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21: SCHOOLS OF ISLAMIC LAW:
A: SUNNI SCHOOLS?
1. The Hanafi School: This is the most famous of the four Schools of Hanafi Law. This school was founded by Abu Hanifa (699-767 A.D). the school is also known as “Kufa School”. Although taught by the great Imam Jafar-as-Sadik, the founder of the Shia was also a pupil of Abu Abdullah ibn-ul-Mubarak and Hamid bin-sulaiman and this may account for his founding a separate school. This school was favoured by the Abasid Caliphs and its doctrines spread for and wide. Abu Hanifa earned the appellation. “the Great Imam”. The school was fortunate in possessing, besides Abu Hanifa, his two more celebrated pupils, Abu Yousaf (who became the Chief Kazi at Baghdad) and Imam Muhammad Ash-Shaybani, a prolific writer, who has left behind a number of books on jurisprudence. The founder of the school himself left very little written work. The home of this school was Iraq but it shares this territory with other schools although there is a fair representation. The Ottoman Turks and the Seljuk Turks were Hanafis. The doctrines of this school spread to Syria, Afghanistan, Turkish Central Asia and India. Other names connected with the Kufa School are Ibn Abi Layla and Safyan Thawri. Books on the doctrines are al-Hidaya of Marghinani (translated by Hamilton). Radd-al-Mukhtar and Durr-ul-Mukhtar of Ibn Abidin and al-Mikhtasar or Kuduri. The Fatawa-I-Alamgiri collected in Aurangzeb’s time contain the doctrines of this school with other material.
1. The Maliki School: This School was founded by Malik ibn Anas (713-795 A.D.), who was an inhabitant of Median. Malik passed his life there and expounded the Traditions. He incurred the wrath of the Abbasids by his ruling that an oath of allegiance given, under duress, to the Abbasids was not binding. Later he was forgiven and it is said that Haroun-al-Rashid visited him at Medina. Malik came of a family known for its learning. Although taught by a teacher who emphasized independent exercise of reason in interpretation. Malik leaned towards jurisprudence based on the Quran and Hadia. Of the later Sunna (Infra) he followed only those of the Prophet. When Traditions conflicted, Malik depended on Ijmaa for the solution of conflict. But the relief only on the Ijmaa of the Mediness Mujtahids (infra). Malik also perfected the dectrine of the judicial practice of Medina. Malik’s book Kitab-al-Muwatta systematized the law. Another important book containing Malik doctrines is al-Mukhtasar off Khalil ibn Ishak. The Risala of Ibn Abi Zayd is also an authority.
The teachings of Malik Ibn Anas spread from Medina and Uper Eguypt to Central and West Africa, Spain, and Eastern Arabian Coast with Hanbalis and Shiites. At one time Morocco was a great center of Maliki doctrines. Malik’s great pupil Shahnun died in 854 A.D. but by then he had firmly established the Maliki School.
3. The Shafii School: This school was founded by Muhammad Ibn Idris ash-Shafi (767-820 A.D.). He was a pupil of Malik ibn Anas but lived a part of his life at Baghdad and the rest at Cairo. Ash-Shaffi was foremost in jurisprudence and methodology of law. He was responsible for the doctrine of Qiyas (infra) but he ruled that an analogy may be based rightly on the Quran or Hadis or Ijmaa (infra). He established Ijmaa as a source of law. He recognized only the sunna (infra) of the Prophet. Ash Shafii’s famous work is Kitab-ul-umm. A large number of boks have been written on Shafii school of which Tuhfat-al-Muhtaj of Hajar and Nihajat at Muhtaj of Ramli, both commentaries on Nawavi’s Minhaj al Talibin are standard authorities. Al Ghazzali’s al-Wajiz is also well-known.
The Shafii school spread in lower Egypt, Hejaz, South Arabia and East Africa. It has some adherents in Iraq and had a hold in Persia but lost ground to Shiites. There are very few Shafiis in India (mainly on the West Coast) but it has large numbers in Indonesia, Malaysia and South East Asia.
4. The Hanbali School: Every modification of principles which took people away from the traditions of the Prophet caused a reaction among those who held to the Transitions. This was particularly so when. The Traditionests followed the teachings of Ahmed Ibn Hanbal (780-855 A.D). born at Baghdad, Ahmed Ibn Hanbal was a pupil of Imam Shafii,. He perfected the doctrine of usul. He was author of several books chief among which are Musnad al-Imam Hanbal, Taat-ur-Rasul and Kitab-ul-Alal. The most exhaustive work on hanbali doctrines has been written by Muwaffak al-Din. Two Hanbali scholars (ibn Taymiyya and his pupil Ibn Kayyin-al-Jawayza) wrote on Siyasa and Sharia (infra).
The Hanbalis spread to Persia but lost ground to the Shiites. Hanbalis are to be found in Syria and Palestine. The Wahabi movement in Saudi Arabia (Started by Mohammad ibn Abd –ul-Wahab about the middle of 18th century) has introduced a paritan attitude and all innovations based on Qiyas (infra) and rai (infra are rejected as 0pposed to Traditions of the Prophet.
In India there is a sect known as Ghair Muqqallad, who do not strictly follow any school and who are akin to wahabis.
THE SHIA SCHOOL (03): THE Shia School owes its origin to Imam Jafar as Sadik the 6th Imam of the Imamias. This makes it earlier in point of time to most of the Sunni schools discussed above. There are many differences between Shia and Sunni jurisprudence. Shias do not accept any Tradition attributed to the Prophet (infra) unless it comes from the household of the Proophet (not accept the validity of any decision not endorsed by an Imam. The Imamia Shias are divided into two main branches – Akhbari and Usuali. The Akhbaris accept certain resolutions of former scholars but not the Usulis. The latter accept only those which are approved by their Imams. As, however, the Imams may not be available it is permissible to interpret by the application of reason (aql). In other words Ijmaa is valid only if the Imam could not be consulted. Conversely there is no room for equity, public policy or analogical deduction if the Imam were available.
The Shias are found in Persia where they form the largest majority. Elsewhere they are generally in a minority.
The School of Mutazilas is a rationalist branch founded by Wasil bin Ata. He was a pupil of Imam Hasan of Basra, a liberal philosopher, but went beyond his master and is known as a dissenter.
22: What is TALAQ-E-HASSAN OR TALAQ-E-THALATE?
A: Talaq-e-Hassan is also an approved from, but less approved. It consists of three successive pronouncements during three consecutive periods of purity. Each of the pronouncements should have been made at a time when no intercourse has taken place during that particular period of purity.
FOR EXAMPLE: The husband pronounces talaq on his wife for the first time during a period when wife if free from her menstrual course. The husband and wife has not come closer together during this period of purity This is first talaq during first tuher. Thereafter, in the following period of purity, at a time when no intercourse has taken place, husband pronounces the second talaq. This talaq is again revoked by express words or conduct, and the third period of purity. During this period of purity, no intercourse having been taken place, husband for the third time pronounces the talaq. This third pronouncement operates in law as a final and irrevocable dissolution of marital tie.
ESSENTIALS: The following are the essentials:
1. There must be three successive pronouncements of talaq
2. In case of a menstruating wife, the first pronouncement should be made during the period of tuhr, the second during the next tuhr, and the third during the third tuhr.
3. In case of non-menstruating wife, the pronouncements should be made during the successive intervals of thirty days.
23: What is DEATH BED GIFT?
A: A Muslim has unlimited powers to dispose of his property by way of gift, but the law has imposed restrictions on the donor’s power to dispose of his property by a gift during marz-ul-maut.
A death-bed gift:
1. When made to a non-hair, cannot operate on more than a third of the testator’s estate after payment of funeral expenses and his heirs give their consent, after the death of the donor, to the excess taking effect. If they do not consent, the gift take effect only in respect of a third of the donor’s estate.
2. When made to an heir, is altogether invalid, unless the other heirs consent thereto.
24: What is Meant by LEGITIMACY?
A: The fact that any person was born during the continuance of a valid marriage between his mother and any man or within 280 days after its dissolution provided the mother remaining unmarried shall be conducive proof that he is the legitimate son of the man unless it can be shown, that the parties to the marriage had no access to each other at any time, when he could have been begotten. As regards a child born after 280 days of the dissolution of marriage the court may presume its legitimacy if it thinks that the child is likely to be legitimate. Regard being had to the common course of natural events in their relation to the facts of a particular case i.e., marriage may be presumed in certain circumstance namely:
1. From continued cohabitation
2. From acknowledgement by the father (Article 128 Qanun-e-Shahadat Order 1984)
According to Article 128, Qanun-e-Shahadat Order, 1984, that the fact that any person was born during the continuance of a valid marriage between his mother and any man and not earlier than the expiration of 6 lunar months from the date of marriage or within two years after its dissolution the mother remaining unmarried shall be conclusive proof that he is the legitimate child of tht man, unless:
1. The husband had refused or refuses to own the child
2. the child was born after the expiration of six lunar months from the date on which the woman had accepted that the period of iddat had come to an end.
25: What is WAQF UL AWLAND?
A; A wakf-alal-awlad is a wakf created for settler’s own family and his descendants. It is really wakf in favour of unborn descendants.
Before the passing of the Mussalman Wakf Validating Act, 1913, a valid wakf could be created for the benefit of the settler’s descendants, including unborn persons, provisions be made for charitable objects. If the effect of the deed was to give the property substantially to charitable uses it would be valid, but if its effect was to give the property in substance to the settler’s family it would be invalid. The real object should not have been the aggrandizement of the family. The dedication to charitable purposes should not have been remote and illusory or made to take effect in a very remote contingency.
But after the passing of the Mussalman Wakf Validating Act, 1913, a Muslim can create a wakf for:
1. The maintenance and support of his family
2. His own maintenance and support and for the payment of his debts out of rent and profits if the settler is a Hanfi Muslim.
The ultimate benefit in all such wakfs should be reserved religious, pious or charitable purposes of a permanent character according to Muslim Law. But such purposes may be postponed until after the extinction of the family, children or descendents of the wakif. So now substantial dedication to charity is not necessary. It may seem to be remote and illusory but the wakf will be valid if ultimate benefit is reserved for charitable purposes.
26: What is IRRIGULAR MARRIAGE?
A: An irregular marriage is one which is not unlawful in itself, but unlawful ‘for something else’, as where the prohibition is temporary or relative, or when the irregularity arisen from an accidental circumstances, such as the absence of witnesses. Thus the following marriages are irregular, namely:
1. A marriage contracted without witnesses
2. A marriage with a fifth wife by a person having four wives
3. A marriage with a woman undergoing iddat
4. A marriage prohibited by reason of difference of religion
5. A marriage with a woman so related to the wife that if one them had been a male, they could not have lawfully intermarried.
EFFECTS OF AN IRREGULAR MARRIAGE: An irregular marriage can be terminated by before or after consummation. An irregular marriage has no legal effect before consummation. If consummation has taken place.
1. the wife is entitled to dower, proper or specified whichever is less.
2. She is bound to observe Iddat
3. The issue of the marriage is legitimate
4. An irregular marriage, though consummated, does not create mutual rights of inheritance between husband and wife.
SHIA LAW: The Shia law does not recognize the distinction between irregular and void marriage. According to that law, marriage is either valid or void. Marriages that are irregular under the Sunni Law, are void under the Shai Law.
27: What is PARENTAGE?
A: parentage is the legal relation of parents including father and mother to their children. Paternity and maternity are the branches of parentage.
The law of parentage and acknowledgement which includes paternity and maternity is the result of the institution of marriage. A Mohammaden marriage is a contract which confers the status of husband and wife on the parties and of legitimacy on the children parentage gives rise to the concepts of legitimacy and illegitimacy. As far as illegitimacy is concerned, it is totally untolerated in Islamic law and sexual relations outside marriage are condemned as illicit, and the woman or man who is involved in it is punishable for Zina. According to Sir parentage of a child is determine don the principle that it always follows the marital bed. The father of a child born in wedlock, is presumed to be the husband of the woman, giving birth to it and a child which is born after 6 months of marriage, and during its continuance, is said to be born in wedlock.
The legal effect of marriage in fixing the paternity of child also continues according to the Hanafis for two years and according to the Malikis and Shafis for four years, after the separation of divorce or death.
28: What is ZIHAR?
A: Zihar is a form of inchoate divorce. If the husband compares his wife to his mother or any other female within prohibited degree, the wife has a right to refuse herself to him until he has performed penance. In default of expiation by penance, the wife has the right to apply for a judicial divorce.
29: What is Meant by Public Mosque?
A: Every Muslim is entitled to enter a mosque dedicated to God, whatever may be the sect or school to which he belongs, and to perform his devotions according to the ritual of his own sect or school. But it is not certain whether a mosque appropriated exclusively by the founder to any particular sect or school can be used by the followers of another sect or school. (Section 209 Mohammedan Law).
The right to officer prayers in a mosque is a legal right, for the disturbance of which a Muslim is entitled to seek relief in a Court of law.
30: What is Prompt Dower?
A: It is payable on demand, immediately after the marriage, unless delay is stipulated or has been agreed. It can be realized any time before or after the marriage.
Prompt dower does not become deferred. After consummation of the marriage, and a wife has absolute right to sue for the recovery of prompt dower even after the consummation. After consummation the only fact which goes against the wife is that she cannot resist the consummation of conjugal rights of the husband. Under such circumstances she can get a conditional decree.
It is only on the payment of prompt dower that the husband becomes entitled to enforce conjugal rights, unless the marriage has already been consummated. The right of restitution rises only when the dower has been paid.
Since prompt dower is payable on demand, limitation starts on demand and refusal. The period of limitation is three years. If the wife during the marriage does not make any demand, the limitation begins to run either from the date of dissolution of marriage or from the death of the husband.
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