Muslim law, or more properly the Shariah as interpreted through fiqh, is not the product of a legislature. It presents itself as divinely ordained law, revealed to the Prophet Muhammad and thereafter elaborated by human jurists. That single feature explains most of what is distinctive about the subject: why the sources are ranked in a fixed hierarchy, why juristic opinion carries the weight of law, why the schools differ without any of them being invalid, and why reform in India has come overwhelmingly through statute and judicial decision rather than from within the classical system.
Legal Framework
| Source or provision | Reference | Scope |
|---|---|---|
| Divine revelation | The Quran | The primary and highest source; regarded as the literal word of God, revealed over roughly 22 years |
| Practice of the Prophet | The Sunna or Hadith | The Prophet's sayings, acts and silent approvals, explaining and supplementing the Quran |
| Consensus of jurists | Ijma | Agreement of the qualified jurists of a generation on a point not settled by the first two sources |
| Analogical deduction | Qiyas | Extension of an established rule to a new case sharing the same underlying reason |
| S.2 | Muslim Personal Law (Shariat) Application Act, 1937 | Directs that in the enumerated matters the rule of decision in cases where the parties are Muslims shall be Muslim personal law, notwithstanding any custom or usage to the contrary |
The Pre-Islamic Background
Before Islam, Arabia had no unified legal system. Law was tribal custom, varying between tribes and enforced by tribal sanction rather than by any central authority. In matters of family law the position of women was weak: marriage arrangements included forms amounting to purchase and to temporary cohabitation, a husband's power to repudiate his wife was effectively unlimited, female infanticide was practised, and women had no settled rights of inheritance.
Why the pre-Islamic position matters for the syllabus: Almost every classical Muslim law institution is best understood as a reform of, or a concession to, pre-existing Arab custom. Dower converts what had been a payment to the bride's family into a right vesting in the bride herself. The rules of talaq, whatever their later abuse, were framed to introduce waiting periods and opportunities for reconciliation into a power that had previously been instantaneous and absolute. The Quranic shares in inheritance introduce female heirs into a system that had recognised only male agnates. Presenting these institutions as reforms rather than as free-standing rules is what turns a descriptive answer into an analytical one.
Phases of Development
1. The revelatory period, roughly 610 to 632. During the Prophet's lifetime the law developed by revelation and by his own decisions and practice. There was no question of interpretation as against an absent lawgiver, because the lawgiver was present.
2. The period of the Companions, roughly 632 to 661. After the Prophet's death, the first four Caliphs and the surviving Companions decided new questions by reference to the Quran and to remembered practice. This is the period in which ijma, consensus, begins to operate as a working source, and in which the collection and authentication of Hadith becomes a pressing problem.
3. The period of the founding jurists, roughly the eighth and ninth centuries. The great schools take shape around individual jurists. Systematic legal reasoning is developed, above all qiyas, and the methodology of the sources (usul al fiqh) is articulated. This is the classical, creative period of Islamic jurisprudence and the point at which Sunni and Shia legal traditions diverge institutionally as well as theologically.
4. The period of taqlid, from roughly the tenth century. The doctrine takes hold that the great questions have been settled and that later jurists should follow (taqlid) the established schools rather than exercise independent reasoning (ijtihad). The commonly used phrase is that the "door of ijtihad" was closed.
Why the closing of ijtihad is the pivotal development for an Indian law student: Once independent juristic reasoning ceased to be regarded as legitimate, the classical law lost its internal engine of adaptation. Change then had to come from outside the system. In India that has meant a very particular pattern: legislative intervention (the Mussalman Wakf Validating Act 1913, the Shariat Act 1937, the Dissolution of Muslim Marriages Act 1939, the 1986 and 2019 Acts) and judicial reinterpretation by secular courts (Shamim Ara, Danial Latifi, Shayara Bano). Every reform topic in this paper is an instance of that pattern, so the point is worth making once, early, and then relying on throughout.
Muslim Law in India
Muslim law came to the subcontinent with Muslim rule and was administered as the general law in many spheres. Under the East India Company and then the Crown, its scope was progressively narrowed. Criminal law, procedure, evidence, contract and transfer of property were codified in territorially applicable statutes applying to all persons, and Muslim law was confined to what we now call personal law: marriage, divorce, dower, maintenance, guardianship, gift, will, waqf and inheritance.
The decisive Indian statute is the Muslim Personal Law (Shariat) Application Act, 1937. Its central provision, S.2, directs that in the matters it enumerates the rule of decision in cases where the parties are Muslims shall be Muslim personal law, notwithstanding any custom or usage to the contrary.
Why S.2 of the 1937 Act carries so much doctrinal weight: The Act does not codify Muslim law. It does not state a single substantive rule of marriage or inheritance. What it does is displace custom in favour of the Shariah in the enumerated matters. That has two consequences that recur across the paper. First, arguments based on local custom, which had previously succeeded in many communities, were largely shut out. Second, because S.2 is the statutory provision that gives Muslim personal law its force as a rule of decision, it becomes the natural target for constitutional challenge. That is exactly what happened in Shayara Bano v Union of India (2017), where Nariman and Lalit JJ struck down S.2 to the extent that it recognised talaq-e-biddat, treating it as "law in force" within Art.13(1). It is also the provision under challenge in the inheritance litigation currently pending before the Supreme Court.
The matters enumerated include intestate succession, special property of females, marriage and its dissolution (including talaq, ila, zihar, lian, khula and mubaraat), maintenance, dower, guardianship, gifts, trusts and trust properties, and waqfs.
Note what is not in the list. Agricultural land was excluded, which is why customary tenures survived in several States, and adoption, wills and legacies were dealt with separately, S.3 allowing a Muslim to make a declaration opting in as to wills and legacies.
The Supreme Court is hearing a challenge to provisions of the Muslim Personal Law (Shariat) Application Act, 1937 on the ground that the inheritance rules they attract discriminate against Muslim women. In hearings during March and April 2026 a Bench led by Chief Justice Surya Kant repeatedly observed that a Uniform Civil Code is the "most effective answer" to discriminatory personal law provisions, and that the appropriate course is legislative action rather than striking the provisions down, since invalidation would create a vacuum and might deprive Muslim women of what they presently receive.
No final judgment had been delivered when this note was written. Treat the challenge as pending and verify its status before relying on it in an examination answer. The Uttarakhand Uniform Civil Code, in force from 27 January 2025, features in the petition as an argument that Muslim women in different States now hold different property rights.
Sunni and Shia Divergence in Outline
The split originates in the succession to the Prophet's authority, but its legal significance is methodological. Sunni jurisprudence recognises ijma and qiyas as sources; Shia jurisprudence rejects qiyas in that form and relies instead on the authority of the Imams and on aql, reason. Because the two traditions accept different sources, they generate different rules, and the differences show up throughout this paper: in the necessity of witnesses to a marriage, in the recognition of muta (temporary marriage), in whether an irregular marriage is a recognised category at all, in the modes of talaq, in the rules of guardianship, and most extensively in the schemes of inheritance.
Illustrations
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Reform of custom, not free-standing rule. A question asks why dower is regarded as an obligation attaching to the husband and not as a payment to the wife's family. The answer runs through the pre-Islamic practice in which consideration passed to the bride's guardian; the Quranic rule vests it in the bride, converting a family entitlement into an individual one.
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Custom displaced by S.2. A Muslim community in a district has by long custom excluded daughters from inheriting. After the 1937 Act, that custom cannot be relied on in the enumerated matters, because S.2 applies Muslim personal law "notwithstanding any custom or usage to the contrary", and the Quranic shares include the daughter.
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Reform from outside the system. A wife whose husband has disappeared for four years has no remedy in the classical Hanafi law available to her in India. The remedy is statutory: S.2(i) of the Dissolution of Muslim Marriages Act 1939 gives her a ground for a decree where the whereabouts of the husband have not been known for four years. This illustrates legislative supply of what taqlid had frozen.
Recall Check
- Name the four sources of Muslim law in their order of authority, and identify which two the Shia tradition treats differently.
- What is taqlid, and why does its adoption explain the pattern of reform of Muslim personal law in India?
- What exactly does S.2 of the Muslim Personal Law (Shariat) Application Act, 1937 do, and what does it not do?
Key Cases
There is no single leading case on the origin and development of Muslim law as such. The cases that matter here are those in which courts have described the character of the system, and they are treated in the notes where they belong:
Abdul Kadir v Salima (1886) Abdul Kadir v Salima 1886 Relevance here: Mahmood J's examination of the original Arabic sources, and the characterisation of the nikah as a purely civil contract, is the classic Indian illustration of a secular court reasoning directly from the classical texts. Treated fully in Nature and Essentials of Muslim Marriage.
A Yousuf Rawther v Sowramma (1971) Yousuf Rawther v Sowramma 1971 Relevance here: Krishna Iyer J's observation that the popular belief in an unfettered unilateral power of divorce is a "popular fallacy" is an example of an Indian court going behind the received understanding of the law to the sources. Treated fully in The Dissolution of Muslim Marriages Act, 1939.
Danial Latifi v Union of India (2001) Danial Latifi v Union of India 2001
Citation: (2001) 7 Supreme Court Cases 740; All India Reporter 2001 Supreme Court 3958; judgment of 28 September 2001
Rule: The Muslim Women (Protection of Rights on Divorce) Act 1986 is constitutionally valid but is read down. The obligation of a Muslim husband under S.3(1)(a) is not confined to the iddat period. Reasonable and fair provision and maintenance are distinct: the husband must, within the iddat period, make and pay a reasonable and fair provision for his divorced wife extending beyond the iddat period, in addition to maintenance for the iddat period itself. If she is unable to maintain herself after iddat and has not remarried, recourse lies against her relatives under S.4 and failing them against the State Wakf Board.
Distinctions
| Basis | Shariah | Fiqh |
|---|---|---|
| Nature | The divine law itself, as revealed | The human science of deriving and understanding that law |
| Source of authority | Revelation | Juristic reasoning applied to revelation |
| Capacity for error | Regarded as perfect and immutable | Fallible, and therefore capable of difference and of development |
| Consequence | One Shariah | Several schools, each internally valid |
| Basis | Ijtihad | Taqlid |
|---|---|---|
| Meaning | Independent juristic reasoning to derive a rule | Following the settled opinion of an established school |
| Period | Dominant in the classical, formative centuries | Dominant from roughly the tenth century onward |
| Effect on the law | Adaptive and creative | Stabilising, but closing the internal route to reform |
| Consequence in India | Little scope, the schools being treated as settled | Reform displaced onto legislation and the secular courts |
Flashcards
What are the four sources of Sunni Muslim law in order of authority?
The Quran, the Sunna (Hadith), Ijma (consensus of jurists) and Qiyas (analogical deduction).
Which of the four sources does Shia jurisprudence not accept in the Sunni form, and what does it rely on instead?
It rejects qiyas as a source in the Sunni sense, relying instead on the authority of the Imams and on aql, reason.
What is meant by the closing of the door of ijtihad?
The doctrine, prevailing from roughly the tenth century, that the major questions had been settled and that later jurists should follow the established schools (taqlid) rather than reason independently.
What does S.2 of the Muslim Personal Law (Shariat) Application Act, 1937 provide?
That in the matters it enumerates, the rule of decision where the parties are Muslims shall be Muslim personal law, notwithstanding any custom or usage to the contrary.
Does the 1937 Act codify Muslim law?
No. It states no substantive rule. It displaces custom in favour of the Shariah in the enumerated matters.
Why is S.2 of the 1937 Act constitutionally significant?
Because it is the statutory provision giving Muslim personal law force as a rule of decision, it is "law in force" for Art.13(1) purposes and can therefore be challenged. Nariman and Lalit JJ struck it down in Shayara Bano to the extent it recognised talaq-e-biddat.
Name three matters excluded from the enumerated list in S.2 of the 1937 Act.
Agricultural land, adoption, and wills and legacies, the last being dealt with separately by an opt-in declaration under S.3.
What was the position of women in pre-Islamic Arabian custom, in three points?
No settled inheritance rights, an effectively unlimited power of repudiation in the husband, and the practice of female infanticide.
Exam Scenario
Problem: "Muslim law in India is a system frozen by taqlid and thawed only by the legislature and the courts." Discuss, with reference to the sources of Muslim law and to the Muslim Personal Law (Shariat) Application Act, 1937.
Step 1: Start with the character of the system
Divinely ordained law, hence a fixed hierarchy of sources, hence juristic rather than legislative authority.
Set out the four sources briefly, and note the Sunni and Shia methodological divergence.
Step 2: Trace the four phases and locate the freeze
- Revelation, during the Prophet's lifetime.
- The Companions, when ijma begins to operate.
- The founding jurists, developing qiyas and usul al fiqh.
- Taqlid, when the door of ijtihad closes.
The closing of ijtihad is the point at which the internal capacity for adaptation is lost. That is the "frozen" limb of the quotation.
Step 3: Place the Indian setting and S.2
The colonial codifications narrowed Muslim law to personal law. S.2 of the 1937 Act then made the Shariah the rule of decision in the enumerated matters, displacing custom.
Step 4: Prove the "thawed" limb by concrete instances
| Instrument | Reform effected |
|---|---|
| Mussalman Wakf Validating Act 1913 | Reversed Abul Fata |
| Dissolution of Muslim Marriages Act 1939 | Supplied the wife with grounds the classical Hanafi law available in India did not give her |
| Shamim Ara (2002) | Required proof of pronouncement |
| Danial Latifi (2001) | Read the 1986 Act to extend provision beyond iddat |
| Shayara Bano (2017) | Struck down statutory recognition of triple talaq |
| The 2019 Act | Criminalised pronouncement of triple talaq |
Step 5: Qualify the quotation rather than accepting it
Judicial "thawing" has often proceeded by reasoning from within the sources, not against them. Kurian Joseph J in Shayara Bano held talaq-e-biddat contrary to the Quran and therefore contrary to the Shariat itself.
The Gauhati High Court in Jiauddin Ahmed derived the reconciliation requirement from the Quranic verses. The better view is that reform has come through secular institutions applying classical sources, which is not quite the same as reform imposed from outside.
The Act does not codify. S.2 states no substantive rule, so the substantive rules remain those of the classical schools.
State the freeze as legal method, not as criticism.
Qualify the quotation rather than simply accepting it.
Conclusion. The pending challenge to the 1937 Act restates the same institutional choice for the present day: the Supreme Court has indicated that reform of inheritance should come from the legislature through a Uniform Civil Code rather than by invalidation.
See Also
- Sources of Muslim Law : the four sources treated in detail, with the secondary sources and the place of custom.
- Schools of Muslim Law: Sunni and Shia : the divergence sketched here, set out school by school.
- Operation and Application of Muslim Law : who Muslim law applies to in India, and the working of the 1937 Act.
- Triple Talaq: Judicial Interpretation and Legislative Response : the fullest single illustration of reform through court and legislature.