A comparative study on divorce under statutory law and

Muslim law , problem and way out

A comparative study on divorce under statutory law and
Muslim law , problem and way out
A comparative study on divorce under statutory law and
Muslim law , problem and way out
A comparative study on divorce under statutory law and
Muslim law , problem and way out
A comparative study on divorce under statutory law and
Muslim law , problem and way out

Chapter Two
Conception origin and definition

2.1 Muslim conception of law :

2.2 Definition of Muslim:

As Muslim personal law is applicable to Muslims only and therefore we should
define the term “Muslim” can be defined from two view points. 1) from the point
of courts and 2) from the point of theological.

A Muslim is someone who submits to Allah will a person upon to monotheism

who worships Allah alone without accosting any partners with him . A Muslim is
someone who bears witness that none has the right to be worship but Allah and
Mohammad is the messenger of Allah. A Muslim can be of any background , race ,
country and gender .
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According to Amir Ali “ Any person who professes the religion of Islam in other
word accepts the unity of God and the prophetic character of Mohammed is a
Muslim “. According to theologicians three stipulation should be examined as
follow:

1) One must belive that there is no deity but Allah.

2) One must have to believe in the existence of prophet sm
3) One must have to believe in the following matters:
a. Farz : Farz means obligatory action. For not obiliging these acts, one
must have to face punishments.
b. Sunnah: it means the activities of the holy prophet (sm). Whoever
follows it, will get benefit and for not obiliging or denies without any
cause to perform, he will get punishments.
c. Mustahab works: if any one performs, benefits will get, if not, no
punishments should be faced.
d. Mubah: these types of acts are not approved but in some special cases
it could be permitted.
e. Haram: these acts are exclusively prohibited and for that punishments
and for that should be given.

2.3 definition of Islamic law

Islamic law, a divine law sent by Allah to prophet Muhammad (PBH), is the
result of a continues process of developtent process of developtent till now, it
consists of the exprtess injunctions of the quran, sunnah (practice of the proiphet)
and the opinions of jurists. Islamic law is njot systematic, but a living and growing
are passes by the modern parliament, but a living and growing organism. Besides
quran and sunnah, ijma and qiyas are also the sources of Islamic law . Islamic law
is universal and it covers all branches of law such as criminal, constitutional,
commercial which are commonly used for all citizen. But the law relating to
marriage, dower, dissolution, paternity, guardianship, maintainences, gifts, will
,waqf, inheritences etc, are applicable for the muyslims only. Muslims must belive
in allah and his messenger and strive had wirth their wealth and lives for the
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Muslim law , problem and way out
cause of Allah. He may be a a muslim either by birth or by conversation. Court
does not distinguish between the two at the time of application of law. In abdur
razzak v. aga mahomed case, it was held that no court can test or gauge the
sincerely of religious belief.

2.4 origin of muslim law

2.5 characteristics of Islamic law:

A summary on the characteristic featrures of Islamic law are as follows :

a) Allah is the legislator

Islamic law was reveald from Allah. Who alone has the soverign right and
supreme power to legislate it for mankind. He has been reavealing his
wishes and commands on his prophets through out the ages from the birth
of mankind according to needs and conditions of different countries and
stages of cicvilizatuion.
b) Islamic law is consistent with human nature

Islamic law is in harmony with human nature. It is the religion of human

based on reasoning.
c) Islamic law covers all aspects of human life

The distinguishing feature of Islamic law is that it is applicable in all fields

of human life, namely, personal, national, international life.
d) Sources of Islamic law are Al quran and sunnah

The quran and sunnah are the main basic sourced of Islamic law. A well
known hadith supports the view that every problem can be solved with the
help of quran and hadith.
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e) Obedience to Allah and His Apostle

The Quran states. “ o you who believe ! obey Allah and obey His Apostle.
Unconditional obedience to thw will of Allah and His Apostle is obligatory
for all muslims. While framing law, parliament should take vigilances so
that no law contrary to the Quran and the sunnah is passed
f) Islamic law is protect and universal

Islamic law is perfect and free form any defect. Since it is the complete
code of life, no addition or debuction in it can be made. It is universal and
therefore , it is applicable now and for all ages to cpome and any territory
and therefore and the punishment for the same offence is fixed
irrespevtive of any period or state.
g) Scope of application of Islamic law

The foundation of islam is based on the three main principles, such as A)

oneness of Allah B) prophethood C) the life after death. Islamic law is
applicable to this world as well as to the next world. An offender, for
example, may escape punishment in this world by evading the law
enforcing agency or managing judiciary, if any but it is not possible to
escape punishment in the next world. A man will be rewarded or punished
accorfing to the next world. A aman will bee rewarded or punished
according to the deeds he performs in this world. These beliefs , I can say
without any hesitation, actually inspires a amn to do good deeds and at
the same time prevents him form committing sin or offence in this world.

h) Islamic law and morality

Islamic laws importances pr morality which helps to create congenial

atmosphere in the society. For the instances to show respect to parents,
elders, teachers, to help the distressed etc, are indispensable parts of
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morality. Sometimes morality becomes more effective than the law. In ost
cases, ther commission of crime takes place due to the absence of
morality. Takimg of bribe, for example, is both immoral and illegal.
Morality , therefore should be the part and parcel of Islamic law

2.6 sources of Islamic law

Islam has given the most comprehensive legal system to mankind . Islamic
law covers all aspects of life. Isalm has its own personal , civil, criminal,
mercantile, evidence, constitutional and international law etc. international law.
Etc. Islamic law has been defined asd the body of rules of conduct revealed by
Allah (swt)to his prophet Muhammad (sm).

1. The Quran
2. Sunnah
3. Ijma
4. Qiyas
5. Istihsan
6. Muslahat
7. Istadlal
8. Ijtihad
9. Mujtahid

1. The Quran :

Firstly, of course, we have the Quran, “ a sending down from the lord of all the
worlds” (Q.56:80), “ which no false hood aooroaches, either from the front of it or
from behind; a sending down wise and praise worthy”

The Quran is the primary source containing all the primary sources and
instructions of Allah. Herein are to be found not only directives reklating
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individual conduct but also principles relating to all the aspects of social and
cultural life of human being. It is the guidance of mankind. This is the prime
source and that all other source and that all are explanatory to the Quran. Its
importance is religious and spiritual , no less than legal, as it is in Muslim belief ,
the word of Allah. It is the last book of his revelations for entire humanity. Hence,
its teachings shall ever remain the fountain of all guidance for all time, ages and
people.

2. Sunnah:

So far these are very texual considratuons , but the Quran did not come down in a
vacuum. It was related on the tongue of a man – the messenger , SALLA-LLAHU ‘
ALAYHI WA- SALLAM’ or more correctly it was revealed onhis heart, and from
there it came out by m,eans of the tongue, which was “ a clear, a Arabic
language”. Allah says: “ the noble spirit brought it down into your nhearty for you
to be one of nthe warners, in a clear tongue” (Q.26:193-5) via someone who
speak clear Arabic.

This message was then acted upon by the Messenger. There is a famous hadith by
Aisha where she describes the Prophet by saying “ his behavior was the Quran or
as it has also been translized, “ he was the Quran walking, this is the origin of ourn
second source, the sunnah.

Sunnah is an Arabic word which means “ method”. It was applied by ther proiphet
Muhammad ( peace be upon him) as a legal term to reperesent twaht he said,
did and agreed to. Its authority is derived from the text of the quran. The quran
says “ for youn the life of the prophet is a model of behavior”

The sunnah is the second primary source of Islamic law. The word sunnah is an
Arabic word which means the activities, the oral dictations , practices of the b
prophet, in some special cases his companions did some thing and he kept silent if
he approved that, ghis model behavior the sunnah comprises of
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a. Hadith mutawatir (continous)

Those which have recived universal acceptance and are narrated by an indefinite
number of men belonging to the categories of companions, successors.

b. Hadith masshhor (well known) :

There were reported by a limited number of companiuons in the first instances

and ther after fulfilling the conditions of continous tradition.

c. Hadith ahad (isolated) :

These rest upon the testimony one or more narrators, who are limites in number
not fulfilling the conditions of either of the two above classes.

Sunnah glrofied the prophet and his prophwet and his religious deeds. The quran
and sunnah are often called “ nass” (binding obedience) and symbolize direct and
indirect revelations.

3. Ijma :

The third source of Islamic law after exhausting quran and sunnah consists of the
compromise of opinion of the companions of the prophet, specially the four
caliphs abu baker, umer, usman, ali on theologicial , cibvil and criminal matters. It
means lioterally collectin g or assembling. ijma defined as the agreement of the
muslim jurconsults iun any particular age on a judicial rule. The authprity of ijma
as a sources of law is founded on quranic and sunnah texts; one of each is given
here:

Allah says. “ o ye who belives; obey Allah and obey the Prophet and those of you
who are ub authority, and if ye have a dispute in concerning any matter refer it to
Allah and the Prophet”.
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The prophet of islam (SM) says : “ there can be no consensus on error or
misguided behavior amongst my people.”

In islam Ijma direct to the opinion of nthe Islamic Jurists or consessus of opinion
of them. Collecting these opinion new sciences of facing new problem is
introduced. That is called Fiqh.

The fiqh reveals that a major portion of law consists of the concurrent opinions of
scholars on legal questions.

Once an ijma is established that will be a part of valid law, and an obligation is
created to follow upon the muslim Ummah. Among all the types of Ijma,
whatever was done by the companions of the we holy Prophet (SM) is accepted
as a universal one. It gets equal dignity og the tradition of the prophet. This type
of ijma is final and absolute. On the other hand whatsever is done by the normal
jurists will not get dignity.

4. Qiyas :

The fourth and lastb source of law is Qiyas or analogical debuction. Literally
means dimensions od judging by comparing a thing or analogy. Is sunni Islamic
jurisprudences qiyas is the process o’f analogical reasoning from a known
injunction to new injunction. It is in Islamic law, analogical reasoning as applied to
the deduction of juridical principles of the quran and the sunnah. Qiyas or
analogical deduction consists in applying in applying old established principles to
new circumstances. Qiyas or analogical conclusion is the interpretation by analogy
of the quran, sunnah and ijma. Qiyus is thus defined as an annexure of law from
the original text by means common cause. It is a procedure of debuction which is
not to change the lawof the text. According tho these method, ther ruling of the
quran and sunnah may be extended to a new problem provided that the
president and the new problem share the same operative effective cause. It is
applicable in cases not covered by the language of the text but may fall under the
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reason of the next to quran, sunnah and ijma. Strong drink is unambiguously
prohibited for its intoxicating effect, say wine is not explicitty prohibited but as
the cause of the prohibition is the effect of intoxication to which bioth give rise,
wine is alkso prohibited. But the grape juice because it does not effect
intoxication is not prohibited. Moreover, if the intoxication by wine was haram,
then so too shoou8old intoxication by other drinks, or indeed other saubstances,
once it had been established that it wss intoxitication that was being prohibited.

5. Istihsan ( juristic preference)

Istihsan literally means to deem something preferable. In its juristic sense,

istihsan is a method of exercising personal opinion in order to avoid any rigity and
unfariness that might from literal application of law. Imam abu hanifa is the
architect of the source of isnot preferred for the exigencied of a specific case.
There is no dirct abrogation the law but small alteration to met the demands of
the society. Under muslim law the subjective law matter must be prtedsent atb
the time of agreement of sake of goods, goods supplkied in future is void. But on
the ground of necessity and worldwide practice is valid.

6. Istadlal

Imam malik is the architect of this source. Istadlal is described as striving after the
basis of rule. Istidlal means to assume something from a fact. It’s a normal
tradition of a law . hanafi law of school recognizes this is for explainming holy
quran and tafsir. Istidlal is a method of juristical deduction not failing the sope of
analogy. The hanafi jurists use the word more or less in sense of inferring g a thing
another thing in connection with the rules of interpretastion.

In ordinary cases , istidlal means inferrinf the from a thing another thing .
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Malik and shafi defines it as, “ istidlal is the same for a distinct m,ethid of jurists
ratiocination, not falling within the scope of interpretation or analogy.

7. Ijtihad :

Ijhihad is Islamic law, the independent or original interpretation of problems not

precisely covered by the quran, hadith and ijma. In the early muslim community
every adequately qualified jurists had the right to exercise the original thinking,
mainly ray and quyas and thoise who did so were thrm mujtahids. But with the
crystallizations of legal aschools under the Abbasids , the sinnies held at the endof
the 3rd century ah that the ‘ grates of the intihads” were closed and that no
scholar could ever qualify again as mujtahid. All subsequent generations of
jurisits were considered bound to taqlid, the unquestioned acceptance of their
greta predecessors as authorative and could, at most , issue lega;l opinions drawn
from established precedents.

8. Mustahiud:

The world mujtahid is derived from the world ijtihad whuich inislamic legal
terminology is defind as : “The intense effort of a jurist in the deduction of a
ruling in practical Sharia fro Islamic texts. A mujtahid is , therefore, one who is
trained is traditional science and qualified to make rulings in practical shariah.
The qualifications of a mujtahid are strict and conductive. The great masters of
Islamic jurisprudence have prepared the rigorous requirements the need to be
fulfilled before one may attain any degree of making such rulings in the
practical sphere. The condition that one needs to fulfill if his enthusiasm leads
him to the want of practicing ijtihad and , thus, declare himself a mujtahid.
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Chapter 3

Evolution and school of Islamic jurisprudence

There arfe two main schools in muslim law, as the sinnuies and shias. Both of
segments are divided into sub schools. The sunni school can be divided into
four sub schools as hanafi, maliki, shafie, hambali. Shia schools of thought can
be divided into three as islamailia, zaydia and ithana asharia.

Then differences of the jurists was there and from these differences of jurists
the four sunni schools came in to operation from the 3rd period oif Islamic law.
These schools are all equally orthodox.

Hanafi Schools

Hanafi schools of thought is accepted as the influtential and important school.

The founder of school was the learned imam abu hanifa (80-150 Ah). The
school was named after him as hanafi school. He got institutional learning
from the shia school of law he recived the first instructions of jurisprudence
from sixth imam jafar ibn ibn sadaq.

Coming back to kufa his native city he established a new system of his own,
dissilimar from shia school of law. He was gifted with talents of an outstanding
nature and possessed extraordinary powers of reasoning and inference which
combined with the resources of a retentive recollection and clear
understanding soon brought him into celebraty as the masyer of
jurisprudence.

He gained the designation of the upholder of private judjement. In arriving at

legal ending he places little dependence of upon tradition and more upon
deductions. He strained on qiyas or analogical deduction then traditions so
some scholars think he was the upholder of private judgement or creator of
qiyas. But he was not. He employed qiyas more because the science of hadith
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did not fully expand at that time and no recognized collections were
obtainable. He modified law calling it istehsam. He assigned a distinguishing
name a famous position to the principle by which the premises of law is
modified in its submission to actual facts, calling it istehsan, which bears in
many points a notable similarity to the doctrine of equity.

Imam abu hanifa himself describes his method of derivation: “ first of all I look
in to the noble quran, then search the matter in hadith of the priophet
Muhammad (SM) and the narrations of the faqeeh (jurist) narrators. If the
matter is not found in the quran and hadith, then I turn to the saying of the
companions. If their opoinions differ then I prefer any of them. If the opinions
contradict the companions. And then , when it come to the opinions of
Ibrahim nakh’ee, hasan basari, ibn seereen, saeed bin musayyib and others
then I also apply mind and intercept as they do.

He extended ijma not like other jurists he affirmed its validity in every age.
Ijma was also comprehensive to the descendents of the companions of the
prophet (SM). From among his principal disciples he fromed a committee of 40
man for the codification of the laws. It took 30 years for the code to be
accomplioshed. The entire work are lost, but his devotion to the code is
present. There is a small collection of traditions based on his authority calles
masnud- ul- imam abu hanifa.

Two much commanded text of this school is hedaya and fatwa-i-alamgiri. His
teachings were not linked by the caliphs and so they throw hi to prison. As so
supposed they poisoned him to death. He was held in such respect that his
funeral prayers as reported was said for 10 days and 50000 people attended it
on each day.

The main features of this school are :

1. Less reliance on traditions unless their authority is beyond any doubt

2. Greater reliance on Qiyas
3. A little extension of the scope of ijma
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4. Evolving the docyrine of istisham . applying a rule of law as the special
circumstances required.

The muslims of india, afganistan andturkey and hanafis. Also in Egypy, china and
arab thery are principally found. He left his ywo disciplesAbu yusuf and Imam
Mohammad. So we can say that he was the founder of the theories aqnd
principles of muslim jurisprudences.

It is nsaid that Imam Abu hanifa began for the first time systematic and scientific
study of legal principles is Islamic jurisprudences and devoted his whole life for
the cause of jurisp[rudence and beloved his whole life for the cause of
formulating legal principles in the true spirit of the holy quran and traditions of
the priophet (SM). He is sometimes compared with Justinian as a jurist and the
ideal to provide sufficient material for posterity by anrticipating probable
propositions and solving them.

Maliki School

The kufa school of imam abu hanifa is distinguished from medina school of imam
malik-ibn-anas. The name of his school is maliki school. He was not only jurist but
a traditionist. He excersed the decision if other things disastrous with the customs
and usages of medina.

Malik’s active carrer fell at a time when the proiphetic sunna had not yet become
a material source of the law on equal footing with the quran and when hadith
were still relartively limited in number. In his legal reasoning, therefore, malik
made little reference to prophetic tradirtons and more often resorted to the amal
of medina in justification of his doctrine, malik’s reliance on traditions as well as
his technical legal thought lagged behind those of the Iraqis.

The main distinctions of this school are as followes :

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1. Acceptance of tradition which wsas, in the opinion of imam malik,
authentic , even if the tradition carried the authpority of only one narrator.
2. Acceptance of the p[ractices of the people of the people of medina and the
sayings of the companions of the prophet
3. Resources to analogy (qiyas) omly in the absence of an explicit text
4. Making use of a sources unique to this school. Known as as- ma-salih al-
mursalah

Imam Malik-Ibn-Anas introduced a principle equivalent to that of Imam Abu

hanifa s istehsan is muslahat for public welfare as a basis of deduction.he
introduced a 5th source of law known as istadlal.istadlal is according to him a
principle of juristic deduction which does not come within the capacity of
snslogy.malik recognizes the legality of igma of the companions asd successors
reciding medina – consensus of the muslims of medina(at that time).al muwatta a
well recognized book of imam malik contains 300 traditions.

Maliki school deduced Islamic law from the following sources.thy are listened
in the order of their importance:

1. the quran.

2. the sunnah.

3. Amal ahl almadina- the practice of the madinites.

4. ijma of the sahabah – consensus of the companions.

5. fatwa al sahabi – individual opinion of the companions.

6. qias – analogical deduction.

7. customs of the medinites

8. istislah – welfare

9. urf – custom
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10. sad al – zarai i-closing the doors of uncertainties

11. mura’at al khalif – observance of differences.

Differences are usually observed.

Median was the birthplace of Makki school and from there it spread throughout
hizaz, north Africa and spain. It is still predominant in morocco, Algeria, Tunisia
and tripalania, the sudan, Bahrain and Kuwait.

Shafie School

Imam-ash-shafie (150-204 a.h) founded this school. He was the disciple of malik-
ibn-anas and also took nlectures from imam mohammad (the disciple of imam
abu hanifa). His school name is Shafie school. He had exceptional juristic talents.
He was not only a jurists but also a traditionalist. He was the jknown asa a
founder of a science of usul or traditions balthough he applied qiyas more than
malik. He was an upholder of the traditions he examined them m ore critically and
made more use of analogy imam malik.

He introduce the middle course of imam abu hanifa and malik ibn-anas on
analogy and traditions. He permittied greater sciope if ijma than malik but ther
supported malik ibn anas 5th source of law as a installed istdlal and rejected abu
hanifas equity of jurists (istehsan). Mahmassani beautifully sums up the
philosophy of this school in the following words:

“he (imam malik) would accept the four spurce of law; the quran, sunnah,
contensus of opinion and analogy. He would also accept istidlal. However, he
rejected what the hanafi school called istihsan and what the maliki school called
al-masalih al-mursalah (public interest).

At the time of al-shafi. The prophet’s a ahdith were gathered from different
countries, and the disagreements amioung the scholars increased until al shafi’s
wrote his famous book, al- risalah, which is considered the fiundatiuon of Islamic
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jurisprudence. His principles arew followed in Egypt, vsyria, Lebanon ( particular
the cuty of beriut) as well as , indo china, java. Among the sunni inhabitants of
iran and yemen and in some parts of india specially Bombay and madras.

Hanbali school

The hanbali school is based upon the theoriews of the 98th century Islamic
theologian, ahmad ibn hanbal. Ahmad ibn hanbal never established a specific
legal system, fiqh, but a system has been developed from the answers were he
gave his students in bagdad.

Imam ahmad ibn hanvbal (164-241 A.h) was a pupil of imam Shafie. He harshly
accepted or had a tremendous reaction to the school which was known as ahl-al-
ray or people or opinion / ahl-a-hadith. He rigorously followed literally. He was
very strict in character and was unbending on his interpretation of the hadith.

Tabari, a historian refused to accepted him as a jurist but acknowledged him as a

mere traditionalist. His masnad-ul-hanbal contains of 50000 traditons. His
followers are only found in middle of arbia amd no where else. He allowed a
narrow margin in qiyas and ijma.

So, one of the most important characteristics of this school is that its followers
would accept any hadith however weak it may be without any hesitation. Imam
hanbal would never conduct any equiry worth the name about the authenticity of
a hadith. He did niot yield to the wrong decisions of khalifah al-mamun and on
that rreason he was severally persecuted.

Shia school

Shia islamis the second largest denomination of islam, comprising anywhere

between 17 to 20% of the total muslim population in the wirld. Shia muslims-
through a minority in the muslim world- constitute the majority of the
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poipulations in Azerbaijan, Bahrain, iran, and Iraq, as well as a plurarity in
Lebanon and yemen. This shias who attached themselves to ali denied the rightful
chain of the first rthree caliphs. The shias do not admuit the authenticity of any
tradition nopt received from the ahl-i-bait. “ the people of the house” (of
mohammad) consisting of Ali and Fatima and their decendents. They rejected
entirely the validity of all decisions notg passed by their own spritiual leaders and
imams. According to shias imams are the final interpreters of the law on earth.
He is an imam not by election but by divine rightrs , beacsause he is decendent of
the prophet or ali.

The shia are divided into innumerable groups, but the three schools of law are the
ashari, ismaili and zaydi.

Chapter 3
Statutory law about divorce

1. The child marriage restreinct act 1929

2. Dissolution of Muslim marriage 1939
3. Muslim family law ordinance 1961
4. Muslim family law ordinance 1961
5. Muslim marriage and divorce {registration act 1974}

The Child Marriage Restraint act

Xix of 1929

1. short btitle and commencement- (1) this act may be called the child
marriage restraint act, [1929].
[(2) it extends to the whole of Bangladesh and applies to all citizens of
Bangladesh wherever they may be]
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(3) it shall come into force on the 1st day of april, 1930

2. definitions- in this act , unless there is anything repugnant in the subject or

context-

a)”child” means a person who, if a male, is under twenty-one years of age,

and if a female, is under eighteen years of age

b)”child marriage” means a marriage to which either of the contracting

parties is a child.

c)”contracting party” to a marriage means either of the parties whose

marriage ius thereby solemnized

d)”minor” means a person who, if a male, is under twenty- one years of

age, and if a female, is under eighteen years of age