommadan Law in that case, made the following observations-

" There Lordships most emphatically dissent from that conclusion. It is  in their opinion, opposed to the whole policy of the law in British India and particularly to the enactment already referred to ( Regulation IV of 1793, Section 15) which directs, that in suits regarding marriage and caste and all religious usages and institutions, the Mohammadan Laws with respect to Mohammedans and the Hindu Laws with regard to Hindus are to be considered as the general rules by which Judges are to form their decision and they can conceive nothing more likely to give just alarm to the Mohammadan community than to learn by a Judicial decision that their law, the application of which has been justly secured to them is to be overridden upon a question which so materially concerns their domestic relations "

In India, the law is in the main personal. This is not only adds to the difficulty of legislation but considerably enhances the risk of failure in the administration of justice. In the case of the Mohammedan Law especially clothed as it is for the most part in the garb of an unfamiliar language, it is often extremely difficult to ascertain and apply its principles. And it is apparently on this account that often a certain reluctance is evinced to give effect to the rules of the Mussalman Law and English Law and sometimes  even Hindu Law are invoked either to cut down or to explain away the meaning of the Mohammadan Law. 

Codification of Personal Law and Uniform Civil Code

In Ahemdabad Women Action Group(AWAG) v Union of India Hon'ble Supreme Court expressed that question regarding the desirability of enacting a uniform Civil Code did not directly arise in that case. But, in his separate judgment, R.M. Sahai J. observed that desirability of Uniform Civil Code can hardly be doubted. But, it can concretize only when social climate is properly built up by elite of the society, Statesmen, amongst the Leaders who instead of gaining personal mileage rise above and awaken the masses to accept the change. In Maharish Avdesh v Union of India the Supreme Court had declined to issue a writ, directing the Union of India to consider the question of enacting a common Civil Code for all citizens of India holding that issue raised being matter of police it was for the Legislature to take effective steps as the Court cannot legislate.

In Saria Mudgal (Smt.) President, Kalyani v. Union of India, Kuldeep Sen J. requested the Government of India through Prime Minister of the Country to have a fesh look of Article 44 of the Constitution of India and endeavour toe secure for the citizens of Uniform Civil Code throughout territory of India. On the question of the Uniform Civil Code R.M. Sahai J. Constituting the Bench suggested some measures which could be undertaken by the Government to check the abuse of religion by unscrupulous persons who under the cloak of conversion were found to be otherwise guilty of polygamy. The Government was advised to entrust the responsibility to the Law Commission which may consult the Minority Commission to examine the matter and bring out a comprehensive legislation in keeping with the modern day concept of human rights for woman. 

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DISTINGUISHED FEATURES OF MUSLIM LAW

The concept of Islamic Law or Muslim Law has been embedded with the following distinguished features:-

(1) Law based on religion- The Divine Law.

Like, Hindus, Islamic Law is also of divine origin. In Govind  Doyal v. Inayatulla, Justice Mahmood remarked:

"It is to be remembered that Hindu and Mohammedan Law are so intimately connected with religion that they cannot readily be dissevered from it"

Hindu Law is based on Vedas i.e., Sruti which denotes ' that which is heard' and Smriti which means' that which is remembered by the sages' Similarly, Muslim Law is based on Islam, religion taught by the Prophet Mohammad that is why the law related to Muslim has 'been denominated with reference to the religion as well as its founder e.g. Islamic Law, Muslim Law or Mohammadan Law.

The Basic principles of Islam are as under:-

1. Belief in the existence of God- The dogma of 'Imam'
2. Belief in the Unity of God-The dogma of 'Tawhid'
3. Belief in Mohammad as the Prophet-The dogma of 'result'
4. Belief in Akhirat-The dogma of  'Qayamat'
5. Belief in Brotherhood- The dogma of 'equality'

From these fundamental tenets of Islam, flows the Islamic notion of law. According to Islam, God ahs the primary authority to enact laws. He promulgates his laws through  Prophets. Messengers or Rasuls, such Rasul was the Prophet Mohammad. There are direct and indirect revelations of God (contained in the Quran and the Sunna respectively ) through the Prophet in matters of religion and laws. So, in Islam nobody other than the God, can have legislative power, God is the sovereign and next to God, the sovereign powers aside in the people. 

Joseph Schacht remarsk:

" The sacred law of Islam is an all embracing body of religious duties, the totality of Allah's Commands that regulate the life of every Muslim in all its aspects; it comprises on an equal footing, ordinance regarding worship and ritual, as well as political and (in the narrow sense) legal rules."

(2) Law based on shariat

Shariah or Shariat as is pronounced in India, means commands ( Ahkam) of God, a code governing all human actions and beliefs. For all effects of individual and collective actions of humans, causes are found in Shariat. All moral, legal ethical, theological philosophical and political problems are dealt in Shariat and as such solutions of any problem are religious in nature. 

The basic  source of Shariat is Quran which is supplemented by Sunna and Ahadees. The followers must believe these to be of divine origin. Quran and Islam, though, don not claim these guiding principles to have been revealed for the first time. Quran itself recognises previous Shariats right from Adam to Prophet of Islam. Quran says:

" The same religion we have  established for you as that which we had enjoined to Adam, Noah, Abraham, Ismail, Issac, Jacob. The  Tribes, Moses, Job, Jonah, Aaran, Solomon, David etc. Ye should remain steadfast in religion and make no divisions therein".

(Quran : Sura 4-A 163;S 23-A23; S42-A13 )

"....................To each among you have We prescribed a law and open way."

(Quran-Surra 41-a 43)

"None of our revelations do we abrogate or cause to be forgotten but we substitue something better or similar"

( Quran-Sura 2-A106.)

Some of the descriptions in Quran differ from that of Torah and Bible. These differences are due to man-made alterations in Torah which were incorporated in Bible as it's part ( Old Testament) by "Reformers"  between 1st and 3rd century B.C. In Bible:- "Particulars books as Esther, or Daniel or Ecclesiastes were only added in the collection subsequently ". (Ryles cannon of Old Testament). Moses had instructed his people to follow laws and laws relating to marriage etc. etc. ( Shariat-e-Moosa). Torah was revealed around 1300 B.C. and the text of Old Testament in present form was completed in 2nd  century A.D. "According to Jewish tradition there are eighteen passages in which the older scribes deliberately altered the text on the ground that the language employed was either irrelevant or liable to misconception."

Thomas  Hobbes started critical studies of Bible and observed, "who were the original writers of the several books of Holy Scripture has not been made evident by any sufficient testimony or other history".

Jesus knew about all these alterations in Sharia-e-Moosa and had to observe in New Testament:

"...Pharisees sit in Moses seat: all, therefore, whatsoever they did you observe, that observe and do; but don not ye alter their works; for they say and do not."

(New Testament-(Mathew) Chap 23-lines 2 and 3) 

Above discussion would show two important points-firstly  Quran and Islam has prescribed a Shariat which was also prescribed by previous Prophets but with some 'reforms', and secondly that previous Shariats could not be fully understood from their Scriptures because they had been subjected to corruptions and man-made alterations. On the contrary there is not an iota of evidence that Quran was subjected to such a process, therefore Quranic text is pure and uncorrupted.

Thus Pre-Isamic customs and usages in Arabia could not be attributed strictly and necessarily to be derived from those previous original shariats but may have independent origin. It is also certain that principles of old Shriats have been incorporated in Islamic Shariat.

It is powerfully argued that Roman, Greek jor pre Islamic customs and usages ave been 'adopted' Islam or Prophet, thus rules of Muslim Law must be understood in this light."None of our revelations...."(Sura 2-A106 Supra) is idnication of Divine intention to incorporate those principles in every subsequent Shariat. As Quran is the last of them all, the principles enshrined therein should be taken to be a standard.

Islamic Shariat devised two sets of basic principles. First set is called Usul-e-Deen and the second Furu-e-Deen. The first is related to belief and the second set governs general actions and obligations.The literal meaning of the term 'Shariat' is 'a read to the watering place, the path to be followed. In technical terms, it denotes the conon law of Islam, the totality of Allah's commandments ( Hukm). It is a divine revelation. The 'Shariat' is a code of duties and obligations of men, giving secondary place to the rights of men. According to the 'Shariat' religious commandment ( Hukm) of Allah are of five types:

1. Faraz- Five daily prayers ( Namaz) - One must do strictly.
2. Haram- Drinking wine- One must forbade strictly
3. Mandub/Additional Prayers on the id- One may do.
4. Makrum- Eating certain kinds of fist prohibited-One may refrain from.
5. Jaiz or Mubah-Thousands of Jaiz things, such as travelling by air-Shariat is indifferent towards it. 

The Islamic Law is based on above given five morals or Akham of Allah. Sunni Muslims profess three principles as Usul-e-Deen namely (i) Wahdat ( Singular entity of God) (ii) Risalat ( Prophethood-God sent Prphets numbering one lakh and twenty four thousand, last being Prophet of Islam) (iii)  Qayamat ( Doomsday)-A day of judgment when every individual would be rewarded or punished for waht he had done in this world. 

Shia Muslims consider two more principles in addition to above three. At number two ( after Wahdat) they place Adalat i.e., that God is just; and before the last ( Qayamat)), they place Imamat-they believe that after Prophet, God had appointed Imams. For this reason sometimes they are called "twelve".

The next step is action ( Amal) the paralled word used in Hindu religion is Karma. These actions are defined under Furu-e-Deen and  they are-(1) Namaz ( Prayers), (2) Roza ( fasting) , (3) haj ( Pilgrimage) (4) Zakat ( departing a certain amount from individual's income) and (5) Jihad ( holy war for the cause of God), Shias include Khums also in the list ( another portion of income and savings, besideds Zakat which is trictly to be given to Imams). As in present itmes there is no one to receive this amount, hence jurists have deferred this item.

These two sets of principles are foundation of Islamic Shariat. Unless one believes ( Eeman) in first set of principles, he cannot come in Islamic fold. Besides these jprinciples, all actions of human are included in Islamic Shariat, whether religious, civil or criminal. Different rules are framed for ascertaining Halal and Haram or good and evil. These may be actions concerning material things. Marriage with a foster sister is Haram as is pork or wine. In between these two extremes there is a middle position called Mustahab and Makruh. Mustahab is related generally to actions and Makruh to a material thing, it is advisable to do things which are Mustahab because they are not Farz or Wajib ( compulsory as daily prayer)  but if one fails to do such acts he commits no sin or wrong. Again, it was advisable to refrain from taking Makruhs things in normal circumstances such as horse meat or certain kinds of fist. ALl acts and things which are not Haram or Makruh are Jaiz. Then there is concept of Pak and Najis. The Islamic Shariat in this way controls moral, ethical, social, individual, religious, legal and even political life of a believer and this control is total. Rules of Islamic jurisprudence are part of Shariat, which are divided in civil and criminal departments like any other law. 

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THE ISLAMIC ERA

A historical event, whatever its value is the result of  a very long chain of events. Arabian peninsula was surrounded by different civilizations, some of them very old and developed, such as Egyptian, Greek, Roman, Babylonian and Persian civilizations, Philosophical and mythological thought, learnings in various fields, different beliefs and customs of these civilizations had influenced even the nomadic tribes of Arabia, what to say of town dwellers who were leading a settled life. Besides these there were Christian and Jewish scholars with whatever purity had been left  of their religious rituals and beliefs. Paganism and according to some Buddhism were also practiced. 

In the background Prophet of Islam was born in 570 or 571 A.D. in a very prominent family of Hashimites of Quraish tribe who, were direct descendants of Abraham ( Ibraheem in Arabic). This family was responsible for upkeep of Kaba. The family was worshiping single God. Prophets's grandfather Abdul Muttalib was incharge of Kaba when Abraha from Yamen attacked Mecca and had vowed toe demolish Kaba. Which was even then considered house of God. While Abraha was camping at the outskirts of Mecca he captured 200 camels of Abdul Muttalib. He went to Abraha and asked for release of his camels. Abraha asked him why he was not asking him to abandon the idea to demolish Kaba, to which Abdul Muttalib replied that camels belonged to him that is why he is asking for their release but the house belonged to God and the owner of the house would protect this house. This shows his faith about monotheisticism. 

Prophet passed his childhood as an orphan and major part of adulthood under the patronage of Abu Talib his uncle  and a powerful tribal chief. During this period he had established himself as a person of strongest character, seeker of truth and greatest custodian ( Ameen). During this period he was married to the wealthiest lady of Arabia, lady Khadija. The rites of marriage were performed by Abu Talib. During this period he used to go to Hira cave for prayers. All was well till Prophet declared that there is only one God and he was his prophet. Lady Khadija was the first woman and Ali was the first among men who embraced Islam. Opposition grew against him but Abut Talib defended him from all corners and he continued to preach the message. Prophet invited the polity of Mecca for a feast called Dawat-e-Zul-Ashira nd  conveyed the message among all present only Ali accepted.

When the persecution of Prophet and his followers gained momentum he ordered some of them to shift to Abyssinia. Prophet himself had to leave Mecca when tribal representatives led by Abu Jahel  and Abu Sufiyan collected in Darul Nadwa and scherned to kill prophet. One person from every tribe was chosen to do the job to avoid Hashimite revenge and onslaught after the killing. In the same night Prophet left Mecca and entered  Medina on 20th September 622 ( Gregorian). This event is called Hijrat and Hijar Calendar started from that day

After Hijrat some of the followers who were left at Mecca were persecuted; beside Kaba was situated in that city hence Prophet  marched to Mecca and captured this city without a fight but through a treaty Suleh-e-Hudaibiya which was signed between the parties ( at the request of Meccans)  which bore strange clauses for those who could not understand at that time, because it was a win for Prophet and the clauses of the treaty reflected as if Prophet was under pressure to sign that treaty; such as any person if captured by either party would be disposed in the manner that Prophet's side had to return the person to the other party and if opposition captured any one from followers of Islam he would not be returned. Time had proved that such provisions paid dividends to Islamic fold because the persons who were captured by opposition and retained as agreed, preached Islam and had helped to make more conversions.. 

After these battles the loosing opposition embraced Islam but there was a difference of genuine acceptance of Islam between commoners and their chiefs. Some of the chiefs had accepted Islam just to save the lives and property, Abu  Sufian, father of later Ommaiyads and foremost among the group of opposition, many of whose kiths and kins were slaughtered by Muslims in previous battles, accepted Islam after the takeover of Mecca because he saw it as a growing political organisation in which there was a better prospect for gaining political power on one hand and on the other to save his life and property. Many such occasions several persons were found keeping idols in their sleeves during the prayer ( Namaz) in the Mosques. One should keep in mind that taking revenge was second nature of Arabs of those days and very near relations of new converts were killed by Islamic followers in the battles of Badr and Uhad etc. However, most parts of Arabia had accepted Islam and it was religion of majority till the death of Prophet in 632 A.D (11 AH) and also there were no sects in Islam before this date. 

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QURAN THE FOUNDATION OF MOHAMMEDAN LAW

 Mohammedan Law is founded upon " Al-QURAN"  which is believed by the orthodox Musalmans to have existed form eternity, subsisting in the very essence of God. The Prophet Mohammad himself declared that it was revealed to him by the angel "Gabriel" in various portions and at different times. Its texts are held by Mohammedans to be decisive as being the words of God ( Kalam-Ullah) transmitted to man through the Prophet. Besides inculcating religion and theology, the ' Quran' contains passages which are applicable to jurisprudence, which from the principal basis of the 'Sharaa'

The Quran is Al-furqan, i.e., one showing truth from falsehood and right from wrong. It is in the form of a series of communications addressed by God to the Prophet. The communications were declared to the people on a great number of different occasion in the last twenty-three years of the Prophet's life, and dealt with a great variety of problems, one after another, as they arose. But whenever the Quran was silent on any particular matter, guidance was taken form the Sunnat i.e., to whatever the Prophet had done, said or tacitly allowed; and also to Hadis i.e., to the Prophet's sayings or the narration of what was said or done by him or was in silence upheld by him. All these are considered by the Mohammedans to be supplement to the Quran and are of the same rank.

Ayaamn-il-Jahilyya - This law had no existence before Mohammad became a Prophet and there was no general law of the races inhibiting the Arabian Peninsula, each tribe was governed by its own laws, and matters in dispute were either referred to the chief, or society in which reforms were introduced by Islam to bring about a complete transformation of the society. The Arabs themselves were so much conscious of this change that they began to refer to the period before Mohammed as the Ayyam-il-Jahilyya, i.e., the period of ignorance or rather wildness or savagery in contrast to the moral reasonableness of a civilized man. It was the days of superstition and idolatry; the position of women was not much better than that of animals; they had no legal rites; in youth they were the goods and chattels of the father; after marriage the husband became their lord and master. Polygamy was universal, divorce was easy and female infanticide was common. 

After the Death of Prophet Mohammad, various competitors came forward claiming to succeed to the Caliphate and divided the people into rival and discordant fractions. But notwithstanding this, the Sunnat as well as Hadis was preserved from hand to hand by authorised persons, and applied to many questions relating to things, both temporal and spiritual touched upon in Quran. After Mohammad's death the Sunnat and Hadis though not recorded were cited by his surviving companions in order to decide occasional disputes and to restrain actions which the Prophet prohibited and thus in the process of time they became the standard of judicial determination. 

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ISLAMIC LAW IN INDIA UNDER BRITISH RULE

During the Muslim rule in India the rulers were Hanafis and so Hanafi Law became the law of the land. This continued till the establishment of the British Empire. To the close of the 16th century the British traders came India for trading purposes during the reign of Mughal dynasty 1600 A.D. the East India Company was established. The foundations of the British  Empire were laid by treaties with Mughal rulers representing the authority of the Delhi Sultanate. The North West  provinces were governed by the East India Company down to 1857 in the name of titular sovereign who had been a British pensioner.

In 1765 A.D. the Company was vested with the power of collecting land revenue, but criminal jurisdiction  remained in the hands of Muslim law-officers, so the criminal law was Muslim. In civil matters the Islamic Law was applied to Muslims and the Hindu law to Hindus. Hence the influence of Islamic Law was felt everywhere during the earlier days of British Empire. It was only in 1772 A.D. when the  Muslim Law got recognition in British India. Warren Hastings, the first Governor General of British India for the first time framed the famous Regulation II of 1772 which was reconnected as the Regulation of 1780. According to section 27 of this regulation:

"In all suits regarding inheritance, succession, marriage , caste and other religions usages or institutions, the laws of the Quran with respect to Mohammedans and those of the Shastras with  respect to the Gentoas ( Hindu) shall be invariably adhered to."

Further  by regulation VII of 1832, it was provided that ," Whenever in any civil suit, the parties shall be of different persuasions, when one party shall be of the Hindu and the other of the Mohammedan persuasion or where one or more of the parties to such suit shall not be either of the Mohammedan or of the Hindu persuasion, the laws of those religions shall not be permitted to operative to deprive such party or parties of any property in all such cases, the decision shall be governed by the principles of Justice, equity and good conscience it be in clearly understood, however that this provision shall not be considered as justifying  the introduction of the English  or any foreign law, or the application to such cases of any rules not sanctioned by those principles.
where in the personal laws, there were differences between the parties, the law of the defendant was applicable. Similarly, the Regulating Act of  1773, the East India Company Act, 1780 the charter of 1781 the East India Government which shows, that Islamic Law founded recognition in British Courts in India. The original rules of Islamic Law on wakf were also retained with the passing of the Musalman Wakf validating Act, 1937 was passed by the British Government in 1937. This Act abrogated the custom and restored to Muslims their own personal law in almost all matters.
In criminal matters also, the Islamic Law governed the Indian population irrespective of religion of the offender. It was decided that Islamic criminal law would remain in force until the Company's Government thought fit to order otherwise for a longer time till the year 1962 when the Indian Penal Code and the Code of Criminal Procedure were passed.
As far as the laws of evidence was concerned Islamic Law of evidence was in vogue till the passing of the Evidence Act 1872.
Hence, Islamic Law ( specially criminal law) as modified from time to time by the regulations of the East  India Company governed not jonly Muslims but all the Indians, Consequently today in Independent India, the Islamic Law of Marriage, Divorce, Dower, Legitimacy, Guardianship Gifts, Wakfs,Wills and inheritance is applied to Muslims everywhere din India. In the words of schacht.

"It has had, during the two centuries  of British rule, the effect of keeping the law stationary and static except for two broadening  influences legislation and the healthy introduction of the principles of English equity. Thus the Mohammadan Law, as received in India, is the  Shariat, modified by the principles of English common law and equity, in the varying social and cultural conditions of India and during the centuries it has tended to become a distinct system somewhat at variance with its original sources."

In all those spheres, where the rule of law is the Islamic Law, it has been found in the recognised legal i.e., the Hedaya and the Fatawa-i-Alamgiri which have acquired authority in India. In Zohoraddeen Sirdar v Baharoollah Sirdar those learned Judges expressed themselves in the following terms:-

"It is contended by the pleaders for the plaintiff, special respondent that the Mohammedan Law is not applicable to contract of the nature before the Court, that according to Section 15, Regulation IV of 1793 it is only on questions of inheritance, marriage and caste that the court is called upon to decide in conformity to the Mohammedan Law, and  that the present matter before the court, not being of the nature above expressed is to be decided by the ordinary rules of equity and good conscience. In answer to thsi it may be remarked that the courts of this country have invariably applied in practice, the Mohammedan Law to a variety of cases other than those coming under the denomination of inheritance marriage, caste and even if immemorial and recognized practice did not legalize the action of the Courts, it cannot be said that when this court administers to Mohammedans their own law, they do otherwise than administer justice according to equity and good conscience."

The provisions of 21 Gio. II, cap 71 section 17, have been re-enunciated in later statutes and are now substantially embodied in Act XII of 1887 and "Constitute one of the most important guarantees given to the people of India by the British rule." The tendency of the Courts has been to restrict eh operation of the personal laws, in the main to Hindus and Mahommedans.

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ISLAMIC LAW IN INDIA UNDER MUSLIM RULE

In 712 A.D.  the Arabs of Mesopotamia conquered Sind. They belonged to the Hanafi School, Mahmood Ghaznavi a Turk was also a  sunni of teh Hanafi School, so the Kazis appointed by all the Muslim rulers administered the Hanafi law by the time of Muslim conquest of India. Hanbalism and Shafeism had ceased to be important. The Shia School was also struggling for its existence in India. The contact of the Emperors of Mughal dynasty ( Babar) with the Persian rulers who were Shias and the existence of some kingdoms in the Deccan with Shia rulers, helped to established Shia Law which was recognised by the Nawabs of Oudh, through Akbar the Mughal Emperor re-established the orthodox ( Sunni) Islam as the state religion. Hence the real struggle was between the Hanafis and the Shias.

Along with the penetration of Islam into India, the Islamic Law was also transplanted. The rulers laid down for the treatment of Zimmis ( non- Muslim subjects or Hindu could not be applied in their entirely ) The Zakat  ( contribution of a portion of property or alms was due from a Muslim and to the capitation tax (Jizya) was inseparable from the status of a non Muslim ( Zimmi or Hindu) Tax on pilgrimages was the furthest stretch of systematic, interference with Hindu worship. The non-Muslims were  continued to be regulated by their own sacred laws in matters of marriage, adoption and inheritance. But the Muslim rulers kept in their own hands the administration of the Criminal Law. The law of contract was also not uniform. The land system was also regulated on the principles based on Islamic Law, and the laws relating to lands were applied to all land-holders equally irrespective of religion.
Hence, wherever there was a conflict between the Islamic Law and the sacred laws of the Hindus the former prevailed. But it was only during the British rule, that the Islamic Law got recognition in the real sense. 

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INTRODUCTION OF ISLAM IN INDIA

During the life time of the Prophet (570-632 A.D.) Islam had spread almost in the whole of Arabia After the death of the Prophet, during the periods of Omayyad dynasty of Sunnis ( 632-750 A.D.) and Abbasid dynasty in Shias (750-1256 A.D.) Islam spread like wild fire and very soon it engulfed most of the neighboring territories. Especially during the period of the first four caliphs, it made a rapid progress and was penetrated into various parts of the world. The Arabs conquered many states of the world at the close of the first century of the Hazira (Era) 732 A.D. ) The political domination led to religions domination and so most of the people of the conquered areas embrace Islam. During  the reign of walid I (705-714 A.D. ) and Omayyad Calipah, in 712 A.D. the Arabs of Mesopotamia, Mohammad-bin-Qasim invaded Sind and conquered it.  Sind was under the domination of the Arabs for more than 2000 years, consequently the Arabs won some followers for their faith, hence in a way the Arab conquest of Sind led to the spread of Islam in India. But they cannot make a permanent empire in India, so this conquest proved nothing more than, Islam had spread into Syria, Mesopotamia, Egypt, Persia, Balkh, Herat, Kabul, Spain, Damascus and Central Asia.

Though the first attempt to conquer India for the Islamic faith was made in 712 A.D. but attempt to establish a permanent empire in Sind failed and as a result, the Muslim faith received a great set back at least for two centuries. Again in the  11th and 12 the 12th A.D. the Muslims ( Turkish) under Mahmood Ghaznavi and Mohammd Ghori invaded India and became successful in  establishing a permanent empire in India. Mahmood Ghaznavi (967-1030 A.D. ) led seven expeditions against India ( 1001-1027 A.D.) During his reign over India, Islam began to make a rapid progress in this Country. When the Indians were asked to choose either of the two-death or Islam, a huge number of them embraces, Islam. According to some of the Muslim Historians, Mahmood Ghaznavi invaded India with the aim of spreading the Muslim faith in this country and with this aim, he broke idols and raised temples to the ground, Mahmood Ghaznavi died in 1030 A.D.

Though during the rule of Mahmood Ghaznavi, Islam made a rapid progress, yet it cannot be denied that it was Mohammad Ghori, who was the real founder of the Mulsim empire in India. He led a number of expeditions against India for about 30 years ( 1175 to 1206 A.D.) He was more political and a better statesman than Mahmud aimed at the wealth of India, but Ghori aim at the conquest of India and planting a permanent Muslim Empire in this Country, in which he succeeded. His conquest of India was real and permanent. The territories conquered by him were never lost to Islam,. When he left India in 1195 A.D. he left the administration of India in the hands of his viceroy Kutub-ud-din-Aibak, who further extended the dominions of Islam in India. Mohammad Ghori died in 1206 A.D.

After the death of Mohammad Ghori, Kutub-ud-din-Aibak rose to power and founded the Slave Dynasty. He was the founder of Delhi Sultanate. The Slave dynasty ruled over India from 1206 to 1290 A.D. After the downfall of Slave Dynasty another Muslim ruler Jalal-ud-Din Khilji founded the 'Khilji-dynasy' which remained in poer from 1290 to 1320 A.D. After the downfall of the 'Khilji-dynasty' Ghias-ud-Din Tughlak, founded the 'Tuglak-dynasty' which rules from 1320 to 1414 A.D. Then came into power ( 1451-1526 A.D.)

In 1524 A.D. Babar started from Kabul for the conquest of India in 1526 A.D. he defeated Ibrahim Lodhi and put an end of the Delhi Sultanate and founded the Mughal dynasty. The last emperor of the Mughal dynasty was Bahadur Shah ( 1836-1858) Hence, with the extension of territories under the Muslim rule, Islam also spread for and wide in India.  

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HISTORY OF ISLAM

Prophet Mohammad was born at Mecca in A.D. 570. The Prophet was a posthumous child. His father Abdullah, while returning from Syria, where he had gone for some business, died at Medina. The prophet was brought up by his mother. On his mother's death, while yet a child, the Prophet passed into the card of his grandfather, Abdul Muttalib. Two years later the grandfather also died and the boy was then brought up by his uncle Abu Talib, after the age of twenty-five years he spent much of his time in solitude making a lonely cave his abode, where he is said to have been occupied in prayer and meditation. He became a Prophet at the fortieth year of his age, when he received his first-wahi or message from God. From that time he devoted himself in replanting the only true and ancient religion, professed by Adam, Noah, Abraham, Moses, Jesus and all the Prophets of the past. In his endeavors to this end, he met with the most abused, spat upon, covered with dust and dragged from the temple of Mecca by the hair of his head; but still he assiduously preserved in his undertaking and ultimately succeeded in spreading his religion over a great portion of the Roman Empire, in converting the people of Persia, in advancing his dominion to the banks of Indus and the Oxus and in founding a sect of people that afterwards became the conquerors of India and are at the present time one of the most numerous, if not the most powerful races of men on the earth.

As a result of the Prophet's condemnation of the paganism, then prevalent in Arabia, he was compelled to leave Mecca and took refuge among his followers at Medina. The flight of Prophet known as "hijrat" marks the beginning of Muslim era. The years of humiliation, of persecution of failures came to an end and the years of success, the fullest that has ever crowned one man's endeavour had begun. The Hijrat makes a clear division in the story of Prophet's Mission which is evident in the Kuran ( Holly Book of Muslims). Till then he had been a preacher only. Henceforth he was the ruler of a state- first a verysmall one, but which grew in ten years to be the empire of Arabia. This absolute supremacy continued till his death in 632 A.D.

In the religious sense Islam means submission to the will of God and in secular sense Islam means the ' establishment of peace'. The Prophet said " Purity of speech and hospitality". And what is faith? He said, patience and beneficence ( Abu Umarah-sayings 217). A man said," O Prophet of God, what is ( the mark of ) faith? The Prophet said, " when the good work gives thee pleasure and the evil work grieves thee, thou art a man of faith. The man said, " What is sin ? The Prophet said, when anything smirtes the withing thyself forsake it".

In  Narautakath v. Parakhal, [( 1992) 45 Mad 986] the point to be decided by their Lordships was"whether conversation to Ahmedian was faith apostasy". It was held that the essential doctrine of Islam is the (i) there is but one God and (ii) Mohammad is the Prophet of God.  Any belief in excess of this, at least for Law courts is a redundancy.  In jivan Khan v Habib accepting monotheism and mission of Mohammad as Prophet as the fundamental dogmas of Islam the shiites were held to be Mohammedans even though they used abusive language against e first three Caliphs. On the basis of the law declared by various authors and also case law a mere statement by a person that he is a Muslim is not sufficient. The question that has to be considered is whether he/she believed in one God and recognized Mohammed as the Prophet of God. According to the Court, an affidavit does not substantiate the said case. 

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