Discuss the formal and material sources of Muslim Law. How were the expression, justice equity, and good conscience introduced in Mohammedan Law in India?

Question: Discuss the formal and material sources of Muslim Law. How were the expression, justice, equity, and good conscience introduced in Mohammedan Law in India? [BJS 2014]

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Answer

Sources of Muslim law can be divided into two parts:-

1. Ancient sources (Material Sources)
2. Modern sources (Formal Sources)

I. Ancient Sources (Material) of Muslim Law

The ancient sources of Muslim law are:-

• Quran
• Sunna
• Ijma
• Qiyas

Quran

The word Quran which is the 'divine communication' and revelation to the prophet of Islam is the first source of Muslim Law. It is the paramount and universal authority of Muslim Law. It contains the revelation of God to his Prophet Mohammad, through angel Gabriel. The verses of the Quran are called Ayat and the chapters of this Holy Book are called Sura.

Sunna

Sunnah is another primary source of Muslim law but comes after the Quran. Sunnah is what was said by the Prophet and Sunhat is his practice and action. Whatever the Prophet said or did without reference to God is treated as his tradition and is the second source of Muslim law.

Ijma

The term Ijma means a consensus, i.e. the agreement between all on a particular point of fact or law. When all the judges in the Supreme Court unanimously agree to a point and pronounce judgment on that point, it becomes a precedent and a binding law. Similarly, Ijma is a concept of law made by the consensus of all Islamic jurists or other persons of knowledge and skill.

Qiyas

As Islam spread in different parts of the world, they rendezvous with several other communities such as Byzantines and Persians, and with the passage of time, new difficulties arose. The Holy Quran could not deal with new emerging difficulties arising from contact with the outside world.

II. Modern Sources (Formal) of Muslim Law

The modern sources of Muslim law are:

Customs

These are termed as urf in Muslim law. It was never recognized as a source of law but was sometimes considered supplementary. Not every custom holds importance in Muslim law.

Requisites of a valid custom under Muslim law are:

• It must be ancient.
• It must be territorial.
• It must be continuous.
• It must not oppose the public policy.
• It must not oppose the Quran or Ijma.

Precedent

Our Indian judiciary, in several instances, interpreted Muslim law in several cases. All these interpretations relied upon primary sources. Legislation, the opinion of jurists, and courts have settled many important legal anomalies using judicial interpretations.

Legislation

Muslim law in India is not codified, but the parliament has made some laws to regulate Islamic practices. For example, The Muslim Personal Law (Shariat) Application Act, 1937. This Act deals with marriage, succession, inheritance, and charities among Muslims.

Introduction of the expression justice, equity, and good conscience in Mohammedan Law

The Doctrine of equity, justice & good conscience is regarded as one of the modern sources of Muslim law. Abu Hanifa, the founder of the Hanafi sect of Sunni, expounded on the principle that the rule of law based on analogy could be set aside at the option of the judge on a liberal construction or juristic preference to meet the requirements of a particular case. These principles of Muslim law are known as Istihsan or juristic equity. Istihsan literally means approbation and may be translated as liberal construction or juristic preference.

This term was used by great jurist Abu Hanifa to express the liberty that he assumed of laying down the law, which in his discretion, required special circumstances rather than the law that indicated the analogy. Several areas of Muslim law were modified so as to meet the changing conditions in India.

Hence, Equity Justice and Good Conscience simply mean Judges applying their own minds while giving judgments, and in Muslim Law, this has evolved through various Judicial Decisions where the primary sources were silent, and judges have applied their own minds and reasonability to provide justice for instance in the instant Triple Talak Case i.e. Shayara Bano v. Union of India, (2017) 9 SCC 1, the customary practice of Triple Talak has been held to be invalid as it was against the right to equality as guaranteed by Article 14 of Indian Constitution.

Therefore, it can be concluded that equity, justice, and good conscience have evolved in Muslim Law through Judicial Pronouncements on matters that are silent in primary and secondary sources of Muslim Law.

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