AKBARI BEGUM LAW COLLEGE

LUCKNOW

ASSIGNMENT
SOURCES OF MUSLIM LAW
AND
ELEMENTS OF VALID HINDU MARRIAGE

LLB

ACADEMIC YEAR: 2024–2027

SUBMITTED BY- MANAS TIWARI

SUBJECT- FAMILY LAW

SEMESTER- 1ST
Muslim law is a personal law

Muslim law is a personal law which is applied only on Muslims. It is applied by courts in India to
mohamedans not in all, but in some matters only. Muslin law in India means that portion of Islamic
civil law which is applied to Muslims as a personal law. Muslim law is the body of law which is
derived from the Quran and other recorded saying of the Muslims prophet Muhammad. However
Islamic law talked about man's duties rather than his rights. In the religious sense Islam means
submission to the will of god' & in secular sense Islam means the establishment of peace.

The origin of Muslim law is Arabia where Mohammad enunciated Islam. The object of Islam is to
create a sense of obedience and submission to Allah. His ordinances and thereby to walk on right
path. Those who follow this path are Muslim. According to Amir Ali Muslim is any person who
professes the religion of Islam, in other words accepts the unity of god and prophetic character of
Mohammad. Thus to be a Muslim only two things is required- one is that Allah is one and the second
is the prophet hood of Mohammad. Islamic law is a branch of Muslim theology, giving practical
expression to the faith, which lays down how Muslim should conduct himself through his religion,
both towards god and towards other men*

Muslim law consists of the injunction of Quran, of the traditions introduced by the practice of the
prophet (sunna), of the common opinion of the jurists (ijma), of the analogical deductions of these
three (qiyas). Further , it has been supplemented by the juristic preference (Istihsan), public policy
(Istislah), precedent (Taqlid) and independent interpretation (Iltihad).

Sources
Sources of Muslim law is classify into two categories that is primary sources and secondary sources.

Primary Sources
Primary sources are those on which Muslim law relied on. These sources are the foundation of
Muslim law. Primary sources of Muslim law are:

 Quran

 Sunnat

 Ijma

 Qiyas

1. Quran

Muslim law is founded upon Al-Quran which is believed by the muslamans to have existed from
eternity, subsisting in very essence of god. The word Quran has been derived from the Arabic word
Quarra which means to read. The Quran is, Al-furqan i.e., one showing truth from falsehood and
right from wrong. The word Quran which is the ‘divine communication' and revelation to the
prophet of Islam is the first source of Muslim law.
Quran is a primary source of Muslim law, in point of time as well as in importance. The Islamic
religion and Islamic society owes its birth to the word of Quran. It is a paramount source of Muslim
law in point of importance because it contains the very word of god and it is foundation upon which
the very structure of Islam rests Quran regulates individual; social, secular, and spiritual life of
Muslims.

It contains the very words of god as communicated to prophet mohammad through angel Gabriel. It
was given to the world in fragmentary forms, extending over a period of 23 years. It originally had
for its objects repealing objectionable customs, such as, usury, unlimited polygamy and gambling,
etc., and effecting social reforms, such as raising the legal status of women and equitable division of
the matters of inheritance and succession.

The Quran can be no way altered or changed, thus, even the courts of law have no authority to
change the apparent meaning of the verses as it does have an earthly origin. This view was held in
Aga Mohammad Jaffer v. koolsom Beebee (1895). But whenever the Quran was silent on any
particular matter, guidance was taken from the ‘sunnat'.

2. Sunnat

The word sunna means the trodden path & as this meaning shows it denotes some kind of practices
and precedent. It is belief of Muslim that revelations were two kinds- manifest (zahir) and internal
(batin). Manifest revelation is communication which is made by angel Gabriel under the direction of
god to Mohammad in the very words of god. Quran is composed of manifest revelations.

Internal revelation is opinions of the prophet which is delivered from time to time on questions that
happened to be raised before him. Sunna means the model behavior of the prophet. The narrations
of what the prophet said, did or tacitly allowed is called hadis or traditions. The traditions, however,
were not reduced to writing during lifetime of Mohammad. They have been preserved as traditions
handed down from generation to generation by authorized persons. The importance of hadith as an
important source of Muslim law has been laid down in the Quran itself.

Kinds Of Traditions: The Traditions Are Of Two Kinds:

1. Sunnat
2. Ahadis

These two have been classified into the following three classes on the basis of mode or manner
in which it has actually originated:

 Sunnat-ul-fail i.e., Traditions about which prophet did himself.

 Sunnat-ul-qaul i.e., Traditions about which he enjoined by words.

 Sunnat –ul-tuqrir i.e., The things done in his presence without his disapproval.

The three class of Ahadisare:

  Alhadis -i-mutwair i.e., Traditions that are of public and universal propriety and are held as
absolutely authentic. In such hadis the chain is complete.

 Ahadis -i-mashhoor i.e., Traditions which known to a majority of people, do not possess
the character of universal propriety.

 Ahadis-i-wahid i.e., Traditions which depend on isolated individuals.

Thus two sources, namely, the Quran and Sunna may thus be said to form the fundamental roots of
Islamic law.

3. Ijma

It was equally binding on the people to act on a principle (not contrary to the Quran or hadis ) which
had been established by agreement among highly qualified legal scholars of any generations.

Ijma has been defined by Sir Abdul Rahim as agreement of the jurists among the followers of
Prophet Mohammad in a particular question of law. The validity of ijma, as containing a binding
precedent, is based upon a hadis of the prophet which says that god will not allow His people to
agree on an error. Ijma thus become a source of law. According to the classical theory, failing Quran
and traditions, and consensus of opinion amongst the companions of the prophet is recognized as
the best guide of law. Thus it is the third source of law, both in point of time and importance.

The authority of ijma as a source of Muslim law is also founded on Quranand Hadith. The law is
something living & changing. The aim of law is to fulfill the needs of the society. The principle of ijma
is based upon the text i.e. god will not allow His people to agree on an error and whatever Muslims
hold to be good is good before god. Muslims religion does not admit the possibility of further
revelation after the death of the prophet, the principle of ijma is the only authority for legislation in
the present Muslims system.

Kinds Of Ijma

Ijma is of three kinds:

 Ijma of the companions of the prophet – is the consensual opinion of companion which is
universally acceptable, throughout the Muslim world and is unrepealable.

 Ijma of jurists- is the consensual opinion of jurists which is believed that its best ijma after
ijma of companions. All the jurists should sit together and discussed the reasoning, and
majority of the jurists is of the view that unanimity to form ijma.

 Ijma of the people – is the opinion of Muslim population as a whole may have any
importance but in actual practice ijma of Muslim public had no value with regard to legal
matters but in matters related to religion, prayer and other observances have more value
attached to it.

Ijma cannot be confined to any particular period or country. It is completed when the jurists, after
due deliberation, come to a finding .it cannot be questioned or challenged by any individual jurist.
Ijma of one age may be reversed or modified by the ijma of the same or subsequent age.
4) Qiyas

This is a last primary source of Muslim law. Qiyas means reasoning by analogy from above 3 sources
i.e., Quran, Sunna and Ijma. In Qiyas rules are deduced by the exercise of reason.
Qiyas may be defined as a process of deduction by which the law of the text is applied to cases,
which though not covered by the languages are governed by reason of text. Thus, it should be noted
that Qiyas does not purport to create a new law, but merely to apply old established principles to
new circumstances.

Conditions of Validity of Qiyas:

 The original source from which Qiyas is deduced must be capable of being extended, that is
it should not be of any special nature.

 The original order of the Quran or hadith to which the process of Qiyas is applied should
not have been abrogated or repealed.

 The result of Qiyas should not be inconsistent with any other verse of Quran or any
established Sunna.

 Qiyas should be applied to ascertain a point of law and not to determine the meanings of
words used.

 The deduction must not be such as to involve a change in the law embodied in the text.

Thus it can be said that Qiyas is weak source of law and rules analogically deduced do not rank
so high as authority, as those laid down by Quran and Hadith or by consensus of opinion (ijma).
the reason is that with respect to analogical deductions one cannot be certain that they are what
the law giver intended. Such deduction always rest upon the application of human resources
which always are liable to error.

Secondary Sources
These sources are not basic sources of Muslim law but the supplementary sources of Muslim law.
The secondary sources of Muslim law are:

 Urf or Custom

 Judicial decision

 Legislation

 Equity, Justice, & Good conscience

Urf or Custom

Before the emergence of Islam in Arabia , customs were the basis of entire social life, religion,
morality, trade and commerce. Custom has not been recognized as a source of law in a Muslim law.
However, it cannot be denied that custom has always been given a place under Muslim law, if it is in
conformity with Muslim law. For example, prophet mohammad never repeal the whole of the pre-
Islamic customary law of Arabia. In various matter of Muslim law, custom play a significant role
when the matter is relating to their:
 a. agricultural land;

b. testamentary succession among certain communities; and

c. Â charities other than wakf, because these matters have not been included in the section 2
of Shariat Act,1937. Custom influenced the growth and formation of shariah in several
ways:

a. A number of texts, particularly traditions are based upon usages.

b. A part of the shariah based upon tacit or silent approval of the prophet comprises many
of Arab customs.

c. Imam malik says that the customary conduct of the citizen of medina was a sufficient ijma to
be relied upon in the absence of other texts.

Pre- Condition Of Valid Custom

 Custom must be territorial.

 It must be existing from memorable time i.e. ancient.

 It must be continuous and certain and invariable.

 Custom should not oppose the public policies.

 Custom must not in contravention of Quran and Ijma.

Judicial Decision
These includes the decisions of privy council, the supreme court & high court of India, Judges explain
what law is. These decisions are regarded as precedents for future cases. Judicial decision is one of
the distinguish characteristic of English law. In India, the plan of Warren Hastings of 1772 made
provision that it was only judiciary which introduced new set rules in personal laws of Hindus and
Muslims.

There are number of judicial decisions which have given new dimension to Muslim law:

 In Maini Bibi v. Choudhry Vakil Ahmad, the privy council held that a widow possesses
the right to retain the property of her husband till her dower money was paid

 In Bai Tahira v. Ali Hussain, the Supreme Court gave a new line of approach to the law of
maintenance. The Supreme Court held that a woman will be entitled for maintenance
under section 125 of criminal procedure code even though she has received a lump-sum
amount under her customary law. A similar view also taken in Shah Bano's case.

It may be concluded therefore, that to some extent, the courts in India have tried to modify the rules
of Muslim personal law as applied in India. Unless overruled or negative by some legislative
enactment, these rules through the decisions, continue to be a source of Muslim law.
Justice, equity and good conscience

The doctrine of equity, justice & good conscience is regarded as one of the source of Muslim law.
Abu Hanifa, the founder of hanafi sect of Sunni, expounded the principle that rule of law based on
analogy could be set aside at the option of the judge on a liberal construction or juristic preference
to meet the requirements of a particular case. These principles of Muslim law are known as
Istihsan or juristic equity. Istihsan literally means approbation and may be translated as liberal
construction or juristic preference.

This term was used by great jurist Abu Hanifa to express the libert that he assumed of laying down
the law, which in his discretion, the special circumstances required, rather than law which analogy
indicated. Several areas of Muslim were modified so as to meet the changing conditions in India.

Legislation

In India, Muslims are also governed by the various legislation passed either by the parliament or by
state legislature. The following are the examples of legislation in India.

 The usurious loans act, 1918

 Religious toleration act

 Freedom of religion act, 1850

 The mussalman wakf validating act, 1930

 The shariat act, 1937

 Dissolution of Muslim marriage act, 1939

These acts have considerably affected, supplemented and modified the Muslim law. In 1986 an act
i.e. Muslim Woman (Protection of Rights on Divorce) Act, 1986 to provide separate law in respect of
divorced Muslim women was enacted by Indian parliament. According to the need of time and
circumstances Indian legislature enacted the law to fulfill the need.

Conclusion
These four sources namely Quran, Sunna, Ijma and Qiyas are the primary sources of law. Muslim law
mainly based on verses of Quran and practices of hadith. There is secondary source of Muslim law
which subsequent of it. Sects of shias does not accept the Qiyas as source of Muslim law. It is due to
the contribution of all that an orderly and systematic theory of personal laws of Islam came into
existence which governs the Muslim community.
 Elements of a Valid Hindu Marriage
Hindu marriage, traditionally considered a sacred union, is one of the most important rites in Hindu
culture. In India, where Hinduism is the predominant religion, marriage holds a central place in the
religious and social order. It is not merely a contractual or legal bond but is seen as a sacrament, a
rite that binds two souls together in a sacred relationship. The Hindu Marriage Act, 1955, which
governs Hindu marriages in India, lays down specific guidelines for what constitutes a valid marriage.
It draws upon the ancient customs and practices of Hindu law, but also incorporates modern
elements for its application in contemporary society.

This comprehensive essay will explore the various elements that constitute a valid Hindu marriage
under the Hindu Marriage Act, 1955, as well as the religious and social practices that continue to
play a significant role in the institution of marriage within the Hindu community. The discussion will
be divided into several sections, each addressing different aspects of a valid Hindu marriage.

1. Definition of a Hindu Marriage

Under the Hindu Marriage Act, 1955, Section 5 defines the basic framework for a valid marriage. It
states that a Hindu marriage is a union between a man and a woman that must adhere to certain
conditions to be considered valid. Hindu marriage is treated as a sacrament (samskara) rather than a
mere contract, signifying that it is an eternal, indissoluble union.

In essence, a valid Hindu marriage is one that is performed according to the prescribed rituals and
ceremonies and fulfills the legal conditions specified in the Act.

2. Key Conditions for a Valid Hindu Marriage

The Hindu Marriage Act, 1955, lays down specific conditions that must be satisfied for a marriage to
be considered valid:

Monogamy: A Hindu marriage must be monogamous, meaning that neither party should be married
to someone else at the time of the marriage. The Act explicitly prohibits bigamy or polygamy. If
either party is already married to someone else, the marriage will be invalid under the Act.

Age of Marriage: The parties involved in the marriage must meet the legal age requirements. The
minimum age for marriage is 21 years for the groom and 18 years for the bride. Any marriage where
either party is below the minimum age is considered invalid.

Mental Capacity: Both parties must be of sound mind at the time of the marriage. If one party is
incapable of giving consent due to mental illness, the marriage is void.

Prohibited Relationship: The marriage should not fall within the degrees of prohibited relationship.
In Hindu law, marriages between close relatives (like siblings, cousins, and others) are considered
incestuous and are prohibited. This is in line with the concept of Sapinda and Bandhu relationships
defined in Hindu law.

Consent: Both parties must give free and voluntary consent to the marriage. Consent obtained
under duress, fraud, or coercion renders the marriage invalid.

3. Ceremonies of a Hindu Marriage

Although the Hindu Marriage Act, 1955, does not mandate any specific set of ceremonies, it
acknowledges the traditional practices and rituals that are customary in Hindu marriages. These
rituals vary by region, culture, and community, but certain core ceremonies are common across
most Hindu weddings:

Kanyadaan: The giving away of the bride by her parents to the groom is an essential and sacred
ritual in Hindu marriages. It symbolizes the bride's transition from her parental home to her marital
home.

Vivah Homa: A sacred fire (Agni) is lit during the marriage ceremony, around which the couple takes
vows and performs prayers. Agni is considered a divine witness to the marriage, and the couple
offers prayers to seek blessings for a prosperous married life.

Saptapadi: One of the most important rituals, Saptapadi involves the couple taking seven steps
together around the fire. Each step signifies a specific vow or prayer, and the ritual symbolizes the
spiritual bond of marriage.

Mangal Sutra and Sindoor: The groom ties a mangal sutra (a sacred necklace) around the bride’s
neck and applies sindoor (vermilion) on her forehead. These acts mark the bride’s status as a
married woman and symbolize her union with the groom.

Ashirvad: The newly married couple seeks the blessings of elders, which marks the completion of
the ceremony and the start of their married life.

4. Marriage Registration and Legal Formalities

While Hindu marriages were traditionally solemnized by priests or elders without formal
documentation, the Hindu Marriage Act, 1955, introduced the provision for the registration of
marriages. Though marriage registration is not mandatory under the Act, it provides legal
recognition to the marriage and serves as proof of the union. In practice, registering a marriage is
increasingly common, as it simplifies legal processes, especially in cases of divorce or inheritance.

The marriage registration requires that:

The parties fulfill all the conditions specified under the Act.
They submit a formal application along with necessary documents, such as proof of age and identity,
to the local Marriage Registrar.
Both parties (or their guardians) must be present to sign the registration form.
5. Rights and Duties in a Hindu Marriage
A valid Hindu marriage grants several rights and imposes duties on both spouses. These are based
on the principles of mutual respect, support, and cooperation.

Rights of the Wife: A wife has the right to live with her husband, claim maintenance, and seek
divorce if the marriage is not functioning due to the husband's cruelty, desertion, or other legal
grounds. She also has the right to be protected from domestic violence.

Rights of the Husband: Similarly, the husband has the right to seek marital relations, and if the wife
refuses, he can approach the court. He also has the right to seek divorce on grounds such as
adultery, cruelty, or desertion.

Joint Property and Inheritance: Hindu marriage also carries the concept of joint property. Upon the
death of one spouse, the surviving spouse may have rights to inheritance, depending on the type of
property involved (self-acquired or ancestral).

Maintenance: The Hindu Marriage Act, 1955, provides provisions for the maintenance of a spouse
after separation or divorce. The wife has a legal right to claim maintenance from her husband during
the subsistence of the marriage and post-divorce if she is unable to support herself.

6. Void and Voidable Marriages

The Hindu Marriage Act distinguishes between void and voidable marriages.

Void Marriage: A marriage is void under the Act if it contravenes the fundamental conditions
prescribed, such as a marriage between close relatives or a marriage where one party is already
married to someone else. A void marriage has no legal effect, and either party can declare it void
through the court.

Voidable Marriage: A marriage can be voidable under the Act if one of the parties was not of sound
mind, or the marriage was based on coercion or fraud. The affected party can approach the court to
annul the marriage.

7. Divorce and Dissolution of Marriage

In cases where a Hindu marriage is no longer viable, the Hindu Marriage Act, 1955, provides legal
grounds for divorce. These include:

Adultery: If either spouse engages in sexual relations with someone other than the other spouse.
Cruelty: Physical or mental cruelty that makes it impossible for the couple to continue the marriage.
Desertion: If one spouse has deserted the other for a continuous period of two years or more.
Conversion to Another Religion: If either spouse converts to another religion.
Mental Disorder: If one spouse is of unsound mind and cannot perform marital duties.
Failure to consummate the marriage: If the marriage is not consummated due to one party’s
incapacity.
The divorce process involves filing a petition in court, and once the court grants a decree of divorce,
the marriage is dissolved. In some cases, a mutual consent divorce can be granted if both parties
agree.

8. Social and Cultural Aspects of Hindu Marriage

Beyond the legal requirements, Hindu marriages are deeply influenced by social customs, family
traditions, and cultural beliefs. The significance of marriage in Hindu society extends beyond the
couple, as it involves their families, communities, and religious practices. The family plays a central
role in arranging the marriage, and the concept of arranged marriage is still prevalent in many parts
of India.

Cultural practices may include:

Dowry System: Although illegal, the dowry system continues to exist in some parts of Hindu society.
The practice of giving gifts, property, or money to the groom’s family is considered a part of the
marriage ceremony.
Role of Elders: In Hindu society, elders play a crucial role in the selection of the spouse, and their
blessings are sought before the marriage can proceed.
Religious Influence: Many Hindu marriages are accompanied by religious ceremonies, prayers, and
rituals, which emphasize the spiritual and sacred nature of the union. These include offerings to
gods and goddesses, chanting of Vedic hymns, and participation in temple rituals.
Conclusion
A valid Hindu marriage is one that adheres to both the legal and customary norms that govern the
union of two individuals. While the Hindu Marriage Act, 1955, provides the legal framework, Hindu
marriage is also viewed as a sacred, spiritual journey that is meant to last for a lifetime. The
conditions for a valid marriage, the rituals, rights, and duties, and the processes of divorce and
annulment ensure that both parties are protected under the law while respecting the cultural and
spiritual significance of the union. Thus, Hindu marriage is a blend of legal structure, religious
beliefs,