Unit I — Sources, Schools, Marriage & Dower

“Marriage is nothing more than a civil contract… it has for its object the procreation and legalizing of children.” — Justice Mahmood, Abdul Kadir v. Salima (1886)

Sources of Islamic Law

When Prophet Muhammad died in 632 CE he left no written code. Within two decades the Quran was compiled into a single book — and a 14-century tradition of jurisprudence began. Islamic law rests on four primary sources and several secondary ones, arranged as a pyramid: each layer fills the gaps the one above leaves silent.

flowchart TD
    ROOT["Sources of Islamic Law"]:::root
    ROOT --> A["Primary Sources"]:::branch
    ROOT --> B["Secondary Sources"]:::branch
    A --> A1["Quran<br/>(Divine Revelation)"]:::primary
    A --> A2["Sunnah / Hadis<br/>(Prophet's Practice)"]:::primary
    A --> A3["Ijma<br/>(Consensus of Jurists)"]:::primary
    A --> A4["Qiyas<br/>(Analogical Deduction)"]:::primary
    B --> B1["Urf / Custom"]:::secondary
    B --> B2["Istihsan<br/>(Juristic Preference)"]:::secondary
    B --> B3["Maslaha<br/>(Public Interest)"]:::secondary
    B --> B4["Judicial Decisions<br/>& Indian Legislation"]:::secondary

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    classDef primary fill:#D4EDDA,stroke:#155724,color:#000;
    classDef secondary fill:#FFF3CD,stroke:#856404,color:#000;
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Al-Shafi’i (750–820 CE): “The first source is the Book of Allah; the second is the Sunnah of the Prophet; the third is the consensus of the community; and the fourth is analogical deduction.”

In Simple Terms: Allah’s revealed text (Quran) comes first; if it is silent, the Prophet’s practice (Sunnah) applies; if both are silent, the consensus of jurists (Ijma) governs; and a genuinely new situation is decided by analogy (Qiyas) to a known rule. Custom (Urf) is recognised only where it does not contradict the Quran — Collector of Madura v. Mootoo Ramalinga (1868) and Shamim Ara v. State of UP (2002) both reinforce that the divine text overrides bare custom.

Schools of Muslim Law

The killing of Hussein at Karbala (680 CE) crystallised the Sunni–Shia divide into two distinct jurisprudences, each reading the same Quran through a different lens.

flowchart TD
    ROOT["Schools of Muslim Law"]:::root
    ROOT --> SUN["SUNNI<br/>(majority in India)"]:::sunni
    ROOT --> SHI["SHIA<br/>(minority)"]:::shia
    SUN --> H["Hanafi<br/>(most common in India)"]:::leaf
    SUN --> M["Maliki"]:::leaf
    SUN --> S["Shafi'i<br/>(South India / Kerala)"]:::leaf
    SUN --> HB["Hanbali<br/>(most conservative)"]:::leaf
    SHI --> IA["Ithna Ashari<br/>(Twelvers — main Shia in India)"]:::leaf
    SHI --> IS["Ismaili<br/>(Aga Khan)"]:::leaf
    SHI --> ZA["Zaidi"]:::leaf

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In India, Hanafi (Sunni) law is the default; Shia law applies to Shia parties. The Shariat Act, 1937 ensures custom cannot override Muslim personal law on marriage, divorce, dower, gift, wakf, and inheritance — Sarla Mudgal v. Union of India (1995) confirms a colourable conversion to Islam to take a second wife is bigamy under S.494 IPC.

Marriage (Nikah) — Essentials and Classification

flowchart TD
    ROOT["Muslim Marriage (Nikah)"]:::root
    ROOT --> ESS["Essentials"]:::branch
    ROOT --> CLASS["Classification"]:::branch
    ESS --> E1["Proposal & Acceptance<br/>(Ijab & Qubul)<br/>in the same sitting"]:::leaf
    ESS --> E2["Competent Parties<br/>(sane + age of puberty)"]:::leaf
    ESS --> E3["Witnesses<br/>(Sunni: 2 males)"]:::leaf
    ESS --> E4["Dower (Meher)<br/>(wife's right)"]:::leaf
    ESS --> E5["No Legal Impediment<br/>(no prohibited degree)"]:::leaf
    CLASS --> V["Valid (Sahih)<br/>All essentials met<br/>Full legal effects"]:::valid
    CLASS --> I["Irregular (Fasid)<br/>Removable defect<br/>Children legitimate"]:::irregular
    CLASS --> VD["Void (Batil)<br/>Absolute prohibition<br/>No legal effect"]:::void

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Muslim marriage (Nikah) is a civil contract for the legalisation of children — offer (ijab) and acceptance (qubul) in one sitting, between competent parties, with dower as the wife’s consideration. Its validity is graded into three:

The vital exam distinction: a void marriage produces no legal effect and the children are illegitimate; an irregular marriage has a removable defect — its children are legitimate and proper dower is payable after consummation, though either party may dissolve it at any time. Muta (temporary) marriage is recognised only under Shia law: fixed duration + fixed dower, no maintenance, no mutual inheritance, but the children are legitimate.

Dower (Meher) — Kinds and the Widow’s Lien

Dower (Meher) is a sum the husband must pay the wife as a mark of respect and security — it becomes her absolute property and is the primary mechanism of women’s economic protection in Islam. It is specified (Mahr-i-Musamma: split into prompt, payable on demand, and deferred, payable on death or divorce) or proper (Mahr-i-Misl, fixed by the wife’s family status where none was agreed).

Non-payment consequences: for prompt dower, the wife may refuse cohabitation and even seek dissolution; for deferred dower, it becomes a debt on the husband’s estate, payable before the heirs take their shares. The most powerful protection is the widow’s right of retention (lien) — a widow lawfully in possession of her deceased husband’s property may retain it until her unpaid dower is paid, and the heirs cannot evict her (Hamira Bibi v. Zubaida Bibi, 1916; Maina Bibi v. Chaudhri Vakil Ahmed, 1924). The lien is possessory only — she cannot sell or transfer — and yields to a prior registered mortgage, which is a secured debt.

✏️ Sample Solved Problem (IRAC Method)

Problem: A Hanafi Muslim who already has four wives contracts a fifth marriage. Two children are born of it. The fifth wife claims dower and the children claim inheritance from the father. Decide.

I — Issue

Is the fifth marriage valid, void, or irregular; are the children legitimate; and is dower payable?

R — Rule

• Under Hanafi (Sunni) law, a marriage contracted while four wives are living is irregular (fasid) — not void (it would be void under Shia law)
• An irregular marriage, once consummated, entitles the wife to proper dower and requires iddat
• Children of an irregular marriage are legitimate and inherit from their father

A — Analysis

The decoy is the instinct to call a fifth marriage “void.” Under the Hanafi law that governs most Indian Muslims, the bar on a fifth wife is a removable impediment, making the marriage merely irregular. Because it was consummated (two children were born), the law attaches its protective consequences: the wife earns proper dower, and — critically — the children are treated as legitimate offspring of the father, with full inheritance rights. The marriage can nonetheless be dissolved by either party at any time, since an irregular marriage never ripens into a fully valid one.

C — Conclusion

The fifth marriage is irregular, not void. Proper dower is payable to the fifth wife after consummation, and the two children are legitimate and inherit from their father. Either party may, however, dissolve the irregular marriage.

📄 The full PDF bundle has more problems for Unit I — including the colourable-conversion bigamy scenario (Sarla Mudgal), the widow’s-lien-vs-mortgage priority problem, the option-of-puberty waiver fact-pattern, the complete Master Case List, and 16-mark essay blueprints for Sources, Schools, Marriage and Dower. Get the bundle — ₹149