About this topic
This topic answers two questions that sit at the base of Muslim law:
- Schools: why can one faith give two different legal answers to the same question?
- Sources: where does any rule of Muslim law get its authority?
Two weddings take place in Hyderabad on the same evening. In the first, Aadil and Zoya, both Sunni Muslims, exchange offer and acceptance in a closed room with no witnesses present. In the second, Farhan and Neha, both Shia Muslims of the Ithna Ashari school, do exactly the same. Same city, same faith, same words, yet the law treats the two marriages differently. The answer lies in the difference between the schools.
Sharia, Fiqh and Mazhab
- Sharia: literally, "the road to a watering place". It came to mean the path that God has laid down for human beings. Muslims believe the Sharia is divine, so in their view no human legislature made it.
- Fiqh: means "understanding". It is the human understanding of the divine path.
- Mazhab (school of law): an organised tradition of Fiqh. It is a school of thought, not a caste.
The Sharia is one, but Fiqh can take many forms, because sincere scholars can read the same text differently. This is why different schools (mazhabs) exist within one faith.
Origin of the Schools: The Question of Succession
The schools trace back to one question that arose in 632, when Prophet Muhammad died at the age of 63: who would now lead the community? During his life the Prophet was both the religious guide and the political head of the Muslims, and he left no surviving son.
Shia and Sunni
| Point | Shia | Sunni |
|---|---|---|
| Name | Short form of Shiat Ali, meaning "the party of Ali" | The people of the Sunna and of the community |
| Size | - | The larger group |
| View on leadership | Leadership belonged to Ali, the Prophet's cousin and husband of the Prophet's daughter Fatima; the Prophet himself had chosen Ali | The community should choose its leader through consultation and agreement |
The four Caliphs
Caliph means "successor". The community chose Abu Bakr as the first Caliph. The first four Caliphs were:
| Caliph | Who he was | Rule | End |
|---|---|---|---|
| 1. Abu Bakr | Close companion of the Prophet and father of the Prophet's wife Aisha | About 2 years | Natural death |
| 2. Umar | - | About 10 years | Killed |
| 3. Uthman | - | About 12 years | Killed |
| 4. Ali | Cousin and son-in-law of the Prophet | About 5 years | Assassinated |
Hereditary rule and Karbala
- After Ali's death, his elder son Hasan gave way to Muawiya, the governor of Syria.
- Muawiya founded the Umayyad dynasty and named his own son Yazid as heir. Leadership had become hereditary.
- Ali's younger son Hussain refused to accept Yazid. In 680 he was killed, with many members of his family, at Karbala. For the Shia, that tragedy sealed the division.
Why this history matters: a split about authority
The split began over politics but became a split about authority to interpret the law.
| Sunnis | Shias |
|---|---|
| Treat the learned scholars of the community as the interpreters of the law | Look to the Imams, beginning with Ali and continuing through his descendants by Fatima, as the authoritative guides |
This difference about authority explains the Shia position on the sources: the Shias accept Ijma only with the approval of the Imam, and reject Qiyas, relying instead on Aql (reason).
Schools of Muslim Law
Sunni schools
There are four Sunni schools. They can be remembered as one long classroom spread across the eighth and ninth centuries.
| School | Founder and place | Main feature |
|---|---|---|
| Hanafi | Abu Hanifa, taught in Kufa, Iraq | Gives wide room to reasoning |
| Maliki | Malik, taught in Medina | Leans on the living practice of the people of Medina |
| Shafii | Shafii, studied under Malik and also learnt the Hanafi method | Built a systematic method for using the sources |
| Hanbali | Ahmad ibn Hanbal, studied under Shafii | The strictest in following the texts |
Most Sunnis in India follow the Hanafi school. For that reason, Indian courts presume that a Muslim is a Sunni Hanafi unless the contrary is proved.
Shia schools
Two Shia schools matter most in India:
- Ithna Ashari: the name means "the Twelvers". It follows a line of twelve Imams. Most Indian Shias belong to it.
- Ismaili: takes its name from Ismail, a son of the sixth Imam. In India, the Khoja and Bohra communities largely belong to the Ismaili branch.
The wedding puzzle solved
| Requirement | Sunni law | Ithna Ashari law |
|---|---|---|
| Witnesses at marriage | Two competent witnesses required; a marriage without them is irregular (suffers from a defect) but not void | No witnesses required; marriage without witnesses is perfectly valid |
| Witnesses at talaq | Not required | Two witnesses required |
The Sunni marriage of Aadil and Zoya, contracted without witnesses, is irregular, though not void. The Ithna Ashari marriage of Farhan and Neha, contracted the same way, is perfectly valid. At divorce the position flips. One faith, two schools, two answers.
Sources of Muslim Law
The tradition of Muadh ibn Jabal
When the Prophet sent his companion Muadh ibn Jabal to Yemen as a judge, he asked how Muadh would decide cases. Muadh said he would decide:
- first by the Book of God;
- then by the practice of the Prophet;
- failing both, by his own careful reasoning.
The Prophet approved. This order, Book first, then practice, then reasoning, still shapes the sources of Muslim law.
The eight sources
| Primary sources | Secondary sources |
|---|---|
| 1. Quran | 1. Custom |
| 2. Sunna | 2. Judicial decisions |
| 3. Ijma | 3. Legislation |
| 4. Qiyas | 4. Justice, equity and good conscience |
Memory aid. Primary four: a Book (Quran), a Life (Sunna), an Agreement (Ijma) and an Analogy (Qiyas). Secondary four, the "four C's": Custom, Courts (judicial decisions), Codes (legislation) and Conscience (justice, equity and good conscience).
Primary Sources
1. The Quran (the Book)
The Quran is the first and supreme source.
Revelation
- Muslims believe it is the word of God, revealed to the Prophet through the Angel Gabriel over about 23 years, beginning around 610, when he was about forty.
- Each revelation is called Wahi.
- The very first word revealed was Iqra, meaning "read" or "recite". The name Quran comes from the same root.
Compilation
- The Quran was not first written down as a single book. Its verses were memorised and recorded on whatever material was available.
- After the Prophet's death, during the time of Abu Bakr, these portions were gathered into one compilation.
- Later, Uthman had one standard copy prepared and sent to the major cities.
- That text has remained unchanged since, and no human authority can amend it.
Legal verses
- The Quran has a little over six thousand verses, yet only a small part, usually estimated at about two hundred verses, lays down legal rules.
- Most legal verses came after the Prophet migrated from Mecca to Medina in 622, because in Medina he governed a community and needed rules for daily life.
- These verses deal with marriage, dower, divorce, maintenance, wills and inheritance.
The Quran and pre-Islamic custom
Arabia before Islam is called the age of Jahiliya (ignorance). It was a tribal society governed largely by custom. The Quran sorted those customs into three baskets:
| Basket | Treatment | Practices |
|---|---|---|
| First | Abolished | Killing of newborn daughters (female infanticide); gambling; riba (usury or interest on loans) |
| Second | Reformed | Polygamy: earlier a man could marry any number of wives; the Quran limited this to four at a time, and only if he could treat them all justly, adding that if he feared injustice he should marry only one. Dower was made a right of the wife herself. Women were given fixed shares in inheritance. |
| Third | Left standing | Customs that did not conflict with its teaching (the basis of custom as a source) |
2. The Sunna (the Life)
Where the Quran is silent, the jurist turns to the Sunna. Sunna literally means "a trodden path"; here it means the established practice of the Prophet. A report of that practice is called a Hadith.
Three forms of Sunna
- Sunnat ul Qaul: what the Prophet said.
- Sunnat ul Fail: what the Prophet did.
- Sunnat ul Taqrir: what others did in his presence that he allowed by staying silent. This is how many old customs survived.
Quran and Sunna distinguished
| Quran | Sunna |
|---|---|
| Both the words and the meaning come from God | The meaning is inspired, but the words and acts are the Prophet's own |
| Supreme source | Explains the Quran and fills its gaps, but can never override it |
Weakness of the Sunna and testing of Hadith
- Because the Sunna travelled by word of mouth, false reports could enter it. During the political struggles after the early Caliphs, many traditions were invented to support one side or another.
- Hadith scholars tested each report by examining its chain of narrators: who reported it first and through whose hands it passed.
- Early collections arranged narrator by narrator were called Musnad.
- The Shias rely mainly on reports that come through the Prophet's family and their Imams.
A message on a phone marked "forwarded many times": before believing it, a careful person asks who wrote it first and through whose hands it passed. Hadith scholars applied the same test to each report.
3. Ijma (the Agreement)
Ijma means the consensus of qualified jurists of a particular age on a point of law. It is used where neither the Quran nor the Sunna answers a question clearly.
- Basis of authority: the Quran, and a well-known saying of the Prophet that his community will never agree upon an error.
- Shia view: the Shias accept Ijma only when it carries the approval of the Imam.
4. Qiyas (the Analogy)
If even consensus is missing, the jurist reaches for Qiyas. It has four parts:
- an original case with a known rule;
- a new case;
- a common reason linking the two;
- the rule that is carried across.
The Quran forbids wine, and the jurists identified the reason as intoxication. A new synthetic drug intoxicates in the same way. The same reason is present, so by Qiyas the prohibition extends to the drug.
Qiyas does not invent new law. It carries an existing rule to a new situation.
- Shia view: the Shias generally reject Qiyas. For them, authoritative interpretation belongs to the Imams, not to the analogies of ordinary jurists. In its place Shia jurists rely on reason, which they call Aql.
- Hanbali view: even among Sunnis, the Hanbalis used Qiyas only as a last resort.
Sunni and Shia positions on the primary sources
| Source | Sunni | Shia |
|---|---|---|
| Quran | First and supreme source | First and supreme source |
| Sunna | Established practice of the Prophet, tested through the chain of narrators | Rely mainly on reports coming through the Prophet's family and their Imams |
| Ijma | Consensus of qualified jurists of a particular age | Accepted only with the approval of the Imam |
| Qiyas | Accepted (Hanbalis use it only as a last resort) | Generally rejected; Aql (reason) used instead |
Secondary Sources
The four C's show how Muslim law actually operates in India.
1. Custom
Islam did not wipe out every custom (the third basket). A custom could be followed if it was:
- ancient;
- certain;
- reasonable; and
- not in conflict with the Quran or the Sunna.
In India, some Muslim communities, such as the Khojas, long followed customary rules of succession that differed from Muslim law. The legislature responded with the Muslim Personal Law (Shariat) Application Act, 1937.
Section 2 of the Shariat Application Act, 1937
"Notwithstanding any custom or usage to the contrary, in all questions, save questions relating to agricultural land, regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs, other than charities and charitable institutions and charitable and religious endowments, the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)."
Matters covered by Section 2:
- intestate succession;
- special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law;
- marriage;
- dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat;
- maintenance;
- dower;
- guardianship;
- gifts;
- trusts and trust properties;
- wakfs (other than charities and charitable institutions and charitable and religious endowments).
"Notwithstanding" means "in spite of". In every matter on the Section 2 list, a contrary custom can no longer defeat Muslim personal law where the parties are Muslims. Agricultural land is expressly kept out.
2. Judicial decisions (Courts)
The Privy Council in the colonial period, and the High Courts and the Supreme Court today, have explained and developed Muslim law.
Article 141 of the Constitution: "The law declared by the Supreme Court shall be binding on all courts within the territory of India."
Mohammad Ahmad Khan v. Shah Bano Begum (1985): Shah Bano was turned out of her matrimonial home after more than forty years of marriage. She applied for maintenance under Section 125 of the Code of Criminal Procedure, 1973. While the case was pending, her husband divorced her by irrevocable talaq and argued that under Muslim law his duty to maintain her ended with the iddat period (the waiting period after divorce). Held: a Constitution Bench of the Supreme Court held that the provision is secular and applies to everyone. Principle: a divorced Muslim wife who cannot maintain herself can claim maintenance even after iddat.
Today the general maintenance provision (formerly Section 125 of the Code of Criminal Procedure, 1973) is Section 144 of the B.N.S.S., 2023.
3. Legislation (Codes)
Dissolution of Muslim Marriages Act, 1939
- Sets out the grounds on which a Muslim wife can obtain a court decree dissolving her marriage.
- Strict Hanafi law gave a wife very few such routes, so the Act drew on the more liberal Maliki school.
The Dissolution of Muslim Marriages Act, 1939 shows the four Sunni schools at work inside an Indian statute: where strict Hanafi law gave the wife few routes, the Act borrowed from the more liberal Maliki school.
Legislation answering judgments: maintenance
After Shah Bano, Parliament passed the Muslim Women (Protection of Rights on Divorce) Act, 1986, dealing with the rights of divorced Muslim women.
Mohammad Abdul Samad v. State of Telangana (2024): the question was whether the Muslim Women (Protection of Rights on Divorce) Act, 1986 displaced the general maintenance remedy. Held: the Supreme Court held that the 1986 Act does not take away the secular remedy of maintenance. Principle: a divorced Muslim woman retains the secular maintenance remedy despite the 1986 Act.
Legislation answering judgments: triple talaq
Shayara Bano v. Union of India (2017): a wife who had been divorced by instant triple talaq challenged the practice. Held: the Supreme Court, by a majority of 3 to 2, set aside instant triple talaq.
Parliament then passed the Muslim Women (Protection of Rights on Marriage) Act, 2019.
- Definition of talaq: "talaq-e-biddat or any other similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband."
- Section 3: "Any pronouncement of talaq by a Muslim husband upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal."
- Section 4: "Any Muslim husband who pronounces talaq referred to in section 3 upon his wife shall be punished with imprisonment for a term which may extend to three years, and shall also be liable to fine."
Courts and Parliament work in conversation: Shah Bano (1985) was followed by the 1986 Act, and Shayara Bano (2017) by the 2019 Act. Under the 2019 Act, instant talaq in any form (spoken, written, electronic or otherwise) is void and illegal (Section 3) and punishable with imprisonment up to three years and fine (Section 4).
4. Justice, equity and good conscience (Conscience)
When neither the texts nor any statute gives an answer, the court decides according to fairness, as Indian courts have done since the British period. Muslim jurists had their own versions of this idea:
| Doctrine | School | Meaning |
|---|---|---|
| Istihsan | Hanafi | Juristic preference: allows a jurist to choose the fairer answer where strict analogy would cause hardship |
| Istislah | Maliki | Deciding in the public interest |
Quick revision
- The schools grew from one Sharia and many readings of it (Fiqh), shaped by the question of authority: Sunnis look to the scholars, Shias to the Imams.
- The sources climb from a Book (Quran), a Life (Sunna), an Agreement (Ijma) and an Analogy (Qiyas) to Custom, Courts, Codes and Conscience.
- Two weddings in one city can have two different legal results: a Sunni marriage without witnesses is irregular, while an Ithna Ashari marriage without witnesses is valid.
