Muslim Personal Law by Thahir ps

Sunni Code of Muslim Personal Law

SUNNI CODE OF

MUSLIM PERSONAL LAW APPLIED BY COURTS OF JUSTICE IN INDIA

COMPILED FROM ORIGINAL AUTHORITIES OF HANAFEE & SHAFFIE CODES OF JURISPRUDENCE

Compiled by

M. M. ALIYAR, M.A (English), LL.M (Law of Contract), LL.M (Law of Crimes) ADVOCATE

Sunni Code of Muslim Personal Law

SUNNI CODE OF MUSLIM PERSONAL LAW Applied by Courts of Justice in India, Compiled From Original Authorities of Hanafee and Shaffie Codes of Jurisprudance.

Author , Editor and Publisher Adv. M. M. Aliyar, M.A, LL.M. Muvattupuzha, Pin. 686 673. Ph : 09388607689 Email: advmmali@gmail.com First Edition April 2015 All rights reserved with the Author. Note Please bear with us for errors and ommissions if any . If the reader comes with any error or ommision, please bring them to our notice for correction in the future editions. Further the readers are here by informed that this book is only for reference and not to rely or act upon as an authority, and the author, publisher or seller will not be responsible to the readers for any consequent damage or loss suffered by them acting upon the information providied in this book.

Distributors DA-A-WATHUL ISLAM ASSOCIATION SRM Road, Ernakulam, Kochi-18, Kerala. Ph. 0484 2402240 Director, V.M.Sulaiman Moulavi. Printed at Pioneer Offset Printers Kurisupally Road, Ernakulam Ph : 9995807021

Price: Rs. 400/-

Sunni Code of Muslim Personal Law

THIS BOOK IS DEDICATED TO THE LOVING MEMORY OF MY FATHER

M. B. MUHAMMED BUT FOR WHOM I WOULD NOT HAVE BEEEN WHAT I AM NOW

Let Allah the most merciful give him forgiveness.

Sunni Code of Muslim Personal Law

In the name of Allah (The god) the merciful, the compassionate. Praise be to Allah, the lord of the universe. Master of the day of the judgment. You alone do us worship. And you alone do we implore for help. Guide us on to the straight path. The path of those, whom you have blessed, not the path of those who incurred your displeasure and have you gone astray. The Holy Qur-an. Chapter-I.

Sunni Code of Muslim Personal Law

JUSTICE C. K. ABDUL REHIM Judge, High Court of Kerala, Cochin - 682 031

Residence : Al-Harmony, T-Square Road, Pachalam, Cochin - 682 012 Phone 0484 2562124, 0484 2562104

FOREWORD Lack of legislative codification of personal law applicable to Muslims in the country and extensive reliance by the judiciary on the case law evolved, both during the pre-independence and post-independence scenario, had always contributed controversies to the jurisprudence on the subject. Enactment of the Muslim Personal Law (Shariat) Application Act 1937 is a landmark in the legislative history in the field of muslim personal law. When ‘Sharia’ as contained in holy ‘Qur-an’ and ‘Sunna’ is to be adhered and adopted, whether the case law on the subject, especially that of pre1937 period, which were mainly guided on principles of custom, equity and good conscience, can be binding precedents, was always a point of debate. Need for a legislative codification on the subject was always felt for proper dispensation of justice. The codification endowed by Sir. Dinshaw Fardunji Mulla (D.F.Mulla) was of great use in the judicial field. The first edition of Mulla’s ‘Principles of Mahomedan Law’ was in the year 1906, prior to enactment of the Shariat Application Act in 1937. In the preface to the first edition Sir. D. F. Mulla observes that, “The language of judgments to be found in the recognised reports has, so far as practicable, been faithfully reproduced in the statement of each proposition, in order to impart to it the imprimatur of authoritative law”. He concedes that he had relied upon Hamilton’s Translation of ‘The Hedaya’ (Translated in AD 1774) and ‘FATWA ALUMGIRI’, with such modifications as were necessary or proper for the requirements of modern law. Courts in the country, even after adaptation of ‘Sharia’, had seldom gone deep into analysis of the cardinal principles in holy ‘Qur-an’ and ‘Sunna’, but rather placed more reliance on case law. Justice M. Hidayattullah in his preface to the Sixteenth Edition of ‘Mulla’s Principle of Mahomedan Law’ observed that, “The name of the book ‘Mohamedan Law’ has been retained but I may say that this expression was coined by English. Islamic law was not Mahomed’s law. The expression ‘Mahomedan’ and ‘Mahomedanism’ are not correct and, in a sense, are even objectionable. The

Sunni Code of Muslim Personal Law

proper expressions are Islamic Law and Muslim Law”. All these factors emphasises the need for a legislative codification. Considerable efforts were made in various Islamic countries to codify the law. Departure from the pristine principles, crept in over the years, were corrected. But in many countries reliance in instruments of interpretation are also accepted in Islamic jurisprudence. Hence the aspire for a proper codified law cannot be resisted for any valid reasons. Advocate M. M. AIiyar along with his comrades in ‘JUSTITIA’ had done much deliberation on the subject. With their active support and with the guidance from various visionaries, Mr. Aliyar has now come out with a compilation of the Islamic Law (Muslim Personal Law) with an open admission that the codification is strictly in accordance with The Holy ‘Qur-an’ and ‘Sunna’ and that reliance are mainly on Hamiton’s translation of “ The Hedaya” (AD 1774) and on the “Digest of Moohummudan Law Part-I” by Neil Benjamin Edmonstone Baillie (AD 1865). The acceptance of this codification by the Muslim community in the country and by different religious organisations and significantly by the legislature of the country is yet to be awaited. On a quick scanning through the volume, I notice the elaborate introduction given picturising the evolution of the subject. Compilation of different aspects of the personal law in a systematic manner in different chapters makes the reference more tireless and easy. The quality of efforts put in by Mr. Aliyar with his in depth knowledge in spiritual aspects of Islam and in Arabic language had definitely credited inputs in the effort. High quality of perseverance, dedication and commitment of the author is well reflected. Hope this book will be a worthy reference for those who are dealing with the subject. I place on record place my deep felt commends and wish the author more heights in the career.

Kochi-1 20.01.2015

Justice C.K. Abdul Rehim

Sunni Code of Muslim Personal Law

PREFACE This book is intended to codify the doctrines of Sunni law especially the Hanafi and the Shafie schools on all the subjects to which the Muslim Personal law is applied by Courts of Justice in India. Islam gave a perfect code of law, which according to experts is the best code in the world. In Islam, no legislative body is needed to make laws and what is required is to codify and apply the laws according to ‘Qur-an’ and Sunna. The efforts of four schools of Sunni law viz, Hanafi, Maliki, Shaffie and Hanbali were to codify the law accordingly. Muslim Emperors of India were Sunnis of the Hanafi School, and the Hanafi code was the general law of the country up to its annexation to the British Empire. Muslims of Erstwhile Malabar have been following the Shafie code. The only work on Muslim law, which was available in English during the period of British Rule, was Mr.Hamilton’s translation of ‘The Hedaya’ officially translated in AD.1774. Though the renowned book ‘Hedaya’ (Written in AD.1190) was popularly known as the authority in Hanafee law, it was with references to the opinions of Imam Malik and Imam Shafei, the heads of other two important Sunni schools. Another important work in Muslim Law during British rule was ‘The Digest of Moohummudan Law Part.I’ published in AD.1865 by Neil Benjamin Edmonstone Baillie which is a paraphrase of the great work ‘Fatawa Alumgeeree’ prepared by the command of the Mugal Emperor Aurungzebe Alumgeer. It is sufficient to notice that the Fatawa Alumgeeree is a collection of the most authoritative Fatwa or expositions of law, on all points that had been decided up to the time of its preparation. Having been compiled in India, and by the authority of Muslim sovereign, it is a pity that it was not adopted by the British Government as the standard authority for its courts of civil justice1. I have confined this work on Hamilton’s translation of ‘The Hedaya’ and ‘Fatawa Alumgeeree’ as paraphraced by Baillie in his book ‘A Digest of Moohummudan law, Part I’. But I have freely quoted from the Holy Qur-an and renowned authorities such as ‘Al-Risala’ of Imam Shaffie, ‘Muwatha’ of Imam Malik, ‘Minhaj-al-Talibin’ and Riyad-ul-Saliheen of Imam Navavi (authorities of Shafie school), ‘Dur-ul Mukhthar’ (an authority in Hanafee school), and ‘Sirajiyya’ (a renowned work on Sunni law of Inheritance). I have added recent legislations on proper places. I have seldom attempted to give the meaning in my own words, Baillie, Digest of Moohummudan Law, Part I Preface, xii.

Sunni Code of Muslim Personal Law

but I have adhered to the literal meaning of Arabic words. I have borrowed many sentences from the original text of Hamilton’s Hedaya and Baillie’s Digest, which are in old English usages, and hence you may frequently confront here with those old English words and usages. Popular books on Muslim law rely on so many decisions especially decided before 1937 running contrary to the original Shariat law that became irrelavant due to the passing of The Muslim Personal Law (Shariat) Application Act 1937. Ignoring such citations, this book seldom refers cases, only where it is necessary to comprehend some aspect of law. All the statements of importance that this book contains are accompanied by references to the authoritative text on which they are founded and the reader will do well to test them by actual comparison before he places any reliance on them as authorities. I am grateful to Justice C.K.Abdul Rahim who blessed this work with a valuable and meaningful forward and gave me valuable pieces of advice to publish this work successfully. I acknoledge the roll of ‘Justitia’, an organisation of lawyers and law graduates in Kerala, who were the actual inspiration behind this work. They helped me a lot in framing an idea of this book at the initial stage and in checking the proof with atmost care by a committee formed by them at the final stage. My sincere thanks to all of them especially its president Adv.Ahmed Kutty Puthalath and its founder member Adv. Pulikool Aboo Baker for their support and encourgaement. I am greatly indebted to my friend Adv. John Varghese Thoppil and his teacher Fr. Aharon Vithayathil C.M.I., formerly of Rajagiri High School, Kalamassery, who devoted his precious time at C.M.I. Monastery, Kothamangalam for the final language corrections. I am pleased to thank Adv. V. H. Jasmine, Seinior Government Pleader, High Court of Kerala and Mr. M. E. Aliyar, Judicial First Class Magistrate both of whom took the responsibility of proof reading. I acknowledge my sincere gratitude to my mother and siblings and especially to my religious teacher in Madrassa P.M.Shahul Hameed Moulavi, Nellikkuzhy who lead me to the light of basic knowledge of Muslim law. I would be failing in my duty if I do not acknowledge my wife Mumthaz, and my children Lamiya, Liyaquath, Lukhman and Lameesa who missed me a lot during the compilation of this book. Ernakulam, 10-4-2015.

Adv. M.M.Aliyar

Sunni Code of Muslim Personal Law

CONTENTS BOOKS REFERRED INTRODUCTION Chapter I. Origin and History of Shariat Law. Chapter II. Sources of Muslim Law. Chapter III. Schools of Muslim Law (Mad hab). Chapter IV. Applicability of Muslim Law in India. Chapter V.

Important Maxims of Islamic Jurisprudence.

19 32 37 42 44

Part I. Muslim Family Law Chapter I MARRIAGE 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20.

Marriage or Nikah. Definition of Marriage. Purpose of Marriage. Religious aspect of Muslim Marriage. Form of Muslim Marriage. Legal Effects of Marriage Effect of Judicial Decree of Declaration of Marriage. Conditions or Requisites of a Contract of Marriage. Competency of Marriage. Consent for Marriage. Completion of Essential Requirements of Marriage. Witness for Marriage. Prohibited Relations Void and Voidable. Class one, Women Prohibited by Reason of Consanguinity Class two, Women Prohibited by Reason of Affinity. Class three, Women Prohibited by Reason of Fosterage. Class four, Women Who Cannot be Lawfully Joined Together. Class five, Prohibited by being Involved in the Rights of Others. Class six, Women Prohibited by Reason of Polytheism. Class seven, Women Prohibited by Reason of Repudiation.

49 50 51 52 53 55 55 56 56 56 58 59 60 61 62 63 65 66 66 68

21. 22. 23. 24.

25. 26. 27. 28. 29. 30. 31. 32. 33. 34.

35. 36. 37.

38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53.

Sunni Code of Muslim Personal Law Consequences of Batil or Void Marriage. Consequences of Fazid or Irregular Marriage. Guardian or Valiyyu in Marriage. Option of Puberty. Chapter II MAHAR OR DOWER Mahar or Dower defined. Proper Mahar. Minimum Mahar. When Mahar Confirmed or Made Binding. Gift of Mahar or Sales in Lieu of Mahar. Woman’s Right to Refuse Because of Unpaid Mahar. Disputes relating to Mahar. Mahar in Unconsummated Marriage. Mata-a or Present in Case of Unconsummated Marriage. Disputes between Married Parties on Household Articles. Chapter III MATRIMONIAL REMEDIES Maintenance to Wife. Conjugal Rights are Not Legally Enforceable. Doing Justice among Wives. Chapter IV DIVORCE Different kinds of Divorce. Thalak or Repudiation. Revocable Repudiation (Raja-ee Thalak). Irrevocable Repudiation (Ba-in Thalak). Modes of Thalak or Repudiation. Requirements of a Valid Thalak. ‘Idda’ or Period of Waiting in Purity. Idda in case of Repudiation or Divorce. Idda in a Revocable Talak. Ruja-at or Retaining Repudiated wife during ‘Idda’. Idda in Irrevocable Thalak and in Other Forms of Divorce. Woman who has no Idda on Divorce or Separation. Remarriage with Irrevocably Repudiated Wife. Idda on Death of Husband. Hidad or Laying Aside Ornaments During ‘Idda’. Eela-a.

68 69 69 70

71 71 72 73 74 74 75 75 76 76

78 78 79

81 82 82 83 84 84 92 92 93 95 95 96 97 98 99 100

Sunni Code of Muslim Personal Law 54. 55. 56. 57. 58. 59. 60. 61. 62. 63.

64. 65. 66. 67. 68. 69. 70. 71.

72. 73. 74. 75.

76. 77. 78. 79. 80. 81. 82. 83.

84.

Lihar. Li-an. Declaratory Decree of Li-an Divorce. Talak-e-Thafweez Khul-a Mubara-ath Fazah (Dissolution of Marriage through Decree of Court.) Grounds for Fazah. Idda on Fazah. Remarriage after Fazah. Chapter V PARENTAGE Maternity. Paternity or Nusub. Paternity of a Child begotten Under a Semblance of Right. Paternity of a Child Begotten Under Mistake or Deception. Ikhrar or Acknowledgment. Valid Acknowledgments of Parentage and Relationship. Adoption is forbidden but Kafala is pious. Walad- ul- Zina or Child born on adultery. Chaper VI HIZANUT OR CUSTODY OF YOUNG CHILDREN Custody of Young Children. Custody of Boy. Custody of Girl. Place of Custody. Chapter VII MAINTENANCE Maintenance. Maintenance of Wives. Maintenance of Woman Undergoing Idda. Execution of the Decree of Maintenance to Wife. Maintenance of Children. Maintenance of Adult Daughters and Disabled Sons. Maintenance of Parents. Maintenance of Grand Parents and Other Relatives. Chapter VIII WOMENâ&#x20AC;&#x2122;S RIGHTS ON DIVORCE Rights of Divorced Muslim Women.

101 102 102 104 104 106 107 107 113 113

114 114 116 116 117 117 119 120

122 123 123 124

126 126 129 129 131 133 133 135

139

85. 86. 87. 88. 89. 90. 91. 92. 93.

Sunni Code of Muslim Personal Law Maintenance dues for idda Reasonable and Fair Provision. Maintenance for Nursing Infant Child. Return of Mahar. Right to Marriage Gifts and Other Gifts. Enforcement of the rights of a divorced Muslim Woman. Maintenance after Idda and Separation. Option to Choose Remedies under Chapter IX of Cr.P.C. Transitional Provision.

139 140 142 143 143 144 145 146 147

Part II Muslim Law on Property Chapter IX GIFT 94. 95. 96. 97. 98. 99. 100. 101. 102. 103. 104. 105. 106. 107.

Hiba or Gift Defines. Constitution of a Gift. Conditions of a valid Gift. Gift of a Debt. Revocation of Gift. Irrevocable Gifts. Gifted Property may Reverse to the Donor. Causes that Prevents Revocation of Gifts. Revocation Requires Decree of Court or Consent of Donee. Effect of Ewas or Exchange in Gift. Gift to Minors and Children. Effect of Condition in the Gift. Amree or Life Grant. Gift by the Sick in Death Bed (hiba bi Marz-ul-mouth).

148 149 150 151 152 152 153 153 155 156 157 157 158 158

Chapter X PRE-EMPTION 108. Definition of Shufa-a or Pre-emption. 109. Persons who are entitled to the Privilege of Pre-emption. 110. Necessary Conditions to Claim Pre-emption. 111. Preference When Several Persons are Entitled. 112. Pre-emption by Contract. 113. Demand of Pre-emption. 114. Payment of Price in Prosecution of Pre-emption. 115. Purchase Price and Dispute on Price. 116. Pre-emption on a Part of Property.

160 161 161 163 164 164 165 166 166

Sunni Code of Muslim Personal Law 117. 118. 119. 120.

121. 122. 123. 124. 125. 126. 127. 128. 129. 130. 131. 132. 133. 134. 135. 136. 137.

Dealings by Purchaser before Claim of Pre-emption. Pre-emption Rendered Void after it has been Established. Right of Pr-emption in Case of Minor. Devices by Which the Right of Pre-emption may be Evaded. Chapter XI WILLS or WASIYATH Definition of Wasiyath or Bequest. Constitution of Bequest. Conditions for a Valid Bequest. Legal Effect of Bequest. Bequest with Conditions. One third is the Limit of Wasiyath. No Bequest to an Heir. No Bequest to Murderer of the Testator. Bequest of debt to debtor. Bequest to non-Muslims. Revocation of Bequest. Bequest of a third or more to Several Persons. Bequest for Pious and Public Purposes. Usufructuary Wills. Legacies to Near Relatives. Obligatory Bquests. Executor and his Powers.

166 167 168 168

170 170 171 172 172 173 173 174 175 175 176 177 178 178 179 179 181

Part III Muslim Law of Inheritance 138. 139. 140. 141. 142. 143. 144. 145.

146.

Chapter XII BASIC PRINCIPLES OF INHERITANCE No Testamentary Succession. No Birth Right. There is No Rule of Representation. Nearest in Relation will exclude the more Remote. No Joint Tenement of Property only Tenants in Common. No Distinction in Movable and Immovable Property. Estate Vests at once in the Heirs. Generally Male Takes Double the Portion of a Female. Chapter XIII APPLICATION OF PROPERTY AND IMPEDIMENTS Application of Property left by Deceased Person.

182 183 183 184 186 186 186 187

188

Sunni Code of Muslim Personal Law

147. Funeral Expenses. 148. Debts. 149. Wasiyath or Legacies. 150. Distribution Among Heirs According to Inheritance. 151. Impediments to Inheritance. 152. Child in the Womb. 153. Missing Persons. 154. Persons Died Together. 155. Illegitimacy. Chapter XIV HEIRS 156. Primary Heirs. 157. Kinds of Heirs. 158. Steps of Inheritance. 159. Sharers. 160. Asubat or Residuary. 161. Residuary by Himself. 162. Residuary by Another. 163. Residuary Together with Another. 164. Distribution Among Different Kinds of Residuary. 165. Computation of Shares. 166. Adil or Just. 167. Aul or Increase 168. Return or Radd. 169. Distant Kindred. 170. Order of Succession in Distant Kindred. 171. Rule of Preference of Individuals. 172. Vested Inheritances. 173. Distribution of Assets in Case of Composition. Table of Heirs.

188 188 189 189 189 191 191 192 192

193 193 193 196 200 200 202 202 202 203 204 204 205 206 207 207 208 210 211

Part IV Laws on Wakf Chapter XV Wakf or Appropriation 174. 175. 176.

Definition of Waqf. Object of Waqf. Kinds of Waqf.

214 215 216

Sunni Code of Muslim Personal Law 177. No other form of Dedication of Property except Waqf. 178. Waqf by a Person on Himself and his Children. 179. Waqf on the Poor of one’s Kindred. 180. Settlements on Neighbours. 181. Proper Subjects of Waqf. 182. Necessary Conditions for a Valid Waqf. 183. Mode of Creation of Waqf. 184. Limit of Dedication by Waqf. 185. Waqf by Bequeath and Made During Death Illness. 186. Condition in the ‘Wakf.’ 187. Distribution of Income of Wakf . 188. Mutawalli or Administrator of Wakf. 189. Appointment of Mutawalli. 190. Musjid. 191. Wakf for the benefit of a Musjid. 192. Caravansarai, Cemeteries, Inns, Reservoirs, Ways, etc. I. II. III. IV. V. VI. VII. VIII. IX.

APPENDICES Muslim Personal Law (Shariat) Application Act 1937. Dissolution of Muslim Marriages Act 1939. Muslim Woman (Protection of Rights on Divorce) Act 1986. Muslim Woman (Protection of Rights on Divorce) Rules 1986. The Waqf Act 1995. The Central Waqf Council Rules 1998. Wakf Properties Lease Rules 2014. The Kerala Wakf Rules 1996. Kerala Wakf Board Regulations 2003. Model Forms Divorce Agreement (Khula) Mubara-ath (Mutual Divorce) Agreement Thalak Agreement Agreement for Maintance of Children Waqf Deed Model Petitions

I. II. III. IV. V. VI. Glossary Table of Cases Word Index

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217 218 219 220 220 221 222 223 223 224 225 226 227 228 229 229 231 233 235 239 242 313 320 329 362 386 387 388 389 390 396 402 410 412

Sunni Code of Muslim Personal Law

BOOKS REFERRED Abdulla Yusuf Ali

- The Holy Qur-an. Text Translation and Commentary, Kithab Bhavan, New Delhi(1934), Second Reprint 1991.

Al- Risala

- Imam Shaffie’s Al-Risala. Translated by Majid Khadduri, The Islamic Texts Society (1961).

Baillie

- Neil.B.E.Baillie, Digest of Moohummudan Law, Smith, Elder & Co. London (1875). (It is paraphrase of the great work ‘Fathawa Alamgiri’).

Dur-ul-Mukhthar

- Translation of ‘Dur-ul- Mukhthar’ by B.M.Dayal (1913), Kitab Bhavan, New Delhi. Reprint. 2008.

Hedaya.

- Translation of ‘Al Hidaya’ by Charles Hamilton (1870), Kitab Bhavan, New Delhi. Reprint 1994.

Holy Qur-an

- Translation. Malik Fahd Qur-an Printing Press, Al-Madina Al-Munavvara, Kingdom of Saudi Arabia.

Majella

- Al-Majella Al-Ahkam Al-Adaliya. The Ottoman Courts Manual (Hanafi) www.ibtbooks.com.

Minhaj-al- Talibin

- Imam Navavi, Minhaj-et-Talibin. Translation, E.C.Howard, Kitab Bhavan, New Delhi. First Edition 2008.

Mohamedan law

- Dr.Mohammed Nazmi, Central Law Publications, Allahabad, First edition (2000).

Muwatha

- Imam Malik, ‘Muwatha’, Translation Prof. Muhammed Rahimuddin (1981), Kitab Bhavan, New Delhi.Edn. 2003.

Riyadu-us-Saliheen

- Imam Navavi, ‘Riyad-ul-saliheen’ Translation, S.M.Madni Abbasi. Kitab Bhavan, New Delhi. 4th Edition,1994.

Sirajiyya

- Translation of ‘Al Sirajiyya’ by Al Haj Muhammed Ullah. The Muslim Law of Inheritance (1934) Kitab Bhavan, New Delhi. Third Reprint 1999.

Introduction

INTRODUCTION Chapter I

Origin and History of Shariat law. In the name of Allah the merciful and compassionate. The Islamic code called ‘Shariat’ is of divine origin. It is the epitome of justice and volition of Allah for the human kind. The word ‘Shariat’ means trodden path. The Holy Qur-an says, “Allah created the heavens and the earth in six days and then (the seventh day) firmly established on the Throne1” “And the number of the months in the sight of Allah is twelve so ordained by Him, the day he created the Heavens and the Earth”2. Therefore, from the beginning of the world, the number of days (in a week) is seven and number of months (in a year) is twelve. Thus all laws affecting human being is nothing but ‘Shariat’. ‘Allah’ created man as his vicegerent3on earth. Allah taught Adam everything and sent him to the Earth, so Adam was the first prophet. Shariat is the divine law from Allah revealed through all prophets beginning from the first prophet Adam and ending with the last Prophet Muhammad. Nooh (Noha), Ebrahim (Abraham), Daveeth (David), Moosa (Moses), Easa (Jesus) are all prophets of Allah sent to mankind from Prophet Adam to Prophet Muhammed. As the Shariat or Muslim law is the divine law revealed through all prophets of Allah from Adam to Muhammad, Muslim scholars strongly oppose calling this law Mohammedan law. Prophet Muhammad was in fact only making necessary changes according to divine revelations in the law that prevailed in Arabia which claimed to be in the path of Prophet Ebrahim. Qur-an says, “Follow the ways of Ebrahim, the sane in true faith: he was not of the pagans”4 “There is for you an excellent example to follow in Ebrahim and those with him.”5 Thus in Muslim law, if there is anything not specifically provided in Qur-an or through the tradition of Prophet Muhammad, then the custom or precedent which was prevalent in Arabia during the period of the Prophet Muhammad will be considered as law. It was Prophet Muhammad through whom the Holy Qur-an was revealed and who applied it through his life for the perfection of Shariat, according to modern legal scholars, it is nothing wrong to discuss it as Mohammedan law. Here in this book the words Sharia or Shariat, Muslim law, Mohammedan law, law of Islam etc are used in the same meaning as synonyms. Prophet Muhammad was born at Makka in the family line of Prophet Ismail. Prophet Ismail was the first son of Prophet Ebrahim born from his slave wife Hajara (Hagar). Prophet Qur-anic word is ‘Arsh’ and throne is not its proper meaning. Qur- an, Chapter 7 Verse 54. Qur-an, Chapter 9 Verse 36 3 The word used in Qur-an is ‘Khaleefa’. Qur-an, Chapter 2 Verse 30. 4 Qur-an, Chapter 3 Verse 95. 5 Qur-an, Chapter 60 Verse 4. 1 2

Sunni Code of Muslim Personal Law

Easa (Jesus) was born in the family line of Prophet Isahaq who was the second son of Prophet Ebrahim by his wife Sara. Prophet Ebrahim (Abraham) is the common ancestor of both Prophet Muhammad and Prophet Easa (Jesus). The family line from Prophet Abraham to Jesus is seen in the Gospel of Mathew and the family line of Prophet Muhammad up to Prophet Ebrahim is seen in books of Islamic history. Ebrahim was born in a city called ‘Ur’ in Iraq. The occupation of his father, ‘Asar’ was making and selling statues for worship. When he grew up, he was struck by his people’s idol worship and his father began to fear about its consequences which would adversely affect his trade. Ebrahim tried hard to convince his people of the futility of idol worship with argument and proof. Once he seized the opportunity of the absence of worshippers from their place of worship and he destroyed all small idols but that of the principal deity and put the axe on the shoulder of that principal deity. When he was accused in public of this crime, he was asked, narrates the Holy Qur-an, “Was it you Ebrahim who did this with our gods? Ebrahim answered, “Well someone has surely done this, here is the chief of them so ask them if they can speak”. Then they turned towards one another and said ‘you yourselves are surely in the wrong’. And they were made to hang down their heads for shame and said to Ebrahim “Certain you know well that these (idols) do not speak”. He said, “Do you then worship, beside God, things that can neither be of any good to you nor harm you? Fie upon you and upon the things you are worshipping. Have you no sense? 6 The people said “Burn him and protect your gods if you do (anything at all).’’ They punished him by throwing him into the fire. But Allah said to fire “O fire be thou cool and a means of safety for Ebrahim”.7 Allah saved Ebrahim and directed him to a land which Allah had blessed for nations.8 Thus Allah rescued him to Phalastine. His wife Sara remained barren after many years of married life and she urged her husband to marry his slave Hajara. After Ebrahim did so, Hajara soon bore him his son Ismail. Later on when Ismail became a youth Sara bore a son who was called Isahaq. Prophet Yakob, the ancestor of Jesus was the son of Prophet Isahaq. Holy Hajj pilgrimage of Makka and the Muslim Holyday Bakrid are connected to the memory of the great trial9 of Ebrahim to sacrifice his son Ismail at the commandment of Allah which he fulfilled by sacrificing a goat given by Allah instead of his son. Christians and Jews disagree in the matter of Abraham’s sacrifice of Ismail. According to them the sacrificial son was Isahaq and not Ismail. Their books say that Abraham set about to sacrifice his only son, and they say that the unique son of Abraham was his son Isahaq by his wife Sara. The Holy Qur-an also not mention the name of the sacrificial son.10 The description of unique son more corresponds to Ismail so long as Isahaq was not yet born, because, with the birth of Isahaq, Ebrahim would have no unique son but two, Ismail and Isahaq. Qur-an Chapter 21 Verses 59 to 69 Qur-an Chapter 21 Verse 69 8 Qur-an Chapter 21 Verse 71 9 Qur-an Chapter 37 Verse 102 10 Qur-an Chapter 37 Verse 104 6 7

Introduction

Isahaq lived with his mother in Phalastine. On the command of Allah, Ebrahim took Hajara and her son and traveled towards south until they reached the valley of Makka, a midway place of rest for caravans on the road between Yemen and Shyam (Syria). Ebrahim left them at Makka at the command of Allah and returned to Phalastine. Makka. Makka is a small plateau surrounded by mountains. When Prophet Ebrahim returned, Hajara set out to look for drinking water. She ran towards the small valley in the plateau seeking water and not finding any, would run in another direction. After running to and fro seven times between Safa and Marva, the two hills on the two sides of the plateau of Makka, she returned in despair to her child. But what surprise when she found the child having scratched the surface of the earth with his foot, uncovered a water fountain which sprung under the child’s feet. She drank and gave the child Ismail to drink until they were both satisfied. Then she tried to close the spring by saying Zam, Zam meaning stop, stop so that its water might not be lost in the sand. There after the child and his mother lived in Makka. Travellers continued to use the place as a rest stop more conveniently because of the availability of drinking water in the midst of the vast desert. Hajara and Ismail were sufficiently provided for in exchange for services they rendered to the travellers who came with one caravan after another.11 Still Zam Zam, the miracle fountain of pure drinking water in the premise of the holy Musjid in the plateau of Makka in the barren desert is quenching the thirst of millions of pilgrims coming from all over the world. ‘Sa-ayy’ that is walking between Safa and Marva, one of the essential part of performance in the Holy pilgrimage in Makka, is in the memory of this glorious run of Hajara a slave woman. The Holy Qur-an says “Behold Safa and Marva are among the symbols of God.”12 Prophet Ebrahim along with his son Prophet Ismail built the Holy Musjid, named ‘Kaaba’ in Makka.13 The Holy Qur-an says: “Surely the first house of worship founded for men is that at Bakka*, full of blessing and guidance for all the people. In it are manifest signs. It is the place of Ebrahim. Who enters it is safe.”14 “Pilgrimage there to, is a duty, which men who can afford the journey, owe to Allah. And those disbelieves, let him remember that Allah is surely stands not in need of any of its creators. And remember the time we made the house a place of assembly for men and place for safety. We said: Take ye the place of Ebrahim as a place of prayer and we command Ebrahim and Ismail to purify My House for those who perform the circumambulation and for those who remain there in for devotion and those who kneel and prostrate themselves in prayer.”15 “And remember when Ebrahim prayed: O lord make this town a place of security and give its people of your bounty, to those of them who believed in Allah and in the Day of Judgment”. Then Allah answered; “Yea, even those who do not believe will enjoy my security and 11 Hykal, The life of Muhammed (1976), P.27 12 Qur-an Chapter 2 Verse 158 13 Qur-an Chapter 2 Verse 127 * Bakka is another name of Makka 14 Qur-an Chapter 3 Verse 96 and 97 15 Qur-an Chapter 2 Verse 125

Sunni Code of Muslim Personal Law

bounty for a while before I inflict upon them the punishment of fire, and the sad fate they deserve.” 16 Thus Makka became the place of peace, safety and pilgrimage for people all over the world since the time of Prophet Ebrahim. A number of tribes liked the miracle fountain water of Zam Zam sufficiently to settle near by it. Ever since its establishment, the ‘Ka-aba’ gave rise to a number of offices, as prestigious position among Arabs. Adnan one of the descendants of Prophet Ismail who flourished about the first century B.C established himself at Makka and his son Muadd became the real progenitor of Ismailites. Fihar, a descendant of Muadd surnamed ‘Quraish’ flourished in the third century A.D. In the middle of the fifth century AD Qusayyu S/o Kilab, a descendant of Fihar appropriated himself the entire power and took over the kingship of Makka including offices of Ka-aba. He induced the Quraish tribe to settle in the vicinity of the Holy House, Ka-aba leaving sufficient space for ‘Thawaf’ (circumambulation).17 Their residences were spaced so as to leave passages to the Holy House between every two houses.18 After Qusayyu, his son Abdul Manaf and after him in AD 464, his son Hashim took over the kingship of Makka and offices of the Holy House. They considered themselves as neighbors of God and the people of His House. They treated every pilgrim as the guest of God and visitor of His House. They provided for them food and drink during the days of pilgrimage as guests of God, the most deserving of their hospitality.19 Till this day the Holy House Ka-aba stands as the place of safety and blessing receiving pilgrims from all over the world as guests of Allah (The only God) without accepting any offerings from pilgrims. The people of the tribe Quraish were merchants and Hashim a prosperous man, was their leader. Yazrib (Old name of Madeena) was a city in the caravan route between Makka and Shyam (Syria). On one of his trips to Shyam, Hashim stopped in Yazrib where he saw a woman of noble birth engaged in business with some of her agents. That was Salma daughter of Amr. Hashim fell in love with her and inquired whether she was married. When he learned that she was a divorced woman and very independent, he asked her directly to marry him. As his position and prestige were known to her, she accepted the proposal on condition that she would not leave Yazrib after marriage. In that wedlock she gave birth to a son named Shyba whom she kept with her in Yazrib. After some years Hashim died while on one of his trips and was buried in Gazza. His brother Muthalib succeeded him in his office. One day Muthalib went to Yazrib and brought Shyba to Makka. Young Shyba proceeded with Muthalib on his camel. The Quraish, when they saw the young Shyba thought that he was a servant (Abd) of Muthalib and called him 16 17 18 19

Qur-an Chapter 2 Verse 126. Syed Ameer Ali, The Spirit of I slam (1922), P.2 Hykal, The Life of Muhammed (1976), P.34 Hykal, The Life of Muhammed (1976), P.35.

Introduction

Abd-al-Muthalib meaning servant of Muthalib. The title Abd-al-Muthalib was so popular however, that the young man’s old name, Shyba was forgotten.20 His uncles returned the wealth and offices of Hashim to Abdul Muthalib. In AD 495 he got the key of Ka-aba and thus he became the leader of Quraish and the ruler of Makka. Abdulla, father of Prophet Muhammed was younger son of Abdul Muthalib. Prophet Muhammad. When Abdulla was 24 years of age his father chose for him Amina daughter of Wahab son of Abdul Manaf. Abdulla and Amina were grant children of the same ancestor Abdul Manaf. After marriage they lived together a few months and soon Abdulla was called on trading trip to Shyam. Amina was pregnant when he left for the trip. On his way back, Abdulla stopped for a rest at Yazrib where his uncles lived. There he fell ill and died. He was buried in Yazrib. Muhammed was born at Makka on Monday the 22nd April 571(A.D) as the posthumous child of Prince Abdulla. When Amina delivered her baby, Abdul-Muthalib was overjoyed at the news though he was not fully recovered from the shock of the death of his beloved younger son Abdulla. He rushed to Amina and took her new born baby in his hands. He went to Ka-aba with the child and called him ‘Muhammed’ meaning praised. This name was not familiar among the Arabs, but it was known. On the 7th day of the birth, Abdul Muthalib gave a banquet in honour of his grandson. When the people inquired of him, why he had chosen to name the child Muhammed, by changing the practice of using ancestor’s names, Abdul Muthalib answered “I did so with the wish that my grandson would be praised by the God in heaven and on earth by men’’. The childhood of Muhammad, an orphan by birth was under his grandfather Abdul Muthalib. When Muhammed was 6 years old, his mother Amina took him to Yazrib (Madeena) in order to acquaint him with his father’s uncles there. She must have shown her little boy the house where his father died as well as the grave where he was buried. After a stay of one month in Yazrib, Amina returned to Makka with her son and her servant Ummu Ayman. On the way, at the village called Abawa-a, Amina fell ill and died. She was buried at Abawa-a. It was the servant woman Ummu Ayman that brought the lonely and bereaved child to Makka, henceforth doubly confirmed in orphanhood. A few days earlier he must have shared his mother’s grief as she told him of her bereavement while he was yet unborn. Now he was to see with his own eyes the loss of his mother and add to his experience of shared grief henceforth to be borne by him alone. The Prophet after his emigration, used to tell his companions about this first trip to Madeena with his mother. Two years after this incident his grandfather Abdul Muthalib died. At his funeral the eight year old Muhammad cried incessantly. There after Muhammad was under the care and protection of one of his paternal uncle Abu Thalib. Abu Thalib was very noble and most hospitable. Therefore, he was the most respected among the Quraish. 20

Hykal, The Life of Muhammed (1976), P.37

Sunni Code of Muslim Personal Law

Muhammad led the life of an ordinary man during his early life. In early youth he was a herdsman and then a trader. But he was truthful in all his deeds and was so perfect in his conduct that the people of Makka called him ‘AL-AMEEN’ meaning ‘the truthful’. At the age of 25 Muhammad married Khadeeja a wealthy woman from a noble family and led a normal family life till the age of forty. Khadeeja gave him six children, two sons and four daughters. It was a custom among the pious and thoughtful people of Arabia to devote about a month each year for worship and prayer. They would seek a lonely place far away from their people concentrated on prayer and worship through meditation. Muhammad also found it the best means to meditate. He discovered a cave called Hira on the peak of a mountain, a few kilometers away from Makka as a perfect place for retreat. In that cave he spent the whole month of Ramadan. One night angel ‘Gibreel’ appeared before him in the form of a man with a script in his hand and said to him ‘Read’.21 Muhammad was frightened and replied that he did not know to read. Then the angel embraced and released him and repeated the command ‘Read’. This repeated three times and then Muhammad asked, ‘What shall I read?’ Then the angel replied. “Read in the name of Your Lord who created you. Created men out of a mere clot of congealed blood. Read and your Lord is most bountiful, He who taught with the pen. Taught man the things which he didn’t know.”22 Muhammad recited these verses. These five verses were the first revelation of the Holy Quran. He trembled with fear and walked around the cave asking himself who could have commanded him to read. He returned home on a state of extreme dread and asked his wife Khadeeja to wrap him in a blanket. He was shivering as if struck with high fever. Muhammad continued bed ridden for several days in his house. After a few days the angel came again and said “Oh you wrapped in your mantle, arise and warn, glorify your Lord, purify yourself and shun uncleanliness. Give not in order to have more in return. But for your Lord’s (cause) be patient and constant.”23 These were the second revelation of Holy Qur-an. The mountain where the Holy Qur-an was first revealed is known as ‘Jabal Noor’ (Mountain of light) and the cave of Hira is still there in Makka without any change as symbol of truth and a bliss to pilgrims. Muhammad was forty years old when these revelations of Prophethood were first given. Then it was continued throughout the rest of his life. The Holy Qur-an is the compilation of these series of communications from Almighty Allah to the Prophet through His angel Gibreel on a great number of occasions during the last twenty two years of his life. On the first three years of his prophecy, Muhammad used to preach this truth secretly among his family members and close friends. Then Allah commanded him to perch the truth of Islam to the public. The preaching of Islam among the idol worshippers of Makka caused serious threats to him and the majority of the people of Makka continued to be his enemies The Arabic word is Iqra’a. Qur-an Chapter 96 Verses 1- 5. 23 Qur-an Chapter 74 Verses 1- 6. 21 22

Introduction

even after a decade of reaching of Islam among them. Though the people of Makka rejected the words of Allah, it spread to other parts of Arabia including Yazrib. In the year 622 (AD) about 75 believers including leaders from Yazrib came to Makka as a pilgrimage and to visit the Prophet. Since the majority of the people of Makka had not accepted Islam and had continued in enmity to the Prophet, the believers from Yazrib eagerly invited the Prophet to their city. But the Prophet made no positive response and they returned in despair. On their way back, they rested in ‘Aquaba’ a place not far from Makka. The Prophet sent a messenger to them as he got the command of Allah to accept their invitation. The Prophet met them at ‘Aquaba’ and opened the conference. The vividly described to the people of Yazrib the risk that they incurred by inviting him to their city as their leader. They replied with one voice that they adopted the religion fully conscious of the dangers that surrounded them. They repeated their former pledge that they would obey Prophet Muhammad in all that was right and defend him and his even as they would their women and children. Then they asked “If we die in the cause of Allah, what shall be our return? Heaven here after was the reply of the Prophet. Having known that the whole world would come soon under the Prophet. Because of their sincere love towards the Prophet, they prayed one more thing from the Prophet. They asked “Thou wilt not leave us in the hour of prosperity to return to thy people?” The Prophet smiled and said, “Nay never; your blood is my blood: I am yours, you are mine”. “Give us then thy hand,” and each one placing his hand on that of the Prophet swore allegiance to him and his God.24 This was the reason, even after the surrender of Makka within nine years of this covenant, the Prophet preferred to stay at Yazrib which was then popularly known as Madeena. He died and was buried there glorifying their city as the Capital of Islam and place of the Prophet for ever. The emigration of Prophet Muhammad along with his disciples from Makka to Yazrib (Madeena) was a unique event in history. He commanded his companions to exit from Makka in very small groups so that they would not give any room to their enemies to suspect or attack. Muhammad remained wherein he was, until all his followers reached the destination safely and then only he set out on the journey as the last. People of Yazrib looked forward quite eagerly to the arrival of Muhammad when they heard of his emigration. Many of them had never seen him before, although they had heard a great deal. After getting the news of the arrival of the Prophet, each morning they would go the gate of the city looking for the Prophet and would return in desperation in the evening. At last a Jew watching on a tower first espied him.25 People of Yazrib ran towards him and welcomed the Prophet to their city singing a beautiful welcome song which become the favorite song of the Arabic people till now. People of Yazrib arrived there from all quarters in order to see the man whom they had not seen but whom they loved with all their mind and heart and whose name they had mentioned 24 25

Syed Ameer Ali, The Spirit of Islam (1922), P.36. Syed Ameer Ali, The Spirit of Islam (1922), P.39.

Sunni Code of Muslim Personal Law

many times in their daily prayers. All notable persons invited the Prophet to stay in their houses. But the Prophet apologized and rode his camel, which he allowed to go free towards the city. The people opened the way for it towards their homes. The people of Yazrib whether Jews or unbelievers looked with surprise on the new agitation and vitality that had suddenly seized their city. Prophetâ&#x20AC;&#x2122;s camel continued to run until it stopped at a land belonging to two orphans named Sahal and Suhail of Banu Al Najjar. There the camel lay down and Prophet dismounted. The guardian of these orphans asked the Prophet to build a Musjid there and make a promise to satisfy the two orphans. The Prophet accepted the request by building his Musjid as well as his quarters there. This is the history of the Musjid-un-Nabavi (Prophetâ&#x20AC;&#x2122;s Masjid) of Madeena. Muhammad entered the city on the morning of a Friday the 16th of Rabi-ul-Awwal corresponding with 2nd day of July 622.26 Yazrib changed its ancient name and was henceforth styled Madeena-tul-Nabi meaning the city of the Prophet or shortly Madeena the city par-excellence. This was the Hijra which the European historians called the flight of Muhammad. The Arabic word Hijra means migration to a better place and it is not elope or flight. This historical event of establishment of Islamic state in Madeena by the Prophet Muhammad is the commencement of Hijra calendar or Hijra Era. After Hijra, Prophet Muhammad, was the law giver as the Prophet of God, religious leader, Chief Judge, Commander of the Army and Head of the State-all in one. He received revelation from Allah as direction for all his such activities as and when required by the circumstances, and all those revelation became part of the Holy Qur-an. Thus all matters of Personal life, Law, Religion, Politics, Affairs of State including rules for battle are all part of the Qur-an. In the ninth year of Hijra, the commencement of Islamic state in Madeena, Makka peacefully surrendered before the Prophet and he established the vast Islamic State in the sub continent of Arabia. He entered Makka and the Ka-aba peacefully. He cleaned the Ka-aba by removing every remanant of idol worship from it and declared it as the place of peace and safety to the people of the whole world. This historical event is known as the victory of Makka. The very next year after the victory of Makka, the Prophet determined to perform Hajj pilgrimage. On 25th Dul Ka-ada that is 23rd February 632, the Prophet left Madeena for Hajj pilgrimage with all his family. About 90,000 people accompanied the Prophet. As the part of Hajj, on 9th Dul Hijja corresponding to 7th march 632, he addressed the assembled multitude of about 1,40,000 disciples at Jabal-al-Arafa, in words which should ever line in the hearts of all Muslims.27 This great address known as the greatest declarations of human rights in the history was repeated loudly from behind him sentence by sentence. The last portion of his address was like this;

26 27

Syed Ameer Ali, The Spirit of Islam (1922), P.39. Syed Ameer Ali, The Spirit of Islam (1922), P.92.

Introduction

“O people your lives and your property shall be inviolate until you meet your Lord. The safety of your lives and of your property shall be inviolate as this Holy Day and Holy Month. Remember that you will indeed meet your Lord and that He will indeed reckon your deeds. Thus do I warn you, who ever of you is keeping Amanath (property given in trust) of someone else shall return that to its owner. All usury is forbidden and henceforth shall be cancelled. The debtor shall return only the principal amount. All interest due to Abbass Bin Abdul Muthalib (his uncle) shall henceforth be cancelled”. “Ye people you have rights over your wives and they have rights over you. It is your right that they not fraternize with anyone of whom you do not approve as well as never to commit adultery. If they do so then Allah has permitted you to isolate them in their homes and to chastise them without cruelty. If they abide by your rights, then to them belongs the right to be fed and clothed in kindness. Do treat your women well and be kind to them for they are your partners and committed helpers. Verily you have taken them as your wives and enjoyed their body under Allah’s trust to you by the words of Allah”. “Ye people listen to my words and understand the same. Know that all Muslims are brothers unto one another. Nothing which belongs to another is lawful unto his brother unless given freely out of good will. Guard yourself from committing injustice”. “O people I am leaving you two things, the book of Allah and the Sunna of His Apostle. If you follow them and you will never go astray”. Then towards conclusion, the Prophet held his hands towards sky and said, “Oh Allah, have I conveyed your message”. The assembled people answered in one voice “Indeed so! Allah be witness.” Then he dismounted from his camel and performed the prayers and proceeded to AlSakhrat where he received the following divine revelation, which he recited to the people at once. “This day I have perfected your religion for you, completed my favor upon you and have chosen for you Islam as your religion.”28 This was the last revealed verses of Qur-an. When Abu Bakkar heard this verse, he cried realizing that it is the completion of divine message and sign of the end of the Prophet’s life. This was the only Hajj performed by the Prophet in his life and it is known as Hijjathul wida (farewell pilgrimage) and pilgrimage of Islam. Thus after making the last proclamation of the Devine revelation in Makka in his farewell pilgrimage he returned to Madeena. Just after 3 months of his return on Monday 8th June 632 just before noon,29 the Prophet of Allah breathed his last lying in the lap of his wife Aysha concluding prophecy in the earth. As per Hijra calendar it was twelfth day of Rabi-ul-Awwal. His birthday was also on the same date. Thus Muslim world opposed to celebrate either the birthday or the death anniversary of their Prophet. But in India some Muslims celebrate this day as Milad-e-Shereif which means Holy Birth ignoring the Holy Death on the same day. 28 29

Qur-an Chapter 5 Verse 4 Syed Ameer Ali, The Spirit of Islam (1922), P. 96

Sunni Code of Muslim Personal Law

Khilafath. The Prophet as the head of the State never nominated anybody as his successor. AbuBakkar and Umer were the close disciples of the Prophet. Upon hearing the news of death, Umar was not ready to accept the truth and he proclaimed that Prophet did not die. AbuBaker was away to visit his wife at Al-Sunh. Hearing this news he returned soon and confirming the death of the Prophet, he went straight to Musjidu-n-Nabavi where Umer was still proclaiming loudly to the crowd who gathered in the Musjid that Muhammad had not died. The crowds made a way for him to the front and as he came close to Umer, he said to him softly, O Umer Keep silent. Then Abu Bakkar after praising and thanking Allah, delivered the following brief address; “O men if you have been worshipping Muhammad, then know that, Muhammad is dead. But if you have been worshipping Allah then know that Allah never dies.” He then recited the following Qur-an verse which revealed during the battle of ‘Uhad’. “Muhammad is not more than a Prophet; many were the Prophets that passed away before him. If he died or were slain, will then turn back on your heels? Know that whoever turn back will cause no harm to Allah but Allah will surely reward those who (serve him) with gratitude”*. People listened to Abu Baker’s statement and the Qur-anic verses as if it was given to them for the first time. They had forgotten that there was any such revelation.30 Muslims were wondering which steps to take after hearing Abu Bakkar and knowing for certain that the Prophet was dead. They gathered in a mansion called Banu Sa-ada and long discussions were made. At the end of the discussions, Abu Bakkar taking the hands of Umer and Abu Ubaida who were sitting on either side of him said. “Either one of these two men is acceptable to us as leader of the Muslim community, choose whom so ever you please.” At that moment all the men present began to talk and the meeting was on the verge of disintegration. Then Umar said. “O Abubaker, the Prophet himself commanded you (when the Prophet was sick) to lead the Muslims in prayer. Therefore you are his successor. We elect you to this position. In electing you, we are electing the best of all those whom the Prophet of Allah loved and trusted. Words of Umar touched the hearts of the Muslims present there and all came forward to give their oath of allegiance to Abu Bakkar. People called him ‘Khaleefa’ meaning representative. On the following day Abu Bakkar took his place at the pulpit of Musjid and delivered the following speech, one of the most illustrious embodiments of wisdom and sound judgment. ‘O men here I have been assigned the job of being a ruler over you while I am not the best among you. If I do well in my job help me. If I do wrong redress me. Truthfulness is fidelity and lying is treason. The weak shall be strong in my eyes until I restore to them their lost rights and the strong shall be weak in my eyes until I have restored the rights of the weak from them. No people give up fighting for the cause of Allah but Allah inflicts upon them abject subjection and no people give themselves to lewdness, but Allah envelops them with misery.

* Qur-an Chapter 3 Verse 144 30 Hykal, The life of Muhammed (1976), P.507

Introduction

Obey me as long as I obey Allah and his Apostle. But if I disobey Allah’s command and Apostle then no obedience is incumbent upon you. Rise to your prayer, that Allah may bless you.31 The basis of Muslim law is clear from these words of Abu Bakkar. In Islam religion and politics are not separate or distinct. There is no separate religious entity or leadership distinct from political sovereignty. In Islam it is the sovereign duty to establish and maintain Musjid and other religious institutions. There is nothing in Islam separating religion. No ruler has the authority to implement any law which is not provided in the Book of Allah (Qur-an) and Sunna of His messenger. Thus the principles and law of Islam remain without any change till now even after the lapse of 14 centuries. The peculiarity of the study of Muslim law, different from other laws is that, when we go more to the ancient, then it becomes more clear and new instead of becoming old and faint. After the election of Abu Bakkar, the people came to the Prophet’s house for his funeral. Some advocated burial of Prophet in the Musjid where he used to address the people and lead them for prayer. But it was reported from the Prophet that in his last days whenever his pain increased, he used to uncover his face to curse such people as had taken the grave of their Prophets as place of worship. Abu Bakkar solved the issue when he proclaimed that he had heard the Prophet say that Prophets should be buried wherever they die. The body of the Prophet was washed and then wrapped in three shrouds and they performed funeral prayer without a leader. They buried the body of the Prophet in the house of his wife Aysha beneath his bed where he breathed his last covering the grave with bricks and closing it with sand. They did it at about mid night of the next day that is Tuesday night. Abu Bakkar led Muslims for two years as the first Khaleefa. In his period, actual power behind him was Umar. After the death of Abu Bakkar, Umar became the second Khaleefa. Umar, who was popularly known by the name Ameer-ul–Mu-a-mineen, meaning leader of believers governed the Islamic State for a decade. His period from A D 634 to 644 (Hijra 12 to 24.) was recorded as the golden period of Islam after Prophet. He was the best ruler that the world ever had seen. He was the first ruler in the history who abolished slavery. He abolished slavery from Arabs in the Arabian sub continent. But he could not apply it in other places of Islamic reign because there was no other method to handle war prisoners than distributing them as slaves instead of detaining them in prisons. After Umar, the Khilafath was offered to Ali, the cousin as well as son in law of the Prophet on condition that he should govern in accordance with the precedents established by the two former Khaleefa, Abu Bakkar and Umer. He objected to this condition that he was not bound to rely on the earlier Khaleefas and in cases which he found no decision of the Prophet, he would relay upon his own judgment. This notable declaration was the basis of difference between Sunni and Shia. Then Khilafath was offered to Usman who accepted the terms imposed by the electoral body. Usman governed the empire twelve years and after him Ali, was elected unopposed as the 4th Khaleefa of Islam. 31

Hykal, The life of Muhammed. (1976), P. 511

Sunni Code of Muslim Personal Law

The Prophet’s children except Fathima wife of Ali were predeceased the Prophet. The Prophet had only two grand sons Hasan and Husain by Fathima and Ali. Hence some Muslims argued that Ali is the original descendant of the Prophet and the Khilafath should be descended through his sons Hassan and Hussain. Advocates of this argument were later known as Shia-e-Ali meaning party of Ali and in short Shia. The other sect who advocates the principle of election in preference of hereditary succession adopted the name Ahlul-sunnet-wal-Jamaath means people of the tradition and unity, known in short as Sunni. The above four Khaleefas who were the direct disciples of the Prophet are known in the history as Khulafa–ul-Rashideen meaning Rightly Guided Four Khaleefas. Their rules and decisions accepted as unchallenged authorities of Sunni Muslim law. Prophet Muhammed not only invited people to the right path of belief but he united the people into a welfare state and established a sovereign State of Islam. This rule of Islam continued through Khilafath. The Prophet was the single leader who led both the prayer and the Political State. Muslim world continued in this single leadership throughout Khilafath. After the fourth Khaleefa Ali, his elder son Hassan became the Khaleefa. But soon he resigned for the powerful governor of Egypt Muawiyya who controlled a major portion of Muslim army and the whole navy. Muawiyya founded a strong Muslim empire with its capital at Damascus. He nominated his son Yazid as the next Khaleefa and then Khalifath become hereditary like any throne of kingdom. During the period of Yazid, Husain son of Ali on the inspiration of the followers of Ali led a strike against Yazid. He started form Madeena and when he reached a place called Karbala in Iraque, Yazid’s army defeated him and killed him brutally. There after Shia became a separate sect in Islam and Karbala became their Holy place. Muawiyya is known as the founder of Umayyad Khilafath. During this Khilafath the vast Islamic empire included the whole of North Africa, Eastern Europe and Western Asia. In AD 749 Abdul Abbas, a descendant of the Prophet’s paternal uncle Abbas overthrew the Umayyad dynasty.32 He founded the Abbasid Khilafath. Second Abbasid Khaleefa Mansoor was the founder of the city of Baghdad. He shifted the Capital from Damascus to Baghdad. The Abbasid Khilafath lasted for five centuries until the destruction of Baghdad by Mongols in AD 1258. The Khaleefa Mustassim Billah together with his two sons and principal members of his family was killed in the massacre.33 And for the next three years there was no Khaleefa for Sunni Muslims. In AD 1261, Sulthan Baibars of Egypt invited Abul Kasim Ahmad, a member of the Abbasid family who was escaped from massacre of Mongols and installed him in the seat of Khaleefa. In a ceremony conducted at Cairo on 12th May 1261, the Sulthan himself first took the oath of allegiance and impressed name of the new Khaleefa on the coinage.34 This Khaleefa, 32 33 34

Syed Ameer Ali, The Spirit of Islam (1922), P.105. Syed Ameer Ali, The Spirit of Islam (1922), P.107. Syed Ameer Ali, The Spirit of Islam (1922), P.107.

Introduction

though with out any political power, continued for two centuries with all pride and authority of all Sunni Muslims including Muslim Rulers of India. About the end of the15th century, the Ottoman Sulthan Salim-I rose in the horizon. His victories over the enemies of Islam won for him the title of â&#x20AC;&#x2DC;champion of the faithâ&#x20AC;&#x2122;. He easily overthrew the ruling Mameluke Sultan of Egypt and thus the Khaleefa came under him. Accordingly in 1517 by a formal deed of assignment the Khilafath was transferred to Ottoman Sultan Salim-I. He held the guardianship of the two holy masjids of Makka and Madeena and perfected the title of Khaleefa. Henceforth Constantinople, his seat of government becomes the seat of Khaleefa and it began to be called Islambul meaning the city of Islam. Then the Khilafath became the heritage of the house of the Ottoman Empire which they enjoyed for about four centuries without challenge or dispute.35 In 1922 when Musthafa Kemal Ataturk, the ruler of Turkey renounced Islam, he abolished the sultanate of Turkey and thereby Khilafath also. In 1924 the National Assembly of Ankara passed a law formally abolishing Khilafath and closed the office of Khilafath. The important power and pride of Khaleefa was the key of Haramain, the two Holy Masjids of Makka and Madeena. In the mean time Royal Su-ud family took the rule of Arabia and obtained key of the two Holy Masjids for its maintenance. When Khilafath was abolished, the key as well as the responsibility of maintenance of two Holy Masjids at Makka and Madeena automatically came to the vested on them. Till today they are continuing as custodian of Haramain (the twin Sacred Places of Makka and Madeena) and doing its maintenance as a blessing of Allah towards them. Now Sunni Muslims are about to complete a century in the history without Khaleefa. Imamath of Shia. Among Sunnis the term Imam denotes the person who led prayer. They use this term to denote the founders of various schools of law and also to call their leader including Khaleefa. But in Shia sect, Imam is their religious head and their sovereign source of law. According to Shia faith, Imamate is the divine line from the Prophet through his descendents and to them Khaleefa Ali is their first Imam. Shia considered the former three Khaleefas before Ali as usurpers in the seat of Imam. According to Sunni, their Khaleefa is the leader to be elected from pious disciples of true faith. According to Shia, their Imam is the person nominated by the former Imam. Imam of Shia Muslim is in the place of Khaleefa of Sunni Muslim. But to Sunnis, Khaleefa is only their leaders of true faith but according to Shia, their Imam is their law giver also.

Syed Ameer Ali, The Spirit of Islam (1922), P.108.

Sunni Code of Muslim Personal Law

Chapter II Sources of Muslim law Source of modern law are Legislation, Precedent, Custom and Conventional Covenents. But totally differing from this modern concept, sources of Muslim law are Qur-an, Sunna, Ijma-a and Quiyas. 1. Qur-an The word Qur-an means, ‘to be recited’. Qur-an itself qualifies it as Kalamullah (speech or words of Allah) Al-Kitab (The divine book) and Al-Furkhan (leading towards truth, distinguishing truth and false) Muslims believe in four Divine Books revealed for men. Thourath36or Thora given to Prophet Moosa(Moses), Zaboor37or Pslms given to Prophet Daveed(David), Engeel38 or Testament given to Prophet Easa (Jesus) and Furkhan or Qur-an revealed to Prophet Muhammad are the four Divine Books. Qur-an undoubtedly declares that Easa (Jesus) is not the son of God but only a Prophet of God,39 and was never crucified.40 In Muslim law, Jews and Christians whom Qur-an called as Yahooda and Nasara are commonly called Kitabia. The word Kitabia means those whom given Kitab or Devine Book. Thus Qur-an permitted their chaste woman and their food to Muslims. Qur-an is the compilation of a series of communication from Allah to Prophet Muhammad through angel Gibreel on a great number of occasions during the last twenty two years of his life started from the first incident at the cave of Hira starting “Read on the name of your Lord who created you” and ended during the farewell Hajj pilgrimage concluding, “This day I have perfected your religion for you and completed my favor upon you and have chosen for you Islam as your religion, but if any is forced by hunger with no inclination to transgression Allah is indeed forgiving and most merciful.”41 In Qur-an Prophet is addressed throughout in second person and it was revealing to the Prophet giving rulings and directions as and when required the circumstances. 36 37 38 39 40 41

Qur-an Chapter 7 Verse 145 and Chapter 28 Verse 45. Qur-an Chapter 4 Verse 163 and Chapter 17 Verse 55. Qur-an Chapter 3 Verse 48. Qur-an Chapter 43 Verse 59. Qur-an Chapter 4 Verse 157. Qur-an Chapter 5 Verse 4.

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