Who is a Muslim?
According to Aghnides a one, who believes in the mission of Mohammad as Prophet, or (ii) one, who says that there is one God and that Mohammad is “His Prophet”, or (iii)one who believes in a number of other essential beliefs in God and Mohammad. Amir Ali says “……Any person who professes the religion of Islam, in other words, accepts the unity of God and the prophetic character of Mohammad is a Muslim…..” This view has been followed in Narantakath v. Prakkal, wherein it was held that the essential doctrine of Islam is that there is one God, and Mohammad is the Prophet and any belief in excess of this is, at least for law courts, a redundancy. Thus to be a Muslim only two things are required one is that Allah is one and the second is the Prophethood of Mohammad.
In fact Islam dep ends on belief. However in India it was held in Skinner v. Orde, that the child is presumed to belong to the religion of the father. The facts of this case are interesting to note:. After the death of her husband the wife cohabited with some other Christian. The subsequent husband was already married and his first wife was alive. In order to legalise their union, both went through the ceremony of conversion to the Muslim faith. The Privy Council held that such a marriage was of doubtful Baksh Singh, the validity. In Bhaiya Sher Bahadur v. Bhaiya Ganga illegitimate son of a Hindu by a Muslim lady, who was brought up as a Hindu and married to a Hindu-girl’according to Hindu rites, was held to be a Hindu.
A Court of law is not concerned with peculiarities in belief, orthodoxy or heterodoxy, so long as the minimum of belief exists. A Moplah woman married a man who after some time become an Ahmadi. Moplahs are strict Muslims and this change of doctrire on the part of husband was considered an act of apostasy. According to Islamic law, apostasy on the part of one of the spouses completely savers the marital tie. Consequently, wife married another husband. The wife was prosecuted for the offence of bigamy. The lower Court held that there was a lawful case of conversion and therefore, the marriage tie was severed. The second marriage was perfectly valid. The High Court in revision, however held that conversion to Ahmadism is not an act of apostasy and therefore, the woman had committed bigamy. In the case of Jiwan Khan v. Habib, the Lahore High Court held that people of Shia Community boycott first three Caliphs but they trust in one God and Prophetship of Mohammad, therefore, they too are Muslims.
It is not easy to say whether a person is Muslim or has accepted some other faith circumcision is one of the tests. But it is not final. Particular forms of belief and observance of ceremonial law may be taken into consideration.3 In order to be treated as a Muslim, a man must profess to be a Muslim. If he has converted into another religion, the conversion must not be bona fide. It will be a fraud upon law.
Origin of Muslim Law. –
The place of Muslim Law’s origin is Arabia where Mohammad promulgated Islam. It is that law which is established by a communication (Khitab) from God with reference to men’s acts, expressive either of demand or indifference on his part or being merely declaratory.
The entire system of Muslim Law, as well as of theology, ritual, and private ethics, have been built upon two foundations-the Quran and the Traditions’ (Sunnah and Ahadis).
The Quran : The Quran which is the divine communication and revelation to the Prophet of Islam, was the first and the great legislative Code of Islam. “It professes to report verbatim a series of communications made to the Prophet through the angel Gabriel, on a great number of different occasions during the last twenty years of his life and the fiction, is so strictly kept up that he is addressed throughout in the second person”. Practically, Wilson says, “we have in it the emanations of Mohammed’s own brain, under conditions of abnormal strain and excitement, as he concentrated his attention on one after another of the problems that he was called upon to solve” 4 The view expressed by Wilson does not hold good because the distinction between Quran and Sunnah has been established beyond doubt. Moreover, the language of Quran is almost different from Hadith as spoken in Arab.
‘Sunnah’ and ‘Ahadis’.-With the death of the Prophet, the living source of inspiration came to an end. The immediate successors of the Prophet in the religious and secular leadership of Islam had no claim to inspiration. They accepted the “Book of God” as an all sufficient guide for this world. It was reverently remembered, recited, written down, studied and obeyed. The conquest of the world outside Arabia brought Muslims to face with the new problems. These were solved by a process of “interpretation” which in the case of the “companions” who had shared the Prophet’s public and private life, was invested with peculiar authority. But the companions were able to supplement the explicit injunctions of the Quran with facts from the life of the Prophet and memories of the saying of the Prophet.The text of the Quran is one, universally accepted by all schools of Islam. But there are varying texts of the traditions (Hadis) recording the Prophet’s sayings and doings and when we come to their application, distinct schools of law emerged, each with its own characteristics. Thus after Mohammad’s death, the Sunnah and Hadis, though not recorded, were acted upon by his surviving companions in order to decide occasional disputes and to restrain men from certain actions which the Prophet prohibited.
If there is nothing in the Quran or in the Hadis or Sunnah to answer a particular question, the concurrence of the jurists of a particular age on any question (Ijma) and the dictates of the conscience and reasoning (Qiyas) with certain definite rules have to be followed.
Meaning of.-The word Shariat literally means “the road to the watering place or the path to be followed”. Quran, Hadis, Sunna, Ijma and Qiyas form the body of Muslim common law known as Shariat. It is used to denote the whole of Muslim religious law. This embraces in its orbit all human acts. “It is not law in the modern sense, but contains an infallible guide to ethics”.1
Religious injunctions. –
There are five kinds of religious injunctions under ‘Shariat’ and they are :
1. Farz, or duties which are strictly enjoined on Muslim e.g., five daily prayers are Farz.
2. Haram, or acts which are strictly forbidden to the Muslims e.g., wine is Haram.
3. Mundub, or the things which the Muslims are advised to do e.g., additional prayers on Id are mandub.
4. Makruh, or the things about which the Muslims are advised not to do, e.g., certain kinds of fiqh are makruh:
5. Jaiz, or the things about which Islam is indifferent, e.g., travelling on sea or air is Jaiz.
Fiqh is the name given to the whole science of jurisprudence because it implies the exercise of intelligence in deciding a point of law in the absence of a binding command from the Quran or a tradition on the point. This term literally means “intelligence”. Fyzee defines it as the “knowledge of one’s rights and obligations derived from the Quran or the Sunna of the Prophet, or the consensus of opinion among the learned (Ijma), or analogical deduction (Qiyas)”
The classical theory of Figh was formulated as a system first by Imam Shafi. During the last century a scientific and critical study was made by the thinkers of this century. Schacht in his book entitled “Origin and Development of Islamic Jurisprudence” says that the spirit of the law in Islam is religious and ethical. It draws its inspiration from the Quran and the teaching of the Prophet Mohammad. But the content of the law is based upon pre-Islamic customs and usages. in Mecca and Madina trade flourished and a more elaborate system of customary law came to be recognized. At that time there were no regular courts or judges. The institution of Cadi was introduced subsequently. Cadis were frequently appointed during the reign of Umayyad period. Prophet did not create a new system of law. He took the existing Sunna and modified the same. The modification was made either by Quran or by the teachings of Prophet. As regards the teaching of Prophet there is no authentic record to show that a particular tradition was developed by Prophet. It is very difficult to say with certainty whether they represent the Prophet’s actual words and actions. After the establishment of states, the need for Cadis arose. The hakams were displaced by these officials. The law was however interpreted by some specialist persons who were known as fuqaha. These persons endeavoured to reconcile the ancient usage with Islamic teaching. There was thus conflict between prevalent usage and some of the rules laid down by the Prophet and his early companions. The law was studied at three different places i.e., in Iraq, Hajaz and Syria. This geographical difference led to different interpretations.
The Ilm-ul-Fiqh is divided into (1) Ilm-ul-Fatawa, i.e., the science of decision and (2) the Ilm-ul-Faraiz, i.e., the science of law of inheritance.
Difference between Shariat and Fiqh.-
Firstly, Shariat is a wider circle, embracing in its orbit all human actions, while Fiqh is the narrower one dealing with legal acts alone.
Secondly, Shariat reminds us of revelation and that knowledge, which no one could have possessed except for the Quran or Hadis. In Fiqh, the power of reasoning, is the chief factor.
Thirdly, God and Prophet laid down the path of Shariat while the whole structure of Fiqh is erected by human agency.
Fourthly, in Shariat the grades of approval or disapproval are various, whereas in Fiqh, an action is legal or illegal, permissible or not permissible.