: January 27, 2011 |
: family law
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The Role of Customs in Islamic Law
Custom is that which is established in a woman’s mind by virtue of logic and the sound mind accepts it. Customs are also practices which are being practiced by the society from time immemorial and it is accepted within the norms of the society. Customs might be different for not only different religions, but for different communities, areas, generations, and even for different families. There are also some specified requisites of a certain customs, and they were different for different communities, religions. For example, the requisites for a custom to be valid in U.K are very much different from that of India. Other than these there are also some ground or criteria on which a custom can be abrogated, for example a family custom is capable of being destroyed by disuse.
The sayings of the Prophet were the main source of law in Islam which is mainly written in Quran and also in the form of the Ahadis. There is no doubt that the Pre-Islamic customs formed the basis of Islam Law. The Prophet accepted some of the prevalent customs but in some cases he denounced some, in which he introduced new laws which were either written in the Quran as the decision of God or it were mentioned in the Ahadis- the sayings of the Prophet. After the death of the Prophet, his companions denounced some customs which were not in accordance with the teachings of Islam.
However, traditionally the Muslim jurists do not give customs very much importance giving preference to their laws in an orthodox manner. But as time passed on the view changed, (in India) which came however due to some of the decisions given by the courts of India. In other areas however customs are still given a limited preference.
Sources of Islamic Law
The Islam law has many different types of sources. The Quran is the primary source and its decision is the final in all cases. But the sources are strictly hierarchical.
The Quran represents the Will of God communicated through the prophet, by the angel Gabriel from the original text reserved in seventh heaven. The Quran as it exists in its present form was revised in the time of Usman 13 A.H.The Quran does not specifically deal with any particular subject as such. Many parts of it deal with theological and moral reflections with special emphasis to unity of God and also condemnation of idolatry. The Quran is therefore not any definite Code, but in all matters it deals with it is the primary and final authority. There is not much difference in case of interpretation of Quran between Shias and Sunnis. The Sunni mainly are confined to traditional interpretation, but the Shias also resort to allegorical interpretation.
The Ahadis and Sunna are next to The Quran in matters of importance in Islamic Law.
Collection of Ahadis:
The Ahadis were at various times subject to forgery by different persons, sometimes for personal purposes or sometimes for political. Nevertheless are many authentic sources of the Ahadis. Some of the authoritative collections are as follows: Muwatta of Mallik Ibn Abbas; Musnad of Hanbal; Sahi Bukhari; Sahi Muslim.There are also other collections of Ahadis but the above mentioned four are the most important ones.
Among the Shias there are some books namely “Tahzib-ul-Akham’ by Abu Jafar and there are a collection of four books which are collectively called Kutab-i-arbaa. The later is of greater importance in India.
Sunnas are also considered a second source of law along with the Ahadis. The approval or disapproval was seen from his conduct. The conduct therefore was considered as an important and binding authority on the commoners. Here there is a special reference to ‘companions’. They were persons who had frequent with the Prophet. So when the Prophet’s conduct or practices were not available people used to study the customs and practices of the ‘companions’.
The third source is the Ijmaas, which refer ideally to consensus of the opinions of the first four Caliphs or the Mutjahids or the jurists. As time passed on there arose numerous problems which could not be solved with the help of The Quran or The Hadis, hence the jurists developed a new method of solving problems i.e. general consensus among the jurists of a particular age. This is basically meant by Ijmaa.
The Sunnis regard the ijmaa as of great importance, but as the first three Caliphs were rejected by the Shias they do not give much importance to the Ijmaas.
The Muslim jurists could not however solve several issues by the Ijma, hence they resorted to a new method of resolving conflicts i.e. the use of reason to give their own discretionary judgment, provided they were in accordance to Quran or the dictates of the Prophet. A tradition in the Miskat shows that The Prophet himself recognized private judgement. The law was mainly deduced from three sources: Quran, Ahadis and Ijmaa. So naturally Qiyas were ranked below all the mentioned three sources. The recognition of the Qiyas was the introduction of reason to the domain of Islamic jurisprudence. These are similar to the Jewish methods of Halakhic Exegesis and Hermeneutics. The Shias provide secondary importance to Qiyas but the Sunnis have a greater scope for the use of the Qiyas.
Custom as a Source of Law
Custom is that which is established in a woman’s mind by virtue of logic and the sound mind accepts it. .In Islamic Law however customs (adat) are not a recognized source of law although it an important source of law. But nevertheless some jurists such as The Hanafis, The Malikis referred to customs as a source of law and they have even taken steps towards recognizing customs. Even the Prophet recognized the force of customary law. His companions however denied some customs on the ground that they were not according to the ideals of Islamic Faith. However customs are now regarded as a legitimate source of law, but they are considered inferior in position hierarchally after QURAN, HADITS, IJMA, but however it was superior to Qiyas. There were also a few requisites for validity of a custom, failing which the practice wasn’t considered a valid custom. .
The customs regarding inheritance were much varied in various areas, not only within areas but also within tribes, families, communities etc. Even there were cases of some Muslim families following customs of different religions and similar cases [which is later dealt in the chapter].
There was a custom in Colonial Nigeria that if a next-door neighbor died, the neighbor had pre-emption it, if heirs decided to sell it. Here the heirs decided to sell the property to the neighbor but she refused on price terms and then it was sold to another person. Now the earlier person sued on the basis of shufa( right to pre-emption). The judge here gave a decision which although recognized the custom, but it couldn’t be applied here as the appellant was first offered and when she rejected, it was offered to someone else.
Now coming to the pre-Islamic era the customs were: property could be only inherited through patrilineal basis. Also in Nomadic societies customs inheritance was “patronage belongs to the eldest”. There was no question of women being considered as a recipient of property. But as we know the Quran does not allow inheritance of property through only to men. According to Quran property also must given to women. There is a lot of science for the division of property. It emphasized the bonding between husband, wife, and children. Thus the customs are followed, but it has been modified accordingly with an objective to raise the status of the women and also to strengthen bonds between relatives as it also included such relatives which the customary law would have excluded .
In general I have seen that the Islamic customs of inheritance which gave preference to males for inheriting property has dissipated a lot from its origin. Starting from the Quran to the 19th century Europe the Islamic customs of family endowments were viewed as an obstacle to social progress. The customs were thus such changed that it included the deprived ones such as -wife, girl child etc. Thus the customs did not have much role in social development, but the Islamic laws were developed such that deviated from the original orthodox customs and made space for socio-economic development.
Such a situation was seen in India also when the case of Jammya v Diwan arose. In this case the family custom was that excluded women from inheriting property. The judges decided that such a custom was against the development of socio-economic security and status of the women.
But in some cases in some places customs were given preference over law, as they were, without modifying as in the case of Abdul Hussein v Bibi Sona Dero. In this the plaintiff claimed a property on the basis of the custom that in their family women were denied from inheritance if married, the judges were convinced that the custom prevalent and gave the judgment which preferred custom to the Islam law of inheritance. But here they gave so in because the custom proved to be prevalent in the family for a long time.
In another case regarding family customs, similar to the above mentioned case, customs were given preference to the law. It was in the case of Parandhamayya v Navaratna Sikhmani.There was a custom in the Kamma community of Andra Pradesh in India illatom . In this type of custom the son-in-law was allowed a share of property and was affiliated in a family. It was held by the court that the custom was well established in the community as it was being practiced for 40 years and thus would be preferred to the Islamic laws of inheritance.
Marriage customs were different in various different areas and they were quite prevalent during the ancient times. They might differ even from village to village, according to the circumstances some ceremonies might be shortened or some events might be more emphasized. The customs however in this case have greatly influenced the religious law (hukum).
The Muslim Marriage comprises of two parts: Nikah (the marriage contract) and the other are the marriage ceremonies ( adat or customs). The ceremonies are generally performed after the nikah. In the Nikah the offer is made by the wife’s wali and is accepted by the groom. The sadaaq or the mehr is offered by the groom to the wife’s wali. This is one of the important features in Islamic marriages. They have been known to be in practice from the pre-historic times in places like Egypt, Rome etc. the documentary evidence of the Greek papyri from Byzantine Egypt attests to the growing importance of gifts coming from the groom. Sometimes in marriages there were also transfer of property in the bride’s name. The saddaq was divided into a advance and deferred part. This deferred part would be paid generally during divorce or death of husband to guarantee their economic security. . Wives also could use the deferred saddaq as a deterrent against a variety of unilateral actions by their husbands, such as uni-lateral divorce or the taking of multiple wives. As a result, the mut'a, a compensation gift paid to divorcees by their ex-husbands, became obsolete. The mut'a seems to have been an obligatory alimony payment during the first century of Islamic rule, but was later supplanted by the deferred portion of the saddaq.
Thus we see sadaaq had a very important role as they could be directly related to the status of women in the society and their control in the society. But this led to certain controversies because the Muslim jurists did not accept the deferred saddaq on the ground that its time was non-specified.And thus the legal contracts which were written from then on, the deferred part of the saddaq was always specified to be given within a specified time. Now this marriage contracts also had a depiction of the social status of the people. In Earlier Egypt there was a custom of writing contracts in different materials. Those who were rich they wrote them in leather or silk and the commoners did the same in papyrus or paper. Thus I see that customs which were prevalent were adapted and modified accordingly when they were circumscribed within the legal aspect.
There also a custom after the wedding ceremony, when the wife is pregnant, her mother sends a letter to the mother of the husband is first, informing her. Then the latter along with some women of her community go and visit the bride after sometime, with a gift known as seulimph, which mainly consists of cradle, jewellery and some money. This custom is still followed in Holland among the Archnese. This custom thus plays an important role in maintaining relations between the two families. The money paid to the bride is essentially from the mother, males have nothing to do with this. This implies that women have some economic independency and can earn money.
There is also another custom after the delivery of the child, the wife’s father invites many important persons to his house. There he formally separates the couple into a new household, specifying the amount whether in kind or cash, which he gives to the new household. This custom thus provides a for a support to the newly married couple to get a start with their life. It also evades troubles which a wife may have with her mother-in-law, as they live separately.
Thus I see that the courts were in favor of customs which were in according to general sense of law and equity, if such a condition was not fulfilled but the custom was to be taken into the legal aspect then it was modified.
After having done an extensive research on the customs and their role in Islamic Personal Law, I have come to conclusions that the role of different customs is different. Customs have been always given less priority by the Muslim jurists. However some criteria were given for a practice to be recognized as a custom, which were followed quite ardently.
Some customs have made it to becoming the law while others have been modified according to the changing circumstances. There are also some customs which affect the society and its structure. For example, the laws of inheritance have been such modified that they now include women – thus they work for the socio-economic upliftment of the women, but before when they were totally on patrilineal basis they totally deprived women of their due share. Similarly, is the case of sadaaq, the deferred part, which is paid after the death of the husband or at time of divorce also helps the wife maintain herself economically.
Also there are some customs which help in maintaining social relations correctly. Like as we have seen the case of seulimph, it helps in maintaining relations between the two families correctly. The separation of the newly married couple from the household also creates a sense of freedom for the couple; there are less chances of the wife having problems with her mother-in-law etc.
Ali Ameer , II : 25
Ali, Hamid , Custom and law in Anglo-Muslim Jurisprudence at 33 and 34 (1938).
Encyclopedia Britannica, V 2, 898.
Islamic Law and Society, Vol. 7, No. 1, 1-36 at 31 (2000).
Lammens : 68.
Mitteis.L., Grundziige and Chrestomathie der Papyruskunde , Leipzig, vol. I, 225 at 226 (1912).
Morley’s Digest Introduction p. ccxxxvii.
Peters, Ruud and Reinhart, Kevin A., Law Custom and Statutes in the Muslim World p.19.
Rahim Abdur , Muhammadan Jurisprudence, p.55.
Sinnah Abu , Al-‘Urf wa’l Adah , p.23.
Verma, B.R., Commentaries on Muhammadan Law, p.8.
Wilson: Muhammadan Law pp 5.
# Jain, M.P., Jaipur Law Journal, Custom as a Source of Law, 97-130, at 104.
# Jayewardene, Chandra, Achehnese Marriage Customs Indonesia, Vol. 23 (Apr., 1977), pp. 157-173 at 171.
# Encyclopedia Britannica, V 2, 898.
# Wilson: Muhammadan Law pp 5.
# Supra note 4.
# B.R. Verma , Commentaries on Muhammadan Law, 8. Ahadis are mainly the cases which have been dealt and decided by the Prophet first hand and Sunnas are the practices of the Prophet. These were the main foundations of law for the first Caliphs who were the companions or relations to the Prophet.
# Supra note 4 at 7.
# Supra note 6, at 9. Among them the Sahi Bukhari and Sahi Muslim are of great importance and they are called Jamais. Also the above mentioned collections are considered among the Sunnis.
# Ameer Ali, II : 25, where “Sunna , i.e. traditions” is used. They were mainly the conduct and practice of the Prophet. Sometimes it is also referred to the pre-Arabic customs which were given the approval of the Prophet.
# Lammens : 68
# Hamid Ali , Custom and law in Anglo-Muslim Jurisprudence at 33 and 34 (1938).
# Morley’s Digest Introduction p. ccxxxvii
# See Abu Sinnah, Al-‘Urf wa’l Adah , 23
# Abdur Rahim, Muhammadan Jurisprudence 55, at 55, 136, 137 (1958). “First, it must be generally prevalent in the country; second, it must not be a merely local usage in a village or a town, though it need not be a ancient or immemorial; third, it must be an established course of conduct, not merely practiced by a few occasions; and, fourth, custom being essentially territorial, it cannot affect the law in other hands, as it is confined to a particular period and cannot affect the custom in another age
# Alhaji Ila Alkamawa v Alhaji Hassan Bello and Alhaji Malami Yar , 6 SCNJ 127.
# Ruud Peters and Kevin A. Reinhart , Law Custom and Statutes in the Muslim World p.19. The Qur’an treats the topic of inheritance at great length and inconsiderable detail. Q. 4:8 establishes that both men and women have the right to inherit: “Men have a share in what parents and relatives leave behind at death and women have a share in what parents and relatives leave behind. Be it large or small, a legal share is fixed.”1 4:11–12 and 176, known as ‘the inheritance verses’, award specific fractional shares of the estate to a range of male and female heirs, i.e., one or more daughters, a mother, a father, one or more siblings, a husband, and one or more wives.
# Supra note 16, at 19-20. The science of the shares imposes compulsory rules for the division of a minimum of two thirds of any estate; bequests are limited to one third and may not be made in favor of one or more heirs without the consent of the others. Thus, a person contemplating death may not, in theory, designate one or more of his (or her) relatives as a testamentary heir nor may he transmit real assets in integral units to one or more heirs. Instead, the estate of the deceased is divided into fractional shares and distributed to those persons who qualify as heirs according to the science of the shares. Consider, for example, the case of a man who dies leaving a wife, daughter and son and whose estate is comprised of a house, plot of land and a mill. According to the science of the shares, the wife will inherit 1/8 of the house, plot of land, and mill, the daughter 7/24, and the son 7/12. Left unattended, the properties in question will become increasingly fragmented over time as the fractional shares become smaller and smaller.
Jammya v Diwan (1901) I.L.R 23 All. 20.
# Abdul Hussein v Bibi Sona Dero , (1917) 45 I.A. 10. “if the custom were in fact well established in one particular family, whether it were enjoyed or no by another family would not affect the question, since the custom might be independent in each case and the evidence would not establish that the custom failed by reason of the inability to define the exact limits within which it was to be found when once it was established that, within certain and definite limits, it undoubtedly existed.”
# Parandhamayya v Navaratna Sikhmani, A.I.R (1949) MAD 825.
# L. Mitteis, Grundziige und Chrestomathie der Papyruskunde , Leipzig, vol. I, 225 at 226 (1912).
# On the social meaning and definition of matrimonial gifts in general, see J. Goody and S.J. Tambiah, Bridewealth and Dowry (London: Cambridge University Press, 1973); J. L. Comaroff, The Meaning of Marriage Payments (London: Academic Press, 1980).
# Islamic Law and Society, Vol. 7, No. 1, 1-36 at 31 (2000).
# Supra note17, at 33
# See Y. Ragib, "Un contrat de mariage sur soie d'lgypte fatimide", Annales islamo-logiques, 16 (1980), 31-37; G. Levi della Vida, "A Marriage Contract on Parch-ment from Fatimid Egypt", Eretz Israel, L. A. Mayer Memorial Volume (1964), 64-69
# Chandra Jayawardena, Achehnese Marriage Customs Indonesia, Vol. 23 (Apr., 1977), pp. 157-173 at 171
# M.P. Jain, Jaipur Law Journal, Custom as a Source of Law, 97-130, at 104.
# See Abu Sinnah, Al-‘Urf wa’l Adah , 23
# Soorendranath v Heeramonee, (1868) 12 M.I.A. 81, at 91
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| Posted by Anwar malik Advocate on September 20, 2012
Your husband has committed fraud , deprived you of money, has deserted you and your infant child. You take up the matter simultaneously with Saudi authorities and Indian Embassy in Saudi Arabia. Facts narrated to me ,may be cited as GROUNDS of your complaints to Saudi and Indian Embassy. After investigation of the case , you will certainly be provided relief in accordance with law. Do apprise me of latest development of the case for further legal advice.Thanks Anwar malik Advocate
| Posted by mariah on September 18, 2012
Dear Brother in Islam,
I am Muslim women presently in Saudi Arabia. We are from Hyderabad India. Indian Nationals.
I am married for past 6 years now to an Indian Man living in Saudi Arabia.
It all started with his LIE - that he had one wife and he divorced her.
My husband married a women, indian national earlier here in Saudi Arabia. And it was all his faults. And there were not living together.
He made me friends and got married to me. It is love marriage. He forced me to marry him without permission of our parents. Our Nikah was done with some friends as witness in Hyderabad India. I have valid Nikah nama and Marriage certificate of India.
Soon after marriage he had taken me to Saudi Arabia.
To my Shock !! I got to know she was not divorced. So he decided to divorce her in my presence on phone and sent her divorce papers in Saudi Arabia.
After one month, his parents said, we will not accept this Nikah as it was not in presence of both parents. So he made nikah with me in presence of my parents in Al Khobar Court, saudi arabia.
Means he did two nikah with me. Having valid nikahnama from Saudi Arabia.
Now... he lived in my parents house and spent six years of his life. We supported him with money, and his legal issues here in KSA.
After 5th year of my marriage I conceived and went to Indian in March 2012 for my delivery.
I delivered baby boy in May, 2012. He came to India, visited us spent ten days with us and left back to KSA.
In this period of my pregnancy and as I was away from him in India. So he decided to escape from responsibilities and decided to plan to leave.
In ramadan, He escaped from Saudi Arabia with all our money, my family, relatives, friends by false promises and his lies.
He deserted me here in Saudi Arabia with my infant baby boy. My boy is only 3 months now. And he still remains out of contact.
On my findings I got to know he is in India. Along with new lady. May b married to her using all our money.
He married his first wife. Divorced her in Saudi Arabia. ( First Nikah with her)
He married me in Hyderabad, india and Saudi Arabia. (Second and Third Nikah with me)
He must have married to new lady again now in India ( Fourth Nikah)
Is it acceptable in Islam? Which Muslim authorities I can seek advice?
Who can guide me well? So I can get my husband in trouble if it is against laws?
Both Islamic Laws and Indian Marriage laws?
Do answer me I want to fight as mine is a case of Fraudulent Marraige, Escape from our lifes. Desertion of me and my infant baby. Also money of about INR. 10 Lakhs and more.
Your sister in Islam
| Posted by Ibrahim Shaikh on July 30, 2012
I want to know WHETHER MUSLIM WOMEN CAN CHALLENGE THE DIVORCE BY FILING
DECLARATORY SUIT ?
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