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Istihsatn / Juristic Preference in Islamic Law

July 10, 2019 by Admin Leave a Comment

ISTIHSAN

Istihsan, which is also known as juristic preference, played an important role in the Islamic Legal reasoning. It basically depends on the contribution of a judge’s opinion into those matters that were not already discussed by the Holy Quran or Sunnah but were resolved with veritable interpretation of the versus of the Holy Quran and Hadees; followed to avoid hardships and secure ease of both the parties while deciding cases. It also played a pre-eminent role in the Intellectual heritage of Islamic law. Back then, people used to rely on Qiyas (analogy) which sometimes caused hardships, at those certain events Istehsan was applied in order to eradicate the problem. Although this term has been used from the very beginning but no technical definition exists.

The judiciary whether it is Muslim or non-Muslim uses istehsan to provide judgments as close to perfect as possible. Different laws and norms exist but with the evolving technologies the problems are evolving too, so to get rid of such problems we need to find modern solutions to it. While dispensing great judgments it is difficult to find laws or provisions that lead to the case’s exact nature, in the aforesaid cases judges depend entirely on istehsan to benefit the parties of the suit and reveal unseen justice that leads to a different but righteous understanding of law that we ordained by the Law-giver.

Concept of the term istehsan can be traced back to the time of revelation. In regards to its conceptual application, it cannot be said whether istehsan was implemented as a source of judiciary during the lifetime of Prophet (Peace be Upon Him), because the sources of legislation were confined to Holy Qur’an, Sunnah and personal opinion with the permission of competent authority for legislation. Maudh Bin Jabal’s answer to Prophet (P.B.U.H) could be an early signifier for the use of the term ‘Istehsan’. A small narration below shows how Prophet (P.B.U.H) tested Maudh’s ability to reason. Upon being inquired by the Prophet (P.B.U.H) that what he will do if he does not find any guidance in Holy Qur’an and Sunnah, Maudh answered, he will do his best and spare no pains. Prophet (P.B.U.H)’s objective was to teach his companions whom he appointed as judges to use their understanding and discretion in formulation correct and accurate judgments, he wanted to prove that criticial thinking was essentials in deriving close to perfect judgments that would not harm any person. The utmost importance of personal opinion is evident at the Battle of Badr – as a conceptual matter not a judicial term. Before the battle Prophet (P.B.U.H) decided a particular position for his army to settle and fight against the enemies which one of his companions thought to be unsuitable and upon inquiring if the place was chosen by revelation or chosen by Prophet (P.B.U.H) on his own judgment he suggested a more suitable place, his act of suggesting and personal interpretation gained credence and was also appreciated by the Prophet (P.B.U.H). In a nutshell, it can be said that the use of discretion and personal interpretation lead to the subsequent use of Istehsan.

The formation of the concept of Istehsan first took place in the earliest days of Islam, the founder of this term were the most prominent Hanafi jurists Abu Yousuf and Al-Shaybani. However, it was first introduced by Noman Ibn Sabit Abu Hanifa, the founder of Hanafi School of Thought. There’s no universally accepted definition devised for it.

WHAT IS ISTEHSAN?

It literally means to prefer or deem or consider something better. Istehsan is an Arabic term which means ‘to approve’ or ‘to sanction’. In Islamic law it is called juristic discretion, which means for determining the best solution a jurist uses his own judgment for a religious problem that cannot be solved by simply citing sacred texts.

Istihsan is not liberated from Shariah, it is integral part of Shariah. It is an important branch of Ijtihad, and has played a note worthy role in adaptation of islamic law to the transforming needs of the society. This as a concept is more related to Equity in western law. However based on natural law we have Equity in Western law. Istihsan is originally based on divine law. It is an important branch of ijtihad. Moreover, it is the provider for Islamic law with paramount means to encourage adaptability and growth and can be utilized for diverse purposes.

Hanafi jurist Abul Hasan al Karkhi describes Istihsan as a doctrine which enables the departure from settled antecedent cases in consideration of a distinct verdict for a stronger logic. The Maliki jurists are more privy to Istislah (consideration of public interest) than Istihsan. They ratify Istihsan as more or less identical to Istislah or as a part of Istislah.

Criticisms on Istehsan

Al-Shafi’i beheld the application of juristic preference as a unorthodox taking over of God‘s exclusive right as the lawgiver of Islamic law. It has been asserted that this opinion of Al-Shafi’i revolves more around the linguistic context of the term comparatively than its technical connotation, though modern cognition regards Shafi’is remarks as an explicit criticism of the technical meaning.  Sarakhsi identifies that some jurists have censured Istihsan on the footings that the Qiyas (analogy) is being sacrificed for personal opinion, something that is illicit in Islam. He disproves this understanding as beyond comprehensible, as no jurist would ease off an authority for something that do not have any evidence.

Al-Shafii has criticized Istihsan on the grounds of Quranic verses. However, these verses are not absolute on Istihsan. Al-Ghazali has invalidated Istihsan but declared that Shafii’s acknowledgement of Istihsan established on details from the Quran and the Sunnah. Al-Amidi ( a Shafii jurist) has stated that Al-Shafii also rhad recourse to Istihsan. Modern jurists have settled that the essential validity of Istihsan is beyond doubt.

Istihsan and its recognition in Modern world

First of all, it remains to be determined what accurately is meant by the phrase ‘injunctions of Islam’. The Constitution does not construe this term and no superior court has ever considered interpreting this term. The Council, while affirming its statement of opinion in its Annual Report of 1986 on the ‘Shariat Bill’ approved by the Senate, defined shariat as: ‘Shariat means the rules of Islam as enunciated in the Holy Quran and Sunnah’.  Still, the Report does not suggest any characterization of the ‘injunctions of Islam’. It, however, adjoins an explanation to the definition of ‘shariat’:

The following sources may be attributed to for the written descriptions of the injunctions of Islam:

a) The Sunnah of the Prophet (P.B.U.H) ;
b) The conduct of the Companions of the Prophet (P.B.U.H) ;
c) Ijma (consensus of Muslim jurists) ; and
d) The statements and opinions of the jurists(Juristic Preference or Istihsan).

Istihsan in Islamic law must not be puzzled with ‘equity’ of English jurisprudence. Recorded as actually having happened, English ‘common law’ relied upon the long established customs and, as it was not made to be substituted in order to meet the interests of contemporary ages, it declined and was incapable to comply with the public demand for lawfulness and fairness. People to a greater extent believed that the law was incompetent for their requirements.  People initiated pleading the king. The ruler or king, being the ‘Fountain of Justice,’ would compensate the injustice utilizing his own ‘discretionary authority for the establishment of justice. As more people entrusted the king for justice, he handed over some certain powers of the ‘use of discretion’ to Lord Chancellor who would carry out justice on the king’s behalf. As the difficulty increased still further, special courts had to be established in several domains of the area of the rule. They were to be acknowledged as ‘Chancery Courts’, and then later ‘Equity Courts’. The persistent usual procedure of these courts influenced to the advancement of their own distinctive laws which were referred to as ‘principles of equity’. These were comprised of many unique principles and methods of doing things. The significant fact to contemplate here is that the idea for the composition of these courts was the recurrent deline of common law.

Islamic law, in different circumstances, came up against a situation comprising of such problems. Thinking of qiyas with common law and Istihsan together with equity entails that the jurists of that time departed from the settled rule of Islamic law, thinking it was too binding, and alternatively came up with a ‘better’ and more impartial rule, by using the fundamentals of natural justice; and that this series of action to achieve fair and just result was called Istihsan because it was an enhancement upon the initial rule. If this is legitimate, then Shafi‘i jurists were correct to denounce it and form the opinion: ‘Whoever exercises Istihsan annexes the function of the Lawgiver’.

The Hanafis, who accept Istihsan as an authentic mean of deriving legal rules, recognize it a tool for the purpose of safeguarding peace and avoiding systematic constancy within the law. If something seems to be forbidden in the consideration of the accustomed principles of law, but has been particularly sanctioned by one of the texts, the Hanafis take the stance that it is allowed as a special case to the general principle. They use this formula: ‘forbidden under qiyas but permitted under istihsan’ for this objective. Exceptions to the general principles are made on the footings of the text, consensus, requirement or some other ‘camouflaged principle’.

EXAMPLE OF ISTIHSAN

Oral testimony is the approved pattern of evidence in Islamic Law. The Muslim jurists consider that the unambiguous testimony of a witness in front of the judge without negotiator is the ultimate way of exploring the truth. The question arises, whether one should entirely stand firm on oral testimony at a time when up-to-date methods, such as photography, audio and video recording, laboratory analyses, etc., provide equitably, if not more, dependable means of revealing the truth. Alternating to istihsan would ratify these new techniques. The intention of Shariah is to establish proof or evidence, unveil the truth and provide justice and not to produce oral testimony.

Conclusion

The concept Istihsan is adopted for the easement of the people around the world. We see many examples of it in our lives. This concept has its own pros and cons depending on how people utilize it. Around the world we see that judiciary in given some ‘discretionary powers’ that are more or less related to this very idea. The use of such powers gives right to the decision maker to judge in favor of both the alleged and victim, in order to prevail justice and spare no pain to any of them. Modern problems need modern solutions, binding ourselves to certain sources as Holy Quran and Sunnah will sometimes not lead to any solution therefore keeping in mind the rules laid down by the Almighty Allah the competent authorities form a just opinion. On the other those who intend to misuse this concept can mould the provisions in the name of istihsan for the sake of their benefit.

Filed Under: Islam Laws Tagged With: islamic law, istehsan, juristic preference

Hadith as Source of Islamic Law

May 18, 2019 by Admin Leave a Comment

Hadith as Source of Islamic law

Hadith is primary source of law among Muslims. It is considered 2nd to Quran. More importantly, hadith as source of Islamic Law is accepted by all sects of Islam. First of all we have to understand what hadith is.

Hadith

Word hadith/hadis is an Arabic word, which is derived from word hadis which means new thing, discussion or speech. Hadith is saying or doing of Holy Prophet (S). There are three common types of hadith these are:

Hadith-e-Qooli

These are saying of Holy Prophet (S). For example He prohibited Muslims from drinking alcohol. 

Hadith-e-Faali

These are doing of Holy Prophet (S). For example : He the method He has adopted in offering prayers .

Hadith-e-Taqreri

These are something that is happening before Holy Prophet (S) and He remains silent on it. He neither has approved it nor He has prohibited it .

Now we shall consider what law is.

Components of Hadith

There are two main parts of hadith :

Maatin

Is main important part of hadis, which contains original text or wording of hadis .

Isnaad

It is that part of hadis which contains chain of narrators. With help of this authenticity or weakness of hadis is determined.

Compilation of Hadith

There are three periods of compilation of hadis :

  • Period of Holy Prophet (S) and Companions (1-100 A.H)
  • Period of Successors and Successors of Successors (101-200 A.H)
  • Period after Successors and Successors of Successor (201-300 A.H)

First Period

Period of Holy Prophet (S) and Companions (1-100 A.H)

Some non believers argue that Arabs did not known reading and writing when Islam spread in them and hence no hadis are written during period of Holy Prophet (S). But it is not true although majority of Arabs did not know about writing and but some people are still educated at that time. Many things are written at time of Holy Prophet (S) like Sulaalah Nama Hudabia, Messaca Madina, letters to become Muslim to kings of different states.

Although it is true that Arabs did not like writing but on other side many companions use to wrote hadis and many Saahifa were came into existence. Among these Saahefa Abu Hurara, Saahefa-e-Ali, Saahefa-e-Ayesha, Saahefa-e-Sadica are good examples.

Second Period

Period of Successors and Successor of Successor (101-200 A.H) :

In second century after Higrat, hadis were properly being written down. Students of companions started writing books of hadis. Which includes books of the Imam Zhari of Madina, Imam Mahkol of Sham, and, Abu Hanifa wrote “Kitab-ul-Isaar”. In Madina Imam Malik wrote “Moota”, Imam Sufan wrote “Jamaa”.

Third period

Period after Successors and Successors of Successors  (201-300 A.H) :

In third century after Higrat propagation in Islam is more than in previous period. Non Arabs also began to write Hadis of Holy Prophet (S), the writers of hadis are increased to a great extent. In this period fake hadis ( naauz-billah ) are begin to be reported. To test different hadis whether it is authentic or not, different principles were laid down. In this period different department were discovered like Ilam Isma-ur-Regal, Ilam Jrah-e-Tadial etc. In this also six most authentic book of hadis “ Sahah Sitta” were written, upon saith of hadis written in this book almost all Aliams were agreed. These books include :

  • Sahih Bukhari
  • Sahih Muslim
  • Jaamy Termizi
  • Sunan al Nisai
  • Sunan abi Dawood
  • Sunan abna Maja

These are most authentic books of hadis among sunni school of thought.

Law

Law in its common meanings means rules and regulations. It is something which determines rights and duties. Law tells us what to do and what not to do; it will ultimately lead in welfare of our society. Law aims to provide justice. It eye of law every person is equal whether rich or poor.

Hadith as Source of Law

Being Muslim we know that it is hadith after Quran which tells us what to do and w hat not to do. What is for welfare of us. Holy Prophet laid down what are rights and duties of a person, after beginning of revelation. All these things which hadith describes are now a modern law mostly followed in Muslim countries and also to some extent in non Muslim countries. In simple words we may say that almost all hadith is law.

Hadith is pratical example of Quran which is complete code of conduct. It covers almost all the aspects of life. It gives solution to problems in every field of life.  

Why we follow hadith

To believe in hadith of Holy Prophet (S) is first and foremost essential requirement of being or becoming a Muslim. Not only we have to believe on it but also we have to follow them also. Because it is order of Allah Almighty whose explanation is as follow:

Follow Allah and His Prophet (S).

Another place in Quran Allah Almighty said whose explanation is as follow:

He, who follows Holy Prophet (S), follows Allah. 

Another place in Quran Allah Almighty said whose explanation is as follow:

And life of Holy Prophet (S) is complete guidance for you.       

Why we follow hadith as source of law in Pakistan

In Pakistan hadith is considered as source of law because Islam is its state religion and it is also written in preamble of constitution of 1973 of Pakistan that no law is made contrary to Islam. If in a case any such law is passed it is made null and void by Islami Nazariyati Council.  Hadith is followes by all Muslims and all school of thoughts.

In general, the difference between Shi’a and Sunni collections is that Shia give preference to hadiths credited to the Prophet’s family and close associates (Ahl al-Bayt), while Sunnis do not consider family lineage in evaluating hadith and sunnah narrated by any of twelve thousand companions of Muhammad. It is valid in every age of life. Scope of hadith is very wide; it goes on increasing and will never end.

Author: Hamasul-Faraz is student of LLB in Islamia University of Bahawalpur.


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Filed Under: Islam Laws Tagged With: hadith, hadith kinds, hadith source, source of islamic law

Islamic Law of Will, What is Wasiyat in Islam

March 11, 2011 by Admin 15 Comments

This article is a very brief overview of the traditional Sunni Islamic law pertaining to the Islamic will. The aim of this article is to arouse awareness amongst Muslims particularly those living in the West regarding this important aspect of Islamic law. It should be stressed that when writing a will one should consult an Islamic scholar/legal expert to ensure that the will complies with Islamic law as well as the law of the country of residence.
When a Muslim dies there are four duties which need to be performed. These are:
1. payment of funeral expenses
2. payment of his/her debts
3. execution his/her will
4. distribution of the remaining estate amongst the heirs according to Sharia
The Islamic will is called al-wasiyya. A will is a transaction which comes into operation after the testator’s death. The will is executed after payment of funeral expenses and any outstanding debts. The one who makes a will (wasiyya) is called a testator (al-musi). The one on whose behalf a will is made is generally referred to as a legatee (al-musa lahu). Technically speaking the term “testatee” is perhaps a more accurate translation of al-musa lahu.


The importance of the Islamic will
The importance of the Islamic will (wasiyya) is clear from the following two hadith: “It is the duty of a Muslim who has anything to bequest not to let two nights pass without writing a will about it.” (Sahih al-Bukhari)
“A man may do good deeds for seventy years but if he acts unjustly when he leaves his last testament, the wickedness of his deed will be sealed upon him, and he will enter the Fire. If, (on the other hand), a man acts wickedly for seventy years but is just in his last will and testament, the goodness of his deed will be sealed upon him, and he will enter the Garden.” (Ahmad and Ibn Majah)
The will gives the testator an opportunity to help someone (e.g. a relative need such as an orphaned grandchild or a Christian widow) who is not entitled to inherit from him. The will can be used to clarify the nature of joint accounts, those living in commensality, appointment of guardian for one’s children and so on. In countries where the intestate succession law is different from Islamic law it becomes absolutely necessary to write a will.
The Will (Al-wasiyya)
The Islamic will includes both bequests and legacies, instructions and admonishments, and assignments of rights. No specific wording is necessary for making a will. In Islamic law the will (wasiyya) can be oral or
written, and the intention of the testator must be clear that the wasiyya is to be executed after his death. Any expression which signifies the intention of the testator is sufficient for the purpose of constituting a bequest.
There should be two witnesses to the declaration of the wasiyya. A written wasiyya where there are no witnesses to an oral declaration is valid if it written in the known handwriting/signature of the testator according to Maliki and Hanbali fiqh. The wasiyya is executed after payment of debts and funeral expenses. The majority view is that debts to Allah (SWT) such as zakah, obligatory expiation etc. should be paid whether mentioned in the will or not. However, there is difference of opinion on this matter amongst the Muslim jurists.
The Testator (Al-musi)
Every adult Muslim with reasoning ability has the legal capacity to make a will. An adult for this purpose is someone who has reached puberty. Evidence of puberty is menstruation in girls and night pollution (wet dreams) in boys. In the absence of evidence, puberty is presumed at the completion of the age of fifteen years. The Maliki and Hanbali fiqh also consider the will of a discerning (tamyiz) child as valid.
Under English Law you must be at least 18 years of age to make a valid will (similarly in most of the United States of America) unless you are a military personnel in which case you may make a valid will at the age of 17.
The testator must have the legal capacity to dispose of whatever he bequests in his will. When making a will the testator must be of sane mind, he must not be under any compulsion and he must understand the nature and effect of his testamentary act. The testator must of course own whatever he bequests.
The testator has the right to revoke his will by a subsequent will, actually or by implication. In traditional Sunni Islamic law the power of the testator is limited in two ways:
1. Firstly, he cannot bequest more than 1/3 of his net estate unless the other heirs consent to the bequest or there are no legal heirs at all or the only legal heir is the spouse who gets his/her legal share and the residue can be bequeathed.
Narrated Sa’d ibn Abi Waqqas (RA): “I was stricken by an ailment that led me to the verge of death. The Prophet came to pay me a visit. I said, “O Allah’s Apostle! I have much property and no heir except my single daughter. Shall I give two-thirds of my property in charity?” He said, “No.” I said, “Half of it?” He said, “No.” I said, “One-third of it?” He said, “You may do so, though one-third is also too much, for it is better for you to leave your offspring wealthy than to leave them poor, asking others for help…” (Sahih al-Bukhari, Sahah Muslim, Muwatta, Tirmidhi, Abu Dawud and Ibn Majah.)
2. Secondly, the testator cannot make a bequest in favour of a legal heir under traditional Sunni Muslim law. However, some Islamic countries do allow a bequest in favour of a legal heir providing the bequest does not exceed the bequeathable onethird. Legal heir in this context is one who is a legal heir at the time of death of the testator. Narrated Abu Hurayrah (RA): Allah’s Prophet (SAWS) said, “Allah has appointed for everyone who has a right what is due to him, and no bequest must be made to an heir. (Abu Dawud). Similar hadith narrated by Abu Umamah (RA) and reported by Ibn Majah, Ahmad and others.
The Legatee (Al-musa lahu)
Generally speaking, for a bequest to be valid, a legatee must be in existence at the time of death of the testator except in the case of a general and continuing legatee such as the poor, orphans etc.
The legatee must be capable of owning the bequest. Any bequest made in favour of any legal heir already entitled to a share is invalid under traditional Sunni Muslim law unless consented to by other legal heirs. An acknowledgement of debt in favour of a legal heir is valid. Acceptance or rejection of a bequest by the legatee is only relevant after the death of the testator and not before. Generally speaking once a legatee has accepted or rejected a bequest he cannot change his mind subsequently.
If the legatee dies without accepting or rejecting the bequest, the bequest becomes part of the legatee’s estate according to the Hanafi fiqh because non-rejection is regarded as acceptance. According to the other three main Sunni madhahib, the right to accept or reject the bequest passes onto the heirs of the legatee.
There is difference of opinion as to the time at which ownership of a bequest is transferred from the testator (or his heirs) to the legatee. According to the Hanafi and Shafii fiqh the transfer of ownership is at the time of death of the testator, according to the Maliki and Hanbali fiqh the transfer of ownership is at the time of accepting the bequest.
All the Sunni madhahib agree that if the legatee dies before the testator, the bequest is invalid since a bequest can only be accepted after the death of the testator. If there is uncertainty as to whether or not the legatee survived the testator, such as a missing legatee, the bequest is invalid because the legatee must be alive at the time of death of the testator for the will to be valid.
If the testator and legatee die together, such as in an air crash, and it is not certain who died first, the bequest is invalid according to the Hanafi, Maliki and Shafii fiqh. But according to the Hanbali fiqh, the bequest devolves upon the legatee’s heirs who may accept or reject it.
Executor of the will (Al-wasi Al-mukhtar)
The executor (al-wasi) of the will is the manager of the estate appointed by the testator.The executor has to carry out the wishes of the testator according to Islamic law, to watch the interests of the children and of the estate. The authority of the executor should be specified. Hanafi and Maliki fiqh state that the executor should be trustworthy and truthful; the Shafii fiqh state that the executor must be just. The Hanafi fiqh considers the appointment of a non-Muslim executor to be valid. The testator may appoint more than one executor, male or female. The testator should state if each executor can act independently of the other executor(s). If one starts acting as an executor, one will be regarded as having accepted the appointment, both in Islamic and in English law.

Source: Tibyan.com

Filed Under: Islam Laws

Mutta Marriage or Temporary Marriage Contract in Shia Islam

December 18, 2010 by Admin 75 Comments

Muta marriage is valid type of marriage in Shia jurisprudence. The Shia law recognizes two kinds of marriage;

Permanent marriage
Muta Marriage or Temporary Marriage

A Shia of the male sex may contract a muta marriage with a woman professing the Muslim, Christian or Jewish religion, or even with a woman who is a fire-worshiper, but not with a woman following any other religion. But a Shia woman may not contract muta marriage with a non-Muslim.
It is essential to the validity of a muta marriage that, the period of cohabitation should be fixed and this may be a day, a month, a year or a term of year and some dower should be specified. When the term and the dower have been fixed, the contract is valid. If the term is fixed but the dower is not specified, the contract is void. But if the dower is specified, and the term is not fixed the contract, though void as a muta, may operate as a permanent marriage.

Consequences of Muta Marriage/characteristics of Muta Marriage

  1. Muta marriage does not create mutual rights of inheritance between the man and the woman but children conceived while it exists a legitimate and capable of inheriting from both parents.
  2. A muta marriage is dissolved ipso facto by the expiry of the term. No right of divorce is recognized in the case of a muta marriage, but the husband may at his will put and end to the contact of marriage by making a gift of the term to the wife, even before te expiration of the fixed term.
  3. If muta marriage is not consummated, the woman is entitled to half the dower.
  4. A woman married in the muta form is not entitled to maintenance under the Shia law.

Muta marriage is criticized by many Sunni jurists and also now day’s Human Right activists are against this sort of marriage and they consider it form of exploitation against women.

Filed Under: Islam Laws

Types of Muslim Marriage or Nikah: Valid,Void & Irregular Nikah

December 17, 2010 by Admin 18 Comments

Marriage of Nikkah is the most important instituion in Islam. There are three types of Marriages in Islam;

  1. Valid or Sahih
  2. Irregular or Fasid
  3. Void or Batil

Valid Muslim Marriage

According to Hanfi jurists Muslim Marriage can be three types. In case marriage is free from all sort of defects and infirmity, perfect in every respect and absolutely valid, it is called Saheeh. It conforms with all the requirements laid down by the Shara for the marriage;

  • The existence of proposal and acceptance
  • Presence of the witnesses
  • A competency to the contract of marriage
  • Fitness for marriage

Void and Irregular Muslim Marriage

A marriage in which there is a deviation, howsoever, trivial or slight, from the rules of Sharia is not altogether nugatory. These defective marriages are classified into the two categories. In case the defect is of a radical and serious nature the marriage may be nugatory and voic ab initio. So to say in the eye of law it is no marriage at all. Such marriage called Batil or void marriage. Irregular or vicious or fasid marriage is one which is neither perfectly valid nor altogether void. In such case the irregularity or defect in the marriage is not fatal to its existence and marriage of suck kind called fasid or defective marriage.

Instances of Valid, Void and Irregular Marriages

  • A marriage without witnesses is irregular marriage.
  • Fifth marriage of Muslim in presence of four wives is also irregular.
  • Second marriage by Muslim female in presence of first Nikkah is void.
  • Marriage with women undergoing Iddat is also irregular.
  • A marriage prohibited by reason of difference of religion is irregular.

Filed Under: Islam Laws

Essentials of Muslim Marriage or Nikkah

December 16, 2010 by Admin 5 Comments

It is essential to the validity of a marriage that there should be a proposal made by or on behalf of one of the parties to the marriage, and an acceptance of the proposal by or on behalf of female witnesses, who must be sane and adult Muslim. The proposal and acceptance must both be expressed at one meeting; a proposal made at one meeting and acceptance made at another meeting does not constitute a valid Muslim marriage. Neither writing nor any religious ceremony is essential.

Capacity for marriage/eligibility for marriage

Followings are the essentials of Muslim Marriage/Nikkah

Every Muslim of sound ind who has attained puberty, may benter into a contract of marriage (Puberty means age when person become adult).

Lunatics and minors who have not attained puberty may be validly contracted in marriage by their respective guardians.

A marriage of a Muslim who is of sound mind and has attained puberty, is void, if it is brought about without his consent. Puberty is presumed, in the absence of evidence, on completion of the age of sixteen years in case of female and eighteen years for female.

Consent of parties is absolutely necessary especially Islam lay emphasis on the consent of women. And adult female may engage in the contract, without her guardian’s consent. A woman who is an adult, and of sound mind, may be married by virtue of her own consent although the contract may not have been made or acceded to by her guardians.

The manner and form in which a marriage is to be solemnized is unambiguously decreed in Islam. The particular characteristic of Nikkah is that it is performed publicly in the present of witnesses and ijab-o-kabool has to be ascertained by the Nikah Khawan and brought to the notice all present for their information.

Filed Under: Islam Laws

Fatwa in Islamic Law – Importance of Fatwa in Modern World

December 3, 2010 by Admin Leave a Comment

Fatwa is very important in Islamic law and Islamic jurisdiction. Fatwa is opinion of Islamic scholar about a specific issue in the light of Holy Quran and Sunnah. Now days many Islamic Ulams issued such Fatwas that are criticised by western law makers and human right activists.
Recently The Darul Uloom, Deoband, India, thought it does commendable work, also issues fatwas which reduce women to a status that is secondary to that of a man. Similarly fatwas about Talaq are also criticised.
Such judgments and fatwas are issued because some jurist or the other had so opined hundreds of years ago keeping in view the social and local conditions of that time. Many of these fatwas are based on controversial Hadiths/Sunnah and there is no Ijma (consensus) in such affairs. These scholars only consult medieval sources and followed Taqlid (mechanical followings) because it is considered as safest by many Islamic jurists.

Ibm Hazm was famous Islamic jurist of medieval times from Spain. He was also of the opinion that one can be called alim (knowledgeable) as long as one is engaged in seeking knowledge. But one who thins the knows enough is, in fact, ignorant. Today most of our Islamic scholars think that they know enough. Ibn Hazm also said that independence of thinking is very important in juristic judgments.
The Quran is the fundamental source for Islamic jurisprudence, but Ibn Hazm puts the Quranic verses in three categories; first those verses which need no other source to understand, second those verses which can be understood in the light of other verses and third those verses which can be understood in the light of authentic hadith (authentic is one which has been narrated by most reliable and many narrators).
Today most of the jurists rely more on Hadiths than on Quran while issuing Fatwas. Ibn Hazm strongly criticised those scholars who blindly follow taqlid and not think independently. Al Shatibi was also very creative scholar and he said that one must first understand the maqasid and masalih means the basic objectives and welfare of the people for whom the Sharia law are being framed.
Due to such fatwas the image of Islam is negative in today world. If we keep the objectives and welfare of the people foremost and delve into thinking for ourselves in our own time, Islamic laws would become not only highly just but model to be followed by all. We must directly consult Quran and accept only very authentic Hadiths for issuing fatwas.

Filed Under: Islam Laws

What is Definition of Muslim & What is Kalma Tayyaba

November 27, 2010 by Admin 14 Comments

There are two basic and fundamental conditions to be a Muslim or Muhammadan;
1– Oneness of Allah Almighty.
2– Prophet Muhammad (PBUH) is the last prophet of Allah.
Simply stated any person who professes the Muhammadan religion, that is, acknowledges, that there is but one God, and that Muhammad PBUH is his Prophet, is a Muhammadan. Such a person may be a Muhammadan by birth or he may be a Muhammadan by conversion. It is not necessary that he should observe any particular rites or ceremonies, or be an orthodox believer in that religion; no court can test the gauge the sincerity of religious belief. It is sufficient if the professes the Muhammadan religion in the sense that he accepts the unity of God and the Prophetic character of Muhammad PBUH.

For becoming a Muslim all authoritative books of Islam are agreed that if a person believes in the unity of God(Allah) and Muhammad PBUH to be his prophet and also says that he is Muslim then he becomes a Muslim and no other formalities or rituals are to be gone through by him. There is unanimity among all Islamic scholars of all thoughts that ‘Kalma Tayyaba’ means ‘thee is no god except Allah and Muhammad PBUH is his messenger’. To be a Muslim a person must believe on ‘Kalma Tayyaba’. A person born a Muslim remains Muslim until he renounces the Islamic religion.

Filed Under: Islam Laws

What are the Basic Sources of islamic Law or Sharia

November 25, 2010 by Admin 12 Comments

Islam is complete code of life. Islam is ‘Deen’ which mean complete in all respects. Islamic law system is comprehensive and complete system which provides guidance in every aspect of the life. The fundamental sources of Islamic law or Sharia law are the Holy Quran and Sunnah of Prophet Muhammad (PBHH). All Muslim sects whether Sunni or Shia agree upon these two sources.


The Quran is the first and primary source of Islamic law. Quran is book of God or Allah and even after 1400 years it is in its original form and not a single word is changed. Quran provides basic laws which are the fundamentals of Islamic Sharia. It is without any doubt the most basic, uncontroversial and fundamental source of Islamic Sharia or Islamic Laws.

The second primary source of Islamic laws is the Sunnah of Prophet Muhammad (PBUH). Sunnah means all the actions and saying of Holy Prophet. Sunnah is also known as Hadis or Precept.
Ijma is third source of Islamic Law. Basically Ijma means consensus of people on particular issue when there is no guidance available from Holy Quran and Sunnah.
Ijtehad is the fourth source of Islamic Law. When something is not clear from the Holy Quran or Sunnah then deduction can be used. It is the process of deduction which is not to change the law of the text.
Qiyas is also the source of Islamic law. We can compare it with legal fiction in western Jurisprudence. It is based on Quran, Sunnah and Ijma.
These above mentioned source are main source of Islamic law other source includes;
1-    Istihsan
2-    Istislah
3-    Maslaih-al-Mursalah
4-    Istidlal
5-    Illat
6-    Urf
7-    Taqlid

Filed Under: Islam Laws

Marriage, Nikkah in Islam Definition and Concept

November 24, 2010 by Admin 2 Comments

Marriage is very important institution in Islam. Marriage or Nikah’ can be defined as a contract which has for its object the procreation and the legalizing of children. A legal marriage in Islam can be defined as ‘a marriage contracted and solemnized in accordance with Shariah with all its constituents and condition and without any legal impediment.
Islam defines the many important objects of marriage. First and most important is the procreation and legalization of children. Holy Quran define the objects of marriage; Sukun mean satisfaction or comfort, lit, peace of mind, Muaddat mean love and Rahmat mean kindness, sympathy or compassion. No doubt the main object and result of a matrimonial alliance is indisputably the procreation of children and solace which a man is to get according to the Holy Quran out of a marriage is not merely the satisfaction of a sexual desire but something which is innate in that desire and for which nature ahs created that desire in human beings.

Toady there is misconception about Islam that Islam does not give freedom and rights to women which is totally wrong because in Islam the respect of women is of very important. Islam has never conferred power/right upon the husband to take law into his hands and to kill his spouse for any wrong committed by her. Even in case of fornication the Qazi has to decide and fix the liability and impose penalty and it is not for the husband to perform the duty of Qazi and impose penalty of her choice.
I will briefly explain the important ingredients and other aspects of marriage in Islam in my next article.

Filed Under: Islam Laws

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