La-3028 Islamic

Introduction to
Islamic law
Mashood Baderin
Martin Lau
Doreen Hinchcliffe
This module guide was prepared for the University of London by:
u Mashood Baderin, LLB (Hons), LLM, PhD, PGCE, Professor of Laws, School of Law, SOAS
University of London
u Martin Lau, MA, PhD, Barrister at Law, Professor of South Asian Law, School of Law,
Department of Law, SOAS University of London
and
u Doreen Hinchcliffe, PhD, Barrister at Law, Gray’s Inn, London.
This is one of a series of module guides published by the University. We regret that owing
to pressure of work the authors are unable to enter into any correspondence relating to,
or arising from, the guide. If you have any comments on this module guide, favourable or
unfavourable, please use the form at the back of this guide.
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Published by: University of London
© University of London 2017. Reprinted with minor revisions 2019, 2020 and 2021
The University of London asserts copyright over all material in this module guide except
where otherwise indicated. All rights reserved. No part of this work may be reproduced
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Introduction to Islamic law page i
Contents
Module descriptor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
Part I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1 What is Islamic law? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.2 How to use this module guide . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.3 Three short background readings . . . . . . . . . . . . . . . . . . . . . . . 5
1.4 Introductory activity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.5 The examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2 Introducing Islamic law . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.1 Islamic law in the modern age . . . . . . . . . . . . . . . . . . . . . . . . 11
2.2 The role of the Shari‘ah in international law . . . . . . . . . . . . . . . . . 11
2.3 The historical basis of Islamic law . . . . . . . . . . . . . . . . . . . . . . 13
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3 The origins, sources and evolution of Islamic law . . . . . . . . . . . . 19

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
3.1 The Qur’an and the Sunnah . . . . . . . . . . . . . . . . . . . . . . . . . . 21
3.2 Ijma‘ and qiyas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
3.3 Further ‘sources’ and principles of Islamic law . . . . . . . . . . . . . . . . 25
3.4 Development of the classical schools of Islamic jurisprudence . . . . . . . . 28
3.5 Attempts at modern Islamic legal theory . . . . . . . . . . . . . . . . . . . 30
Part II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
4 Penal law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
4.1 Hadd, ta’zir and qisas offences and punishments . . . . . . . . . . . . . . . 37
4.2 Honour crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
4.3 Pakistan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
4.4 Brunei Darussalam . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
5 Civil law: contracts and torts . . . . . . . . . . . . . . . . . . . . . . . 47

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
5.1 Contract law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
5.2 Law of torts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
6 Marriage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
6.1 The marriage contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
6.2 Capacity of the parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
6.3 Child marriage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
6.4 Impediments to marriage . . . . . . . . . . . . . . . . . . . . . . . . . . 61
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6.5 The effects of impediments to marriage . . . . . . . . . . . . . . . . . . . 62

6.6 Proof of marriage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
6.7 Dower (mahr) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
7 The incidents of a Muslim marriage . . . . . . . . . . . . . . . . . . . 67

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
7.1 Mutual rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
7.2 The iddah period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
7.3 Rights of the wife . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
7.4 Polygyny . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
8 Stipulations in marriage contracts . . . . . . . . . . . . . . . . . . . . 79

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
8.1 Valid and void stipulations . . . . . . . . . . . . . . . . . . . . . . . . . . 81
8.2 Invalidating stipulations . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
9 Dissolution of marriages . . . . . . . . . . . . . . . . . . . . . . . . . 85
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
9.1 Dissolution by unilateral repudiation (talaq) . . . . . . . . . . . . . . . . . 87
9.2 Dissolution by release (khul‘) . . . . . . . . . . . . . . . . . . . . . . . . . 90
9.3 Judicial divorce (faskh) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
9.4 Other distinctive methods of effecting divorce . . . . . . . . . . . . . . . . 94
9.5 Post-divorce relief/maintenance . . . . . . . . . . . . . . . . . . . . . . . 95
10 Children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
10.1 Legitimacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
10.2 Child custody . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
10.3 Guardianship of property . . . . . . . . . . . . . . . . . . . . . . . . . . 103
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
11 Succession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
11.1 Intestate succession . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
11.2 Testate succession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
11.3 The estate of a mafqud . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
11.4 Death-sickness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
11.5 Reforms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
11.6 Waqfs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
12 The courts and procedure . . . . . . . . . . . . . . . . . . . . . . . 121

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
12.1 Judges (Qadīs) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
12.2 Evidence and proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
Introduction to Islamic law page iii
Module descriptor
GENERAL INFORMATION
Module title
Introduction to Islamic law
Module code
LA3028
Module level
6
Contact email
The Undergraduate Laws Programme courses are run in collaboration with the
University of London. Enquiries may be made via the Student Advice Centre at:
https://sid.london.ac.uk/sid
Credit
30
Courses on which this module is offered

LLB, EMFSS
Module prerequisite
None
Notional study time

300 hours
MODULE PURPOSE AND OVERVIEW

Introduction to Islamic law is offered as an optional module to Standard Entry and
Graduate Entry LLB students. It is also available to study as an Individual Module.
Credits from an Individual Module do not count towards the requirements of the LLB.
The module offers an overview of Islamic law covering its religious, historical and
contemporary dimensions. The module addresses first the religious and historical
foundations of Islamic law before going on to address its application in contemporary
jurisdictions. The theoretical, substantive and procedural aspects of Islamic law are
covered.
MODULE AIM
The module aims to give students a basis from which the richness and complexity of
Islamic law may be explored further. The module concentrates on various aspects of
Islamic law including its legal theory, family law, succession, gifts, waqfs, penal law,
contract, tort, and the administration of justice.
LEARNING OUTCOMES: KNOWLEDGE

Students completing this module are expected to have detailed knowledge and
critical understanding of the foundations, theories, scope and principles of Islamic law.
In particular they should have:
1. Detailed knowledge and critical understanding of the sources, methods and

principles of Islamic law;
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2. Detailed knowledge and critical understanding of the role of Islamic law in the
contemporary world;
3. Detailed knowledge and critical understanding of the main features of the

administration of Islamic justice, including: the role and function of Islamic courts,
role of judges, evidence and proof;
4. Detailed knowledge and critical understanding of specific substantive topics

of Islamic law, such as crime, contract, tort, family law, succession, courts and
procedures.
LEARNING OUTCOMES: SKILLS

Students completing this module should be able to:
5. Research and analyse complex and conceptual questions on Islamic law, producing
reasoned and evidenced responses;
6. Articulate well-argued solutions to complex legal problems in the areas of Islamic

family law, penal law, tort, contract, succession, and administration of justice;
7. Reflect on learning, identifying areas for improvement in Islamic law, particularly in

response to contemporary challenges, and responding appropriately;
8. Evaluate Islamic law issues in a social, economic and political context, taking
account of their policy and doctrinal importance.
BENCHMARK FOR LEARNING OUTCOMES

Quality Assurance Agency (QAA) benchmark statement for Law 2019.
MODULE SYLLABUS
Part I
(a) Introduction: Understanding Islamic law; Islamic law in the modern age and its role
in international law; Its importance as part of the legal system in modern states;
Meaning of Shar’iah.
(b) Origins and history: Pre-Islamic Arabia; Arab tribal law; The life of Prophet
Muhammed; The Al-Rāshidūn caliphs; The Ummayyads and the Abbasids; The Ahl
al-ra’y and the Ahl al-hadīth; The role of Imām Al-Shāfi’ī.
(c) Sources, methods and principles of Islamic law: The Qur’an as a law text; The
Sunnah of the Prophet; Hadith material and authentication; The controversy of
authentication; Ijma‘, Qiyas, Istihsan, Maslahah, Darurah, Istishab, Ijtihad.
(d) Schools of Islamic Jurisprudence: The Sunni and Shi’i. The Sunni Schools: Hanafi,
Maliki, Hanbali, Shafi’i. The Shi’i schools: Ithna Ashari, Isma’ili, Zaydi.
Part II
(e) Penal law: Hadd offences; Ta’zir offences; Qisas offences; Pakistan’s Hudood
Ordinances; Other Shari’ah Penal Codes.
(f) Civil law: Contracts and tort; Freedom of Contract, Prohibition of Riba and Gharar,
Murabahah, Musharakah, Mudarabah, Pre-emption; Gifts; Tortious actions and
liability.
(g) Family law: Marriage contract; Rights and duties; Incidents of Marriage;
Guardianship; Maintenance; Stipulations; Dissolution of marriages; Children;
Legitimacy; Child custody.
(h) Succession: Intestate and Testate Rules, Qur’anic heirs, Agnates; the Mafqūd; Death
sickness; Waqfs.
(i) Courts and procedure: The Qadi’s court; General rules of procedure, evidence and
proof.
Introduction to Islamic law page v
LEARNING AND TEACHING
Module guide
Module guides are the students’ primary learning resource. The module guide covers
the topics in the syllabus and provides the student with the grounding to complete the
module successfully. The module guide contains the Module Descriptor which sets out
the learning outcomes that must be achieved. The guide also includes the core, essential
and further reading and a series of activities designed to enable students to test their
understanding and develop the relevant skills. The module guide is supplemented each
year with pre-exam updates, made available on the VLE.
The Laws Virtual Learning Environment

The Laws VLE provides one centralised location where the following resources are
provided:
u a module page with news and updates;
u a complete version of the module guides;
u mini lectures are provided in some modules;
u pre-exam updates;
u past examination papers and reports;
u discussion forums where students can debate and interact with other students;
u quizzes – multiple choice questions with feedback are available for some chapters.
The Online Library

The Online Library provides access to:
u the professional legal databases LexisLibrary and Westlaw;
u cases and up-to-date statutes;
u key academic law journals;
u law reports;
u links to important websites.
Core texts
Students should refer to at least one of the following core texts. Specific reading
references are provided in each chapter of the module:
u Abd al 'Ati, H. The family structure in Islam. (Chicago: The American Trust
Publications, 1995) fourth edition [ISBN 9780892590049].
u Baderin, M.A. Islamic law: a very short introduction. (Oxford: Oxford University
Press, 2021) [ISBN 9780199665594].
u Coulson, N.J. A history of Islamic law. (Edinburgh: Edinburgh University Press,
1994) [ISBN 9780748605149] (available in VLeBooks via the Online Library).
u Kamali, M.H. Principles of Islamic jurisprudence. (Cambridge: The Islamic Texts
Society, 2003) third edition [ISBN 9780946621828].
ASSESSMENT
Learning is supported through tasks in the module guide and online activities. The
Formative Assessment will prepare students to achieve the module learning outcomes
tested in the Summative Assessment.
Summative assessment is through a three hour and fifteen minute unseen

examination. Students are required to answer four questions out of eight. The
examination will be divided into two parts from which students will be required
to answer at least one question from each part. The questions in Part 1 of the
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examination relate to Chapters 1–3 in Part I of the guide and the questions in Part 2 of
the examination relate to Chapters 4–12 of Part II of the guide.
Please be aware that the format and mode of assessment may need to change in
light of extraordinary events beyond our control, for example, an outbreak such as
the coronavirus (COVID-19) pandemic. In the event of any change, students will be
informed of any new assessment arrangements via the VLE.
Permitted materials
None.
Part I
1 Introduction
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1 What is Islamic law? . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.2 How to use this module guide . . . . . . . . . . . . . . . . . . . . . . . 4
1.3 Three short background readings . . . . . . . . . . . . . . . . . . . . . 5
1.4 Introductory activity . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.5 The examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

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Introduction
Islamic law is an immensely complex and rich system of law, which has spread widely
throughout the world. Many legal systems have either incorporated some elements of
Islamic law, which govern the Muslim citizens of these countries (as in India, Singapore
or South Africa), or are completely based on classical Islamic law (as in Saudi Arabia).
In an introductory module like this one, we cannot hope to do complete justice to

the richness and complexity of Islamic law. Rather, we would like to give you a basis
from which to explore Islamic law further by first introducing you to Islamic legal
theory and then examining some aspects of Islamic substantive law such as Islamic
family law, Islamic law of succession, Islamic criminal law, Islamic law of contract,
Islamic law of trust and Islamic judicial procedure. We would like to encourage you
to tackle and understand the foundations of Islamic law first before you go on to
examine the application of Islamic law in the different jurisdictions where it applies
throughout the world.
You will also need to know some of the basic Islamic law terminologies in Arabic
and understand their meaning, as you will be coming across them frequently. Most
English textbooks on Islamic law have a glossary of the Arabic terminologies. Two good
examples are:
¢ Coulson, pp.235–41.
¢ Kamali, pp.522–26.
Introduction to Islamic law 1 Introduction page 3
1.1 What is Islamic law?

Islamic law is one of the major systems of law in the world today. It is applicable in
various forms as part of state law in different countries of the Middle East, Asia and
Africa but also has a strong influence on Muslim communities in the West, who apply it
informally in different aspects of their daily lives. Yet, it is often misunderstood. Being
a legal system based on Islamic religious texts and teachings with its primary sources
in the Arabic language, Islamic law often raises questions about whether it is really
law or simply rules of religious ethics. It is a system based on sources, methods and
principles, with different Arabic terminologies applying to its different aspects. Apart
from the English phrase ‘Islamic law’, alternative phrases such as ‘Shari‘ah law’, ‘Islamic
legal tradition’ and ‘Islamic jurisprudence’ are also used in reference to it.
Broadly understood as a system of law, Islamic law shares similar characteristics with
other systems of law. It consists of theoretical, substantive and practical aspects
in a similar manner to other legal systems. Although reference to Islamic law in
Western literature is often focused on its legal theories and jurisprudence, a holistic
understanding of Islamic law requires coverage of all its three aspects.
The study of Islamic law will lead you into areas that in the past have rarely been
visited by lawyers practising law under Western legal systems. For example, whereas
English law and the English legal system are, for all practical purposes, largely secular,
Islamic law is firmly based on the Islamic religion. The main sources of Islamic law, the
Qur’an and the Sunnah, represent not only the foundations of Islamic law but embody
the religion of Islam as well. Although there is usually some difference between legal
and theological rulings on particular issues, a total separation between law and
religion is not possible in Islam. The religious basis and nature of Islamic law contrast
sharply with the ideals of secularism, both in the political and in the legal sphere,
that have formed the basis of the English legal system in the modern age. While there
can be no doubt that many principles of English law are informed by Christian ethics
and values, unlike in Islamic law, these origins remain unacknowledged in most law
degree courses. In contrast, Islamic law cannot be understood, and cannot be studied,
without an appreciation of the religious nature of its sources.
1.1.1 A study of religion as much as law

The study of Islamic law is as much a study of religion as it is of law. This fact has
implications for the way you will study Islamic law in contrast to English law. Your
studies on English law subjects will have introduced you to a range of sources. The
primary sources (i.e. reported case law and legislation) are normally supported by a
wide range of secondary sources, including textbooks on individual subjects, academic
writing and collections of cases and materials.
The study of Islamic law, however, will lead you to traditional sources that are quite
different from case law and legislation. The primary sources of Islamic law, the Qur’an
and the Sunnah, cannot be compared to English case law or legislation. It is therefore
necessary to go beyond these primary sources and to consult other jurisprudential
sources (or methods) in order to understand how Islamic law emerged as a complete
legal system from these religious origins. In this module guide you will therefore
find many references to books that are not, strictly speaking, ‘legal’ in nature but
are concerned with the religious jurisprudence and historical aspects of Islam. It is
essential to consult this background literature in order to understand and appreciate
the basic principles of Islamic law. It is only when you have grasped the religious and
historical foundations of Islam that you will be introduced to Islamic law proper. There
are a number of textbooks on Islamic law and the study of these principles is not all
that different from the study of English law subjects. The only important difference
is that the basic principles of Islamic law are not contained in case law but were
developed by jurists over time. For the same reason, legislation per se also has no
role to play in the emergence of these basic principles, though in many modern legal
systems Islamic law has now been codified and supported by legislation.
The study of English law subjects is concerned with those laws that are applied by
English courts. In contrast, the study of Islamic law is not primarily based on the legal
systems of individual countries but on basic principles of law developed by different
schools of Islamic jurisprudence over a long period of time. Some of these principles
now form the basis of the codified law in contemporary legal systems of different
Muslim-majority states, and the basis of law applicable to Muslims in some Muslim-
minority states. For instance, in India and Pakistan, Muslims are governed in most areas
of family law by Islamic law as codified by these countries. Thus, your first step in the
study of Islamic law is the study of its basic principles and jurisprudence. From time
to time we will highlight individual countries to show you how these principles are
applied in practice. Apart from these ‘excursions’, your encounter with Islamic law will
not be concerned in much detail with contemporary legal systems or countries.
1.1.2 Aims of this module guide

The primary aim of this module is to enable you to gain an overview of the vast and
complex body of law commonly referred to as Islamic law. This guide does not amount to
a textbook and you should note that it is impossible to pass the examination by studying
this module guide alone. The main purpose of this guide is to offer navigational markers
to you to enable you to embark on the study of Islamic law in a systematic and logical
fashion. The syllabus indicates the range of topics the examiners will expect you to
know. Make sure you read the syllabus and are aware of the full range of topics it covers.
We have attempted to include guidance by way of sample examination questions

at the end of each chapter. It probably goes without saying that these are samples
only and that anything contained in the syllabus can be subject to examination. It
is important constantly to bear in mind when answering questions that, unless the
question specifically refers to the law of a particular school of Islamic jurisprudence,
the jurisprudence of all four schools of Sunni Islam and the law of Shi’ah Islam should
be considered as much as possible.
This guide should enable you to gain an overview of the subject and to understand
the main features of particular areas of Islamic law. As Islamic law is not simply based
on case law, there can be diverse legitimate jurisprudential views on any particular
issue. The focus of this module is on ‘traditional’ or ‘classical’ Islamic law (i.e. the basic
concepts and principles of Islamic law), so accounts of contemporary Islamic legal
systems (though helpful for an understanding of the topic) should be interrogated
against relevant traditional or classical jurisprudence. The literature on Islamic law is
vast but we have attempted to reduce it to books and articles that are easily available
and accessible to you as a student. We have identified several textbooks that are
widely available and are regarded as ‘classic’ introductions to Islamic law. We have
also suggested Further reading in each section. However, you will find that there are
many more excellent introductions to Islamic law available if you cannot obtain the
recommended textbooks or articles. The library SOAS University of London, jointly with
the SOAS Centre of Islamic and Middle Eastern Law, maintains its own website which
contains useful bibliographies, articles and general information on Islamic law: www.
soas.ac.uk/cimel/materials/ Also check the Online Library, the Introduction to Islamic
law section of the Virtual Learning Environment (VLE) and other online sources.
1.2 How to use this module guide

The module guide offers a basic introduction to the main principles of Islamic law. It
is therefore not sufficient to rely entirely on the information contained in this guide
to pass the examination. You are expected to deepen your knowledge of any area of
Islamic law contained in the syllabus through further reading. You should therefore
regard this introduction to Islamic law as a stepping stone. Attempt one chapter at a
time, read it carefully and then deepen your understanding of the topic by consulting
other books and articles. You should also attempt the self-assessment exercises as well
as the the sample examination questions provided at the end of each chapter to test
your understanding of the issues covered.
1.3 Three short background readings

To familiarise yourself with the subject, you should read and reflect on the following
three short background readings on Islamic law. They will provide you with the
necessary background insight to prepare you for the substantive understanding
of the module.
¢ Baderin, M.A. ‘Historical and evolutional perceptions of Islamic law in a

continually changing world’ (2009) 6(2) The Middle East in London 7–8.
¢ Baderin, M.A. ‘Understanding Islamic law in theory and practice’ (2009) 9 Legal
Information Management 186–90 (available in LexisLibrary and Westlaw via the
Online Library).
¢ Spells, S. ‘Researching Islamic law: an introduction’ (2009) 9 Legal Information

Management 191–94 (available in LexisLibrary and Westlaw via the Online
Library).
1.4 Introductory activity

u Write a 100-word summary for each of the three background readings without
recourse to the articles. On completion, check whether each of your summaries
covered all the main points of each article.
u Post a sample of your summary on the VLE forum for online discussion.
Core texts
It is strongly recommended that you buy your own copy of any one of these textbooks
and possibly access the others through your local library, where available.
¢ Abd al ‘Ati, H. The family structure in Islam. (Chicago: The American Trust
Publications, 1995) fourth edition [ISBN 9780892590049].
¢ Baderin, M.A. Islamic law: a very short introduction. (Oxford: Oxford University
Press, 2021) [ISBN 9780199665594].
¢ Coulson, N.J. A history of Islamic law. (Edinburgh: Edinburgh University Press,

1994) [ISBN 9780748605149] (available in VLeBooks via the Online Library).
¢ Kamali, M.H. Principles of Islamic jurisprudence. (Cambridge: The Islamic Texts

Society, 2003) third edition [ISBN 9780946621828].
In this module guide the core texts will be referred to by the author’s name. Where
you are being directed to another publication by the same author, the full title of that
publication will be given.
Essential and further readings

We also recommend the following materials for a general introduction to Islamic law.
¢ Baderin, M.A. (ed.) International law and Islamic law. (Aldershot: Ashgate
Publishing Ltd, 2008) [ISBN 9780754627159].
¢ Baderin, M.A. (ed.) Islamic law in practice. Vol.3 of the Ashgate Islamic Law Series
(Farnham: Ashgate Publishing Ltd, 2014) [ISBN 9780754628774]. This book is
expensive and only recommended if you have access to a copy in a library. But
you should read the introduction, ‘The application of Islamic law in context’ at:
http://eprints.soas.ac.uk/18458/
¢ Baderin, M.A. (ed.) Islamic legal theory. Vol.1 of the Ashgate Islamic Law Series
you should read the introduction, ‘Islamic legal theory in context’, at: http://
eprints.soas.ac.uk/18456/
¢ Baderin, M.A. (ed.) Issues in Islamic law. Vol.2 of the Ashgate Islamic Law Series
you should read the introduction, ‘Islamic substantive law in context’, at: http://
eprints.soas.ac.uk/18457/
¢ Cotran, E. and C. Mallat (eds) Yearbook of Islamic and Middle Eastern law. (London:
Kluwer Law International) 1995: Vol. 2 [ISBN 9789041102577] and 1996: Vol. 3
[ISBN 9789041108838] (available in HeinOnline). This book has been published
since 1994. It contains useful country surveys of all Arab and North African
countries but also covers Islamic law as applied in other parts of the world, such
as South Africa, Malaysia and Pakistan.
¢ Fyzee, A. (ed.) Outlines of Muhammadan law. (Delhi: Oxford University Press,

2008) fifth edition [ISBN 9780198063605].
¢ Hallaq, W.B. A history of Islamic legal theories. (Cambridge: Cambridge University

Press, 1997; reprinted 2005) [ISBN 9780521599863] (available in Cambridge Core
at: www.cambridge.org/core/books/history-of-islamic-legal-theories/771C6B38C2
37FB3CBE664C08096BB133).
¢ Hallaq, W.B. An introduction to Islamic law. (Cambridge: Cambridge University

Press, 2009) [ISBN 9780521678735].
¢ Hallaq, W.B. Shari’a: theory, practice, transformations. (Cambridge: Cambridge

University Press, 2009) [ISBN 9780521678742].
¢ Hallaq, W.B. The origins and evolution of Islamic law. (Cambridge: Cambridge
University Press, 2005, third printing 2007) [ISBN 9780521005807] (available in
VLeBooks via the Online Library).
¢ Liebesny, H.L. The law of the Near and Middle East: readings, cases and materials.
(Albany: State University of New York Press, 1975) [ISBN 9780873952569].
¢ Mahmood, T. ‘Law in the Qur’an: a draft code’ (1987) VII Islamic and Comparative
Law Quarterly 1.
¢ Mansoori, M.T. Family law in Islam: theory and application. (Islamabad: Shariah
Academy, 2006) [ISBN 9789698263485].
¢ Pearl, D. and W. Menski (eds) Muslim family law. (London: Sweet & Maxwell,
1998) third edition [ISBN 9780421529809].
¢ Peters, R. Crime and punishment in Islamic law: theory and practice from the
sixteenth to the twenty-first century. (Cambridge: Cambridge University Press,
2005) [ISBN 9780521796705].
¢ Schacht, J. An introduction to Islamic law. (Oxford: Oxford University Press, 1982)

[ISBN 9780198254737].
¢ Schacht, J. The origins of Muhammadan jurisprudence. (Oxford: Clarendon Press,

1950; paperback 1979) [ISBN 9780198253570].
¢ Weiss, B. ‘Interpretation in Islamic law: the theory of Ijtihad’ (1978) 26(2)

American Journal of Comparative Law 199.
¢ Welchman, L. Women and Muslim family laws in Arab states. (Amsterdam:

Amsterdam University Press, 2007) [ISBN 9789053569740] (available in VLeBooks
via the Online Library).
English translations of classical manuals on Islamic law

You should be aware of important classical books of Islamic law or jurisprudence that
are considered as key primary texts on the subject. Listed below are three such texts
available in English translation.
¢ Khadduri, M. al-Shafi‘i’s Risala: treatise on the foundations of Islamic

jurisprudence. (Cambridge: The Islamic Texts Society, 1991; reprinted 2008)
[ISBN 9780946621156].
This is an English translation of what is acknowledged by Islamic legal scholars as the
first formal treatise on Islamic jurisprudence written by Imam al-Shafi’i, the founder of
one of the four Sunni schools of Islamic jurisprudence, in the second century of Islam.
On the basis of this text al-Shafi’i is symbolically referred to today as the ‘Father of
Islamic Jurisprudence’. The text continues to have a significant influence on the study
of Islamic jurisprudence.
A free electronic copy of the text is available at: www.hadith-studies.com/AL-SHAFIIS-

RISALA.PDF
¢ Nyazee, I.A.K. The distinguished jurist’s primer: Bidayat al-Mujtahid wa Nihayat

al-Muqtasid, Ibn Rushd. Vols I and II (Reading: Garnet Publishing Ltd, 1994)
[ISBN 9781859641392].
This is an English translation of one of the most acknowledged books on comparative

Islamic jurisprudence (khilaf). The author is the 12th century Muslim jurist and
philosopher Ibn Rushd, commonly known as Averroes in the West. It records the views
of the different schools of Islamic jurisprudence on issues of Islamic jurisprudence
and compares them, sometimes indicating what the author considers to be the better
view. It is a standard primary source on Islamic jurisprudence used in many universities
in the Muslim world for the study of Islamic law. Volume I covers the religious aspects
of the Shari’ah, while Volume II covers temporal aspects, including some of the issues
on substantive Islamic law covered in this module.
Free electronic copies are available at: Vol.I: https://islamfuture.files.wordpress.

com/2011/05/the-distinguished-jurist-s-primer-vol-i.pdf
Vol.II: https://islamfuture.files.wordpress.com/2011/05/the-distinguished-jurist-s-
primer-vol-ii.pdf
¢ Nyazee, I.A.K. Al-Hidayah: the guidance. (Bristol: Amal Press, 2006)

[ISBN 9780954054496].
This is an English translation of the 12th century al-Marghinani’s al-Hidayah, which is

acknowledged as one of the finest classical sources of Islamic jurisprudence of the
Hanafi school. The text played a key role in the development of the amalgam of Islamic
and British law to form the so-called Anglo-Muhammadan law in the Indian sub-
continent. It is in two volumes covering both the religious and temporal aspects of the
Shari’ah.
1.5 The examination

Important: the information and advice given below applies to the examination
structure used at the time this guide was written. However, the University can alter the
format, style or requirements of an examination paper without notice. Because of this,
we strongly advise you to check the instructions on the paper you actually sit.
You will be asked to answer four questions out of a total of eight in an examination
lasting three hours and 15 minutes. The examination will be divided into two parts
from which you will be required to answer at least one question from each part. The
questions in Part 1 of the examination relate to Chapters 1–3 in Part I of the guide and
the questions in Part 2 of the examination relate to Chapters 4–12 of Part II of the guide.
Always use your time so that you can answer four questions, devoting, if possible,
the same amount of time to each question. Remember that all questions carry the
same amount of marks. It is essential to write clearly. Marks may be lost if an answer is
illegible. Try to collect and arrange your thoughts before you begin to write in order to
present a logical argument and to avoid repetition.
Notes
2 Introducing Islamic law
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.1 Islamic law in the modern age . . . . . . . . . . . . . . . . . . . . . . 11
2.2 The role of the Shari‘ah in international law . . . . . . . . . . . . . . . 11
2.3 The historical basis of Islamic law . . . . . . . . . . . . . . . . . . . . 13
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Introduction
A study of Islamic law without an appreciation of the history of Islam as a religion
would be impossible. The origins of Islam offer explanations for many of the
fundamental features of Islamic law. You will have to familiarise yourself with an
outline of the early history of Islam and Islamic law, the main sources of Islamic law
and the emergence of different schools of Islamic jurisprudence. It should be noted
that this is not just ‘background’ reading but forms an essential and examinable part of
the syllabus.
Islamic law is often referred to as the Shari‘ah, which literally translated means ‘the path’.
Technically, however, the term Shari‘ah can be used in different contexts in relation to
Islamic law. The jurisprudential science of Islamic law is called the fiqh which, literally
translated, means ‘understanding’ but technically means ‘jurisprudence’. It is important
to appreciate the difference and link between the two terms.
Learning outcomes
By the end of this chapter and the relevant readings, you should be able to:
u describe the history of Islam from its pre-Islamic Arabian setting up to the
Abbasid dynasty
u explain the basic influence of pre-Islamic tribal customary law on the
development of Islamic law
u analyse the historical development of Islamic law
u display a sound knowledge of the life of the Prophet Muhammad
u describe the role of Islam and relevance of Islamic law in the contemporary
world in general terms.
Introduction to Islamic law 2 Introducing Islamic law page 11
2.1 Islamic law in the modern age
Core text
¢ Coulson, Chapter 12 ‘Administration of Shari’a law in contemporary Islam’.
Further reading
¢ Schacht (1982) Chapter 15 ‘Modernist legislation’.
¢ Hallaq, An introduction to Islamic law. Chapter 8 ‘The law in the age of nation-
states’ and Chapter 9 ‘State, ulama and Islamists’.
The relevance of Islamic law in the modern age is reflected in its continued influence on
both domestic and international law, particularly in parts of the world generally referred
to as the ‘Muslim world’. In many Arab and non-Arab countries, it still forms the basis
of the legal system, though in many instances it has been reformed and codified. Many
countries with majority Muslim populations (such as Afghanistan, Iran and Pakistan) are
officially designated as Islamic Republics and the constitutions of many others (such
as Saudi Arabia, Libya, Morocco and the Maldives) contain provisions to the effect that
Islam is the state religion and that all laws should be in conformity with Islam. However,
Islamic law is not only relevant in countries with majority Muslim populations: many
legal systems allow Muslims to be governed in the area of family law by Islamic law. The
best example of this partial recognition and application of Islamic law is the Republic of
India. India is constitutionally a secular state but its Muslim population is governed in the
area of family law by Islamic law. Other examples include Singapore and the Philippines,
where Islamic personal laws apply to the minority Muslim populations.
Malaysia and Nigeria, both of which have Muslim majority populations, are examples of a
mixed legal system. Islam is the state religion of Malaysia but the majority of laws in force
in Malaysia today were introduced during British colonial rule. However, Islamic law is
nevertheless an important source of law, especially in the area of family law where it is
applied by special Islamic courts (the Syariah courts, as they are called in Malaysia). These
courts also have a very limited jurisdiction to deal with minor offences against Islamic
law. However, the jurisdiction of the Islamic courts is limited to Muslim citizens.
Nigeria does not designate Islam as a state religion but operates a mixed system of
law consisting of English law introduced during British colonial rule, Islamic personal
law and customary law. However, in recent years some of the states in Northern
Nigeria have begun not only to apply Islamic law in matters of personal status such as
marriage, divorce, custody of children and succession on death, but also to criminal
offences. The aim of the governments of these Muslim states is to re-introduce the
application of the Shari‘ah in its entirety within their jurisdictions.
2.2 The role of the Shari‘ah in international law
Core text
¢ Baderin, Chapter 8 ‘International law’.
Essential reading
¢ Baderin, International law and Islamic law ‘Introduction’. This is available on the
VLE.
The Islamic law of nations (Siyar), the area of law that classically regulated the
relationship between an Islamic state and a non-Islamic state, is not a separate body
of law but an extension of Islamic law to the relationship of states. Islam and Islamic
law were conceived traditionally as intended for all humankind and during the initial
expansionist phase of Islam, under the reigns of the successors to the Holy Prophet
Muhammad, it was assumed that eventually all of humankind, or most of humankind,
would have converted to Islam. This has not happened, however, and Islamic states
came into existence which had to establish proper relations with their non-Islamic
neighbours. The Islamic law of nations therefore reflects not only the expansionist
phase of Islamic history, with its emphasis on the rules regulating warfare (jihad or
qital), but also relations in times of peace and the emergence of distinct Islamic states.
It follows that, though the Islamic law of nations is essentially based on the Qur’an and
the Sunnah, it nevertheless incorporates many practices derived from Islam’s direct
experiences with neighbouring countries and the circumstances of the time.
At the core of the Islamic law of nations is the concept of the Muslim ummah.
The Muslim ummah is the community of all those who profess the Islamic faith.
Theoretically, at least, the ummah is potentially capable of embodying the whole of
humankind. In practice, however, the world was split into the territory of Islam (the
dar al-Islam) and the rest of the world, which was collectively known as the ‘territory of
war’ (dar al-harb). Within the war-prone situations of the time, it was considered a duty
of the Muslim ruler to bring the ‘territory of war’ within the ummah. The Shafi’i school
of law recognises a further category, namely the ‘territory of peaceful arrangement’
(dar al-sulh). (See Section 3.4 for an explanation of the schools of Islamic law.)
The existence of the ‘territory of war’, which entailed that all relations with this
territory were necessarily temporary until it was integrated into the ummah, did not
mean that no agreements could be concluded between the Islamic and the non-
Islamic state. In practice, agreements were concluded even though the non-Islamic
state was not recognised as equal. Some of the jurists argued that the treaty-making
powers of a Muslim ruler were restricted in that he could not enter into a permanent
peace-treaty with a state within the ‘territory of war’ since this would defeat the duty
to integrate the ‘territory of war’ into the ummah.
The tool that was to convert the ‘territory of war’ into the ‘territory of Islam’ was jihad,
which literally means ‘striving’ but also included just wars. Jihad is the obligation on
every Muslim to achieve Islam’s ultimate aim, namely the universalisation of Islam.
This does not, however, necessarily entail aggressive wars, since the obligation to
spread Islam can also be carried out by peaceful and persuasive means. Jihad, however,
necessarily entails defensive war to protect the religion from annihilation by the
enemy. The Islamic law of nations regards as unjust any war that does not entail the
concept of jihad, particularly in defence of the Islamic faith.
The concept of the ‘territory of Islam’ (dar al-Islam) does not imply that within that
territory no non-Muslim is allowed to live. One of the cardinal principles of Islam is the
absence of coercion. Non-Muslims were traditionally allowed to retain their religions
and were given a special status of either protected subjects (ahl al-dhimmah) or safe
aliens (musta’minin).
Over time, the jurists had to recognise that the existence of the ‘territory of war’ was
more permanent than initially envisaged and that the relations between the two
worlds had to be conducted by peaceful means. In the 21st century the ‘territory of
Islam’ and the Muslim ummah is itself split into numerous Islamic countries and these
Islamic states are fully integrated into the wider community of nations on the basis of
equality and reciprocity. The concept of jihad, significant in the early phase, owing to
the circumstances of the time, has now given way to the desire of Muslim nation states
to co-exist with non-Islamic nations. Thus, the rules of peaceful co-existence under the
classical Islamic law of nations are awarded much greater prominence over the rules
of warfare by contemporary Muslim nation states in consonance with similar rules of
modern international law. Unfortunately, this desire has been threatened by ‘Islamic’
extremists of various persuasions who have challenged this aim.
Self-assessment questions
1. Describe the importance of Islamic law in the modern world.
2. Compare and contrast the position of Islamic law in (a) Saudi Arabia, (b) Pakistan
and (c) Malaysia.
3. Describe the role of the Shari‘ah in international law.

Further reading
¢ Harding, A. ‘Islamic law in Malaysia’ in Cotran and Mallat, Vol.2. This reading is
available on the VLE.
¢ Pearl and Menski, pp.45–50.
¢ Gibb, H.A.R. Islam: a historical survey. (Oxford: Oxford University Press, 1978)
[ISBN 01988880170] Chapter 10. This reading is available on the VLE.
2.3 The historical basis of Islamic law
Core texts
¢ Baderin, Chapter 1 ’Historical development’.
¢ Coulson, Chapter 1 ‘Qur’anic legislation’ and Chapter 2 ‘Legal practice in the first
century of Islam’.
Essential reading
¢ Schacht (1982), Chapter 2 ‘The pre-Islamic background’ and Chapter 3
‘Muhammad and the Koran’ (available on the VLE).
¢ Fyzee, pp.2–9 (available on the VLE).
2.3.1 Pre-Islamic Arabia

It is important to understand the historical setting of the advent of Islam in order to
understand the basic principles of Islamic law. Pre-Islamic Arabia was inhabited by tribal
communities who followed animistic religions. The tribal community was the focal point
for the individual. Survival outside the tribal community was difficult if not impossible.
The tribes themselves developed their own sets of customary laws that were binding on
all members. Besides the tribal communities there were trading communities in Mecca
and Medina who enjoyed commercial relations with areas outside Arabia. The merchants
and traders had developed their own set of mercantile laws.
2.3.2 The early years of Islam

The advent of Islam following the revelations of God’s word to the Prophet, the
spokesman of God, led to the founding of a formal Islamic community in Medina in the
year 622 ce, after the Prophet’s migration there from Mecca. The tribal communities
by and large converted to Islam and gradually Islamic codes of conduct and Islamic
law modified or completely replaced tribal customary law. As will be seen throughout
this module guide, in many instances Islamic law did not completely replace tribal
customary law but merely modified it. This can be seen most clearly in the law of
homicide and the law of marriage, both of which have retained substantial elements
of pre-Islamic tribal law.
Muhammad himself came from the tribe of the Quraysh, the tribe that held Mecca.
He established himself as a trader and married his first wife, Khadija, at the age of
25. They had two sons and four daughters but his sons died in infancy. The marriage
of his daughter Fatima to Ali is important: the Shi’ah look upon the descendants
of Fatima and Ali as the true successors of the Prophet. Muhammad was 40 years
old when the first messages from God were revealed to him in Mecca. One of God’s
revelations commanded him to proclaim publicly what he had been told by God.
The first conversions took place and a small community of believers emerged in
Mecca – initially restricted to his family. One of the first converts, perhaps even the
first convert, was Abu Bakr, his friend and subsequent father-in-law, since Muhammad
married Abu Bakr’s daughter Ayesha after the death of his first wife. Once the fact of
the establishment of a community of believers had spread through Mecca, the citizens
took against the community, fearing for their trading interest and their income.
In the year 622 ce Muhammad was forced to migrate from Mecca due to religious
persecution and he established a Muslim community in neighbouring Medina, and it is
this year which marks the beginning of the Islamic calendar.
After the death of the Prophet Muhammad his friend and father-in-law, Abu Bakr,
was elected Caliph, that is, the leader of the community of believers (the ummah).
Under his leadership the empire of Islam expanded considerably, spreading as far as
Egypt. Under Umar, the second Caliph, this expansion continued. After Umar’s death
a council of elders elected Uthman as the third Caliph, but his reign was marred by an
army rebellion that led to Uthman being murdered at Medina. His successor was Ali,
the Prophet’s son-in-law, who was to become the ‘founding father’ of the Shi’ah sect.
The reign of Ali marks the end of the rule of the four ‘righteous’ Caliphs (al-Rashidun),
who are regarded in Sunni Islam as the undisputed successors of the Prophet. The
difference between the Shi’ah and Sunni is explained in more detail in Chapter 3.
2.3.3 The development of Islam

From then onwards the Islamic world was divided into the Shi’ah and the Sunni.
A succession of dynasties, beginning with the Ummayyads, who were followed by
the Abbasids, ruled over the Muslim world. However, independent Muslim empires
emerged in the middle of the eighth century and by the end of the century Persia,
Spain, Morocco, Tunisia and Egypt were all governed by independent rulers.
The political fragmentation of the Islamic world had an effect on the development of
Islamic law. In the early phase of Islamic expansion and unified political control under
the Medina Caliphs, who were seen as ‘the rightly guided ones’ (al-Rashidun), it had
been possible to achieve a consensus about the contents of Islamic law. However,
during the rule of the Ummayyad dynasty a divergence of opinion began to emerge:
scholars would pronounce their own ideas of standards of conduct and the true nature
of Islamic law. It was under the Abbasid dynasty that the early schools of Islamic law
began to develop. The main distinction between these early schools was their dispute
over the role of legal reasoning. The traditionalists (the ahl al-hadith) maintained
that there was no right for jurists to reason for themselves since the only authority
on Islamic law was the Qur’an and the precedents set by the Prophet. In contrast, the
rationalists (the ahl ar-ra’y) argued that jurists had the right to reason for themselves.
Write short answers to the following questions:
1. What is the role of Islamic law in the world today?
2. Discuss the six major periods in the historical development of Islamic law.
3. In what ways did pre-Islamic tribal law influence the development of Islamic
law?
4. Describe the emergence of Islam as a religion.
5. Write a 500-word summary of Coulson, Chapter 2.
6. Write an 800-word summary of Baderin, Chapter 1.
Further reading
¢ Armstrong, K. Islam: a short history. (London: Orion Publishing Group, 2001)
[ISBN 9781842125830] Chapters 1 and 2.
¢ Guillaume, A. Islam. (London: Penguin Books, 1977) [ISBN 9780140135558]

Chapters 1 and 2. This reading is available on the VLE.
Summary
The history of Islam and the emergence of Islamic law constitute essential background
knowledge. It is equally important for you to realise the importance of Islamic law in
the world today. This area of the syllabus is therefore not concerned with any specific
area of law but expects you to demonstrate a good knowledge of the early stages of
Islamic history.
Reminder of learning outcomes

Having completed this chapter and the relevant readings, you should be able to:
u describe the history of Islam from its pre-Islamic Arabian setting up to the
Abbasid dynasty
u explain the basic influence of pre-Islamic tribal customary law on the
development of Islamic law
u analyse the historical development of Islamic law
u display a sound knowledge of the life of the Prophet Muhammad
u describe the role of Islam and Islamic law in the contemporary world in
general terms.
Sample examination questions

Question 1 Discuss the role of pre-Islamic tribal customary law in the development
of Islamic law.
Question 2 Compare and contrast the role of Islamic law in the legal systems of
Malaysia and Pakistan.
Advice on answering the questions

Question 1 A good answer will display a good knowledge of the nature of the pre-
Islamic law of Arabia. There should be a discussion of the patriarchal nature of the legal
system and the lack of status accorded to women. It is important for a good answer
to move the discussion forward so as to analyse the changes brought about by the
coming of Islam. There should also be an indication of the extent to which pre-Islamic
customs were completely abandoned, modified or retained.
Question 2 This question is best tackled through a historical approach, analysing

and describing the colonial legacy of laws, including Islamic laws, which these
countries inherited at the time of independence. In this respect it is important to
note deviations from the classical law of the schools prevalent in these countries.
There should be a discussion of the changes effected by statute and by judicial
decisions (particularly in Pakistan) as well as a description of the institutional and legal
mechanisms used to introduce Islamic laws.
Reflect and review

Look through the points listed below. Are you ready to move on to the next chapter?
Ready to move on = I am satisfied that I have sufficient understanding of the principles

outlined in this chapter to enable me to go on to the next chapter.
Need to revise first = There are one or two areas I am unsure about and need to revise
before I go on to the next chapter.
Need to study again = I found many or all of the principles outlined in this chapter very
difficult and need to go over them again before I move on.
Tick a box for each topic.

Ready to Need to Need to
move on revise first study again
I can describe the history of Islam from its pre-

Islamic Arabian setting up to the Abbasid dynasty.   
I can explain the basic influence of pre-Islamic tribal

customary law on the development of Islamic law.   
I can analyse the historical development of Islamic

law.   
I can display a sound knowledge of the life of the

Prophet Muhammad.   
I can describe the role of Islam and Islamic law in

the contemporary world in general terms.   
If you ticked ‘need to revise first’, which sections of the chapter are you going to
revise?
Must Revision
revise done
2.1 Islamic law in the modern age  
2.2 The role of the Shari‘ah in international law  
2.3 The historical basis of Islamic law  

Notes
3 The origins, sources and evolution of Islamic law
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
3.1 The Qur’an and the Sunnah . . . . . . . . . . . . . . . . . . . . . . . . 21
3.2 Ijma‘ and qiyas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
3.3 Further ‘sources’ and principles of Islamic law . . . . . . . . . . . . . . 25
3.4 Development of the classical schools of Islamic jurisprudence . . . . . . 28
3.5 Attempts at modern Islamic legal theory . . . . . . . . . . . . . . . . . 30

Introduction
Core texts
¢ Baderin, Chapter 2 ‘The nature of Islamic law’ and Chapter 3 ‘Theory, scope and
practice’.
¢ Kamali, Chapter 1 ‘Introduction to Usul al-Fiqh’.
Essential reading
¢ Baderin, M.A. ‘Islamic legal theory in context’ in Baderin, Islamic legal theory,
pp.xi–xlii. Available at: http://eprints.soas.ac.uk/18456/
A sound knowledge and understanding of the origins, sources and evolution of Islamic
law are essential for the study of Islamic law. This forms part of Islamic legal theory
(usul al-fiqh), which covers the jurisprudential rules relating to the nature, sources,
methods and principles of Islamic law as well as its legal hermeneutics and juristic
methodologies of interpretation. Islamic jurists consider Islamic legal theory as the
basis of Islamic jurisprudence.
In every legal system the sources of the law constitute the foundation from which
the law draws its validity. Thus, ascertaining the sources of the law is the first major
objective of Islamic legal theory, followed by the rules and methodologies of
interpretation of the sources. Islamic law is primarily a religious law as it is based on
religious sources. All the schools and sects of Islam accept that the two main sources
of the Shari‘ah are the Qur’an and the Sunnah. These two sources are not only the
basic textual sources of Islamic law but are also the principal religious texts of Islam.
It is important to appreciate the divine origins of both the Qur’an and the Sunnah in
order to understand why and how Islamic law has developed sophisticated methods
of interpretation and law-finding so as to arrive at concrete legal rules capable of
solving real legal problems. This chapter on the origins, sources and evolution of
the law is therefore not confined to an exposition of the textual sources of Islamic
law but is also concerned with an introduction to the different methods of law-
finding. You will see that, especially on the latter, there exist considerable differences
between the schools of Islamic jurisprudence (also called schools of Islamic law).
For example, there are differences between the Sunni and the Shi‘ah schools as
to what constitutes the Sunnah, as the Shi‘ah consider traditions from their own
Imams as being of divine inspiration.
The secondary sources, which are also called methods of Islamic law, are ijma’
(consensus) and qiyas (analogy) based on ijtihad. There are also different principles
for the application of the law, such as istihsan (juristic preference), maslahah
(welfare), darurah (necessity), istishab (presumption of continuity), urf (custom),
takhayyur (eclectic choice) and talfiq (patching up), all of which are covered in
the readings. As will be explained below and in the readings, the application of
the methods and different principles varies widely between the different schools
of Islamic jurisprudence.
Learning outcomes
u describe and discuss the main characteristics of Islamic law
u distinguish between the sources, methods and principles of Islamic law
u explain the emergence, development and role of the different schools of
Islamic jurisprudence
u produce a chronology of the evolution of Islamic law.
Introduction to Islamic law 3 The origins, sources and evolution of Islamic law page 21
3.1 The Qur’an and the Sunnah
Core texts
¢ Coulson, Chapter 1 ‘Qur’anic legislation’, Chapter 2 ‘Legal practice in the first
century of Islam’ and Chapter 5 ‘Concluding stages of growth’.
¢ Kamali, Chapter 2 ‘The first source of Shari’ah: the Qur’an’ and Chapter 3 ‘The
Sunnah’.
3.1.1 The Qur’an

Muslims believe that the Qur’an was revealed piecemeal by God to the Prophet
Muhammad through the angel Gabriel, over a period of about 23 years. The fount of
revelation came to an end with the death of the Prophet Muhammad in 632 ce, because
it was only to him that the divine will was revealed. The Qur’an thus contains the divine
commands of God and it is the duty of every Muslim to submit themselves to these
commands. The word ‘Islam’ itself denotes ‘submission to the will of God’. The Qur’an
contains about 6,219 verses, collected in 114 chapters called surahs, but no more than
about 600 deal with specifically legal matters. You will observe from the readings that
there is a great difference between Western scholars, such as Coulson, and Muslim
scholars, such as Kamali, as to the number of specifically legal verses in the Qur’an.
The essentially legal verses deal mainly with areas of family law, but also cover issues
of penal and civil law, some of which will be discussed in later chapters. In family law,
among the most important issues dealt with are the introduction of the iddah period
(the waiting period after divorce or death during which a woman may not contract
a new marriage) and the specific naming of nine heirs (Qur’anic heirs) in the verses
dealing with succession on death. The verses in the Qur’an which are of a more general
nature, eschewing evil and seeking good, however, have also proved to be foundations
for important principles of Islamic law. For example, the verse ‘O Believers abide by
your stipulations’ (Surah 5 verse 1) is considered as the basis of the Islamic law of
contract and the verse ‘The recompense for an injury is an injury equal thereto’ (Surah
42 verse 40) as the basis of the Islamic law of tortious liability.
The Qur’ anic verses are classified under Islamic legal theory into different categories
such as the definitive (qat’ī), the speculative (žannī), the general (amm) and the
particular (khass), among others.
It is historically uncertain whether the Qur’an was committed to writing during the
lifetime of the Prophet. One view is that some companions of the Prophet personally
wrote verses of the Qur’an on materials such as animal skins, shoulder blades of
animals and pieces of tablets, whereas other views propose that the writing-down
happened after the death of the Prophet. What is certain is that official written
versions of the Qur’an were compiled during the reign of the first Caliph, Abu Bakr,
and the third Caliph, Uthman. Muslims believe that the version of the Qur’an compiled
during the reign of Caliph Uthman is what constitutes the standard text today.
3.1.2 The Sunnah

The Sunnah of the Prophet is the other main source of Islamic law. The Sunnah
comprises the sayings, practices and tacit approvals of the Prophet. In pre-Islamic
Arabia the tribes followed their own various customary practices (i.e. their own
Sunnah). With the coming of Islam the jurists began to place a new emphasis on the
Sunnah. Imam Shafi’i, one of the greatest of the early Islamic jurists, after whom the
Shafi’i school of law was named, held that the Sunnah of the Prophet was as important
as the Qur’an itself – because like the Qur’an it was also of divine inspiration. He
quoted the injunction to Muslims contained in the Qur’an to obey the kitab (the book,
i.e. the Qur’an) and the hikmah (wisdom), and argued that, as the Qur’an does not
usually contain two different words that have the same meaning, ‘the book’ and ‘the
wisdom’ are two different concepts. The former relates to God and the latter relates
to the Prophet. Some historical scholars have suggested that the theory of the divine
inspiration of the Sunnah of the Prophet pre-dated Shafi’i. However, we can say that
from the time of Shafi’i onwards certainly the Sunnah played as important a role as a
source of law as did the Qur’an. It is a fundamental principle of Islamic law that the
Qur’an and the Sunnah would not contradict but complement one another.
Shafi’i categorised the Sunnah into three types, namely, the Sunnah which prescribes
the like of what God has revealed in His book, then the Sunnah which explains the
general principles of the Qur’an and clarifies the will of God, and lastly the Sunnah in
which the Prophet has ruled on matters on which the Qur’an is silent.
1. How did the Qur’an come into existence?
2. What is the position of the Qur’an as a source of law?
3. Describe how the divine character of the Qur’an impacts on the development of
Islamic law.
3.1.3 Hadīth material

The Sunnah comprises the reported sayings, practices and precedents of the Prophet
Muhammad himself. These were recorded after the death of the Prophet Muhammad
and compiled in collections of ahadith (the plural of hadīth). A hadīth is an oral
communication traced back to the Prophet Muhammad. Each hadīth consists of two
parts. The first part charts the chain of communication (isnad) of the sayings of the
Prophet from the first to the last informant. The status and the credibility of a hadīth
depends therefore, to some extent, on the status and the credibility of the informants.
The second part of the hadīth concerns the formal content (matn) of the saying or
practice of the Prophet itself.
Islamic legal theory later developed a sophisticated science of hadīth for verifying
whether or not a hadīth can indeed be traced back to the Prophet or, later, to one of
his companions. Ahadith are accordingly classified by hadīth scholars depending on the
reliability with which this chain of communication can be established and the veracity
of the formal content. The highest grade of transmitted hadīth is ‘sound’ (ahsan). Next
comes ‘good’ (hasan). The lowest grade of credibility is termed ‘weak’ (da’īf).
1. What is the place and role of hadīth in Islamic law?
2. At what point in the development of Islamic law did the Sunnah become a source
of law?
3. Describe and explain the relationship between Qur’anic provisions and the
Sunnah.
4. How would you distinguish between Sunnah and hadīth?
Further reading
¢ Mahmood, T. ‘Law in the Qur’an: a draft code’ (1987) VII Islamic and Comparative
Law Quarterly 1.
¢ Schacht, J. ‘A revaluation of Islamic traditions’ (1949) 2 Journal of the Royal Asiatic

Society of Great Britain and Ireland 143–54.
¢ Hallaq, W. ‘The authenticity of Prophetic hadīth: a pseudo-problem’ (1999) 89

Studia Islamika 75–90.
¢ Liebesny, Chapter 1 ‘Basic characteristics of Islamic law’.

3.2 Ijma‘ and qiyas
Core texts
¢ Kamali, Chapter 8 ‘Ijma’ or consensus of opinion’ and Chapter 9 ‘Qiyas
(analogical deduction)’.
¢ Coulson, Chapter 4 ‘Master architect: Muhammad Ibn-Idris ash-Shafi’i’ and

Chapter 6 ‘The classical theory of law’.
3.2.1 Ijma‘
Ijma‘ (consensus) represents the third source of Islamic law. The authority of ijma‘
as a secondary source of Islamic law is based, principally, on a hadīth attributed to
the Prophet which states that ‘My people will never agree on an error’. However, the
different schools of law interpret ijma‘ in different ways. See Section 3.4 for more
details about the schools of law.
The classical view of Shafi’i was that ijma‘ is binding only when it is a consensus of the
entire Muslim community. According to Shafi’i the role of ijma‘ is restricted to matters
of religious belief and religious practice: matters such as the number of times a day
a Muslim should pray, the fast of Ramadan and the performance of the pilgrimage to
Mecca and so on (i.e. matters on which all Muslims are agreed).
The view of the other three schools of Sunni Islam was not so confined. Their
conception of ijma‘ allows Islamic law to arrive at authoritative interpretations of the
two most important sources of Islamic law (the Qur’an and the Sunnah). Only those
interpretations, forms of worship and legal practice that are approved by consensus
are authoritative and binding on the ummah (the community of believers) without
exception. However, the scope for ijma‘ was wider than just providing binding
interpretations of the Qur’an and the Sunnah, as questions not covered by the Qur’an
and the Sunnah could also be answered by ijma‘.
Nevertheless, the principle of ijma‘ did not mean that the masses could somehow
collectively agree on a certain course of action. The group of people whose consensus
was capable of establishing a binding rule of Islamic law was confined to those
learned in the law (Islamic jurist-theologians of a given period). The practical value
of ijma‘ became very limited since it was impossible to obtain a consensus on a given
problem by just asking all those learned in Islamic law. There was no organisation that
represented all jurists and as a result ijma‘ has come to be determined by looking into
the past. For example, if there is doubt about a certain interpretation of the Qur’an,
it is possible to look into the past and to find out that a certain interpretation has
become accepted through ijma‘, because all jurists had agreed on that particular
interpretation and it had been followed for a long time. It goes without saying that
ijma‘ can never be contrary to the Qur’an or the Sunnah.
Once a certain legal principle or a certain interpretation has been established by the
consensus of the jurists it cannot be repealed or deviated from. The reason for this
is simple; ijma‘ represents the truth, since God would not allow His followers to err
collectively. There can be no reason why the right principle, once established, should
become wrong at a later stage.
A good illustration of the principle of ijma‘ occurred right after the death of the
Prophet. No guidance was available on how to determine who would act as a political
leader after the death of the Prophet. The election of Abu Bakr to the post of Caliph by
the votes of the people was the first manifestation of ijma‘ among the companions of
the Prophet.
During the development of Islamic law, certain qualifications came to be regarded as

essential for deciding who would be allowed to participate in the process of arriving
at a rule of law on the basis of ijma‘. Minors and lunatics were excluded, as were non-
Muslims, and eventually the power to participate in ijma‘ was confined to jurists (i.e.
persons learned in Islamic law).
Shafi’i believed that if the doctrine of ‘consensus’ prevailed, the differences between
the then existing schools of jurisprudence, of which the most significant were
the Hanafi and the Maliki, would be removed. However, by the time of Shafi’i’s
interpretation of the sources of law, the differences in the actual law being applied
by the Hanafis and the Malikis were well established. Some of these differences
concerned matters of minor importance but others were of major significance, such
as the right of an adult Hanafi woman to contract her own marriage (a right denied
to a Maliki woman) and the right of Maliki women to petition the court for divorce (a
right denied to women by the Hanafi school). Both schools accepted Shafi’i’s doctrine
of the sources of law but were not prepared to change their practical application of
it. They relied on a hadīth, allegedly of the Prophet, that states ‘Difference of opinion
amongst my people is a sign of the bounty of God’. This hadīth was accepted by all the
schools and resulted in an acceptance of each other’s orthodoxy and consequently an
acceptance of different concepts of ijma‘ within each separate school.
3.2.2 Qiyas
The fourth universally accepted source of Islamic law is qiyas (analogy). Unlike the other
three sources, which are based more or less directly on the divine commandments, qiyas
depends on human judgement, with indirect reference to the Qur’an and the Sunnah.
Qiyas represents the attempt to deduce, from earlier decisions, a rule that can be applied
to a case not directly covered by either the Qur’an or the Sunnah. The search for an
analogy to the case in point is not restricted to any particular legal provision contained in
the Qur’an or the Sunnah but can include the examination of the totality of law in order
to find a solution which is most closely in line with the general spirit of Islamic law.
While ijma‘ and qiyas are traditionally considered as the third and fourth sources of
Islamic law respectively, they are jointly perceived as non-divine methods of Islamic
law to distinguish them from the Qur’an and the Sunnah as the only divine and
immutable sources of Islamic law.
Historically, Shafi’i is acknowledged as having played a significant role in the

emergence of this hierarchy of sources for Islamic law before the formal development
of the classical schools of Islamic jurisprudence (see Section 3.4). At the beginning of
the 9th century, before the emergence of the Hanafi, Maliki, Shafi’i and Habali schools
of jurisprudence, the Muslim jurists were divided into the adherents of hadīth or the
traditionalists (ahl al-hadith) and the adherents of ra’y or the rationalists. There was
mutual disagreement and disintegration between these two groupings regarding
the use of text and reasoning as sources of law. Shafi’i sought to harmonise the two
groupings through combining text and reasoning in identifying the law. Through his
famous work, al-Risalah, he laid down the essence of his legal theory and provided a
systemised scheme of identifying the sources from which the law must be derived
through the hierarchical harmonisation of both the divine sources (the Qur’an and
the Sunnah) and the human methods (ijma‘ and qiyas). He is therefore symbolically
recognised as the ‘father of Islamic jurisprudence’.
Activity 3.1
a. Write a 250-word summary of Coulson, Chapter 6.
b. Write a 250-word summary of Kamali, Chapter 9.
c. Read Abdal-Haqq, ‘Islamic law: an overview of its origin and elements’ (2002)
7 The Journal of Islamic Law and Culture 27–81 (available in HeinOnline and
LexisLibrary).
No feedback provided.
1. What is the legal basis for ijma‘?
2. Whose consensus is required to bring about ijma‘?
3. Does ijma‘ represent the making of law or does it only involve a new
interpretation of existing law?
4. What are the limits on ijma‘ as a source of law?
5. Do you consider qiyas to have had an important influence on the development

of Islamic law?
6. Discuss the role of Shafi’i in the development of Islamic law.
3.3 Further ‘sources’ and principles of Islamic law
Core text
¢ Kamali, Chapters 12–15 and 19.
Essential reading
¢ Weiss, B. ‘Interpretation in Islamic law: the theory of Ijtihad’ (1978) 26(2)
American Journal of Comparative Law 199 (available in JSTOR).
¢ Ali-Karamali, S.P and F. Dune ‘The ijtihad controversy’ (1994) 9(3) Arab Law
Quarterly 238 (available in HeinOnline and JSTOR).
There are also other ‘sources’ of Islamic law that do not come within the framework of
Shafi’i’s main hierarchy of the sources of the law. These are often referred to as principles
of Islamic law to differentiate them from the main and subsidiary sources. These include
ijtihad (individual reasoning), istihsan (juristic preference), maslahah (welfare), darurah
(necessity), istishab (presumption of continuity) and urf (custom), among others. A few of
them are discussed below, while others can be found in the readings.
3.3.1 Ijtihad
Ijtihad, or individual reasoning, is the source of law most removed from the infallible
divine inspiration. The idea that individual reasoning could be used in order to find
legal solutions to legal questions not directly covered by the Qur’an and the Sunnah
allowed jurists to provide answers even if qiyas (analogical interpretation of the
existing sources of Islamic law) did not provide a solution to the case in point. The
jurist could employ his own mental faculties to find a solution to the case from the
totality of the law. Ijtihad is therefore a careful opinion formed by somebody learned in
the law based on his comprehensive understanding of the main sources.
It is generally acknowledged that the privilege of ijtihad is restricted to the great

scholars of Islamic law called the Mujtahids. The question whether or not ijtihad can
still be performed now is therefore controversial. There is a strong opinion in classical
Sunni Islamic law, which is contested in modern Islamic legal scholarship, that by the
10th century all main principles of Islamic law had been completely settled by the great
scholars and therefore ‘the gates of ijtihad’ had been closed. Shi’ah jurisprudence did
not accept the concept of the ‘closing of the gates of ijtihad’. For the Shi’ah, the hidden
Imam (the 12th Imam of the Shi’ah, who was subsumed in the mosque of Samara near
Baghdad) has always been a source of reinterpretation of existing concepts and even
of fundamental changes. But, as a matter of fact, Shi’ah jurisprudence, like that of the
Sunni, entered into a period of stagnation around the 10th century.
However, there are contemporary Islamic jurists who argue that the gates of ijtihad
were never closed and that, for this reason, ijtihad should be employed to adapt
Islamic law to the modern world. In practice, in many instances law reform measures
carried out by way of legislation have adapted Islamic law to the requirements of
the modern world. This is the case in many Arab countries and also in countries like
Pakistan and Bangladesh. You will see examples of these reform measures in Chapter 7,
dealing with the rights and obligations of a Muslim marriage.
The first tentative use of ijtihad in modern legislation was the Egyptian Law of
Testamentary Dispositions of 1946. Verse 180 of Surah 2 of the Qur’an enjoins Muslims
when they are approaching death to make bequests in favour of their nearest
kinsmen. Most Sunni jurists considered that this verse was abrogated by later verses
in the same surah which set out specific shares to certain heirs. Some jurists, however,
held that this abrogation applied only to the heirs specifically named in the Qur’an and
that the verse constituted a genuine command to make bequests in favour of kinsmen
who were not specified in the Qur’an as heirs. The Egyptian reformers adopted this
view and then exercised ijtihad to designate orphaned grandchildren as the only heirs
entitled to such an obligatory bequest.
Another tentative example of legislative ijtihad was the reason given by the Tunisian
reformers when prohibiting polygyny. The memorandum accompanying the Tunisian
Law of Personal Status of 1956 states that the juristic basis for the reform was the
Qur’an itself. Surah 4 verse 3 of the Qur’an provides that a man may marry polygynously
only where he is able to deal equally with several wives. Verse 129 of the same surah,
however, states that however hard a man tries he will never be able to treat several
wives equally. Interpretation of these apparently contradictory verses in traditional
jurisprudence was that, as long as the man dealt equally with his wives in practical
matters such as maintenance, housing and spending time equally between them, he
had fulfilled all the obligations imposed upon him. The Tunisian lawmakers rejected
this interpretation and adopted the interpretation advanced by the 19th century
Egyptian jurist, Muhammad Abduh, that the two verses read together amounted to a
prohibition of polygyny.
Another tentative example of the use of ijtihad is the Supreme Court of Pakistan’s
decision in Khurshid Bibi v Muhammed Amin PLD 1967 SC 97. In its decision, the Supreme
Court gave a new interpretation of the verse on khul’ which effectively gave the court
the right to grant a judicial khul’ (see Chapter 9).
An interesting use of judicial ijtihad was the judgment of Mr Justice Rabbani in Md

Hefzur Rahman v Shamsun Nahar Begum 15 BLD (1995) 34. In this judgment, the learned
judge re-interpreted the Qur’anic verses to mean that a woman was entitled to
receive maintenance as long as she remained a divorcee (i.e. until she re-married). The
traditional interpretation is that following divorce a woman will receive maintenance
only while she is observing the iddah (see Section 9.5).
3.3.2 Istihsan
The recognition of ijtihad as a source of Islamic law was accompanied by an
acknowledgement that certain principles of law could be applied to all cases so as
to achieve an equitable, fair and just result. The recognition of equitable principles
mitigated seemingly unfair or hard results. For instance, a legal rule derived by qiyas
could at times lead to unattractive results. These unattractive results could be a
conflict with another principle of Islamic law laid down by some other text, or the
legal rule itself might, in the eyes of the jurist, be unsuitable for the situation at hand
because it was too narrow or caused hardship.
The Hanafi school developed the principle of istihsan (juristic preference). It allowed
a jurist to accept a rule that, in his opinion, would produce a better result. Istihsan
is mostly confined to the Hanafi school of jurisprudence. The Malikis developed
a similar principle of equitable jurisdiction that they termed istislah or maslahah.
However, in contrast to the Hanafis, the Malikis never took full advantage of this form
of judicial preference or equitable jurisdiction but applied it very cautiously. There has,
however, been much more emphasis placed on the broad use of the Maliki principle of
maslahah or istislah in recent times to address different modern questions confronting
traditional juristic interpretations under Islamic law.
3.3.3 Istishab
Istishab, or the presumption of continuity, is often referred to as a source of law but
perhaps it would be better classified as a presumption of evidence. Istishab, which is
particularly prominent in the doctrine of the Shi’ah, denotes a legal presumption that
a certain state of affairs continues to be regarded as persisting as long as there is no
proof that that state of affairs has come to an end. The distribution of the estate of a
mafqud (a person who has disappeared) can serve as an illustration of this principle.
Applying istishab the Shafi’is would say that since there is no evidence of this person’s
death his estate cannot be distributed to his heirs – legally he is presumed to be still
alive since there is no evidence of his death. Istishab is in this case acting as a shield to
protect the estate of the mafqud. However, the Shi’ah would go further and say that he
is also entitled to receive any share to which he is entitled from the estate of another
person who died during the period of his disappearance. On this the Sunni schools
would disagree. According to the four schools of Sunni Islam any existing rights of the
mafqud will continue to exist until there is confirmation of death but no new rights
can accrue. Under Sunni law the disappeared would therefore not be entitled to
receive any shares of an inheritance. See Chapter 11 for more information about the
issue of succession in Islamic law.
3.3.4 Pre-Islamic law

Finally, mention must be made of the debt that Islamic law owes not only to the
pre-Islamic Arab customary law but also to external legal regimes. The influence of
the Arab customs during the Jahiliyyah (‘the period of ignorance’ before the coming
of Islam) is particularly strong in the law of the Sunni schools relating to succession
on death. The pre-eminence accorded to the male agnatic line (‘agnatic’ meaning
descended from the same male ancestor) has its origins in the former tribal law (see
Al-Jabari’s rule referred to in Chapter 11). Also, the obligatory dower paid to the wife
on an Islamic marriage can be traced back to the bride price, which was paid to the
parents or guardians of the bride in pre-Islamic Arabia, with the difference being that
the Qur’an proclaimed the dower as a direct property of the bride rather than her
parents or guardian.
Within a few years of the establishment of the Islamic community in Arabia its armies
had conquered much of the surrounding territory. From these conquered territories
the infant Islamic law also derived many of its concepts. From the Roman Byzantine
law of Anatolia, for example, principles of civil contract were absorbed. Also, the
administration of bazaars and markets was modelled on the Roman law. From the
law of the Sassanian rulers of Persia, concepts of equality in marriage were adopted,
particularly by the Hanafi school, whose origins were in the garrison city of Kufa, which
was located close to the boundaries with the Sassanian empire.
It is also worth noting that at the time of Prophet Muhammad a considerable Jewish
community flourished in Medina. By this time the Babylonian Talmud was complete
and a well-established Rabbinical law was in place.
1. Explain the difference between qiyas and ijtihad.
2. What is meant by the ‘closing of the gate of ijtihad’ and what has its effect been
on the development of Islamic law?
3. Does Islamic law recognise equitable principles?
4. Identify and briefly discuss the different views on the ‘closing of the gate of
ijtihad’.
Further reading
¢ Schacht (1982) Chapter 10.
¢ Hallaq, W. ‘On the origins of the controversy about the existence of mujtahids
and the gate of ijtihad’ (1986) 63 Studia Islamika 129–41.
¢ Ali-Karamali, S.P. and F. Dunne. ‘The ijtihad controversy’ (1984) 9(3) Arab Law
Quarterly 238–57.
¢ Hasan, A. ‘Al-Shafi‘ī’s role in the development of Islamic jurisprudence’ (1966)

5(3) Islamic Studies 239–73.
¢ Calder, N. ‘Ikhtilaf and Ijma’ in Shãfi’ī‘s Risala’ (1983) 58 Studia Islamika 55–81.
¢ Hourani, G.F. ‘The basis of authority of consensus in Sunnite Islam’ (1964) 21

Studia Islamika 13–60.
¢ Liebesny, Chapter 1 ‘Basic characteristics of Islamic law’.
¢ Hursh, J. ‘The role of culture in the creation of Islamic law’ (2009) 84 Indiana Law
Journal 1401–23.
3.4 Development of the classical schools of Islamic

jurisprudence
Core Text
¢ Coulson, Chapter 7 ‘Unity and diversity in Shari’a law’ and Chapter 8 ‘Sectarian
legal systems in Islam’.
Further reading
¢ Hallaq, An introduction to Islamic law. Chapter 3 ‘ The legal schools’ and Chapter 4
‘Jurists, legal education and politics’.
After the death of the Prophet Muhammad, Islam continued to expand. Distances
between the different areas under Muslim rule grew and as a result different centres
of learning emerged. These centres of learning consisted of groups of pious persons
who surveyed the existing law and engaged in fiqh (the science of law). These groups
were initially geographically determined but later became known by the name of
the individual jurists whom the members of these groups followed. There are four
recognised schools of Sunni law: the Hanafi school, the Maliki school, the Shafi’i school
and the Hanbali school. There are also three main schools of Shi’ah law: the Ithna
Ashari school, the Ismaili school and the Zaydi school.
3.4.1 The Sunni schools

The doctrines of the Hanafi school, which was founded by Imam Abu Hanifa in what is
now Iraq at the beginning of the eighth century, spread to Syria, Afghanistan, Turkish
central Asia and South Asia. The Maliki school became dominant in the North African
littoral, now the countries of Algeria, Tunisia and Libya, and over central and western
Africa and the eastern Arabian coasts, including the emirates of Dubai and Abu Dhabi.
The Shafi’i school can be found in eastern Africa, South Arabia, some parts of eastern
India and South East Asia. The Hanbali school prevails in the Kingdom of Saudi Arabia,
in the five non-Maliki emirates of the United Arab Emirates, and also in Qatar. All
schools of Sunni law recognise each other as mutually orthodox.
3.4.2 The Shi’ah schools

There exists a broad division in Islamic jurisprudence between the Sunni schools and
the sects of the Shi’ah. The most significant sect in Shi’ah Islam is the Ithna Ashari (the
Twelvers). This Shi’ah sect, which is nowadays found mainly in Iran, Iraq and Bahrain
(but also has sizeable minorities in other countries, including Yemen, Lebanon and
Pakistan) differs in many respects from the Sunni schools. The Shi’ah emerged as a
result of a political division in the Islamic community after the death of the Prophet.
The term Shi’ah itself means faction and denotes the party which, after the death of
the Prophet, attached itself to Ali, the son-in-law of the Prophet, considering him the
successor of the Prophet both in temporal and religious matters. Central to Shi’ah
jurisprudence is the role of the Imam, a descendant of Ali, who is regarded as the
leader by divine right.
The Shi’ahs are divided into three main sub-sects. The prevalent sect is the Ithna Ashari
followed by the Ismaili and the Zaydi. The Zaydis represent a very small minority
within the Shi’ah sect. The distinctive hallmark of the Zaydis is that they regard the
Imam as an ordinary human being who has no closer link to God than any other
member of the community. Both the Ismaili and the Ithna Ashari, the latter being the
most numerous Shi’ah sect, believe that the Imam has a close link to God, having been
appointed by Him. However, the Ithna Ashari believe that there were no further Imams
after the 12th Imam ‘retired from the world’ in 874 ce. In contrast, the Ismaili have
maintained an unbroken chain of Imams from the time of Ali down to the present
Agha Khan.
By the end of the third century of the Islamic era the schools of law had crystalised
and the law entered a period of rigidity and inflexibility. The role of the jurists was
now to interpret the law rather than seeking its development by ijtihad. Many jurists
and commentators have argued that the phenomenon of the ‘closing of the gates of
ijtihad’ had taken place. Ibn Khaldun stated that all that remained after the basic texts
had been produced and the continuity of their transmission had been established was
to hand down the respective traditions of the schools and for each individual adherent
to act in accordance with the traditions of their own school.
Little development and change occurred before the 19th century when the Ottoman
Empire, which controlled the greater part of the Middle East, sought to modernise its
laws along the European pattern. This was effected by the so-called Tanzimat reforms.
Codes of Western inspiration were introduced, including a commercial code and a
maritime code, based on the French code, and a penal code, which was also inspired
by the French example.
The mid-19th century had of course seen the industrial revolution take place. Wealth
began to be calculated by manufacturing ability and trade rather than land ownership.
At this time the Ottoman Empire felt itself at a disadvantage in commercial matters,
when the only law to which it had recourse was the Shari‘ah. Accordingly the decision
was taken to put aside certain areas of Shari‘ah and replace them with codes of
Western inspiration, mainly French and German. The Ottomans’ reasoning was that
the Shari‘ah was God-given, immutable, but suited only to the ‘perfect’ world and that
until perfection was achieved it was preferable to set aside portions of the law rather
than attempt to change any of its divine provisions.
A significant change also took place in the civil law of contract and, to a lesser extent,
when the Mejella was enacted in 1876. This was a law of ‘obligations’ as understood in
civil law jurisdictions and was a codification derived solely from the law of the Hanafi
school, the official law of the empire. The codification did not, however, include only
accepted doctrines of Hanafi law but also the views of jurists which had never become
the settled doctrine of the school. The Mejella was the first codification of the Islamic
law of contract and tort and its importance continued long after the Ottoman Empire
had ceased to exist. It was still being referred to in the early days of the Federation of
the United Arab Emirates.
Although the Ottomans felt able to effect changes in the commercial, maritime
and penal law of the empire, no attempt was made to change the law of the family
considered as the very heart of the Shari‘ah. However, in 1915 putative reforms took
place by way of two imperial Firmans (imperial decrees issued by the Sultan). At this
time many men from the provinces of the empire were coming into metropolitan
Turkey for employment. Many of these men married local women and then all too
often when their period of employment ended they would return home, leaving their
Turkish wife behind without divorcing her or making provision for her maintenance.
Under the Hanafi law, the official law of the empire, such women were unable to
petition the court for a divorce once their marriage had been consummated, nor could
a married woman call upon her blood kinsmen to support her. One of the Firmans gave
such women a right to seek a judicial decree from the court in accordance with Shafi’i
doctrine. (The other Firman allowed women whose husbands had become insane to
obtain a divorce.)
These initial reforms were followed two years later by the enactment of the Ottoman
law of family rights which, after the dissolution of the empire at the end of World
War I, continued to apply until comparatively recently in many former regions of the
empire, such as Palestine and Jordan.
Most countries of the Middle East have now enacted laws of personal status, two most
recent being the UAE law of 2002 and the Qatari law of 2006. The aim of all the laws
is to codify the law, to make it as certain and easy to access as possible and to effect
changes in the traditional law to make it more consonant with the modern age.
To achieve this aim most codes have introduced minimum ages for marriage, placed
restrictions on polygyny, given women more grounds for divorce and have restricted,
to some extent, the husband’s right of repudiation. Most of the codes also extend
the mother’s period of custody of her children following divorce, and the law of
succession has been amended to allow orphaned grandchildren to inherit.
In the Indian sub-continent a major reform took place in 1939 when the Dissolution
of Muslim Marriages Act was promulgated. This law gave the women of the Hanafi
majority a right to divorce hitherto denied them. This law was largely based on
the doctrine of the Maliki school. Further statutory reforms occurred in Pakistan
and Bangladesh by virtue of the Muslim Family Laws Ordinance 1961. Reform has
also occurred in the sub-continent through case law, particularly in Pakistan, from
judgments emanating from the Supreme Court. Reference to all the statutory and
judicial reforms of the Middle East and the Indian sub-continent will be made in the
relevant chapters of this guide.
The time after the end of the First World War which led to the demise of the Ottoman
Empire also led to the creation of new nation states, such as Iraq, Jordan, Palestine
and the Lebanon, and saw the secularisation of Turkey. When Kamal Ataturk became
the President of Turkey he summoned the Ulema (legal scholars) and asked them to
prepare a code which introduced reforms into the area of family law beyond those
introduced by the Ottoman Law of Family Rights of 1917. The Ulema singularly failed
to meet his demands and in 1926 he adopted the Swiss civil code with only slight
amendments. Turkey thus became the first country of the Islamic world to secularise
its law, stating in the preamble to the civil code that ‘legislation must establish a
separation between law and religion’.
After the end of the Second World War civil codes were enacted in rapid succession in
the Middle East, beginning with the Egyptian Code of 1949, which was drafted by Abdel
Razzak Sanhuri, as were basically all the other codes subsequently enacted in the Middle
East (including to a great extent the code of the United Arab Emirates). Unlike the Turkish
civil code, these codes did not seek secularisation but made provision for the Shari‘ah as
a source of law and, in case of a gap in the code itself, provided that this should be filled
by reference to the Shari‘ah. Sanhuri himself stated that in drafting the codes he ‘did not
leave out a single sound provision of the Shari‘ah which could have been included’.
1. Describe the emergence of the four Sunni schools of Islamic law and assess their
role in the development of Islamic law.
2. What are the main differences between the Shi’ah and the Sunni sects of Islam?
3.5 Attempts at modern Islamic legal theory
Core Text
¢ Coulson, Chapter 14 ‘Neo-Ijtihad’ and Conclusion.
Essential reading
¢ Hallaq, A history of Islamic legal theories. Chapter 6 ‘Crises of modernity: toward a
new theory of law?’. This is available on the VLE and in Cambridge Core.
The 19th and 20th century processes of moving Islamic law forward to meet
the challenges of modernity and the dynamics of human life led to attempts to
incorporate a modern Islamic legal theory into Islamic law. Three main imperatives
have been identified as influencing this attempt: namely, the need for greater unity,
coherence and efficiency in Islamic law; the need for a proper Islamic legal identity
which would meet modern challenges without renouncing the fundamental gains of
the past; and the need to respond to elements of modern power and social progress,
as exemplified by Western nations. This has led to new approaches in Islamic law,
described by different scholars as ‘neo-ijtihad’, ‘religious utilitarianism’, ‘religious
liberalism’ and ‘moderation and balance’.
The first attempt at formulating a modern Islamic legal theory is often traced back
to the Egyptian judge and jurist Muhammad Abduh (1849–1905). He is, however,
considered to have been preceded by Jamaluddin al-Afghani (1838–97), who, in
reaction to Western colonial activity in the Muslim world, urged Muslims to first
reform and modernise their laws. Whether the concept of a modern Islamic legal
theory has succeeded or not is still a subject of academic debate. There is no doubt,
however, that those early efforts laid the foundations for a vibrant engagement with
the classical and traditional perspectives on Islamic law, leading to the emergence
of valuable modern academic debate and a broadminded approach that has greatly
enriched our understanding of Islamic law in modern times.
Further reading
¢ Kamali, M.H. Shari‘ah law: an introduction. (Oxford: Oneworld Publications,
2008) [ISBN 9781851685653] Chapter 12 ‘Adaptation and reform’ and Chapter 13
‘Reflections on some challenging issues’ (available in VLeBooks via the Online
Library).
¢ Layish, A. ‘Contribution of the modernists to the secularization of Islamic law’

(1978) 14 Middle Eastern Studies 263–77.
¢ Clark, P. ‘The Shahrur phenomenon: a liberal Islamic voice from Syria’ (1996) 7(3)
Islam and Christian-Muslim Relations 337–41.
¢ Bonderman, D. ‘Modernization and changing perceptions of Islamic law’ (1968)

81 Harvard Law Review 1169–93.
Activity 3.2
1. Write a 200-word summary of Hallaq, Chapter 6 (available in Cambridge Core).
2. Make a list of the similarities and differences in the legal approaches of the so-
called ‘religious utilitarians’ and ‘religious liberalists’.
Summary
The historical circumstances of the emergence of Islamic law in the seventh
century continue to determine the essential features of Islamic law today. The fact
that Islamic law is a divine (i.e. religious) law has had a profound impact on the
development of the sources of Islamic law. The divine character of Islamic law is not
only reflected in the hierarchy and essential characteristics of these sources but also
explains the conceptual limitations on individual law-making. However, the Islamic
polity has developed legal methods to deal with situations not directly provided
for in the Qur’an and the Sunnah of the Prophet. Indeed, many Arab countries have
implemented modern codifications of Islamic law which, while being in harmony with
Islamic law, nevertheless provide legal solutions for situations not contemplated in
the main source of Islamic law.
Further reading
¢ Humphreys, R.S. Islamic history: a framework for inquiry. (London: IB Tauris, 1995)
[ISBN 9781850433606] Chapter 3 ‘Early historical tradition and the first Islamic
polity’. This reading is available on the VLE.
¢ Goldziher, I. ‘On the development of the hadith’ in Stern, S. (trans.) Muslim

studies. (London: Allen & Unwin, 1971) Vol.2 [ISBN 9780042900094].
¢ Burton, J. An introduction to the hadith. (Edinburgh: Edinburgh University Press,

1995) [ISBN 9780748604357] Chapter 1. This reading is available on the VLE.
¢ Burton, J. The sources of Islamic law: Islamic theories of abrogation. (Edinburgh:

Edinburgh University Press, 1990) [ISBN 9780748601080].
¢ Makdisi, G. The rise of colleges. (Edinburgh: Edinburgh University Press, 1984)

[ISBN 9780852243756].
¢ Johansen, B. ‘Legal literature and the problem of change’ in Mallat, C. (ed.) Islam
and public law. (Washington: CQ Press, 1993) [ISBN 9781853337680].
¢ Anderson, J.N.D. ‘Law as a social force in Islamic culture and history’ (1957) 20(1)
Bulletin of the School of Oriental and African Studies 11–40.
¢ Ansari, Z.I. ‘The contribution of the Qur’an and the Prophet to the development
of Islamic fiqh’ (1992) 3(2) Journal of Islamic Studies 141–71.
¢ Hallaq, W. ‘Was the gate of ijtihad closed?’ (1984) 16(1) International Journal of
Middle East Studies 3–14.
¢ Hasan, A. ‘An introduction to collective ijtihad (ijtihad jama’i): concept and

applications’ (2003) 20(2) The American Journal of Islamic Social Sciences 26–49.
¢ Yilmaz, I. ‘Pakistan Federal Shariat Court’s collective ijtihad on gender equality,

women’s rights and the right to family life’ (2014) 25(2) Islam and Christian
Relations 181–92.
¢ See also the readings listed in the Introduction and Chapter 1.

u describe and discuss the main characteristics of Islamic law
u distinguish between the sources, methods and principles of Islamic law
u explain the emergence, development and role of the different schools of Islamic
jurisprudence
u produce a chronology of the evolution of Islamic law.

Question 1 Discuss the importance of the Qur’an as a legal code.
Question 2 ‘As a divine law, the Shari‘ah does not change.’ Discuss.
Question 3 The ‘closing of the gates of ijtihad’ is a theory that was supported by
such prominent scholars as Joseph Schacht and Noel Coulson. Explain and discuss
the validity of this theory and opposing views.
Question 4 Discuss, with relevant examples, the classification and legal approaches
of the so-called ‘religious utilitarians’ and ‘religious liberalists’.

Question 1 In the answer to this question the primacy or otherwise of the Qur’an as
a source of law must be discussed. Other sources of law should be examined and their
importance considered. Special mention should be made to the reforms of the pre-
Islamic system effected by the Qur’an itself.
Question 2 A good answer will include a careful discussion of the nature of law in
Islam. In addition, there will have to be a discussion of the problems facing reformers
seeking to bring a law which reached its peak of development over 1,000 years ago,
but which is still in application, into a modern context. Explain how reformers have
attempted to effect changes while remaining within an Islamic framework.
Question 3 This theory has been exposed to challenge. You should discuss the main
theory and the contrary views to it and present your own views, bearing in mind that
Islamic law remained virtually unchanged until the 19th century and the Tanzimat
reforms. Discuss the continued use of ijtihad in various forms in the 20th and 21st
centuries to bring about reform.
Question 4 A good answer will start by giving a brief background of what led to the
emergence of these two groups. You will then define each of the two groups and
acknowledge that this classification is specifically that of Hallaq. You will then discuss
and engage with their respective legal approaches in relation to the interpretation
and application of Islamic law in modern times. You must identify and cite examples
of relevant scholars who have been associated with each of the two groupings and
possibly discuss the significant divergence in their respective approaches.
Reflect and review



I can describe and discuss the main characteristics of

Islamic law.   
I can distinguish between the sources, methods and

principles of Islamic law.   
I can explain the emergence, development and role

of the different schools of Islamic jurisprudence.   
I can produce a chronology of the evolution of

Islamic law.   
revise?
Must Revision
revise done
3.1 The Qur’an and the Sunnah  
3.2 Ijma‘ and qiyas  
3.3 Further sources and principles of Islamic law  
3.4 Development of the classical schools of jurisprudence  
3.5 Attempts at modern Islamic legal theory  

Part II
4 Penal law
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
4.1 Hadd, ta’zir and qisas offences and punishments . . . . . . . . . . . . . 37
4.2 Honour crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
4.3 Pakistan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
4.4 Brunei Darussalam . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Introduction
Core text
¢ Baderin, Chapter 7 ‘Penal law’.
Essential reading
¢ Baderin, M.A. ‘Islamic substantive law in context’ in Baderin, Issues in Islamic law,
Vol.2, pp.xiii–xl. Available at: http://eprints.soas.ac.uk/18457/
Further reading
¢ Schacht (1982) Chapter 24 ‘Penal law’.
While Islamic legal theory (usul al-fiqh), covered in the last two chapters, deals with the
principles of Islamic jurisprudence, Islamic substantive law (furu al-fiqh) deals with the
different specific branches of the law relating to issues under penal or civil law. These
include Islamic criminal law, Islamic law of contract, Islamic law of tort, and Islamic
family law among others. Starting with Islamic criminal law in this chapter, a number
of these substantive issues in Islamic law will be covered in the remaining chapters of
this module guide.
Islamic criminal law is one of the areas of law that is deeply influenced by pre-Islamic
tribal law. The laws of homicide, bodily injury and rape, for example, are closely related
to tribal law, and in many respects Islamic law can be regarded as an attempt to reform
these earlier norms. It is also an area of law that exhibits fundamental differences with
Western law in many of its characteristics. The most important of these differences
is the fact that traditional Islamic law regarded many criminal offences as a matter of
private law, whereas the distinguishing feature of Western criminal law is the fact that
it is primarily the state and not the individual who is responsible for the prosecution
and punishment of an offender. Nevertheless, in Western criminal law, the role of
the victim is significant in these matters. It should be noted that even English law
is increasingly prepared to give the victim of crime a role in the punishment of an
offender. Thus, criminals can, for instance, be compelled to pay compensation to their
victims by a criminal court.
While in most of the countries in the Muslim world modern penal codes have been
enacted which depart from traditional Islamic penal law, one of the effects of the rise
of political Islam has been the reintroduction of Islamic criminal law into the legal
systems of some states. In Iran, following the establishment of the Islamic Republic,
Islamic criminal law replaced the previous code which was based on a Western
pattern. Pakistan, as part of the Islamisation programme initiated by General Zia ul
Haq, also introduced some aspects of Islamic criminal law, as has Nigeria in those
states of Northern Nigeria which are largely of Muslim majority. In the Kingdom of
Saudi Arabia, of course, Islamic law applies in criminal law as well as in all other areas
of the law. Brunei Darussalam also promulgated a Syariah Penal Code in 2013.
Some aspects of Islamic criminal law, especially the laws on sexual offences and on
corporal punishment, are considered controversial within and outside the Muslim
world. In this chapter, we will look at classical Islamic criminal law and examine the
application of these laws in some modern Muslim-majority states, in particular the
Islamic Republic of Pakistan.
Learning outcomes
u explain the principal features of Islamic criminal law
u distinguish between different types of offences
u understand and explain the evidential requirements for offences carrying the
hadd punishment
u explain how Islamic criminal law is applied in Pakistan and its scope of
application in some other Muslim-majority states.
Introduction to Islamic law 4 Penal law page 37
4.1 Hadd, ta’zir and qisas offences and punishments
Essential reading
¢ Peters, Chapter 2 ‘The classical doctrine’ (available on the VLE).
¢ Baderin, M.A. ‘Effective legal representation in “Shari’ah” courts as a means

of addressing human rights concerns in the Islamic criminal justice system
of Muslim states’ (2006) 11 Yearbook of Islamic and Middle Eastern Law 135–67
(available in HeinOnline).
Islamic law distinguishes between offences for which the punishment is determined
in the Qur’an or the Sunnah, and offences for which the punishment is established by
the judge at his own discretion. Offences and punishments specified in the Qur’an
or the Sunnah are called hadd, from the Arabic term for ‘limit’ or ‘boundary’. Of these
the most important offence is apostasy, the abandonment of Islam by a Muslim.
Punishments which are at the discretion of the judge are called ta’zir.
Where an offence has been committed but there is insufficient evidence to warrant
the application of the hadd punishment, the ta’zīr punishment is applied, subject to
the discretion of the judge. However, it may never exceed the hadd punishment. The
offences of homicide and bodily injuries are known as qisas offences.
4.1.1 Apostasy (riddah)

The punishment for apostasy under classical Islamic law is death, but before the
sentence is carried out the accused must be offered the chance to return to Islam
and belief. Apostasy is still a capital offence in Saudi Arabia, Yemen and the Islamic
Republic of Iran. Apostasy does not appear as a criminal offence in either the Pakistan
Penal Code (PPC) or the Code of Criminal Procedure of Pakistan. However, since the
amendment of Article 295-C of the PPC to make blaspheming the name of the Prophet
an offence punishable by death or life imprisonment, it is likely that an apostate would
suffer the same penalty, as there can be no greater blasphemy of the Prophet than
renouncing Islam and the role of the Prophet as the Messenger of God. Conversely,
blaspheming the Prophet amounts to apostasy under classical Islamic law.
4.1.2 Sexual relations outside marriage (zina)

The second most serious hadd offence is that of zina (i.e. sexual relations outside
of marriage). The offence therefore can either be the committing of adultery or
fornication. Sexual acts which do not amount to having actual sexual intercourse
are punished at the discretion of the judge and are, accordingly, ta’zir offences. The
punishment for a person found guilty of zina who has at any time been married is
death by stoning. In the case of a person who has never been married the punishment
is a hundred lashes. To prove the hadd offence of zina the testimony of four eye-
witnesses of the act of intercourse itself is required. Moreover, the eye-witnesses must
be adult sane male Muslims possessing the highest degree of moral probity. Guilt may
also be established by the confession of the accused, which must be maintained until
punishment is carried out. It should be noted that in traditional Islamic law pregnancy
outside marriage does not in itself constitute proof of the hadd offence of zina.
The early years of the new Islamic Republic of Iran saw the execution of many women
charged with the offence of zina. There is no record of how the conviction of these
women was obtained but it would have been virtually impossible for the Shari‘ah
standard of proof (i.e. eye-witness accounts of the act of sexual intercourse) to have
been met or for all of the women convicted to have made a complete confession
which they maintained even while punishment was carried out.
4.1.3 Theft (sariqah)

The third hadd offence is theft, known as sariqah, which is defined as taking and
carrying away, without right, a thing of value from a protected place. Things that have
no value in Islam such as pigs, pork or wine, cannot be the object of the hadd offence
of sariqah. The object itself must also have some worth, which is expressed usually
in monetary terms. Keeping something that is found does not constitute sariqah.
Again, to establish the hadd offence the testimony of two eye-witnesses of the highest
moral probity is required. Circumstantial evidence can never suffice to procure a
conviction to the hadd offence although it can result in the application of a lesser ta’zir
punishment. The punishment for a first offence of sariqah is the amputation of the
right hand. Subsequent offenders lose the left foot, then, if they steal again, the other
hand and finally the remaining foot.
4.1.4 Other hadd offences

The fourth hadd offence is qadhf – falsely making an accusation of zina. Because
of the jeopardy in which a person accused of zina is placed, and because of the
draconian punishments which may result, to make such an accusation falsely is
punished by 80 lashes.
The drinking of wine or other intoxicating liquids is also a hadd offence. Some
countries, such as Saudi Arabia, have also made the taking of hallucinatory drugs a
hadd offence. The punishment for this offence is 80 lashes. Unlike the lashes inflicted in
the case of ta’zir for zina and for the false accusation of adultery, the lashes inflicted for
drinking are not meant to inflict harm on the person but to shame him. Traditionally,
it is recommended that the lash be held between the first and the second fingers of
the hand (i.e. lightly). Similarly, under Maliki law, it is recommended that the person
inflicting the lashes should hold an object under the armpit which must not be
allowed to drop during the lashing. This prevents the infliction of heavy lashes due to
the inability to raise the arm beyond the shoulders to prevent the object under the
armpit from dropping.
The final hadd offence is hirabah, which is often translated as highway robbery, but
which covers other offences committed by stealth. The punishment for hirabah was
traditionally crucifixion, among other punishments prescribed in Surah 5 verse 33.
In Malaysia, a federal law – the Muslim Courts (Criminal Jurisdiction) Act of 1965 (as
amended) – has limited the jurisdiction of the syariah courts by providing that the
punishments imposable by the courts shall be limited to a maximum of three years
imprisonment, or a fine of RM5,000, or a maximum of six lashes, or a combination of
all these. The syariah courts in Malaysia can therefore not apply any of the traditional
hadd punishments such as whipping above six lashes, amputations, crucifixion,
stoning or the death penalty.
A further distinction is made in Islamic law between those crimes that involve a ‘right
of God’ and those that involve only the right of an individual. In the first category
fall the hadd offences (i.e. theft, illicit sexual relations, the drinking of alcohol, the
unproved assertion of a chaste person’s immorality and apostasy from Islam). Crimes
involving ‘the right of God’ can be compared to the concept of a crime in English
criminal law: the court, once seized of the matter, cannot drop the case nor can the
aggrieved party withdraw the case or come to an out-of-court settlement with the
accused. The second category, namely offences against the right of an individual but
not against a right of God, includes homicide and wounding. These are regarded very
much like a tort in English law: the aggrieved party can accept compensation, insist on
retaliation or pardon the offender.
4.1.5 Homicide and injuries (qisas)

Islamic criminal law on homicide and wounding constituted a major reform of pre-
Islamic tribal custom. Customary law demanded that a homicide was dealt with by
revenge killings of not only the murderer but also of several of his fellow-tribesmen,
since tribal pride regarded only several members of the murderer’s clan to be equal to
the victim from their own tribe. The result was inevitably a blood feud between clans
that would last for many years.
Islamic law introduced three major reforms:

1. only the guilty party was liable for the crime and could be punished by being killed
or wounded
2. a punishment was only imposed if the wounding or killing had been committed
deliberately and wrongfully
3. the facts of the crime and the guilt of the accused had to be established before the
ruler or a judge.
However, the principle of personal vengeance is preserved in Islamic criminal law:

once guilt is established it is not the ruler or the judge who decides on the punishment
of the guilty party but the victim or, in cases of homicide, the victim’s heirs. The first
option of the victim is to insist on retaliation. The second option is to waive the right
of retaliation and to accept instead monetary compensation from the culprit. This
sum payable to the victim or to the heirs is called diyah. The amount of diyah depends
on the status of the victim. For instance, the blood-money payable for a woman is fixed
at half the rate for a man; for a slave the amount was not fixed but determined by the
slave’s value. Where a slave is killed by a free Muslim, only the Hanafis allow retaliation
for deliberate homicide. The other schools restrict the punishment to the payment of
blood-money to the owner. The same principles apply to the killing of a non-Muslim:
only the Hanafis allow for retaliation, whereas all other schools and sects restrict the
punishment to blood-money, which is reduced to a lower level than that payable for a
Muslim. The third option is remission (to forgive the culprit and not to insist on either
retaliation or blood-money).
The McLauchlan and Parry case

Aspects of the criminal law of Saudi Arabia – both substantial and procedural – have
been highlighted by the 1996 case of Lucille McLauchlan and Deborah Kim Parry,
two English nurses who were accused of murdering an Australian colleague in Saudi
Arabia. This was perhaps the most ‘open’ trial conducted under the criminal law
of the Kingdom. The two accused were – for what is believed to be the first time –
represented before the court by Saudi counsel. Counsel, in a submission to the court
on their behalf, discussed the role of confession under the Shari‘ah. He stressed that
the Islamic jurists would not recognise a confession obtained under duress, whether
physical or moral. He stressed that the Islamic jurists included in the concept of duress
promises, threats and violence, irrespective of the degree of pressure, in a prolonged
interrogation, and every interrogation which was made in the late hour of the night.
He also argued that under the Shari‘ah a confession is nullified when:
the interrogator conveys to an accused that his co-accused incriminated him or that much
evidence has been found against him at the crime scene etc and other similar tricks and
deceptions if these contribute to the pressure and the breakdown of the accused and
his admission of things which he did not do in order to get rid of his psychological and
physical sufferings.
Counsel argued that confessions should be corroborated by other evidence, because

‘confessions are the start of the evidence and not the end’.
He argued that in the case before the court the two accused must have been subject
to duress as defined in accordance with the principles of the Shari‘ah. Initially and
while the trial was still in progress the brother of the victim was urged to accept blood
money, diyah. At first he demanded retaliation which, on a finding of guilt, would have
meant the execution of the two accused. However, intensive diplomatic efforts by the
British government and other parties resulted in his agreeing to accept blood money.
The trial itself was somewhat inconclusive, for although Lucille McLauchlan was found
guilty of being an accessory to murder there is no report of any finding in respect of
the guilt of Deborah Kim Parry. It appears that there must have been a finding of guilt
in both cases, however, as both the accused were pardoned by the late King Fahd and
repatriated to the UK.
Self-assessment question
What criteria must be satisfied before a confession may be accepted as evidence of
guilt?
Activity 4.1
Write a brief summary (not more than 100 words) of Section 4.1, paying particular
attention to the differences between the hadd, ta’zir and qisas offences and
punishments.
4.2 Honour crimes

In many countries of the Muslim world where Islamic criminal law does not apply,
there are provisions in the statutory law to justify so-called honour killings. In Jordan,
for example, Article 34 of Law 16 of 1960 (the Penal Code) states that:
A man who catches his wife or one of his female kinswomen who is within the prohibited
degree of relationships having sexual relations with a man to whom she is not married and
who kills or wounds both of them is exempt from any punishment.
The law further provides that a man who catches his wife or a female ascendant or
descendant or his sister with a male person in ‘an unlawful bed’ (presumably in bed
with a man other than her husband) and who kills or wounds either of them will
receive a reduction of his sentence. Provisions such as the ones in Jordanian law also
appear in the laws of Iraq and Egypt. In 1999 King Abdullah of Jordan removed these
provisions – which he considered offensive – from Jordanian law by decree when
Parliament was not in session. The Jordanian Parliament, however, refused to ratify
the decree. It should be noted that there are no provisions in Islamic law that justify
honour killings. Honour killings are more a matter of tribal customs and the tribal
customary belief that ‘the honour of the tribe rests in its women’.
4.3 Pakistan
4.3.1 The Hudood Ordinances

In most Arab countries modern penal codes have been established that depart from
Islamic penal law. In the Indian sub-continent India does not apply Islamic penal law
at all but Pakistan has introduced Islamic penal law for certain types of offences, for
instance unlawful sexual intercourse. Traditional Islamic penal law is also applied in
Saudi Arabia and some Gulf states. Pakistan introduced Islamic criminal law in 1979
in the form of three Ordinances, which are collectively referred to as the Hudood
Ordinances. They are the:
u Offences against Property (Enforcement of Hudood) Ordinance, 1979
u Offence of Zina (Enforcement of Hudood) Ordinance, 1979
u Offence of Qazf (Enforcement of Hadd) Ordinance, 1979.
The Hudood Ordinances provide for hadd punishments that, however, can only be
awarded if the very high evidential burden imposed under Islamic law is satisfied. The
proof of theft liable to a hadd punishment (i.e. the amputation of the right hand for
the first offence) requires that either the accused pleads guilty to the commission of
the theft or that at least two Muslim adult male witnesses, other than the victim of the
theft, who are regarded by the court to be truthful persons and who have in the past
abstained from major sins, give evidence as eye-witnesses of the occurrence. Further,
the statement of the victim of the theft has to be recorded before the statements of
the eye-witnesses are recorded.
Under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (the Zina
Ordinance, 1979), before it was amended in 2006, any sexual intercourse between
a man and woman who were not validly married constituted a criminal offence.
This meant that adultery, rape and fornication were all criminal offences liable to
hadd punishments if the required evidential burden was met. Anybody who falsely
accused somebody else of having committed zina was liable to be punished under the
provisions of the Offence of Qazf Ordinance, 1979. Qazf in traditional law is the hadd
offence of falsely accusing someone of zina and is punishable by 80 lashes.
The Zina Ordinance, 1979 had an effect on the legal status of women. If a woman
alleged that she had been raped and the matter came to trial it could happen that
the accused was actually acquitted because of lack of evidence. In this situation
the woman faced an awkward legal position: in order to prove rape she had had to
admit that sexual intercourse had taken place. After the acquittal of the accused the
possibility of rape was excluded and the woman now faced charges for either adultery
if she was married, or for fornication if she was not. The Zina Ordinance, 1979 had
therefore made it quite dangerous for a woman to press rape charges since she might
in fact end up as an accused herself.
In 2006, the Protection of Women (Criminal Law Amendment) Act was enacted in
Pakistan. This Act seeks to redress much of the injustice and hardship caused to
women by the Zina Ordinance, 1979.
First, the 2006 Act returns a number of offences from the Zina Ordinance back to the
Pakistan Penal Code. The offence of kidnapping or abducting a woman in order to
compel her to marry against her will or to force her into illicit sexual intercourse, or
kidnapping a male in order to subject him to ‘unnatural lust’, or selling a person for the
purpose of prostitution, have now been reinserted into the penal code of 1860.
Also, the offence of rape has been returned to the penal code. The offence of rape is
so defined that marital rape becomes a criminal offence. Sexual intercourse with a
female below the age of 16, even with her consent, is defined as rape. The punishment
for rape may be death or imprisonment for up to 25 years, with a minimum of 10 years.
The offence of zina is defined as ‘adultery’ if one of the parties is married at the time
the intercourse occurs and ‘fornication’ if they are not. The 2006 Act inserts a new
offence of fornication into the penal code. The offence is punishable by imprisonment
for up to five years and a fine not exceeding 10,000 rupees. The new offence is,
however, safeguarded from abuse by the creation of a new offence of false accusation
of fornication. The new provision provides that anyone who brings or gives false
evidence of fornication shall be punished with imprisonment of up to five years and
a fine of up to 10,000 rupees. Very importantly, once a prosecution for fornication
results in an acquittal, the trial judge can, in the same proceedings, try and sentence
the person bringing the charge.
The offence of adultery is the only offence retained by the Zina Ordinance. It is an offence
for anyone to make a false accusation of adultery. The punishment for the offence follows
the punishment of fornication in the penal code. A new definition of ‘confessions’ has
been added to the Ordinance. The new definition serves to prevent women being placed
in the position of having been deemed to have ‘confessed’ to zina when they brought an
accusation of rape before the court which the court found unproven.
The definition of what constitutes a valid marriage has also been deleted. The original
definition had caused hardship to many women and resulted in confusion regarding
the interpretation of s.7 of the Muslim Family Laws Ordinance 1961. All too often, a
husband would repudiate his wife by talaq (see Chapter 9) but would fail to comply
with the requirement of ‘notice’ enjoined by s.7 of the Ordinance. The woman would
believe herself divorced and re-marry, whereupon the first husband would bring a
charge of zina against her, citing his failure to give notice of talaq as required by law
and claiming, in effect, that, the woman was still his legal wife. The 2006 Act removes
all reference to ta’zir punishments. The result is that now, under the Zina Ordinance,
adultery may only be proved if the act itself is witnessed by four pious Muslim eye-
witnesses, or if the accused confesses to the offence, for which the only punishment is
death by stoning.
Finally, the 2006 Act amends the procedure governing sexual offences under both
the penal code and the Zina Ordinance. Any complaint of adultery must be lodged
directly in court, not made to the police. The judge hearing the case must examine
on oath the complainant and at least four adult male eye-witnesses, who the court
has established to be truthful. The witnesses must testify on oath to the committing
of the act of penetration (i.e. the strict evidence required by the Shari‘ah). Moreover,
the offence of qazf in the Qazf (Enforcement of the Hadd) Ordinance, 1979 has been
amended. If the prosecution fails, punishment for qazf is now virtually automatic. If
a prosecution for adultery fails and the judge is satisfied that the offence of qazf has
been committed, he shall not require proof of qazf and will proceed to pass sentence
against the complainant. Punishment for the offence is 80 lashes. The testimony of a
person convicted of qazf is thereafter inadmissible in any court proceedings.
The procedure regarding allegations of fornication follows that of allegations of

adultery, but only two eye-witnesses are required. The complainant and the eye-
witnesses must be examined in court before the judge can issue a summons for the
accused to attend court.
The law of Pakistan now expressly recognises honour crimes as criminal offences. The
amended Article 311 of the penal code provides a mandatory sentence of 10 years’
imprisonment if the offence is committed in the name of, or on the pretext of, honour.
A compulsory sentence of imprisonment must also be given to anyone convicted of an
attempted murder or assault in the name of honour.
4.3.2 Blasphemy
Article 295-C of the Pakistan Penal Code 1860 provides that:
Whoever by words, either spoken or written, or by visible representation, or by any

imputation, innuendo, or insinuation, directly or indirectly, defiles the sacred name of
the Holy Prophet Muhammad (Peace be upon him) shall be punished with death, or
imprisonment for life, and shall also be liable to fine.
The Federal Shariat Court has held that, despite the discretion in the statute accorded
to the trial judge, the only punishment for blasphemy is death. Although there have
been many cases brought under the blasphemy provision and convictions obtained,
what actually constituted the blasphemy is not reported, presumably because this
would be to repeat the blasphemy.
The Christian community and the Ahmadiyyas (the followers of Mirza Ghulam
Ahmad (1835–1908), who consider themselves as Muslims, although they are not
so regarded under the law of Pakistan) have suffered the most as a result of the
blasphemy laws. Pakistan also makes it a criminal offence for non-Muslims to hold
themselves out as Muslims. Following an amendment to the Pakistani constitution,
members of the Ahmadiyya sect are not regarded as Muslims even though they
regard themselves as such.
The Pakistan Supreme Court, in reversing the decisions of the courts below, held that
blasphemy is a serious offence that must (always) be proved beyond reasonable doubt
in its recent decision delivered on 03 November 2018 in the case of Asia Bibi v The State
etc. (Criminal Appeal No.39-L of 2015). The decision is available here:
https://www.supremecourt.gov.pk/downloads_judgements/Crl.A._39_L_2015.pdf
4.4 Brunei Darussalam

Pursuant to Articles 39 and 83(3) of its Constitution, Brunei Darussalam promulgated
a Syariah Penal Code Order in October 2013, which fully legalises the application of
Islamic penal law in the country, consisting of the hudūd, qisās and ta’zīr punishments.
The applicable offences are provided in Part IV of the Code, with Chapter 1 covering
the hudūd offences and Article 55 defining hadd as ‘punishment or penalty as ordained
by the Al-Qur’an or Sunnah … for the offences of sariqah, hirabah, zina, qazaf, drinking
intoxicant drinks and irtidad’. Chapter 2 covers the qisās offences and punishments,
with the listed offences under that section including, inter alia, the offence of ‘qatl
[murder] by black magic’ in Article 151. Chapter IV covers ‘Offences’, which include,
inter alia, the offence of “Failure to perform Friday prayer” under Article 194, which
provides that:
Any male who is mukallaf [mature] who fails to perform the Friday prayer in a mosque
without uzur syar’ie [a valid excuse under the shari’ah] or without reasonable excuse is
guilty of an offence and shall be liable on conviction to a fine not exceeding $200 for a first
offence, a fine not exceeding $300 for a second offence, and a fine not exceeding $1000
for a third or subsequent offence.
This provision can be controversial as it crosses the general jurisprudential distinction

between acts of worship (ibādāt) and social relations (mu’āmalāt) under classical
Islamic jurisprudence. Ordinarily, acts of worship are not classified as criminal offences
that attract criminal punishments but are acts that are rewarded by God based
fundamentally on belief and voluntary intention rather than the fear of criminal
sanction by the state. The jurisprudential books are very scanty on the criminalisation
of acts of worship under classical Islamic law. According to some jurists, even though
the ruling authority has ta’zīr powers to rebuke people who persistently neglect their
acts of worship, making it a punishable criminal offence is a very contentious matter.
The Code also makes it an offence to propagate any religion other than the religion of
Islam in the country under Article 209 of the Syariah Penal Code.
1. How does Islamic law categorise offences?
2. What are hadd punishments?
3. What are qisas offences?
4. In what type of cases are discretionary punishments applied?
5. Explain the difference between ta’zir and hadd punishments.
Further reading
¢ Wasti, T. The application of Islamic criminal law in Pakistan. (Leiden: Brill, 2009)
[ISBN 9789004172258].
¢ Shah, N. ‘The 2006 Women Protection Act of Pakistan: an analysis’ (2010) 5

Religion and Human Rights 1–10.
¢ Cherif Bassiouni, M. The Islamic criminal justice system. (London: Oceana, 1982)
[ISBN 9780379207453].
¢ Kamali, M.H. ‘Punishment in Islamic law: a critique of the Hudud Bill of Kelantan,
Malaysia’ (1998) 13 Arab Law Quarterly 203–34.
¢ Lippman, M., S. McConville and M. Yerushalmi Islamic criminal law and procedure.
(New York: Praeger, 1988) [ISBN 9780275930097].
¢ Anderson, J.N.D. ‘Homicide in Islamic law’ (1951) BSOAS 811–28. This reading is
available on the VLE.
¢ Mehdi, R. The Islamization of law in Pakistan. (Richmond: Curzon Press, 1994)

[ISBN 9780700702367] pp.109–42.
¢ Lau, M. ‘Twenty-five years of Hudood Ordinances – a review’ (2007) 64(4)

Washington and Lee Law Review 1291–314.
¢ El-Awa, M.S. Punishment in Islamic law. (Indianapolis: American Trust

Publications, 1984) [ISBN 9780892590155].
¢ Rahman, F. ‘The concept of hadd in Islamic law’ (1965) 4 Islamic Studies 237–51.

u explain the principle features of Islamic criminal law
u distinguish between different types of offences
u understand and explain the evidential requirements for offences carrying the
hadd punishment
u explain how Islamic criminal law is applied in Pakistan and its scope of
application in some other Muslim-majority states.

Question 1 ‘Islamic criminal law appears to be harsh but a closer look reveals that
in practice the most severe punishments are hardly ever applied.’
Discuss.
Question 2 ‘Islamic criminal law is at times closer to the English law of torts than it
is to English criminal law.’
Discuss.
Question 3 To what extent does the traditional law of zina apply in Pakistan?

Question 1 Give a brief description of Islamic criminal law and the division between
hadd, ta’zir and qisas offences. Discuss the severity of the hadd punishments, but
explain the very high standard of proof required before they may be inflicted, so that
it is not only extremely difficult but in many cases (e.g. zina) virtually impossible to
prove the offence if the accused does not confess. Then proceed to discuss briefly the
law regarding confessions.
Question 2 This question relates largely to murder and assault on the person. Discuss
the right of the heirs of the victim or of the victims themselves to prosecute or not
and, where there is a conviction, to determine the punishment to be inflicted, which
can include compensation or the payment of blood money.
Question 3 This question requires an examination of the old, unreformed Zina

(Enforcement of Hudood) Ordinance, 1979, taking note of and analysing the practical
effects of the law, especially on women’s rights. The answer should then critically
analyse the reforms to the law brought about by the Protection of Women (Criminal
Law Amendment) Act 2006.
Reflect and review



I can explain the principal features of Islamic

criminal law.   
I can distinguish between different types of offences.

  
I can understand and explain the evidential
requirements for offences carrying the hadd
  
punishment.
I can explain how Islamic criminal law is applied in

Pakistan and its scope of application in some other
  
Muslim-majority states.
revise?
Must Revision
revise done
4.1 Hadd, ta’zir and qisas offences and punishments  
4.2 Honour crimes  
4.3 Pakistan  
4.4 Brunei Darussalam  
5 Civil law: contracts and torts
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
5.1 Contract law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
5.2 Law of torts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

Introduction
Trade constituted an important area of economic activity in early Islamic society.
Muhammad himself was a merchant, before his call to prophethood. It is therefore
not surprising that Islamic law developed an extensive body of rules concerned
with the performance and enforcement of contractual obligations. The main thrust
behind these rules is to impose a moral dimension on the principle of freedom of
contract. It is therefore possible to identify a distinct area of law that is concerned
exclusively with contracts.
The underlying principle of trade and commerce under Islamic law as contained in the
Qur’an is the legality of trade and the prohibition of usury (riba) and excessive risk or
uncertainly (gharar). This is based on Surah 2 verse 275, which provides that: ‘God has
permitted trade and has forbidden usury (riba)’.
In contrast, the law of torts does not represent a distinct body of rules but is to a large
extent part of Islamic criminal law.
Learning outcomes
u outline the rules for capacity to enter into a contract
u identify the characteristics of Murabahah and other contracts
u explain the transfer of property by gift
u explain the role of pre-emption in the sale of real property
u describe the limitations of civil liability for tortious actions in Islamic law.
Introduction to Islamic law 5 Civil law: contracts and torts page 49
5.1 Contract law
Core text
¢ Baderin, Chapter 6 ‘Law of financial transactions’.
Essential reading
¢ Hallaq, Shari’a: theory, practice, transformations. Chapter 7 ’Contracts and other
obligations’ (available on the VLE).
¢ Usmani, M.M.T. An introduction to Islamic finance. (Leiden: Brill, 2012)

[ISBN 9788171012367].
It is available online here: http://alqalam.org.uk/wp-content/uploads/2017/07/An-
Introduction-to-Islamic-Finance-by-Mufti-Taqi.pdf
¢ Zahraa, M. ‘Negotiating contracts in Islamic law and Middle Eastern laws’ (1998)
13 Arab Law Quarterly 265–77 (available in JSTOR and HeinOnline).
Further reading
¢ Schacht (1982) Chapter 20 ‘Obligations in general’ and Chapter 21 ‘Obligations
and contracts in particular’.
Islamic law has not developed a general theory of contract but, like Roman law,
recognises a series of nominate contracts such as lease, sale, gift and hire. There are,
however, certain general principles which apply to all contracts. Contracts, with the
exception of a gift, are concluded by an offer made by one party and acceptance being
given by the other party – the offer and acceptance being given by two competent
parties. The offer and acceptance must take place at the same meeting (majlis) and,
with rare exceptions, are of immediate effect. Islamic law abhors contracts in futuro as
these necessarily involve an element of risk and uncertainty.
5.1.1 Capacity
Contractual capacity, other than for contracts of marriage, is attained, for both males
and females, at the onset of physical puberty. There is an irrebuttable presumption
of law that no male below the age of 12 and no female below the age of nine has
achieved majority, and an equally irrebuttable presumption of law that by the age
of 15 both males and females are adult. In between the minimum and the maximum
ages whether majority has been attained is a question of fact. Property of children
below the age of majority is subject to the control of the guardian of that property.
The person with the prior right to deal with the property of the child is the father. If
the father is absent then a person appointed by the father has the right. If the father
has not named the guardian of the property of his infant child the right passes to
his nearest male kinsmen in the order of succession on death. The guardian of the
property has the duty to safeguard the interests of the minor and to deal with the
property of the minor equitably as a trustee.
A child below the age of majority who has reached the age of seven, which the Muslim
jurists considered the age of discernment, has a restricted contractual capacity. The
child may enter into a contract which is manifestly to their advantage so that they may
be the recipient of a gift. Conversely, the child may not enter a contract manifestly
contrary to their advantage such as making a gift. Other contracts made by a child
below the age of majority are not void but are deemed to be suspended pending the
guardian’s consent or otherwise to their execution. The only exception to the general
rules relating to contractual capacity are insane persons, persons who are, although
not certifiably insane, feeble-minded, acknowledged spendthrifts and persons who
are easily deceived. In the case of persons possessing these defects the guardianship of
minority may, with the permission of the judge, be extended. Also, persons who are in
their death-sickness are under an interdiction restricting their contractual rights (see
Chapter 11 on succession).
There is a perception that under the Maliki school a woman does not attain
contractual capacity at puberty and that a married woman cannot enter a civil
contract without the consent of her husband. She achieves limited contractual
capacity only upon consummation of a valid marriage, whereby she may not dispose
gratuitously of more than one-third of her property. This appears to be reflected, for
example, in the UAE Commercial Transactions Law (Federal Law No. 18) of 1993, which
provides in Article 21(2) that ‘A foreign wife who practices trade is assumed to have
obtained her husband’s approval to do so’. Mahdi Zahraa has noted in his article on
‘The capacity of women in Islamic law” ((1996) 11 Arab Law Quarterly 245–63 at p.256)
that this view is contradicted by Shafi’i in his classical jurisprudential work, Al-Umm, in
which he states that ‘…none of the jurists whom I have known have differed in opinion
on the fact that both men and women upon their attainment of the age of puberty
and maturity are alike in their ability to conduct their affairs by themselves…’. As Shafi’i
studied under Malik, he would have certainly known if Malik generally differed from
the opinion that both men and women attain the ability to conduct their civil affairs
by themselves upon attainment of maturity. Rather than a general restriction of the
capacity of women to contract under the Maliki school, a leading Maliki jurist, Sahnun,
indicated that a married woman has full capacity to conduct all her civil transactions
except those concerning her charitable dispositions, noting that such charitable
dispositions are not valid if they exhaust more than one-third of the married woman’s
property. This is based on the presumption that, as a married woman would be having
sexual relations with her husband, there is a possibility that she would become
pregnant, with the inevitable result that she would deliver a child, and thus she is
interdicted from gratuitously disposing of her entire property. The courts of Pakistan
have also sought to safeguard the interests of women. Where a Purdashin woman
disposes gratuitously of property, the burden of proof is on the person who is claiming
a right under the property she executed to prove that she had proper understanding
of the effect of the contract.
In many parts of the Muslim world today the age of majority for the purpose of
commercial contracts has been fixed by the various civil codes and varies from country
to country.
5.1.2 Freedom of contract

The first principle of Islamic contract law is that ‘Muslims must abide by their
obligations’. This is based on Surah 5 verse 1 of the Qur’an. This principle of ‘pacta sunt
servanda’ does not entail complete freedom of contract but is accompanied by a
recognition of the ethical dimension of a transaction. Freedom of contract is restricted
by ethical considerations. Unjust enrichment is the most important limitation on
the freedom of contract. The general principle is that there should be no monetary
advantage gained without the beneficiary having given a counter-value. The most
important forms of unjust enrichment are the charging of excessive interest, or usury,
called riba, the re-letting of a hired object for a greater sum, and the reselling of a
bought object for a higher price before payment has been made.
Two principles central to Islamic law, namely the prohibition on usury (riba) and on
gharar (i.e. an uncertainty in the object of a contract), limit the scope of commercial
activity in Islamic law. All schools of Islamic law agree that the taking of usury (i.e. the
exchange of money for money with excess and delay), is prohibited. The prohibition
placed by Islamic law on interest-based loans is derived directly from the Qur’an, which
is the primary source of Islamic law. Surah 2 verses 275–79 provide, inter alia, that:
Those who devour usury stand like one whom Satan has smitten with insanity. That is
so because they say: ‘trade is like usury’; whereas Allah has made trading lawful and has
made usury unlawful.
The prohibition on interest-bearing loans is strict in Islamic law. Islamic banking

practice is therefore limited to financial agreements that do not involve the charging
of interest. One normal means of avoiding the charging of interest is the Murabahah
contract that is widely used in Islamic banking today.
5.1.3 Murabahah contracts

A Murabahah contract can be defined as the sale of a commodity for the price at which
the vendor has purchased it, with the addition of a stated profit known to both the
vendor and the purchaser. It is therefore at its most basic an ordinary contract of sale.
As such it must satisfy all the usual conditions of a regular contract of sale.
A Murabahah contract is not a loan given on interest but a sale of a commodity for a
deferred price, which includes an agreed profit, added to the cost. In order to make
a Murabahah contract distinguishable from an ordinary, interest-bearing loan the
following essential conditions have to be fulfilled.
u The Murabahah contract must fulfil all the usual requirements of an ordinary contract
under Islamic law.
u The institution providing the finance to the client must purchase the commodity in its
own name from a third party.
u At the point of purchase the commodity must come into the possession of the institution
and the commodity must remain at the risk of the institution until the commodity is
sold to the client.
In addition, the Murabahah must comply with the basic rules of a contract of sale under
Islamic law.
u The object of the sale must be property (i.e. an object having a legal use).
u The commodity must be in the ownership of the seller at the time of sale (i.e. it
must be in the physical or constructive possession of the seller when it is sold to
another person). Constructive possession means that the commodity has not been
physically delivered but has come into the control of the seller and all rights and
liabilities in the commodity, including the risk of its destruction or disappearance,
are borne by the seller.
u The delivery of the commodity must be certain and not dependent on contingency
or chance.
u The price must be certain at the time of the contract.
u ‘In the event of an intrinsic defect existing in the object, the buyer has the
unconditional right to rescind the sale. This right (khiyar al-‘ayb) cannot be ceded
by a contractual stipulation, any such stipulation would be null and void.’
See Nicholas D. Ray Arab Islamic banking and the renewal of Islamic law. (Bath:
Graham & Trotman, 1995) [ISBN 9781859661048] p.39 and N. Coulson Commercial
law in the Gulf states. (Bath: Graham & Trotman, 1984) [ISBN 9780860105749]
pp.65–67.
The above requirements are regarded as essential for the validity of a Murabahah
contract, since the contract would otherwise be indistinguishable from an ordinary
interest-bearing loan, which, of course, is invalid under Islamic law.
The rules formulated by the Shari‘ah compliance supervisory boards of the main
Islamic banking organisations insist that the bank can only legally sell the object of
the Murabahah contract to the client once the bank has received it. Nicholas D. Ray,
in his book Arab Islamic banking and the renewal of Islamic law (see above), found
that the rules of the International Association of Islamic Banks stipulate that ‘Selling
is postponed until the bank gets actual ownership and possession of goods and
becomes responsible for any defects therein’. The same applies to the Faisal Islamic
Bank of Egypt, the Islamic International Bank for Investment and Development, and
the Second Conference of Islamic Banks.
In a 2000 decision, the Supreme Court of Pakistan defined the essential characteristics
of a Murabahah agreement.
[...] Murabahah is a sale and not a financing in its origin. It must, therefore, conform to all
the basic standards of a sale. It may be used only where the client of the bank really wants
to purchase a commodity. The bank must purchase it from the original supplier after
taking into its ownership and (physical or constructive) possession sells it to the client.
All these elements must be visibly present in a valid Murabahah with all their legal and
logical consequences, including in particular, that the bank must assume the risk of the
commodity so long as it remains in its ownership and possession. This is the basic feature
of the Murabahah which makes it distinct from a interest-based financing and once it
is ignored, though for the purpose of simplicity, the whole transaction steps into the
prohibited field of interest-based financing.
(M. Aslam Khaki v Muhammad Hashim PLD 2000 SC 225, at 748–49, per Justice Maulana
Muhammad Taqi Usmani.)
The ownership of the goods by the bank for the interval between the two sales can be
identified as the most important difference between an interest-bearing loan and a
Murabahah agreement. During that interval the bank bears the risk that the goods may
be destroyed or harmed, or develop a defect. In practice, Islamic banks will procure
insurance cover for the period during which they bear the risk in the object of the
Murabahah contract.
Compensation for late payment is permitted in modern Islamic banking practice as

long as it does not amount to the charging of interest. A contractual provision for the
payment of liquidated damages which is calculated on the basis of an annual or daily
interest would obviously be prohibited since it amounts to riba (i.e. interest) which is,
as explained above, repugnant to Islamic law. In practice, damages for late payment
by the purchaser can be contractually provided for by agreeing a pre-determined (i.e.
contractually fixed) price for the object of the Murabahah contract if payment takes
place after a certain settlement date. This price will be higher than the price payable
for the object if payment is effected on the due date.
Other restrictions include the prohibition of an exchange of an obligation for an

obligation and the prohibition of a delay in the exchange of goods.
The essential ingredients of a contract are the offer and the acceptance which must
be made in the same meeting (majlis). The offer can be withdrawn as long as no
acceptance of it has taken place and the majlis, or meeting, has not been terminated.
The object of the contract must be specified in order to prevent speculation or
interest. A classic example for the specificity requirement is the prohibition on
the selling of dates which are still unripe, to be delivered when ripened. Since it is
unknown when they will ripen the contract is void. For the same reason Islamic law
prohibits gambling, although some of the present-day civil codes of the Middle East,
for instance the Jordanian Civil Code, allow gambling on racecourses.
Contractual liability arises out of the non-performance of a contractual obligation or

the negligent performance of a contract. Liability and obligation are extinct as soon as
the contract is properly performed or the debtor is ‘acquitted’ (i.e. the creditor waives
his right to the performance of the contract unconditionally). An amicable settlement
is also possible, as is the renegotiation of the contract. Another way to extinguish a
contractual obligation is to transform it into a new one by way of assignment. A debt
owed can, for instance, be assigned to satisfy a claim.
Other means of avoiding charging of interest in transactions are the Mudarabah

and Musharakah contracts, which are also used in Islamic banking and finance
transactions today.
5.1.4 Pre-emption
In contracts for the sale of real property the right of pre-emption (Shuf’ah) may arise.
Shuf’ah means that in certain cases where property is sold a third party may replace the
vendee by paying to him the amount which the vendee paid for the property. The right
to pre-empt arises first when property is jointly held. Where one of the co-owners sells
his share the other co-owner may repurchase the property from the purchaser. Also,
where a person is a joint owner of an easement attached to the property sold, he has a
right to pre-emption. In Hanafi law a person whose property is immediately adjacent
to the sale property has a right to pre-empt. The Hanafi law giving the neighbour a
pre-emptive right is preserved in the Egyptian civil code. In many cases where Hanafi
law applied, the right of a neighbour was thwarted by the vendor making a gift to the
purchaser of a narrow strip of land adjacent to the neighbour’s property and then
selling the purchaser the remainder of the property. This device was effective as the
right of pre-emption does not arise over gifted property. A person wishing to exercise
the right of pre-emption must act immediately upon learning of the sale and must
exercise the right with due formality and in the presence of witnesses.
5.1.5 Gifts
All sane Muslims who have attained majority (with the exception of women according
to a Maliki view as explained above) may dispose of their entire property by gift. A
transfer of property by one person to another constitutes a Hibah (i.e. a gift) if the
transfer of the property is made immediately, is accepted by or on behalf of the
other person and nothing is given in exchange for the property so transferred. With
the exception of Maliki law a gift is completed once accepted by the donee and
transferred. The Malikis, however, consider that the gift is completed before the
handing over is made. It is essential for the validity of a gift that donors should divest
themselves completely of all ownership of and control over the property which is
the subject of the gift. However, as explained in Chapter 11 on succession, certain
conditions exist in respect of death-bed gifts: a gift made by a Muslim during a death-
illness cannot take effect beyond a third of the estate nor can it be made in favour of
an heir, unless the other heirs give their consent to the gift after the donor’s death.
The development and growth of the concept of Islamic banking and finance in recent
times has increased the global relevance of, and interest in, Islamic law governing
financial transactions. This aspect of Islamic law is based on the general principles
of contract and commerce under the Shari‘ah and the fundamental rules are based
on legality of trade and the prohibition of riba and gharar as discussed above. The
relevant rules of partnership and agency are currently employed as necessary tools in
the formulation of different agreements and products in modern Islamic banking and
finance.
5.2 Law of torts

You have seen in Chapter 4 that some crimes, particularly qisas offences, are treated in
a fashion that is more similar to torts in English law than it is to criminal law. The law of
civil liability for tortious actions is not well developed in Islamic law. Perhaps the basis
of the law lies in the Prophetic hadīth ‘There is no darar (harm) or dirar (prejudice)
in Islam’. The basic principle of the Islamic law of torts is that compensation is only
available for actual damage. No damages in traditional law can be awarded for moral
damage, like injury to one’s reputation or for pain and suffering. However, many codes
in the countries of the Middle East do allow damages to include compensation for
pain and suffering. The courts in Saudi Arabia, however, still apply traditional law and,
besides refusing compensation for future loss, also refuse moral damages. Various
regulations in the Kingdom do provide for compensation to be awarded for pain
and suffering but such compensation can only be ordered by a tribunal appointed to
enforce the regulation itself, like the Labour Court, which hears cases of work-related
injuries suffered by workers.
Further reading
¢ Zahraa, M. ‘The legal capacity of women in Islamic law’ (1996) 11(3) Arab Law
Quarterly 245–63.
¢ Kamali, M.H. Islamic commercial law: an analysis of futures and options.

(Cambridge: The Islamic Texts Society, 2001) [ISBN 9780946621804].
¢ Mansuri, M.T. Islamic law of contracts and business transactions. (New Delhi: Adam
Publishers & Distributors, 2006) [ISBN 9788174354594].
¢ Bin Mohamad, A.B. Islamic law of tort. PhD Thesis submitted at the University
of Edinburgh, January 1997. Available at: www.era.lib.ed.ac.uk/bitstream/
handle/1842/17549/Mohamad1997.pdf
¢ See also the readings listed in the Introduction and Chapter 1.

u outline the rules for capacity to enter into a contract
u identify the characteristics of Murabahah and other contracts
u explain the transfer of property by gift
u explain the role of pre-emption in the sale of real property
u describe the limitations of civil liability for tortious actions in Islamic law.

Question 1 Ahmad wishes to sell his field. Ahmad’s neighbour informs him that
he is interested in purchasing the field. However, Ahmad wishes to sell it to his
son-in-law.
Advise Ahmad.
Question 2 ‘Muslims acquire the right to deal with their property once they have
attained puberty.’
Discuss.

Question 1 This is obviously a question concerning the right of pre-emption. You
must explain the neighbour’s right of pre-emption and explain the device by which
an owner may avoid the application of the law.
Question 2 Discuss the age of contractual capacity in Islamic law, explaining the
different view of the Maliki school regarding women’s acquisition of contractual
capacity. Discuss the contractual rights, if any, possessed by infants and explain how
in certain cases the interdiction of minority may be continued after the attainment
of majority.
Reflect and review


Need to study again = I found many or all of the principles outlined in this chapter
very difficult and need to go over them again before I move on.

I can outline the rules for the capacity to enter into

a contract.   
I can identify the characteristics of Murabahah and

other contracts.   
I can explain the transfer of property by gift.

  
I can explain the role of pre-emption in the sale of
real property.   
I can describe the limitations of civil liability for

tortious actions in Islamic law.   
revise?
Must Revision
revise done
5.1 Contract law  
5.2 Law of torts  

6 Marriage
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
6.1 The marriage contract . . . . . . . . . . . . . . . . . . . . . . . . . . 59
6.2 Capacity of the parties . . . . . . . . . . . . . . . . . . . . . . . . . . 59
6.3 Child marriage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
6.4 Impediments to marriage . . . . . . . . . . . . . . . . . . . . . . . . 61
6.5 The effects of impediments to marriage . . . . . . . . . . . . . . . . . 62
6.6 Proof of marriage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
6.7 Dower (mahr) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

Introduction
Islamic family law is one of the core substantive aspects of Islamic law that remains
applicable in all parts of the Muslim world where Islamic law still applies today. Its
main elements are rules relating to the formation and dissolution of marriages and the
incidental issues arising from that.
The institution of marriage occupies a central place in Islamic law and a thorough
knowledge of this area of law is essential. The relevance of Islamic marriage law
transcends national boundaries mainly because there are now substantial Muslim
communities even in countries that until recently had no or very little exposure to the
Islamic world. In the United Kingdom, English courts frequently have to decide on the
validity of an Islamic divorce or marriage that came into effect, for example, under the
laws of India or Pakistan. These cases normally involve parties who migrated to the UK
but who have retained strong links with the Islamic tradition.
Learning outcomes
u explain the rules and requirements surrounding the formation of a marriage
contract in Islamic law
u evaluate and determine what conditions have to be fulfilled to conclude a valid
marriage
u outline the effects of non-compliance with these conditions
u describe and discuss the impediments to marriage
u explain how the rules on dower may determine the validity of a marriage.
Core Texts
¢ ‘Abd al ‘Ati, Chapter 3 ’Marriage in Islam’.
¢ Baderin, Chapter 4 ‘Family law.’
Essential reading
¢ El Alami, D.D. and D. Hinchcliffe Islamic marriage and divorce laws of the
Arab world. (London, The Hague, Boston: Kluwer Law International, 1996)
[ISBN 9789041108968] pp.5–18 (available on the VLE).
¢ Anderson, N. ‘Islamic family law’ in International encyclopedia of comparative law.

(The Hague, Boston, London: Tubingen and Martinus Nijhoff Publishers, 1983)
Vol.4 ‘Persons and family’, Chapter II, pp.105–08 (available on the VLE).
Further reading
¢ Pearl and Menski, Chapter 6 ‘Muslim marriage: form and capacity’, Chapter 7
‘Marriage: legal effects’ and Chapter 8 ‘Polygamy’.
Introduction to Islamic law 6 Marriage page 59
6.1 The marriage contract

Marriage in Islamic law is a contract that is concluded by an offer made by one party
and an acceptance given by the other. No particular form of words is required as long
as the intention to conclude a contract of marriage is clear. The offer and acceptance
have to be of immediate effect and take place in the same meeting but the parties do
not need to be in each other’s presence. According to Hanbali, Hanafi and Shafi law
two adult males must be present when the offer and acceptance are given. Under the
Maliki and Ithna Ashari schools the presence of witnesses is recommended but not
mandatory provided that, in Maliki law, sufficient publicity is given to the marriage.
Marriage contract: offer and acceptance
Requirement for
Schools Conditions
witnesses
Hanbali
Two adult males must
Hanafi be present
Shafi’i
Ithna Ashari
Presence of witnesses
recommended but not Sufficient publicity
Maliki essential must be given to the
marriage
1. What is the essential characteristic of a marriage under Islamic law?
2. What formal requirements are imposed on the formation of the marriage

contract?
6.2 Capacity of the parties

Can any Muslim enter into a valid marriage contract or does Islamic law require certain
conditions to be fulfilled before a Muslim can get married? Apart from the formal
requirements under certain schools, such as the presence of witnesses, Islamic law
also requires the parties to a marriage contract to have the capacity to enter into the
contract. The most important issue concerns the age at which a Muslim is considered
capable of binding themselves in marriage.
6.2.1 Hanafi and Ithna Ashari schools

According to Hanafi and Ithna Ashari law any sane adult, whether male or female,
has the capacity to conclude their own contract of marriage. According to traditional
Islamic law majority is attained at the onset of physical puberty. There is an
irrebuttable presumption of law that no female below the age of nine and no male
below the age of 12 has attained majority and an equally irrebuttable presumption
that by the age of 15 majority has been attained by both sexes.
The right of a female to contract her own marriage is, however, not absolute according
to Hanafi doctrine. If a woman contracts her own marriage for less than the proper
dower (see Section 6.7) her guardian may demand that the proper dower be paid
or the marriage dissolved. A further restriction on the right of the Hanafi woman to
contract her own marriage is the doctrine of ‘equality’ (kafa’ah). Her guardian may
seek a dissolution of the marriage if she marries a man who is not her equal according
to the law. In Hanafi law equality is determined with regard to piety, lineage, wealth
and occupation. However, the right of the guardian to dissolve the marriage lapses if
the woman becomes pregnant.
Although a Hanafi or Ithna Ashari woman may contract her own marriage it is the usual
practice to ask her guardian (i.e. her father or nearest male agnatic kinsman) to conclude
the contract on her behalf. The guardian is acting in such a case as the representative of
the woman – whose consent is nevertheless required. Consent must be express if she is
not a virgin. If she is a virgin her acceptance may be implied by conduct. However, the
Hanafi interpretation of conduct is not rigid. For example, if she remains silent when
asked if she consents to the marriage this will be interpreted as shyness on her part and
regarded as consent. Some Hanafi jurists have stated that even if she weeps this will also
held to be consent because this is merely a sign that she is sad to be leaving her parents.
6.2.2 Maliki, Shafi and Hanbali schools

In Maliki, Shafi and Hanbali law a woman may never conclude her own marriage
contract. A marriage guardian must always act on her behalf. In Maliki law the hierarchy
of marriage guardians strictly follows the order of succession. Accordingly, the son of
the woman ranks before her father. If the father is not alive the paternal grandfather
assumes the role of marriage guardian; failing him, the nearest male agnatic kinsman.
In Hanbali law the guardian having first priority is the father, followed as in Maliki law by
the paternal grandfather and the other agnatic kinsmen. Both schools recognise that
the person having the right of guardianship may appoint his successor.
Moreover, according to the law of these schools, if the guardian is the woman’s father
or the paternal grandfather, he may under the right of ijbar contract her hand in
marriage without her consent and even against her express wishes, even if she is adult,
provided she has not previously been married. The right of the guardian to compel,
known as Ijbar, has been removed by modern legislation in many Muslim-majority
countries. Morocco was the last Muslim country to have retained the right of Ijbar in
its statutory law but the code was subsequently amended to remove it in the new
Mudawwanah of 2004. The right of Ijbar, however, continues in countries which have
not yet made statutory reform to the traditional law.
In Pakistan the right of a Hanafi woman to contract her own marriage was challenged
in the case of Abdul Waheed v Asma Jehangir PLD 1997 Lahore 301 (Saima Waheed case).
involving an adult woman whose father objected to the marriage on the ground
that he had not given his consent. The Lahore High Court very reluctantly rejected
the father’s application because the court saw itself bound by a precedent set by the
Federal Shariat Court which had decided that an adult Muslim woman did not need
the consent of her wali (i.e. her guardian) to enter into a valid marriage.
Further reading
¢ Ali, S.S. ‘Is an adult Muslim woman sui juris? Some reflections on the concept
of “consent in marriage” without a wali’ in Cotran and Mallat (eds), Vol.3,
pp.156–73. This reading is available on the VLE.
¢ Lau, M. ‘Opening Pandora’s box: the impact of the Saima Waheed Case on the
legal status of women in Pakistan’ in Cotran and Mallat (eds), Vol.3, pp.519–31.
This reading is available in HeinOnline.
¢ Siddiqui, M. ‘The concept of wilaya in Hanafi law: authority versus consent in al-
Fatawa al- Alamgiri’ (1998/9) 5 Yearbook of Islamic and Middle Eastern Law 171–85.
1. Does an adult Muslim woman require the consent of her wali to enter into a
valid marriage?
2. What are the differences between the schools and sects of Islamic law on the
question of consent to marriage?
3. ‘The consent of both parties is required for the validity of a Muslim contract of
marriage.’
Prepare a short oral presentation discussing Question 3.

6.3 Child marriage

In traditional Islamic law no specific minimum age is laid down for marriage. Certain
guardians can contract their infant wards in marriage without their consent. However,
in Hanafi law a girl who is contracted in marriage during her infancy may on attaining
puberty repudiate the marriage. She retains this right until she becomes aware of the
marriage and assents to it by, for example, allowing the marriage to be consummated.
However, the woman does not possess this ‘option of puberty’ if the guardian who
contracted her marriage was her father or paternal grandfather.
6.3.1 The option of puberty

This right is available to both males and females. However, it is, of course, most
significant for females, since the male, on reaching puberty, will be free to exercise his
unlimited power of talaq – the pronouncement of a divorce (see Chapter 9).
The next problem to consider is whether or not a decree of the court is necessary
to dissolve a marriage that is repudiated by the exercise of the option of puberty
according to traditional Islamic law. When a girl wishes to repudiate a marriage
contracted by her guardian, she must approach the qadi (i.e. the judge). Until the qadi
issues a decree, the marriage is deemed to subsist.
Minimum ages have been laid down for marriage in an attempt to curb the practice of
child marriage, for example in the Indian subcontinent by the Child Marriage Restraint
Act 1929 and in the various modern codes of personal status enacted in the Arab world.
However, it should be noted that under some of these laws the marriage itself is not
rendered invalid because of the age of one or both of the parties, but penal sanctions
are imposed.
Further reading
¢ Buchler, A. and C. Schlatter. ‘Marriage age in Islamic and contemporary Muslim
family law’ (2013) European Journal of International and Middle Eastern Law 37–74.
¢ Welchman, L. ‘Jordan: capacity, consent and under-age marriage in Muslim

family law’ (2001) International Survey of Family Law 243–65.
¢ Carroll, L. ‘Marriage-guardianship and minor’s marriage at Islamic Law’ (1987) 7

Islamic and Comparative Law Quarterly 249–60.
1. What is the legal effect of a child marriage?
2. What is meant by the ‘option of puberty’?
3. Is this option available in respect of all child marriages?
Activity 6.1
Explain and discuss the legal provisions on child marriage of any one Arab,
South Asian or South East Asian Muslim-majority country.
You will need to do some further research and reading to answer this question.
6.4 Impediments to marriage
6.4.1 Permanent impediments

There are many impediments to marriage under Islamic law based on specific
prohibitions by the Qur’an, such as in Surah 4 verse 24, as well as by the Sunnah. The
impediments that are permanent (i.e. which can never be removed) are those of
relationship by blood, fosterage and affinity.
Under the bar arising from relationship of blood a man may not marry any of his
ascendants or descendants, any descendant of his father or mother, or the immediate
child of any ascendant. Similarly, a woman may not marry any corresponding male.
Foster relationship is sometimes referred to as relationship through milk because

it arises from the suckling of a foster-mother’s milk. Under the bar of fosterage
this relationship through milk constitutes as much a bar to marriage as the bar of
relationship of blood. It should be noted that two persons who were suckled by the
same foster-mother are permanently barred from marrying each other.
The bar of affinity arises from marriage, so a man may not marry the former wife of any
ascendant or descendent, or any ascendant or descendent of a former wife with whom
he had consummated his marriage.
6.4.2 Temporary impediments

The first category of temporary impediments stipulates that a man may not marry:
u a woman who is already married
u a woman who is still observing the iddah period (see Section 7.2) following the
termination of a previous marriage
u a woman whom he has triply repudiated, unless she has in the intervening period
contracted marriage with another man and that marriage has been terminated
and the iddah period observed
u two women who, if one were a male, would not be allowed to be married to each
other (i.e. he may not marry at the same time two sisters or a mother and her
daughter).
A further impediment is that a man who already has four wives may not validly marry a
fifth (see Section 7.4.3).
A Muslim man may contract marriage with a non-Muslim woman provided she is a
khitabiyah. A khitabiyah literally translated means a religion of the book and refers
to Christianity and Judaism. It follows that a khitabiyah is either a Christian or a Jew.
A Muslim woman, on the other hand, may only validly contract marriage with a
Muslim man. The non-Hanafi schools of Sunni Islam hold that a marriage concluded
by the woman herself without a guardian is also invalid, as is a marriage concluded
by a person performing haj (i.e. the pilgrimage to Mecca that a Muslim is obliged
to perform at least once in his lifetime, if he can afford to do so). Finally, Maliki law
prohibits the marriage of a person who is in a state of death-sickness.
Further reading
¢ Anderson, J.N.D. ‘Invalid and void marriages in Hanafi law’ (1950) 13(2) Bulletin of
the School of Oriental and African Studies 357–66.
¢ ‘Abd al ‘Ati, Chapter 4 ‘Marriage (continued)’.
Activity 6.2
Draw up a chart or table categorising the impediments to marriage.
6.5 The effects of impediments to marriage

The presence of an impediment to marriage may render the marriage either void
or irregular. The impediments that have the potential to render a marriage void are
those that are permanent: relationship by blood, suckling or affinity and those where
the impediment, although of a temporary nature, is one that the parties themselves
have no power to remove, such as if the woman is married to another man. Where
any other impediment exists the marriage is not void but irregular. If the marriage
is irregular certain effects will flow from it. The parties will not be found guilty of
zina (illicit sexual relations). Any children the parties have together will be held to
be legitimate. When the parties separate, and separate they must, the woman must
observe an iddah period.
The union raises the bar of affinity in respect of any other marriage and the woman is
entitled, if consummation has taken place, to the dower stipulated in the contract or
the proper dower, whichever is less.
A marriage which may be held to be potentially void will be regarded as irregular if

the parties have acted in good faith, that is, they were unaware of the existence of the
impediment, or knew of its existence but did not realise its effect in law. This is the only
case where the principle that everyone is presumed to know the law is not applied and
is the only instance where Islamic law recognises ignorance of the law as a defence.
The basic approach of the different schools to the effects of impediments to marriage
is similar although their approach to the question and their terminology is different.
Thus, the Hanafis use the terms ‘batil’ and ‘fasid’ to describe a marriage that is
respectively void or irregular, whereas the other Sunni schools use the two terms
indiscriminately but speak of an irregular marriage where there is a ‘semblance’ to a
valid marriage.
1. What is the difference between a void and an irregular marriage?
2. What are the main features of permanent and temporary impediments to

marriage and what is their effect on the validity of a marriage under Islamic law?
3. To what extent do the different schools and sects differ on the legal effects of the
various impediments to marriage?
4. Classify and explain the impediments to marriage.
6.6 Proof of marriage

In traditional Islamic law, a marriage may be proved by direct evidence where two
witnesses who have the capacity to give evidence in a Shari‘ah court testify that they
were present at the conclusion of the contract. These witnesses must be adult, sane,
male Muslims with the quality of an adalah (i.e. they must be deemed to be of the
highest moral probity). If no direct evidence as to the conclusion of the contract of
marriage is available, the marriage may be proved by indirect evidence such as that
the parties have lived together for a long period as husband and wife and that their
family and acquaintances have accepted them as husband and wife.
At the present time many countries, such as Pakistan, Egypt, Tunisia, Kuwait
and Jordan, have enacted legislation that requires registration of marriage and,
obviously, in these countries the production of a marriage certificate is the best
proof of marriage. Failure to register a marriage will not, however, in most of these
jurisdictions, invalidate the marriage and the marriage may be proved as in traditional
law. Today the courts will also accept video and DVD evidence to prove that a marriage
ceremony took place.
1. Why is proof of marriage of crucial importance in many Islamic countries?
2. What forms of proof are recognised by Islamic law?
6.7 Dower (mahr)

A unique feature of Muslim marriage is the requirement of dower. The husband must
give dower to the wife. The parties may stipulate an amount to be paid as dower
in the marriage contract itself but even if no dower is stipulated in the contract or
indeed if the contract expressly states that there shall be no dower payable the wife
is nevertheless entitled to receive dower. In this case the dower is entitled the ‘dower
of equivalence’ (or the ‘proper dower’ as it is usually referred to). The proper dower
is calculated by taking into account the amount of dower received by comparable
members of the wife’s family such as her sisters or cousins. Her personal attributes are
also relevant: her virginity, age, education, beauty and so on. The parties may agree
between themselves when the dower shall be paid, either at the conclusion of the
contract of marriage or at some later stage. The parties may also agree that part of the
dower shall be paid upon the contract (prompt dower) and part deferred until the
termination of marriage by death or divorce (the deferred dower).
The wife may refuse to consummate the marriage until the husband pays her the first
portion of the dower. She is entitled to the whole of the dower once consummation of
the marriage takes place or by the death of the husband before consummation takes
place. If the wife is divorced before the marriage is consummated she is entitled to
receive half of the stipulated dower and if no dower has been fixed in the contract she
is entitled to a mut’a al-talaq (i.e. a gift of consolation).
The requirement of dower is one of the most significant reforms effected by the
Qur’an. The Qur’an enjoins ‘give women their dower’, whereas in the pre-Islamic
period a bride price was paid to the father of the bride.
1. Would it be correct and legally accurate to translate the term ‘dower’ as the
contractual term ‘consideration’?
2. Can the husband avoid paying dower and nevertheless enter into a binding
marriage contract?
Further reading
¢ Anderson, J.N.D. ‘Invalid and void marriages in Hanafi law’ (1950) 13(2) Bulletin of
the School of Oriental and African Studies 357–66. This reading is available on the VLE.
¢ Siddiqi, M. ‘Mahr: legal obligation or rightful demand?’ (1995) 6(1) Journal of

Islamic Studies 14–24. This reading is available on the VLE.

u explain the rules and requirements surrounding the formation of a marriage
contract in Islamic law
u evaluate and determine what conditions have to be fulfilled to conclude a valid
marriage
u outline the effects of non-compliance with these conditions
u describe and discuss the impediments to marriage
u explain how the rules on dower may determine the validity of a marriage.

Question 1 Answer both (a) and (b):
a. When and in what circumstances is a wife entitled to:
i. specified or proper dower
ii. prompt or deferred dower
iii. full dower, half of the dower, or no dower?
b. What remedies are available to a wife whose dower remains unpaid?
Question 2 Describe the option of puberty and explain its effect on the validity of a
marriage.
Question 3 ‘Under Islamic law both man and woman have equal rights and
obligations when it comes to marriage.’
Discuss.

Question 1 No specific advice on how to answer this question should be needed – it is
self-evident. A good answer would be marked by a high degree of precision and careful
demarcation between the schools.
Question 2 Explain what is meant by the option of puberty and describe when and in
what circumstances it may be exercised and any reforms that have taken place.
Question 3 Discuss the rights and obligations which arise and are incurred upon
marriage by both the wife and the husband. Give an opinion as to whether the two
parties have equal rights and obligations. Explain the cases where the rights of one
party and the obligations of the other are reciprocal.
Reflect and review



I can explain the rules and requirements

surrounding the formation of a marriage contract in
  
Islamic law.
I can evaluate and determine what conditions

will have to be fulfilled so as to conclude a valid
marriage.   
I can outline the effects of non-compliance with

these conditions.   
I can describe and discuss the impediments

to marriage.   
I can explain how the rules on dower may determine

the validity of a marriage.   
revise?
Must Revision
revise done
6.1 The marriage contract  
6.2 Capacity of the parties  
6.3 Child marriage  
6.4 Impediments to marriage  
6.5 The effects of impediments to marriage  
6.6 Proof of marriage  
6.7 Dower (mahr)  

7 The incidents of a Muslim marriage
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
7.1 Mutual rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
7.2 The iddah period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
7.3 Rights of the wife . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
7.4 Polygyny . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

Introduction
Islamic law recognises a law of nominate contracts, each contract having its own
incidents and effects. As stated in Chapter 6, marriage under Islamic law is a contract
and, following the general principles of contracts, marriage has its own specific
incidents and effects.
The law defines the rights and duties of husband and wife, some of which are mutual
and some of which are peculiar to one or other of the parties.
Learning outcomes
u distinguish between the rights and obligations of husband and wife arising out
of the marriage contract
u determine when and to what extent the husband is under a duty to maintain his
wife
u explain and discuss the Islamic law on polygyny.
Core Text
¢ ‘Abd al ‘Ati, Chapter 4 ‘Marriage (continued)’ and Chapter 5 ‘The web of domestic
relations’.
Essential Reading
¢ Welchman, Chapter 7 ‘Polygyny’ (available in VLeBooks via the Online Library).
¢ Arabi, O. ‘The itinerary of a fatwa: an ambulant marriage (al-zawaj al-misyar),

or grassroots law-making in Saudi Arabia of the 1990s’ in Arabi, O. (ed.) Studies
in modern Islamic law and jurisprudence. (The Hague, London: Kluwer, 2001)
[ISBN 9789041116604] (available on the VLE).
Further Reading
¢ El Alami, D. and D. Hinchcliffe Islamic marriage and divorce laws of the Arab world.
(London: Kluwer, 1996) [ISBN 9789041108968].
¢ Pearl and Menski, Chapter 7 ‘Marriage: legal effects’ (available on the VLE) and
Chapter 8 ‘Polygamy’.
Introduction to Islamic law 7 The incidents of a Muslim marriage page 69
7.1 Mutual rights

Perhaps the most important mutual right of the parties is the legitimacy of any
offspring of the union. We will discuss the rights and obligations of parents to their
children later. Another mutual right of the parties is the right to inherit from the
estate of the other. This will also be discussed in Chapter 11 (‘Succession’). The parties
have a mutual right to sexual intercourse, but the wife may refuse consummation
in certain circumstances.
7.2 The iddah period

The iddah period is a waiting period following the end of a marriage by either divorce
or the husband’s death. During the period the wife or widow cannot remarry. The
iddah period in the case of death is four months and 10 days. In the case of divorce it
is three menstrual cycles or three lunar months or, if the woman is pregnant, until the
birth of the child.
7.3 Rights of the wife

The right of the wife to receive dower has been discussed in Chapter 6. In addition
to this, the wife has the right to be maintained by her husband. The right to be
maintained belongs to the wife even if she is wealthy and her husband poor.
Maintenance consists of the provision of accommodation, food, clothing and,
depending on her background, servants. The husband is required to provide the wife
with a ‘Shari‘ah-compliant dwelling’, that is, a dwelling that is safe both structurally
and in location and is free from any other member of his family, including other
co-wives. The only exception is that the husband can require his wife to live with the
infant children of his previous marriage (although the Shi’ah school does not allow
her husband to do this). The scale of maintenance is calculated in Hanafi, Maliki and
Hanbali law as the mean between the means of the husband and the previous living
standard of the wife. The Shi’ah view is perhaps more realistic in having regard to the
means of the husband alone when fixing the quantum of maintenance. The Ithna
Ashari view, on the other hand, is that it is the wife’s previous standard of living that is
the sole relevant factor.
Although the husband has a duty to maintain his wife, she in turn is under a duty
to obey him, and the rights of obedience and of maintenance are thus reciprocal.
The husband’s duty to maintain his wife begins as soon as she submits herself to
his control. If the marriage has been contracted during the minority of the wife the
husband’s duty to maintain her begins as soon as she declares herself ready, able and
willing to begin cohabitation with him. If the husband chooses not to take her to live
with him despite her declaration he will nevertheless be obliged to maintain her,
even though she is still living in the house of her parents or other guardian, as the law
considers that she has done everything she can to submit herself to his control. The
husband’s duty to maintain his wife continues throughout marriage unless the wife
forfeits her right to maintenance by being disobedient to her husband. In this case, as
the husband’s duty to maintain is dependent on his wife’s obedience, his obligation
terminates until his wife abandons her disobedience and submits herself to her
husband’s control. However, if the wife disobeys her husband for some lawful reason
she does not lose her right to maintenance.
Even a husband who is a minor is obliged to maintain his wife if she is of an age where
consummation of the marriage would be possible.
The wife’s right to maintenance terminates on the husband’s death and there is no
provision for a wife to be maintained out of her husband’s estate. If the marriage is
terminated by divorce the right to maintenance depends on whether the divorce was
revocable or irrevocable. All the schools and sects are agreed that if the marriage is
terminated by a repudiation that is of the revocable type, the wife retains her right
to maintenance throughout the iddah period. The reasoning of the jurists on this
point is that since this divorce is revocable and revocation is solely in the hands of
the husband, the wife remains subject to his control. If, however, the divorce is of
the irrevocable variety, only the Hanafi school allows the wife to retain her right to
maintenance during the iddah period. According to the law of the other schools and
sects, during the iddah following an irrevocable repudiation the wife is only entitled to
have a dwelling provided for her by her husband. Legislative changes have taken place
on the question of post-divorce maintenance and we will cover these in Chapter 9.
Mention should also be made of the so-called Misyar marriage in this context. This
form of marriage, although it has been practised for many years in the Arabian
peninsular, has only been subject to legal discussion in recent times. Under this
marriage contract, which is concluded in the normal way, the parties agree that they
will not cohabit, that the wife will remain in her parental home and the husband
will visit her there at times mutually agreed between them (hence the title of the
marriage meaning ‘ambulatory’ or ‘walking’, with the husband walking from his place
of residence to that of his wife). In this marriage the husband is under no obligation
to provide maintenance for his wife, nor for any children they may have. However,
both parties will have mutual rights of inheritance and there will be mutual rights of
inheritance between them and their children.
1. To what extent are the rights and obligations of husband and wife reciprocal?
2. Is it possible to change the fundamental balance of these rights and duties?
7.4 Polygyny
The Arabs of the pre-Islamic era were governed by tribal customary law that permitted
unlimited polygyny. Islamic law severely restricted this customary right by providing
that a husband could not have more than four wives concurrently. The verse of the
Qur’an that deals with polygyny occurs in Surah 4 verse 3:
And if you fear that you cannot deal justly with orphans, then marry from the women who
seem good to you, two or three or four. But if you fear that you cannot deal equitably,
then only one, or those whom your right hand possesses. This is better that you do not
injustice.
This verse has been interpreted to the effect that the law obliges the husband to
treat his wives equitably and he must spend an equal amount of time with each
wife. The former condition is construed by the jurists as a matter for the husband’s
own conscience but does not establish a condition precedent for entering into a
polygynous marriage. All the schools and sects are agreed that it is not necessary for a
man to obtain any sort of permission before he marries a second or subsequent wife.
His right to marry polygynously is virtually absolute (although certain restrictions are
imposed which will be discussed below).
7.4.1 Restrictions to polygyny

A man may exercise his right to marry more than once at will providing he does
not exceed the maximum number of four wives at any one time. The Ithna Ashari
sect of the Shi’ah also allows a man to have, in addition to four permanent, an
unlimited number of temporary wives (see Chapter 8). A man may not validly
conclude a marriage with a woman who is related to his existing wife within the
prohibited degrees of kinship – it is unlawful to have two wives concurrently who,
if one had been a male, would have been forbidden to marry each other. Thus, a
man may not be married to two women who are sisters by blood or fosterage, or to
a mother and daughter.
Although the law does not require the husband to obtain prior permission from the
court to marry a second or subsequent wife, it does concern itself with the rights of
his several wives. He must provide each of them with a separate dwelling which is
free from the presence of his other wives, and which is safe both structurally and in
its location. A wife who is offered accommodation that does not fulfil the required
standard may refuse to cohabit with her husband and she will not be deemed to be
in disobedience to him. The husband is required to maintain each of his wives to the
appropriate standard (i.e. each of the co-wives is equally entitled to maintenance pro
parte (see Section 7.3). This results, under Shafi’i law, in each wife being entitled to the
same amount of maintenance because, as explained above, the husband under Shafi’i
law must pay maintenance according to his means. Under the law of the other three
Sunni schools the amount of maintenance to be paid is the mean between the wife’s
previous standard of living and the husband’s financial capability. In Ithna Ashari law,
maintenance is based solely on the wife’s previous standard of living. It is part of the
duty of the husband to treat his several wives equally, as enjoined by the Qur’an itself.
He must divide his time equally between them.
This right of each wife to share the companionship of their mutual husband is dealt
with at length in the traditional jurisprudential texts and is known as qasm (partition,
division). The jurisprudential texts speak of the duty of the husband to divide his
nights equally between his wives and, if he fails to do so, to give compensation
to any wife who is passed over. The right of the wife is merely to companionship,
not to sexual relations. The system of equal division of nights might be altered
when a husband takes a new wife with whom, if she is a virgin, he may spend seven
consecutive nights. If she is not a virgin he may spend three consecutive nights with
her. In such cases the husband is under no duty to make up these nights to his other
wives or to pay them compensation. The right of qasm does not exist in Ithna Ashari
law in the case of temporary wives.
7.4.2 Unwilling co-wives

The next question to consider is does the law provide any remedy for a wife who finds
she is unwillingly going to become a co-wife? The traditional law provided no solution
whatsoever for the majority of such women. In this respect the Hanbali wife was the
most fortunate as Hanbali law allows a stipulation to be inserted into a contract of
marriage that the husband will not take a second or subsequent wife. The insertion
of such a stipulation into the contract is not, of course, the decision of the wife or
her family alone and the husband must himself agree to it. The basis for the Hanbali
doctrine is the Qur’an itself which in Surah 5 verse 1 enjoins ‘Oh believers, abide by
your contracts’. The Hanbali interpret this verse strictly, which indeed forms the entire
basis of their law of contract. According to their interpretation, as polygyny is merely
a right of a husband which arises on marriage and is not a duty imposed upon him
he is free to forgo it. However, Hanbali law does not give the right to a wife, in whose
marriage contract a stipulation against the taking of other wives has been inserted, to
seek the assistance of the courts to prevent the husband from marrying another wife.
If, contrary to the agreement, the husband contracts a marriage with another woman
this marriage will be valid in law but the first wife will have the right to go to the court
and seek a dissolution of her marriage on the grounds that her husband is in breach of
his stipulation.
The view of the non-Hanbali schools is that the incidents of the contract are laid
down by Allah and are therefore not susceptible to change at the wish of the parties.
As polygyny is permitted by the Qur’an itself, any stipulation that the husband will
not take a second wife is void and will be expunged from the contract, which will
itself remain valid. Accordingly, a woman of these schools who finds herself a co-wife
against her will cannot seek a divorce on the grounds of her husband marrying
polygynously. This is the case unless her husband has delegated to her or to her proxy
the right to divorce if he takes a second wife, or if the husband has pronounced a
repudiation against his first wife conditional on his taking a second wife.
It is possible, however, for a determined Maliki wife to obtain her freedom from a
polygynous marriage by following a rather tortuous route. She could first petition the
court on the ground of dharar (harm, prejudice), relying on the hadith that ‘There is no
harm or prejudice in Islam’. The Maliki texts are adamant that the taking of a co-wife
alone cannot of itself constitute dharar, as polygyny is recognised by the Qur’an. She
will have to prove that she has been unequally treated compared with the other wife
or wives or that the husband has caused her physical harm. If she fails to prove her
allegation and she persists in pursuing her claim, the Maliki court may re-constitute
itself into an arbitration tribunal and, relying on Surah 4 verse 34, appoint an arbitrator
from both the husband’s and the wife’s sides, whose first task is to attempt to effect
reconciliation between the parties. If their attempt fails the tribunal must then
examine the evidence before them and allot the blame for the obvious breakdown
of the marriage. The tribunal will then decide which party is primarily to blame for
the breakdown. If they decide that it is the husband, the wife will be given a judicial
talaq. If it is the wife, she will be given a judicial khul’ and will usually be required to
return her dower to her husband or to remit her dower debt. See Chapter 9 for more
information about talaq and khul’.
7.4.3 The fifth wife

If a man has four wives already and goes through a ceremony of marriage with another
woman, this ‘marriage’ will be invalid. However, it will not be an absolute nullity
as certain effects will flow from it. Perhaps the most important of these is that any
children born of the union will be recognised as legitimate. Also of great importance
is the fact that the husband and fifth wife will not be guilty of zina (for which, under
traditional law, a guilty party could be sentenced to death – see Chapter 4). The fifth
‘wife’ will be entitled to receive dower. In Hanafi law either the stipulated or the
proper dower, whichever is less, will be due and in the law of the other schools it is
the stipulated dower. The wife will have to observe an iddah following the separation
which must inevitably take place as soon as the true number of wives is brought to
light. If the husband dies before the separation, the iddah of death is not incumbent on
the woman, who, as she was never a valid wife, cannot be a widow. She must, however,
observe an iddah of three menstrual cycles to establish pregnancy or otherwise.
All schools and sects are agreed that a husband may not validly contract a marriage with
a fifth woman while one of his four wives is observing an iddah following a revocable
divorce. If, however, the wife is observing an iddah following an irrevocable divorce,
the Malikis hold that the now former husband may validly contract a further marriage
with another woman while his divorced wife is still observing iddah. The Hanafis and
Hanbalis hold that such a marriage may not be validly concluded until the iddah has been
completed. Taking the view that the husband still has duties towards the divorced wife,
according to Hanafi law, full maintenance and shelter must be provided.
7.4.4 Inheritance in polygynous marriages

If a husband dies the Qur’an provides that the wife’s share of the inheritance is one-
quarter if the husband is survived by no child (a child of a son how low so ever, i.e.
a descendant of any degree, in Sunni law and the child of either a son or daughter
in Shi’ah law) and one-eighth if there is such a surviving descendant. If a man dies
survived by more than one wife, one-quarter or one-eighth will be divided between
them. Thus, the child or children of any wife, or any legitimate child of the husband
from another wife, will reduce the share of wives who are childless to their minimum
share. In Ithna Ashari law a temporary wife has no right to inherit from her husband
but her children, as his legitimate offspring, have a right of inheritance and will
accordingly restrict the permanent wife or wives to their minimum collective shares.
See Chapter 11 for more information about succession in Islamic law.
7.4.5 Reform of the law of polygyny

Polygyny has been the subject of reform and many countries in the Muslim world have
legislated to impose restrictions – for instance requiring a husband who wishes to
marry polygynously to first obtain the permission of the court to do so. Only Tunisia
has banned polygyny outright, however, and has declared a polygynous marriage void.
Tunisia
‘Polygyny is forbidden’. With this terse enactment Tunisia became the first and, to
date, only country of the Muslim world within the framework of the Shari‘ah to ban
polygyny outright. Article 18 of the Tunisian Law of Personal Status of 1956 states
‘Polygyny is prohibited. Any man who marries whilst he is already married…shall be
punished by one year in jail and a fine…’.
The Memorandum accompanying the law states that the juristic basis is the Qur’anic
verse on polygyny itself. The Memorandum states that the verse allows polygyny only
where the man is able to treat several wives equally but that a later verse in the same
Surah states that this is an impossibility for all but the Prophet. Verse 129 of Surah 4
states that ‘no matter how hard you strive you will never be able to deal equitably
between wives’. The traditional interpretation of this verse was that, read with the
earlier verse, if a husband gave his wives equal maintenance, spent his time equally
with each of them and did not favour one at the expense of others he had done all
he could to satisfy the injunction placed upon him by the Qur’an. Whether he in fact
loved one more than the other or others was something over which he had no control.
The Tunisian reformers, however, following the views of the Egyptian jurist Muhammad
Abduh, held that the two verses read together meant that the Qur’an had prohibited
polygyny for all but the Prophet. This was an interesting example of the use of ijtihad to
effect reform (see Section 3.3.1) while staying within the boundaries set by the Shari‘ah.
President Habib Bourguiba stated that, in abolishing polygyny, he had not contravened
any principle of the Shari‘ah. When the Memorandum was first brought into effect,
doubt was cast by commentators, academics and others as to whether a polygynous
marriage was then valid, despite incurring penal sanctions. Any such doubts were
removed by the coming into force of the law on 20 February 1964, which declared that
any marriage by a person who was already married was void. No other jurisdiction in
the Muslim world has followed the example of Tunisia in banning polygyny outright.
However, most countries which have undertaken reform in matters of personal status
law have attempted to limit and control its practice.
Syria and the Middle East

Syria was the first country to restrict the husband’s right to polygyny. The Law of
Personal Status 1953 provided in Article 17 that a judge may refuse permission for a
man already married to take a second wife unless he has a ‘lawful justification and is
capable of maintaining both wives’. However, the Memorandum to the 1953 law stated
that a marriage in contravention of the law shall be deemed valid although it will incur
penal sanctions.
Most countries of the Middle East have followed the precedent set by Syria and have
placed restrictions on the husband’s right to marry polygynously. Most emphasise
his financial ability to deal with several wives as the prime consideration to be taken
into account by judges who are asked to give permission for a second marriage in
accordance with the legislation. See, for example, Article 13 of the Libyan Law 10 of
1984 and the Yemini decree 20 of 1992 as amended in 1998.
The Algerian Family Law of 1984 was amended in 2005. Article 8 of this law requires
inter alia that the husband must prove his ability to treat co-wives equally and to
provide necessities for married life. He must have a sound reason for wanting to
marry polygynously and show that he has informed his existing wife or wives and the
potential future wife of his legal marital status. Further, his existing wife or wives may
seek a judicial divorce in cases where the husband does not comply with this provision
or attempts to deceive them by other means.
Mohammed VI of Morocco introduced a new code on family law in 2004 after

appointing a commission in 2001 to consider revising the existing family law. This
law does not prohibit polygyny but requires the prior permission of the court to be
obtained. This will not be given unless the court is satisfied that the husband is capable
of treating two or more wives equally, as well as their respective children, and that
he can guarantee to each wife and their children the same quality of life. Further, the
court must be satisfied that the husband has sound reasons to marry polygynously.
Under the law of Iraq the husband, in addition to financial capacity, must prove that
there is some ‘lawful benefit’ to the second marriage (Law of Personal Status of 1959).
Further, the law provides that if ‘lack of equality between wives is feared’, a fact which
the statute states must be assessed by the judge, polygyny is not allowed. Iraqi judges
were not happy with this provision, some stating that it required them to assume
the role of a prophet foreseeing the future. In practice, most courts in Iraq limit
themselves to considering only the financial aspects of a second marriage.
The Egyptian law of polygyny was amended in 1985. On marrying, a man must state
whether he is already married and, if so, supply the name and address of his existing
wife to the public notary, who will then inform her of the new marriage. The first
wife may then petition the court for divorce alleging such mental or physical harm
as would make married life impossible. The judge, if unable to effect reconciliation,
will dissolve the original marriage. However, this right of the existing wife will lapse if
she does not institute proceedings within one year of becoming aware of the second
marriage. The second wife may also petition for divorce if she was unaware of the
existence of the first wife.
Finally, it should be stated that most countries of the Middle East have, by legislation,
adopted the Hanbali law regarding the insertion of modifying stipulations into the
marriage contract. Obviously, as in Hanbali law, such stipulations require the consent
of the husband and if such a stipulation exists in the contract, although it gives the
wife the right to divorce, it does not give her a right to seek an injunction against a
second marriage.
Pakistan and Bangladesh

In Pakistan and Bangladesh s.6 of the Muslim Family Laws Ordinance 1961 (MFLO)
provides that before a man may marry a second or subsequent wife he must obtain
the permission of his local Union Council. When submitting an application for
permission to the Chairman the man must state his reasons for seeking to marry
another wife and whether or not his existing wife or wives have given their consent to
another marriage. The Chairman will then require the husband and his existing wife or
wives each to nominate a representative and the Chairman and these representatives
will then constitute an arbitration council. The MFLO Rules 1961 provide guidance as to
the grounds on which permission to marry polygynously may be given. These include
the sickness, infertility and unfitness for marital relations of the existing wife. When
giving its decision the Council must state its reasons and an appeal can be made by
either party for a revision.
A man who marries polygynously without obtaining permission will be liable on

conviction to imprisonment or a fine or both but the polygynous marriage itself will
nonetheless be valid. In addition to penal sanctions incurred, a man who contravenes
the provisions of the MFLO must pay immediately the entire amount of dower,
whether prompt or deferred, to his existing wife or wives. If he refuses to pay on
demand, the amount will be collected in arrears of land revenue. This means that the
duty of enforcing the payment of the dower will fall not upon the magistrates’ court
but on the collector or divisional officer. He will be entitled to exercise his extensive
powers of collection on the husband who persists in his refusal to pay. Thus, the
collection of the dower from reluctant husbands is made easier while avoiding lengthy
court proceedings.
A wife whose husband marries polygynously without the permission of the Council is
also entitled to seek a dissolution of her marriage on this ground under s.14 of the MFLO.
In an interesting case from Bangladesh (Yasmin Sultana v Muhammad Elias 1997 17 BLD
14) Mr Justice Rabani stated in his judgment that the correct approach to polygynous
marriages was the one adopted by Tunisia.
India
In the Indian sub-continent, none of the three republics has enacted legislation
by statute on the right to insert stipulations into a marriage contract. However,
the courts, even before partition, had long recognised the right of the parties to
a marriage to do so and the subsequent right, if a stipulation was broken, to a
dissolution of the marriage.
In India, Muslims may still marry second and subsequent wives without obtaining
permission from the court. However, as stated above, a wife may insert stipulations
in the marriage contract against a second marriage. A woman whose husband takes
a second wife may also, in suitable circumstances, petition for divorce under the
Dissolution of Muslim Marriages Act 1939 if her husband fails to accord her equal
treatment with her co-wife or wives or on the grounds of cruelty.
The law regarding polygyny was reviewed by the courts of Allahabad in Itwari v Asghari
AIR 1960 All 684. In this case the husband sought a decree of restitution of conjugal
rights against his first wife who refused to live with him and accused him of cruelty
after he took a second wife. Mr Justice Dhavan held that in India the institution of
polygyny was tolerated but not encouraged. Counsel for the husband had contended
that, under Islamic law, taking a second wife could not be construed as cruelty to the
first wife. The court rejected this argument and observed that the test of cruelty in
India was more or less that adopted by the English courts at the time (i.e. it will cause
such bodily or mental pain as to endanger the wife’s safety or health). The judge
held that under the prevailing social conditions the taking of a second wife must be
regarded as an insult to the first wife which is likely to cause her mental suffering and
consequently affect her health. Therefore, he held her husband must be presumed to
intend the natural consequences of his actions so that the taking of a second wife in
the absence ‘of a weighty and convincing explanation’ raises a presumption of cruelty
to the first wife and it would be inequitable for the court to compel her to continue to
live with him.
The attitude of the Indian government towards polygyny is illustrated by various

regulations which aim to restrict polygynous marriages among certain sections of
the population. No government employee, civil servant or serving officer above field
rank, for example, may contract a second marriage without the prior permission of
the government. Similarly, a female employee may not marry anyone who has a wife
already without first obtaining the permission of the government. Failure to observe
these conditions will result in disciplinary actions against the offender.
The Indian Law Commission (Report No. 227, August 2009) has stated that bigamy
among India’s Muslims ‘is against the letter and spirit of true Islam’.
In the other jurisdictions that have sought to restrict polygyny, if a husband

contravenes the provisions of the law his polygynous marriage will be regarded as
valid although penal sanctions may be imposed and, in the case of Pakistan, the
existing wife may obtain the dissolution of her marriage.
Further reading
¢ Hinchcliffe, D. ‘Polygamy in traditional and contemporary Islamic law’ (1970) 1(8)
Islam and the Modern Age 13–38.
¢ Kamaruddin, Z. and R. Abdullah. ‘Protecting Muslim women against abuse of

polygamy in Malaysia: legal perspectives’ (2008) 6(2) HAWWA 176–201.
¢ Abdullah, R. ‘Inserting stipulation pertaining to polygamy in a marriage contract

in Muslim countries’ (2008) 46(1) Al-Jami’ah: Journal of Islamic Studies 153–69.
1. Describe and discuss the legal characteristics of polygyny under Islamic law.
2. Are the various schools and sects agreed on these legal characteristics?

u distinguish between the rights and obligations of husband and wife arising out
of the marriage contract
u determine when and to what extent the husband is under a duty to maintain his
wife
u explain and discuss the Islamic law on polygyny.

Question 1 Explain the duty upon a Muslim husband to provide maintenance for
his wife.
Question 2 Discuss the right of a Muslim husband to marry more than one wife.

Question 1 Discuss what constitutes maintenance in Islamic law and when the duty
on the husband to provide it begins and when it ceases. Explain the right of a wife
whose husband refuses or is unable to pay maintenance.
Question 2 Explain the law regarding polygyny and how the Qur’anic verses
on polygyny were considered to be ‘reforming’. A good answer should include
a discussion of the obligations of the husband towards his wives, as well as any
changes which have been effected to the law of polygyny through statute or judicial
interpretation in different jurisdictions.
Reflect and review



I can distinguish between the rights and obligations

of husband and wife arising out of the marriage
  
contract.
I can determine when and to what extent the

husband is under a duty to maintain his wife.   
I can explain and discuss the Islamic law on polygyny.

  
revise?
Must Revision
revise done
7.1 Mutual rights  
7.2 The iddah period  
7.3 Rights of the wife  
7.4 Polygyny  
Notes
8 Stipulations in marriage contracts
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
8.1 Valid and void stipulations . . . . . . . . . . . . . . . . . . . . . . . . 81
8.2 Invalidating stipulations . . . . . . . . . . . . . . . . . . . . . . . . . 81

Introduction
As discussed in Chapter 7, it is permissible to insert stipulations into marriage contracts
under Islamic law. Stipulations in marriage contracts fall into three categories: those
that are valid and enforceable, those that are themselves void but leave the contract
of marriage valid, and those that invalidate the whole contract.
Learning outcomes
u identify the principles underlying valid and void stipulations and the exceptions
under Hanbali law
u explain the stipulations that invalidate marriage contracts
u describe the mut’ah (temporary marriage) rules under Ithna Ashari law.
Further reading
¢ Musa, M.Y. ‘The liberty of the individual in contracts and conditions according to
Islamic law’ (1955) Islamic Quarterly 252–63.
¢ Welchman, Chapter 8 ‘The marital relationship’ (available in VLeBooks via the

Online Library).
Introduction to Islamic law 8 Stipulations in marriage contracts page 81
8.1 Valid and void stipulations

All the schools and sects regard as valid and enforceable any stipulation that merely
seeks to reinforce the normal effects of marriage. Thus, agreements to fix the amount
of dower that shall be paid or fixing the amount of maintenance that is to be paid
are both valid and enforceable. A difference of opinion regarding the second type of
stipulation exists between the Hanbali and the other three schools of Sunni Islam and
the various sects of the Shi’ah. With the exception of the Hanbali school, Muslim jurists
hold that the effects of the marriage contract are immutable and are not subject to
change by the parties. They regard any stipulation that attempts to vary a normal
incident of marriage as void. They will apply the doctrine of severance and remove the
offending stipulation from the contract, which will itself remain valid.
The Hanbalis, however, regard the Qur’anic injunction ‘Oh you who believe abide by
your contracts’ (Surah 5, verse 1) as the basis of the law of contract, thereby invoking
the principles of both freedom of contract and pacta sunt servanda (see Chapter 5).
Accordingly, in Hanbali law, any stipulation not itself forbidden or not contrary to or
inconsistent with the essence of the contract of marriage is valid. A stipulation falling into
this category would be a provision to the effect that the husband will not take a second
wife or that the wife will be free to leave the matrimonial home whenever she wishes.
If such a stipulation is inserted into the contract and the husband breaches it, the wife’s
remedy is to apply to the court to grant her a dissolution of the marriage on the grounds
that her husband is in breach of contract and she is therefore no longer bound by it.
8.2 Invalidating stipulations

Stipulations that invalidate the entire contract are those held to be contrary to the
essence of marriage. Into this category the four Sunni schools and the Ismaili sect of
the Shi’ah place all stipulations attempting to impose a time limit on the marriage,
as the law regards marriage as being a life-long union. The Ithna Ashari sect of the
Shi’ah regard such stipulations as valid and recognise the institution of the mut’ah, or
temporary marriage.
Mut’ah is concluded in the same way as the Nikah or permanent marriage (i.e. by an
offer and acceptance). As in Nikah, the wife receives a sum of money on the conclusion
of the contract. This is not referred to as dower but is termed salary or wages. The
contract may stipulate any time limit. The wife is under no obligation to obey her
husband and accordingly her husband is under no obligation to maintain her. Any
children born of a mut’ah marriage are legitimate but if either party dies during the
subsistence of the mut’ah the other party will not inherit from them. Either party may
terminate the marriage at will. If the husband chooses to end the marriage before
the expiry of the time limit he may not reclaim any of the money he has paid to his
wife. However, if the wife terminates the marriage she must repay her husband a
proportionate amount of the money paid by him, taking into account the time she
has spent with him. When the marriage ends the woman must observe an iddah of 40
days or, if she is pregnant, until the delivery of the child. A man may have an unlimited
number of wives by the mut’ah contract. A mut’ah marriage is dissolved ipso facto by
the expiry of the term but if cohabitation continues after the expiry of the term, the
inference is that the term was extended for the whole period of the cohabitation and
that the children conceived during the extended period are legitimate.
Reformers in many parts of the Muslim world have adopted the Hanbali law allowing
stipulations which vary the normal incidents of the marriage contract to be inserted
if such stipulations are for the benefit of one or both parties to the contract. In the
Indian sub-continent such stipulations have also been held by the courts to be
valid. The courts did not, in so doing, adopt Hanbali doctrine but stated that Muslim
marriage is a civil contract, and a stipulation that is not in contravention of the
provisions of the Indian Contract Act 1872 is valid. The position was succinctly put
by Addison J, who stated in Muhammad Amin v Amina Bibi AIR 1931 Lahore 1934 that
‘marriage is a civil contract and the parties can contract in any way they care within
certain limits’.
1. What are the limitations on the incorporation of stipulations into a marriage
contract?
2. Are there any differences on this issue between the different schools and sects?
3. Why does Islamic law impose restrictions on the scope and content of these
stipulations?

u identify the principles underlying valid and void stipulations and the exceptions
under Hanbali law
u explain the stipulations that invalidate marriage contracts
u describe the mut’ah (temporary marriage) rules under Ithna Ashari law.
Sample examination question

To what extent can the contracting parties to a marriage change the incidents of the
traditional Islamic law contract?
Advice on answering the question

You should explain that, in traditional Islamic law as applied by the three non-Hanbali
schools, the only stipulations which may be inserted into the contract of marriage are
those that merely reinforce the normal incidents of the marriage contract (e.g. fixing
the level of maintenance). The position of the Hanbali should then be explained.
Introduction to Islamic law 8 Stipulations in marriage contracts page 83
Reflect and review



I can identify the principles underlying valid and void

stipulations and the exceptions under Hanbali law.   
I can explain the stipulations that invalidate

marriage contracts.   
I can describe the mut’ah (temporary marriage) rules

under Ithna Ashari law.   
revise?
Must Revision
revise done
8.1 Valid and void stipulations  
8.2 Invalidating stipulations  

Notes
9 Dissolution of marriages
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
9.1 Dissolution by unilateral repudiation (talaq) . . . . . . . . . . . . . . . 87
9.2 Dissolution by release (khul‘) . . . . . . . . . . . . . . . . . . . . . . . 90
9.3 Judicial divorce (faskh) . . . . . . . . . . . . . . . . . . . . . . . . . . 91
9.4 Other distinctive methods of effecting divorce . . . . . . . . . . . . . . 94
9.5 Post-divorce relief/maintenance . . . . . . . . . . . . . . . . . . . . . 95

Introduction
Dissolution of a marriage is possible under Islamic law. It is one of the areas of law
where the schools and sects adopt, at times, very different approaches. It is therefore
a substantial topic.
Divorce may be effected in a number of ways. It can be:
u by a repudiation of the wife by the husband (talaq)
u by mutual consent (khul‘)
u by decree of the court dissolving the marriage (faskh).
Learning outcomes
u identify and explain the rules and procedures for the dissolution of marriage
(talaq, khul‘ and judicial divorce)
u Identify and explain the rules governing post-divorce maintenance, including
modern reforms.
Core text
¢ Baderin, Chapter 4 ‘Family law’.
Essential reading
¢ El Alami, D. and D. Hinchcliffe Islamic marriage and divorce laws of the Arab world.
(London, The Hague: Kluwer Law International, 1996) [ISBN 9789041108968],
pp.22–32 (available on the VLE).
¢ El Alami, D. ‘Remedy or device? The system of khul‘ and the effects of its
incorporation into Egyptian Personal Status Law’ (1999–2000) 6 Yearbook of
Islamic and Middle Eastern Law 134–39 (available in HeinOnline).
¢ Carroll, L. ‘Qur’an 2:229: “A charter granted to the wife”? Judicial khul‘ in

Pakistan’ (1996) Islamic Law and Society 91–126 (available in HeinOnline and
JSTOR).
Further reading
¢ ‘Abd al ‘Ati, Chapter 6 ’Dissolution of the family’.
¢ Welchman, Chapter 9 ‘Divorce’ (available in VLeBooks via the Online Library).
¢ Ahmad, N. ‘A critical appraisal of “triple divorce” in Islamic law’ (2009) 23

International Journal of Law, Policy and the Family 53–61.
¢ Munir, M. ‘Triple talaaq in one session: an analysis of the opinions of classical,

medieval, and modern Muslim jurists under Islamic law’ (2013) 27 Arab Law
Quarterly 29–49.
¢ Khan, F. ‘Tafwī d al-talaq: transferring the right to divorce to the wife’ (2009) 99
Muslim World 502–20.
Introduction to Islamic law 9 Dissolution of marriages page 87
9.1 Dissolution by unilateral repudiation (talaq)

The most common method of dissolving a marriage under classical Islamic law is by
the husband unilaterally pronouncing the formula for repudiation known as talaq.
Islamic law, according to all the schools and sects, gives the husband the right to
unilaterally terminate the marriage at will, without showing cause and without
recourse to the court. Sunni law requires neither the presence of the wife nor of
witnesses for a talaq to be valid. In Sunni law a talaq may either be in accordance with
the Sunnah (the Qur’anic verses on talaq) or it may be in the bid’ah form (see below).
9.1.1 Talaq in accordance with the Sunnah

A divorce in accordance with the Sunnah can fall into two categories: the most
approved form and the good form. The most approved form is when the husband
pronounces a single talaq when the wife is in the so-called period of purity (when she
is not menstruating). Immediately on the pronouncement of the repudiation the wife
begins iddah, or the waiting period, which will continue for three menstrual cycles
or, if she is pregnant, until the delivery of the child. While the iddah is continuing, the
husband may revoke the repudiation and take back his wife. No formality is attached
to the revocation of the repudiation and it may be made expressly or implicitly by
the conduct of the husband. During the observance of the iddah period the husband
is under a duty to maintain his wife (see Chapter 7). If either party dies while the wife
is still in the period of iddah the other spouse will inherit their Qur’anic portion. If
the iddah period expires and the husband has not revoked his talaq the repudiation
becomes irrevocable. This irrevocability is of the lesser degree and the parties may, if
they so choose, remarry by a new marriage contract.
The second form of talaq effected in accordance with the Sunnah is considered by the
jurists to be good but less approved than the method discussed above. In this form the
husband pronounces three repudiations during three successive periods of purity. The
law allows a husband to repudiate his wife three times only. Once he has pronounced
three talaqs his wife is irrevocably repudiated to the greater extent (i.e. she can only
remarry the husband after an intervening marriage to another man). If the husband
has elected to repudiate his wife by the ‘good form’ he may revoke his talaq unless it
is the third of the three. During the iddah following the third talaq neither party will
inherit from the other and only the Hanafis consider that the husband is still under a
duty to maintain his wife.
The Ithna Ashari sect of the Shi’ah only recognise as valid a talaq pronounced in
accordance with the Sunnah (in the ‘approved’ or in the ‘good form’). The law of
this sect also requires that a precise set of words must be used and two witnesses,
who must be adult male Muslims of good character, must be present when the
pronouncement is made.
9.1.2 Talaq al bid’ah

Sunni Islam, however, has from early times recognised a talaq in the bid’ah form as
effective and valid in law despite it being considered morally reprehensible. The
most prevalent form of talaq al bid’ah is the triple repudiation whereby the husband
pronounces three talaq at the same time. Other forms of talaq in the bid’ah form are
repudiations suspended on a condition that could be used as a threat by the husband.
Such a condition could, for instance, be that the wife is forbidden from leaving the
house. If she does the marriage is dissolved.
In many countries of the Muslim world today reforms have been promulgated in the
law of personal status that provide that the triple talaq shall only take effect as a single
talaq. The effect of these reforms, of course, is to make almost all repudiations, except
the third, revocable. In introducing this provision, reformers have accepted that,
from its inception, the bid’ah form of divorce was held to be sinful and reprehensible
and certainly not in conformity with the methods of repudiation prescribed in
the Sunnah. Despite this, the bid’ah form of divorce is considered by the jurists of
the four Sunni schools to be legally valid and therefore effective in terminating a
marriage immediately, with no possibility of reconciliation or a remarriage without
an intervening marriage for the divorced woman. The reformers also accepted that
many Sunni Muslims believed that the only method they could repudiate their wives
by was using the bid’ah form. Accordingly, to invalidate the bid’ah form of talaq and to
recognise a triple repudiation as only a single repudiation, thereby giving to a husband
who had pronounced a talaq in anger or without due consideration a chance of
revocation, seemed not only a necessary reform but one which could not be opposed
by zealots seeking the continuation of traditional values.
No country in the Muslim world which has embarked upon a reform of its divorce
laws now recognises a divorce in the bid’ah form as effecting other than a revocable
divorce – unless, of course, it is the third of a series of such divorces. New legislation
in different Muslim countries also now disallows extra-judicial talaq. Tunisia, Iran,
Morocco, Malaysia, Jordan and many other Muslim countries now require, in their
different modern Muslim family law codes, that all dissolution of marriages, including
talaq by the husband, must be done under judicial supervision through the courts.
Tunisia
Article 30 of the Tunisian Law of Personal Status 1956 provides that divorce shall
only take place in a court of law. Article 31 gives the grounds on which a decree of
divorce will be made. These are on the petition of the husband or wife on any grounds
specified in the Law of 1956, by the mutual agreement of the parties or at the request
of the husband or wife. If a divorce is given at the request of either party without cause
being shown, the judge will decide what compensation should be awarded to the
wife by the husband or by the wife to the husband. Article 32 of the Law was amended
to require that the judge must attempt to reconcile the parties before granting a
dissolution of the marriage. If reconciliation fails the judge must, even if not requested
by the parties to do so, make orders regarding the housing of the two parties,
maintenance, custody of children and visiting rights unless the parties have already
agreed on these issues.
Iran
The law of divorce in Iran has gone through a considerable number of changes in
a comparatively short period of time. Until 1967 the traditional Shi’ah law applied.
Article 1133 of the Civil Code stated that divorce was in the hands of the husband.
No recourse to a court was necessary and no cause needed to be shown. In 1967 the
Family Protection Act was promulgated by a decree of the Shah. Article 10 of the Act
provided that neither the husband nor the wife could obtain a divorce until a decree
of ‘irreconcilability’ was issued by the court. Thus, the husband’s hitherto absolute
right to repudiate his wife at will was abolished.
With the coming into existence of the Islamic Republic of Iran it was at first not clear
whether the provisions of the Family Protection Act in respect of divorce were still
applicable. The Special Civil Courts Act (Number 10088 of 11 October 1979) clarified
the situation by providing that divorce was still a judicial matter but that grounds
for it were confined to traditional Islamic law and the relevant provisions of the
Civil Code. The Act also introduced a procedure for arbitrators to be appointed to
attempt reconciliation. The Act left wives with a very restricted number of grounds for
divorce, whereas husbands were not required to present any grounds for divorcing
their wives. Parliament sought ways to ameliorate the position of women and in
1992 the Divorce Act was promulgated. Article 1 of the Act states that all divorces
must be judicial and that for a divorce to be effective a certificate of irreconcilability
must be granted by the court, irrespective of whether the application is made by the
husband or the wife. (This Act virtually repeals the provisions of the 1967 legislation.)
The Act further provides that where the husband petitions for divorce the wife can
claim compensation in cases where she wishes the marriage to continue and is not
herself in breach of any conjugal duties. Such compensation represents payment for
duties which the wife undertook that she was under no obligation to perform. Hence,
she would be entitled to compensation for household duties and taking care of any
children of the marriage beyond the age at which there was an obligation upon her
to do so (under the amended law of Iran the wife has the duty and the right to be the
primary carer of her children until they reach the age of seven).
The necessity for judicial divorce was reconfirmed in 2002 when Article 1137 of the
Civil Code was amended. Article 1137 now states that ‘A man can, by observing the
conditions stated in this Code, go to the court and ask for the divorce of his wife’.
Article 3 of the Divorce Act 1992 provides that the execution of the divorce and its
registration by the Notary Public cannot be effected until payment is made to the wife
of all her legal and religious rights such as dower and maintenance. The exceptions to
this are where the divorce is by mutual consent, where the wife agreed to the divorce
taking place before she received any payment or where the husband is declared
insolvent or otherwise unable to pay.
Once issued, a certificate of irreconcilability remains valid for three months. Within
three months of its issue the certificate must be presented to the divorce registry.
On presentation, the registry summons the parties to attend for the execution of the
divorce and its due registration.
Article 6 of the Divorce Act 1992 provides that where the wife seeks payment for work
within the marriage the court must first attempt to resolve the issue through the
mutual agreement of the parties. If the parties cannot reach an agreement, there
are no stipulations in the marriage contract relating to financial matters and the
husband is the instigator for reasons other than the misbehaviour of his wife or her
failure to perform her marital obligations, the court must consider if the wife has
undertaken work at the husband’s request which she was under no legal obligation
to perform during the course of the marriage. The court must then determine an
appropriate remuneration and award compensation to the wife. In other cases the
court must consider the duration of the marriage, the wife’s contribution to work in
the matrimonial home and the husband’s financial situation and award her payment
as a gift. The Exigencies Determining Council of the Nation (NEDC) has held that all
the rights that a wife has by virtue of Article 6 must be paid to her before decree for
divorce can be executed and registered by the divorce registry.
Morocco
Article 78 of the Moroccan Family Code of 2004 also provides that dissolution of
marriage by either the husband or the wife, each according to their respective
conditions, must be done under judicial supervision. Articles 79 to 97 then go on to
provide details about the procedure, starting from the courts’ reconciliatory role up to
the dissolution of the marriage if the reconciliatory effort fails.
Malaysia
Similarly, s.47(1) of the Malaysian Islamic Family Law (Federal Territories) Act 1984
(as amended) provides that a husband or wife who desires dissolution of marriage
shall present an application for that purpose to the court in a prescribed form.
Other articles provide details of the procedure to be followed. Section 124 of the Act
criminalises extra-judicial divorce and provides that:
Any man who divorces his wife by the pronouncement of talaq in any form outside
the Court and without the permission of the Court commits an offence and shall be
punished with a fine not exceeding one thousand ringgit or with imprisonment not
exceeding six months or both.
Jordan
Article 97 of the Jordanian Personal Status Law of 2010 provides that:
The husband shall register the divorce of his wife before a judge. If he divorces his wife
extra-judicially without registering it, he shall consult the court to register it within one
month and anyone who fails to do so shall be liable to the punishment prescribed in
the penal code.
Pakistan and Bangladesh

In India no reforms have been effected in this area but in both Pakistan and
Bangladesh s.7 of the Muslim Families Laws Ordinance (MFLO) 1961 provides that:
(1) Any man who wishes to divorce his wife shall, as soon as may be after the
pronouncement of talaq in any form whatsoever, give the Chairman [of the Union Council]
notice in writing of his having done so, and shall supply a copy thereof to the wife.
(2) Whoever contravenes the provision of subsection (1) shall be punishable with simple
imprisonment for a time that may extend to one year or with fine which may extend to
Rs5000 or with both.
(3) Save as provided in sub-section (5) a talaq unless revoked earlier expressly or otherwise
shall not be effective until the expiration of ninety days from the day on which notice
under sub-section (1) is delivered to the Chairman.
The Supreme Court of Pakistan decided in Ali Nawaz Gardezi v Muhammad Yusuf PLD
1963 SC 51 that the notice to the chairman was mandatory and a divorce, however
pronounced, would be without effect if the required notice was not given. The
decision in this case is still binding in Bangladesh. However, the Federal Shariat Court
decided in Allah Rakha v The Federation of Pakistan 2000 CLR 349 that s.7(3) of the MFLO
1961 was repugnant to the principles of Islam and declared it void. Accordingly, from
31 March 2000 a divorce will be effective even if no notice has been given. However, it
would appear that the penal sanctions for failure to give notice remain in force.
The Ordinance provides further in s.7(6) that:

Nothing shall debar a wife whose marriage has been terminated by talaq effective under
the section from re-marrying the same husband, without an intervening marriage with a
third person, unless such termination is for the third time so effective.
The husband may delegate his right of repudiation to his wife so that she can divorce
him herself. If an option is given to the wife to repudiate her husband she must
exercise it immediately after it is given unless the husband specifically grants her an
extended period of time in which to exercise it. The husband may also grant his wife
the option to divorce him herself upon the happening of a specified event. Once this
event occurs the wife may choose to exercise her right of divorce or not as she wishes.
India
The Indian Supreme Court has banned the so-called ‘triple talaq’ in its celebrated
decision of 22 August 2017 in the case of Shayara Bano v Union of India and others.
The decision (395 pages) is available here:
https://indiankanoon.org/doc/115701246/
A BBC reportage of the case with a video interview of one of the petitioners is also
available here:
https://www.bbc.co.uk/news/world-asia-india-39880273
9.2 Dissolution by release (khul‘)

A marriage may also be dissolved by the wife discharging herself from the marriage.
This is called khul‘. Khul‘ is concluded by an offer and acceptance. It is the wife who
makes the offer, offering to pay compensation, usually the dower, or the forgoing of
the dower debt – indeed it is considered sinful for a husband to ask for compensation
exceeding this – in consideration for the husband releasing her from the marriage.
However, the law recognises that any amount may be agreed as compensation and
only the Shafi’i school requires that the compensation be monetary. Of course the
offer may emanate from the husband, although this is less common. In this case he will
offer to repudiate his wife in return for a certain amount of compensation. If it is the
wife who makes the offer she may retract the offer at any time before acceptance is
made but if it is the husband who makes the offer he may not retract it, and it remains
effective until it is accepted or rejected. This is because an offer emanating from the
husband is seen to take on the nature of an oath, which cannot be retracted.
A divorce effected by means of khul‘ is immediately irrevocable but to the lesser

degree, so that the parties may subsequently remarry on a new contract without the
need for an intervening marriage on the part of the wife. According to all schools of
law, except the Maliki school, a khul‘ divorce may only be effected by mutual
consent, as explained above. In Maliki law a khul‘ is also primarily considered to
be a consensual divorce.
However, the Maliki school alone recognises a judicial khul’ – a divorce granted by
the court where a wife pays compensation to her husband in return for her freedom.
Such a divorce can occur when a Maliki wife petitions the court for a dissolution of the
marriage on the grounds of darar (harm, prejudice). Only the Maliki school accept darar
as a ground for judicial divorce, relying on the principle that there is no harm in Islam.
As will be discussed below, Maliki law has been an inspiration for many reforms, with
the result that a judicial khul’ may be obtained in many parts of the Muslim world.
Activity 9.1
Write a brief summary (no more than 100 words) of Section 9.2.
9.3 Judicial divorce (faskh)

It is only the husband who has the right to terminate the marriage at will. According
to all the schools and sects the wife may only terminate her marriage unilaterally
if she is delegated the power to do so by the husband. If no such power has been
delegated to her, or if her husband refuses to agree to a khul‘, a wife who wishes to end
an unhappy marriage must seek a dissolution from the court. As mentioned above,
this judicial divorce can take two forms under Maliki law, namely a judicial khul‘ or
a judicial divorce (faskh). All other schools and sects recognise the faskh as the only
form of judicial divorce. In order to succeed in her petition for a faskh divorce the wife
must prove either physical defects of her husband or matrimonial offences, which vary
under the doctrines of the different schools and sects.
The Hanafi school is the most restrictive towards women in matters of divorce,
allowing a wife to obtain a dissolution only if her husband proves unable to
consummate the union. Once consummated a Hanafi marriage may not be dissolved
at the instance of the wife. It was the unfortunate position of Hanafi wives in the
Ottoman empire (whose official law was that of the Hanafi school) which caused the
promulgation of the first reforms in the law of personal status in 1915, as discussed
earlier. The other schools of law, in addition to acknowledging the inability of the
husband to consummate the marriage as a ground for divorce, also recognise that
the judge may grant a judicial divorce where the husband is suffering from insanity,
leprosy or venereal disease. The law of the Maliki, Shafi’i and Hanbali schools is more
favourable to women and, in addition to granting a decree for the husband’s physical
defects, recognise other grounds for which a divorce may be granted. These include
failure to maintain or desertion for a ‘prolonged period’ of time (usually 60 days,
although in Hanbali law there is an exception if the absence is considered excusable).
Hanbali law also allows a wife to obtain a judicial divorce if her husband is in breach of
a stipulation inserted in the marriage contract.
The Maliki school is the most liberal with regard to the right of the wife to obtain
judicial divorce. However, when the Maliki court grants the wife a decree it does so by
pronouncing an irrevocable talaq on behalf of the husband, thereby continuing the
legal fiction that it is the right of the husband alone to terminate the marriage. For this
reason the Maliki school does not use the term faskh to describe a judicial divorce but
refers to it as a judicial talaq. Maliki law is unique in that it gives the woman the right to
obtain a divorce on the ground of darar (harm or prejudice). If she is unable to prove
her claim that continuing to live with her husband is causing her harm but persists in
her claim that there is discord between them, the Maliki court will reconstitute itself
into an arbitration tribunal. Two arbitrators will be appointed, one from the family
of the wife and the other from the family of the husband. The arbitrators must first
attempt, with the judge, to bring about a reconciliation between the parties. If their
attempts fail they must then hear the evidence of both parties and establish which of
them is primarily responsible for the breakdown of the marriage. If they decide that it
is the husband they will pronounce an irrevocable talaq. However, if they find that it is
the wife who is at fault they will pronounce a repudiation in return for the wife giving
compensation to the husband (a judicial khul‘).
Reforms have taken place in many countries of the Muslim world extending a wife’s
right to divorce. These reforms have sought inspiration from the Maliki doctrine. In the
largely Hanafi Indian sub-continent the Dissolution of Muslim Marriages Act 1939 gave
wives 10 grounds based on Maliki law to dissolve their marriages at their instigation.
Article 2 of the Act provides that a woman married under Muslim law shall be entitled
to obtain a decree for the dissolution of her marriage on grounds including:
u the husband has been missing for four years
u the husband has failed to maintain her for two years
u the husband has been sentenced to imprisonment of seven years or more
u the husband has failed to perform his ‘marital obligations’ for three years
u the husband was impotent at the time of the marriage and has remained so
u the husband has been insane for a period of two years or is suffering from leprosy
or a virulent venereal disease.
Another possible ground for the wife is that she, having been given in marriage by her
father or other guardian before she attained the age of 15, repudiated the marriage
before attaining the age of 18, provided that the marriage is unconsummated or that
the husband treats her with cruelty. The Act also gives the wife the right to petition
for divorce on ‘any other ground which is recognised for the dissolution of marriage
under Muslim law’.
Activity 9.2
Look up the 10 grounds for dissolution in the Dissolution of Muslim Marriages Act
1939 in your textbooks and sources and make a list of them.
The MFLO 1961 added a further ground, allowing a woman whose husband took a
second wife without complying with the provision of the Ordinance (requiring him
to obtain permission to do so from the Union Council) to obtain a divorce. In Iran, in
accordance with provision 1130 of the Civil Code, the court may grant a wife a divorce if
she is able to prove that she is suffering harm from the continuation of the marriage.
Tunisia
As in the case of polygyny it is the law of Tunisia which has conceded the most rights to
women. A Tunisian wife has the power of talaq so that she may unilaterally terminate
her marriage at will, but the pronouncement of talaq must be made in a court of law.
Just as the Tunisian court may order a husband to pay compensation if it considers he
has divorced his wife without cause, so it may order a wife it considers is divorcing her
husband frivolously to pay him compensation, usually the return of the dower.
Pakistan
The decision of the Supreme Court of Pakistan in Khurshid Bibi v Mohammed Amen PLD
(1967) SC 97 granted women a further ground for divorce by extending the role of
khul‘. The court considered the verse in the Qur’an which is considered to be the basis
of the law of khul‘. Surah 2 verse 229 states:
…it is not lawful for you that you take anything of what you have given them (your
wives) unless both fear that they cannot observe the limits prescribed by Allah. But if
you fear that they cannot preserve the limits prescribed by Allah, then it shall be no sin
for either of them in that she gives to get her freedom…
The court held that the ‘you’ in the words ‘if you fear’ referred to the judge and
accordingly the court held that if the judge found that the parties to a marriage could
no longer live within ‘the limits prescribed by Allah’ the court could dissolve the
marriage by means of a judicial khul‘ – thus requiring the wife to return to her husband
her dower and all benefits which she had received from the marriage.
This decision by the Supreme Court thus gave Pakistani women the right to petition
the court for divorce on the grounds that the marriage had irretrievably broken down.
Although whether the marriage had so broken down was for the court to decide, the
decision did give the Pakistani wife, dissatisfied with her marriage but unable to prove
a matrimonial offence in accordance with the provisions of the Dissolution of Muslim
Marriages Act 1939, a chance to gain her freedom. In making its decision the court did
not consider the Maliki law on darar (harm, prejudice) and, indeed, held that, provided
the court was satisfied that the parties could no longer cohabit ‘within the limits
prescribed by Allah’, it was not for the court to allot blame to either of the parties.
Pakistani law on judicial khul‘ has been considerably extended in recent years. In the
case of Naseem Aktar v Mohammad Rafique PLD 2006, SC 293 a woman sought the
dissolution of her marriage by khul‘ on the grounds that she had developed such a
hatred for her husband that she ‘would prefer to die rather than live with him’. Her
petition was rejected by the family court and the Lahore High Court, on the grounds
that she had not proved the alleged hatred. The Apex court allowed her appeal,
holding that she had filed a suit for dissolution, which itself showed that she no longer
wished to live with her husband, ‘which indicates the degree of hatred and aversion’.
As a result of this decision, it seems that now the court must grant a khul‘ divorce to a
wife who seeks it, as the mere fact of asking for it is evidence of hatred and aversion to
her husband. Previously, the court, following the decision in Khurshid Bibi v Mohammad
Amin PLD 1967 SC 97, required the wife to prove that it was impossible for the parties to
live together ‘within the limits provided by Allah’.
Another interesting case concerning divorce by khul‘ is Aurangzeb v Gulnaz PLD 2006
Karachi 563, where the husband appealed to the High Court of Karachi on the grounds
that the lower family court had granted a divorce to his wife who had sought a khul‘
divorce, although there was an ongoing dispute over the return of the dower. The
High Court held that the conduct of the husband had to be taken into account when
deciding how much of the dower, if any, should be returned by the wife. Furthermore,
the Court held that, even if the wife refused to return the dower, the marriage would
still be dissolved once the family court had decided ‘that the parties could not remain
within the limits of God’ and that, if a woman was entitled to khul‘, ‘it must pass such
a decree in her favour’. The finding after enquiry of what – if anything – should be
returned by the wife to the husband would only impose civil liability upon the wife
and would not affect the dissolution itself.
Although recent case law has greatly extended the wife’s right to obtain a dissolution
of her marriage by the granting of a judicial khul‘, a woman seeking a dissolution of
her marriage should be advised first to consider whether she has a right to obtain a
divorce on the grounds of her husband’s conduct. This could be his failure to maintain
her, desertion or cruelty, or physical defects on his part, such as impotence, leprosy
or insanity. If her petition on any of these grounds succeeds she will be entitled not
only to a divorce but also to maintenance during her iddah period, and she will not be
under any duty or threat to pay compensation to her husband.
Egypt
The beginning of the new millennium saw a significant change in the law of divorce
in Egypt. Law No. 1 of 2000 provides that, if the husband and wife are unable to
agree to a divorce by mutual consent, the wife may petition the court to grant her a
judicial khul‘ in return for relinquishing her financial claims and returning her dower
to her husband. Before a divorce is granted the court must attempt to bring about
a reconciliation, but if after three months no reconciliation has taken place and the
wife formally declares that life with her husband is repugnant to her, and she cannot
continue to live with him within the limits prescribed by Islam, the court must grant
her a judicial khul‘. Thus, the law of Egypt is more favourable to a woman seeking
dissolution of her marriage by means of a judicial khul‘ than is the law of Pakistan.
Under the law of Egypt it is the woman who declares before the judge that she can no
longer live with her husband ‘within the bounds prescribed by Allah’. Once she has
made her declaration the judge has no discretion to refuse the divorce. On the other
hand, in Pakistan it is for the court to decide if, in the circumstances of a particular
case, the parties can no longer continue to live together as husband and wife without
transgressing ‘the bounds prescribed by Allah’.
In Egypt many commentators have also noted that, since the enactment of Law No.
1 of 2000, many women are disregarding other grounds for divorce and are seeking
a dissolution by khul‘. They are accordingly forfeiting all rights to financial relief and,
indeed, are having to pay to gain their freedom.
9.4 Other distinctive methods of effecting divorce

Finally, reference must be made to three other methods of effecting a divorce. Although
recognised by traditional law, these methods have now become virtually obsolete.
9.4.1 Īlā
Īlā is a vow of abstinence by the husband, whereby he takes an oath that he will refrain
from sexual intercourse with his wife. The time limit for such an oath under classical
Islamic law is four months. If he fulfils his oath, after the expiry of the designated
period, or after a maximum of four months, the marriage is dissolved automatically
in Hanafi law. Under the law of the other Sunni schools and of the Shi’ah, at the expiry
of the period the wife may apply to the court, which will then order the husband to
resume sexual relations or to divorce his wife. If the husband refuses to do either, the
court will pronounce a talaq on his behalf.
9.4.2 Zihar
The second procedure is zihar, where the husband compares his wife to one of his
female kinswomen within the prohibited degrees of relationship. The most usual
practice is for the husband to compare his wife to the back (zihar) of his mother. The
effect of zihar is that sexual relations between the husband and wife become unlawful
until the husband makes expiation by, according to traditional law, fasting for 60
consecutive days, or providing food for 60 people at midday and evening or freeing
a slave. If the husband resumes sexual relations without having made expiation he
is regarded as being in a state of grave sin and his wife may refuse to cohabit with
him without losing her right of maintenance. Maliki law holds that zihar will result
in a termination of the marriage if no expiation is made and sexual relations are not
resumed. The Malikis argue logically that if no sexual relations take place for four
months the situation is as if the husband had pronounced Īlā and the wife could
accordingly ask the court to terminate the marriage.
9.4.3 Li’an
Finally, marriage may be terminated by the procedure of li’an. This procedure occurs
when the husband accuses his wife of committing adultery without the required
proof of four male witnesses, or when he denies the paternity of a child to which
she has given birth. He swears four oaths to this effect, swearing that he speaks the
truth, and fifthly calls upon himself the curse of God if he has lied against the wife. The
wife will then swear four oaths that her husband is lying and fifthly invoke the curse
of God upon herself if he has spoken the truth. In the Hanafi and Hanbali schools,
following the oaths of the two parties, the judge will ask the husband to repudiate his
wife and, if he refuses, the judge will then dissolve the marriage himself. According
to the law of the Maliki and Shafi’i schools, and of the Shi’ah sects, the swearing of
the mutual implications will automatically terminate the marriage without any
recourse to the court.
At the present time, as was stated above, the procedures of īlā’, zihar and li’an are
virtually extinct, although īlā’ is preserved in the statutory law of Libya, Morocco,
Kuwait and Yemen and li’an is preserved in the law of Yemen. In Pakistan, the
Protection of Women (Criminal Law Amendment Act) 2006 has added li’an as one of
the grounds for divorce to the Dissolution of Muslim Marriages Act 1939. As a result, a
Muslim woman can petition a court for the dissolution of her marriage if her husband
accuses her of adultery and she denies the allegation.
9.5 Post-divorce relief/maintenance

As mentioned in Chapter 7, the Muslim jurists held that the husband’s duty to maintain
his wife was reciprocal with her duty to obey him. Accordingly, when a marriage was
terminated the wife no longer had a duty of obedience and was no longer entitled to
receive maintenance beyond her period of iddah. The Hanafis considered that the wife
had a right to be maintained whether the iddah followed a revocable or irrevocable
divorce. This was because, in the first case, the wife remained under the husband’s
control as he could revoke the divorce at any time until the iddah was completed and,
in the second case, the observance of the iddah was a duty imposed on the wife for
the husband’s benefit, in order to establish his paternity to any child in case she was
pregnant before the termination of the marriage.
In the case of an irrevocable divorce the other Sunni schools and the Shi’ah merely
gave the wife the right to have a dwelling house provided for her benefit unless she
was pregnant. If she was, her rights to receive maintenance would continue until the
birth of the child.
Many countries have now provided by legislation that a wife who is repudiated by
her husband without good cause is entitled to receive relief from him amounting to
maintenance, usually for a prescribed period of time. This is termed mut‘a al-talaq, as
consolation for the arbitrary termination of marriage.
In 1953 Syria became the first country in the Muslim world to legislate on this point.
The law of personal status provides that, if the judge is satisfied that the husband
acted arbitrarily and that the wife would suffer hardship, he may order the husband
to compensate her according to his means by paying maintenance for a period of up
to three years. Other countries followed the Syrian example when enacting their own
codes of family law, although there are considerable differences concerning the period
of time that the duty to maintain will continue. Thus, the Egyptian law provides that
the wife can be awarded at least two years’ maintenance but with no upper time limit.
Iraq allows maintenance by way of compensation for a maximum of two years and the
UAE, Yemen and Kuwait provide for maintenance for only one year.
The Tunisian Law of Personal Status 1956 as amended in 1981 provides the most
detailed statement regarding how a husband who uses his right to repudiate
his wife, without proper cause, must make provision for her. She must be given
maintenance each month in accordance with the amount she received while the
marriage subsisted, including accommodation. The amount to be paid may be varied
by increase or decrease in accordance with changing circumstances, for example by
her re-marriage or acquiring wealth so that she no longer needs to be maintained by
her former husband. Such maintenance is considered a debt against the estate of her
ex-husband if he predeceases her.
In India, the issue of post-divorce maintenance for Muslim wives was addressed in the
controversial decision of Mohd Ahmed Khan v Shah Bano Begum AIR 1985 Supreme Court
945. The case concerned a Muslim wife, Ms Shah Bano Begum, who had been deserted
and later divorced by her husband. In 1978 Ms Begum filed a petition for maintenance
under s.125 of the Code of Criminal Procedure. Section 125 allows a court to order
a husband to pay maintenance to his wife. It applies to all religious communities
and the definition of wife includes a divorced wife. Mr Khan, the former husband,
appealed against the order, arguing that he had already paid her the deferred dower
and that as a result he had no further obligations to maintain her. The Supreme Court
decided in favour of Ms Begum, holding that s.125 of the Criminal Procedure Code took
precedence over any rule of Muslim personal law and that, if a divorced Muslim wife is
unable to maintain herself, she is entitled to have recourse to s.125.
Controversially, the Supreme Court also held that Muslim personal law provided for
the payment of post-divorce maintenance. Several Muslim organisations, chief among
them the Muslim Personal Law Board, an association of Muslim religious scholars and
political leaders, protested against the judgment of the Supreme Court on the ground
that it interfered with the right to freedom of religion of India’s Muslims.
In order to stop the protests, the government introduced the Muslim Women
(Protection of Rights on Divorce) Act 1986. The Act provides that s.125 of the Code of
Criminal Procedure only applies to the issue of post-divorce maintenance if both the
husband and his divorced wife agree to be governed by it. In cases where s.125 does
not apply, the Act provides that any Muslim divorced wife is entitled to a ‘reasonable
and fair provision and maintenance to be paid to her within the iddah period by her
former husband’ (s.2(1)(a)). There was some uncertainty about the meaning of this
decision, with some high courts holding that a Muslim husband was only obliged to
pay maintenance to his divorced wife during the three-month iddah period, whereas
other high courts held that a Muslim husband had to pay a lump sum to his former
wife within the iddah period which was sufficient to provide her with maintenance for
the rest of her life. In Danial Latifi v Union of India (2001 7 SCC 740) the Supreme Court
of India decided that the 1986 Act was constitutionally valid. Therefore, in accordance
with the 1986 Act, courts were entitled to award lump sums to divorced Muslim wives,
which had to be paid by the husband within the iddah period, if the former wife could
not maintain herself.

u identify and explain the rules and procedures for the dissolution of marriage
(talaq, khul‘ and judicial divorce)
u identify and explain the rules governing post-divorce maintenance, including
modern reforms.

Question 1 ‘Khul‘ is a divorce effected by the mutual agreement of the husband and
wife.’
Discuss this statement with reference to the traditional law of the Hanafi and Maliki
schools, the law of Pakistan and the law of Egypt.
Question 2 Discuss the extent to which legislation in many jurisdictions of the
Middle East has extended the right of a wife to obtain a judicial divorce.

Question 1 Discuss the traditional role of khul‘ as primarily a consensual release of the
wife by the husband. Explain the differences between the traditional Hanafi law and
the law of the Maliki school. You should also explain the changes effected in the law of
Pakistan by judicial decisions and the law of Egypt by statute.
Question 2 First discuss the right of a wife to obtain a divorce by petitioning the court
in traditional law, explaining the differences between the schools with particular
reference to the differences between the Hanafi and the Maliki schools. Discuss the
changes effected by legislation in the countries of the Middle East. Particular reference
should be made to the law of Tunisia and Egypt.
Reflect and review



I can identify and explain the rules and procedures

for divorce (talaq, khul‘ and judicial divorce).   
I can identify and explain the rules governing post-

divorce maintenance, including modern reforms.   
If you ticked ‘need to revise first’, which sections of the chapter are you going
to revise?
Must Revision
revise done
9.1 Divorce by unilateral repudiation (talaq)  
9.2 Divorce by release (khul‘)  
9.3 Judicial divorce (faskh)  
9.4 Other distinctive methods of effecting divorce  
9.5 Post-divorce relief/maintenance  

Notes
10 Children
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
10.1 Legitimacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
10.2 Child custody . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
10.3 Guardianship of property . . . . . . . . . . . . . . . . . . . . . . . . 103
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . 105

Introduction
Guardianship of children is an important aspect of Islamic family law. As will be
seen, traditional law appears to favour the father but it should be noted that many
Islamic countries have introduced legislation that, to some extent, modifies classical
Islamic law. Minor children are subject to three types of guardianship: custodial care
(hadanah), guardianship of the person and guardianship of property.
Learning outcomes
u describe the rules on legitimacy
u outline the principles of hadanah and the qualifications of the custodian
u explain the mother’s right of custody
u describe the rules for the guardianship of property.
Essential reading
¢ Zahraa, M. and Malek, N. ‘The concept of custody in Islamic law’ (1998) 13(2) Arab
Law Quarterly 155–77 (available in HeinOnline and JSTOR).
¢ Welchman, Chapter 10 ‘Parents and children’ (available on the VLE and in

VLeBooks via the Online Library).
Further reading
¢ Pearl and Menski, Chapter 10 ‘Parents and children’.
Introduction to Islamic law 10 Children page 101
10.1 Legitimacy
Islamic law applies the principle that ‘the child belongs to the marriage bed’.
Accordingly a child is presumed to be legitimate if it is born six months after a
marriage has been contracted (six months being accepted by all schools and sects as
the minimum period of gestation) and within the recognised periods of gestation after
the marriage is terminated by either death or divorce. The four Sunni schools differ in
their interpretation of the maximum period of gestation. The Hanafis say the period is
two years based on the tradition that Abu Hanifa knew of a foetus that remained in its
mother’s womb for two years. The Malikis, Shafi’is and Hanbalis accept longer periods.
There is considerable variation in the periods recognised by the different schools but
the majority view is that the Shafi’is and Hanbalis recognise a period of four years and
the Maliki accept a period of five years. The jurists of these three schools were aware of
the period beyond which a child could viably stay in utero but developed the concept
of the ‘sleeping foetus’, where the child achieves its approximate period of gestation
of nine months in sporadic bursts, sleeping in the meantime. In the law of the Shi’ah
the maximum period of gestation is 10 lunar months which, of course, corresponds to
the medical view.
If the child is born within the minimum or maximum period of gestation, paternity
is attributed to the husband of the mother unless he refutes the child by the li’an
procedure (see Chapter 9). In traditional law a woman who declares herself pregnant
following the termination of her marriage remains in her iddah period until the
delivery of the child. Obviously, under the law of the Sunni schools, women could
claim to be in iddah for a considerable period and so, where the marriage was
terminated by divorce, be entitled to maintenance from their husbands. Reforming
legislation in the Middle East has provided that the maximum length of an iddah
which will be recognised is approximately 10 lunar months, thus ensuring that the
medically impossible periods of gestation recognised by traditional law no longer
apply. However, contrary to the trend of legislation in the Muslim world, Pakistan
has amended the Evidence Act of 1872, which provided that a child was presumed
legitimate if born during a valid marriage or within 10 months of its dissolution. The
amended text now provides that a child born within two years of the dissolution of a
marriage will be recognised as legitimate, thus re-applying traditional Hanafi law.
In Hanafi law, if the marriage is concluded by proxy and, even if the parties to a
marriage have never met, if the woman gives birth after six months have elapsed
from the date of the marriage, the child will be regarded as the legitimate child of the
husband. In the law of the other schools, however, the period of gestation is calculated
only from the date when the parties could have had access to each other and in Shi’ah
law it is calculated from the date of actual consummation of the marriage. Egypt was
the first country to legislate that the period of gestation should run from the date
when access between the parties could be proved (Law No. 25 of 1929). Since this date,
other countries of the Middle East have accepted that no claim for paternity should be
heard if there is proof of non-access of the parties.
These laws regarding legitimacy were introduced by the Islamic jurists to prevent as
many children as possible from being declared illegitimate and thus being denied
rights of inheritance, maintenance and so on. Also, the law served to protect women
from charges of zina, for which draconian penalties were imposed (see Chapter 4).
Under both Sunni law and Shi’ah law, as traditionally applied, no legal relationship
exists between an illegitimate child and their biological father and, hence, their
paternal kinsmen.
In Iran the Supreme Court in plenary assembly considered the obligations of the
biological father to his illegitimate child. The judges were divided on the issue, with
some judges following the traditional law that no relationship exists between the two.
Others, however, followed an opinion of Ayatollah Khomeini that an illegitimate child
was the child of their biological father whether he was adulterer or fornicator and
he must accordingly fulfil all the parental duties which he would owe to a legitimate
child, except that there will be no mutual rights of inheritance.
A man may acknowledge a child as his legitimate child provided that the child is
clearly not the offspring of someone else (for example, born to a woman who is
married or is observing an iddah following a divorce) and provided that there is an
appropriate age difference between the man and the child.
Adoption is not recognised in Islamic law although it was a common practice in

Arabia before the coming of Islam. However, it is considered a charitable act to take
care of foundlings, or children without parents, and to look after them. In the coastal
regions of North Africa unofficial adoption is a not infrequent practice. For example,
often a man after the death of his brother would marry his sister-in-law and bring up
her children as his own. In Tunisia, however, adoption has been made legal. The law
of 19 June 1959 provides that not only may a child whose parentage is unknown be
adopted but also a child born to known parents and to parents who are still living. This
is provided, of course, that in the latter case the actual parents agree to the adoption.
The adopted child has the same rights as children actually born to the adoptive
parents and will take their name.
10.2 Child custody

When a marriage is terminated, perhaps the biggest issue to be resolved is the care
of the children. In Islamic law, according to all schools and sects, the guardianship of
the child belongs primarily to the father. In the absence of the father, guardianship
belongs to the next male kinsman in the agnatic line, the first person having priority
after the father being the paternal grandfather. The mother may never be the
guardian of her infant children, be they male or female. The right of the mother is
restricted to keeping her children in her custodial care for a defined period of time
that varies among the different schools and sects. This is the right of hadanah. All
the schools and sects are agreed that it is the mother who has the primary right of
custody of the child (hadanah).
If the mother is dead, or is, for reasons that will be discussed later, deprived of
the right, there is disagreement among the schools as to who is entitled to the
custody of the infant child. The Hanafis and the Malikis hold that the hadanah is
the right of females and accordingly the right will pass to the kinswomen of the
mother. The Shafi’is and the Hanbalis, as well as the Shi’ah, do not accord such great
priority to the female line. Therefore, in Shafi’i and Hanbali law, if the mother has
no surviving female ascendant, the right of custody passes to the father and, in his
absence, to his ascendants. In Shi’ah law, if the mother is dead or has lost her right of
hadanah, her right passes in all cases to the father of the child and, in his absence, to
the paternal grandfather.
10.2.1 Qualifications of the custodian

All the schools and sects are agreed that, in order to safeguard the welfare of young
children, certain conditions must be fulfilled before a person is given the right of
custody. Two self-evident requirements are that the custodian should be adult and
of sound mind (neither insane nor feeble-minded). The person having the right to
hadanah must be trustworthy (a person who can be relied upon to take proper care
of the child). She must not pursue a life in any way immoral, in order to preserve the
morality of the child. Finally, the custodian of the child should physically be able to
take proper care of the child. The majority view of the jurists is that each case must be
considered on its merits. All the schools and sects recognise a further restriction on
the right of hadanah; all are agreed that the custodian must not be married to a man
who is not related to the child within the prohibited degrees.
During the mother’s period of custody the overall control of the child is in the hands
of the father (or paternal grandfather or other male agnate). It is the father who is the
wali of the child and who makes all important decisions regarding their upbringing.
For example, he alone decides on the child’s education or if they may travel and he
may contract the child in marriage. The right of the mother is merely to keep the child
in her custodial care, to have the child live with her on a day-to-day basis. So important
is the father’s right of guardianship that the mother will lose her right to custody if
she attempts to take the child away from the father’s ‘sphere of influence’: that is, if
she removes the child to a place so distant from the father’s place of residence that he
cannot visit the child on a daily basis to oversee their welfare.
If the mother of the child is a Christian or a Jew, the schools are divided on whether
such a non-Muslim mother may have the custody of her Muslim child. The Hanafis
and Malikis hold that the custodian of the child need not be Muslim. However, such
a mother will lose the right to hadanah if she attempts to impose her faith upon
the child. The doctrine of the Shafi’i and Hanbali differs radically; according to their
doctrine a non-Muslim woman may never have the custody of a Muslim child even if
she is the child’s mother.
According to the Hanafi doctrine the mother has the right of custody until a male
child attains the age of seven and a female child attains the age of nine. In Maliki law
the mother’s custodial right lasts, in the case of a boy, until he attains puberty and,
in the case of a girl, until she is married and is able to begin married life. The Shafi’i
school gives both girls and boys the option, once they have attained the ‘age of reason’
(usually assumed to be at seven years), to choose whether to remain with the mother
or to live with the father. In Hanbali law this right to choose is given only to boys. In the
Ithna Ashari sect of the Shi’ah, the mother’s right of hadanah lasts until her sons are
two and her daughters seven years old.
In many countries of the Muslim world the mother’s custodial rights have been
extended so that she is not deprived of her right to live with her children at such early
ages. For example, in Morocco, in accordance with the provisions of the Family Code of
2004, the right of custody belongs first to the mother of the child, then to the father
and then to the maternal grandmother. If none of these people are able to assume
custody the court will decide upon the person most suitable to assume the function.
It will take the opinion of the child, male or female, into account if the child is over 15.
In Iran, where Ithna Ashari law applies, Article 1180 of the Civil Code now provides that
‘a minor is under the natural guardianship of the father and the paternal grandfather.
The custodial care of the children is in the hands of the mother until both male and
female children are seven years old.’
10.3 Guardianship of property

The guardianship of property is primarily the right of the father. The father may also
appoint an executor to act as the guardian of the property of his infant children by
his will. The guardianship of property continues, with the exception of Maliki law,
until the child, whether male or female, attains majority. As has been stated above
traditional doctrine holds that majority in the case of both sexes is attained at the
latest at 15 years. Upon attaining majority males and females alike may deal with
their own property and will acquire contractual capacity with regard to civil and
commercial contracts (see above for restrictions on the conclusion of a marriage
contract). Obviously if, upon attaining majority, the child is found to be insane, feeble-
minded or severely lacking in their ability to conduct their own affairs by being a
spendthrift or being gullible, the guardian of property may apply to the qadi to extend
the period of guardianship. You should note that the guardian of the property of an
infant or interdicted person (i.e. a person who is deemed not to have full contractual
capacity due to feeble-mindedness, gullibility or being a spendthrift) has a fiduciary
relationship with his ward and is required to take as good care of the property of the
child as he would of his own property.
In Maliki law, however, although guardianship of property will cease in the case of
males in the same way as the other schools, females acquire contractual capacity only
on contracting a valid marriage and the consummation of that marriage. Even then a
married Maliki woman may not validly dispose of more than one-third of her estate
gratuitously without the consent of her husband.
Further reading
¢ Davis, M.F. ‘Child custody in Pakistan: the role of ijtihad’ (1985) 5 Boston College
Third World Law Journal 119–27.
¢ Mohd Zin, N. ‘For the best interest of the child: the impact on the new approach
of custody order in Malaysian legislation’ (2003) 11 IIUMLJ 63.
¢ Ebrahimi, S.N. ‘Child custody (hizanat) under Iranian law: an analytical

discussion’ (2005) 39(2) Family Law Quarterly 459–76.
1. Under all schools of Islamic law, to whom do the children of a marriage belong?
2. What is hadanah?
3. What are the conditions for a person to exercise hadanah?
4. What rights does the father have over the child during the mother’s
custodianship?
5. Which schools would allow a Jewish or Christian mother to have custody of her
Muslim child?
6. What restrictions does Maliki law place upon a woman’s contractual capacity in
relation to property?

u describe the rules on legitimacy
u outline the principles of hadanah and the qualifications of the custodian
u explain the mother’s right of custody
u describe the rules for the guardianship of property.

Compare and contrast the rights of the mother and the father in relation to their
children.

Explain the right of the mother to the custody of her infant children, describing the
duration of her right in the law of the different schools and the requirements which
the mother must meet before exercising her right of custody. Discuss the nature of the
father’s right of guardianship.
Reflect and review



I can describe the rules on legitimacy.

  
I can outline the principles of hadanah and the
qualifications of the custodian.   
I can explain the mother’s right of custody.

  
I can describe the rules for the guardianship of
property.   
revise?
Must Revision
revise done
10.1 Legitimacy  
10.2 Custodial care  
10.3 Guardianship of property  

Notes
11 Succession
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
11.1 Intestate succession . . . . . . . . . . . . . . . . . . . . . . . . . . 109
11.2 Testate succession . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
11.3 The estate of a mafqud . . . . . . . . . . . . . . . . . . . . . . . . . 115
11.4 Death-sickness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
11.5 Reforms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
11.6 Waqfs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117

Introduction
It is not possible in this module guide to deal comprehensively with the Islamic
law of succession on death. The law of intestate succession is without doubt the
most complex aspect of Islamic law, hence the well-known Islamic saying that ‘he
who knows the law of inheritance is possessed of half the knowledge of the world’.
Although the law may not seem to modern eyes to be equitable, departing as it so
blatantly does from contemporary concepts of equality, it is nevertheless an almost
perfect legal structure. Once the complex rules are understood it is a supremely
logical system.
Learning outcomes
u distinguish between testate and intestate succession
u understand and explain the formal requirements for a valid will
u assess the effect of non-compliance with these requirements on the will of the
testator
u describe and analyse the principal features of a waqf.
Core text
¢ Baderin, Chapter 5 ‘Law of inheritance’.
Further reading
¢ Khan, H. Islamic law of inheritance. (Karachi: Oxford University Press, 2007)
[ISBN 9780195473360].
¢ Coulson, N.J. Succession in the Muslim family. (Cambridge: Cambridge University

Press, 1971; digitally printed version 2008) [ISBN 9780521088077].
Introduction to Islamic law 11 Succession page 109
11.1 Intestate succession
11.1.1 Origins of the law

A surprisingly large amount is known about the system of succession on death in
pre-Islamic Arabia. Only adult males who were connected to the deceased through the
unbroken male line were entitled to inherit. These males inherited in accordance with
the strict hierarchy known as Al-Jabari’s rule. Priority was determined by three criteria:
class, degree and strength of blood tie.
1. Class. The order of priority was firstly any son and his ascendants, secondly the
father and his ascendants, thirdly the descendants of the father, the brother of the
deceased and their descendants and finally the descendants of the grandfather,
the uncles of the deceased and their descendants. Members of a higher class take
priority over all members of a lower class so that a son takes priority over a father
and a father takes priority over a brother.
2. Degree. Among kinsmen within the same class the nearest in degree to the
deceased excluded all others so that, for example, a son excluded a grandson and a
father excluded the grandfather.
3. Strength of blood tie. This criterion would obviously only apply when the
heirs were in class three or four. Applying the rule, a full brother will exclude a
consanguine brother (i.e. a brother sharing the same father with the deceased but
a different mother) and a full paternal uncle will exclude a consanguine uncle.
With the coming of Islam a new class of heirs came into being, the Qur’anic heirs or
the ahl al fara’id (the obligatory sharers). The verses of the Qur’an which are concerned
with the law of inheritance are considered among the most significant of the so-called
‘reforming verses’.
The Qur’an specifies nine heirs, allotting to each of them a particular fraction or
fractions. The heirs listed in the Qur’an are:
1. the husband
2. the wife
3. the father
4. the mother
5. the daughter(s)
6. the germane or full sister(s)
7. consanguine sister(s)
8. uterine brother(s) (i.e. brother(s) sharing the same mother with the deceased but a
different father)
9. uterine sister(s).
The inclusion of the husband and the wife in the list of heirs marks a breakaway from
the pre-Islamic concept of relationship by blood being the sole basis of inheritance.
The husband is allotted a share of half of his wife’s estate if she dies without
descendants. If there are children surviving the wife, the husband’s share is reduced
to 1/4. The share of the wife is 1/4 of the estate in the absence of children and 1/8 if
children survive the husband. As a Muslim man may have up to four wives at the same
time, the share of the wife may have to be divided so that, in the most extreme case,
each wife will receive only 1/32 of her husband’s estate.
The remaining seven heirs named by the Qur’an are all close blood kinsmen of the
deceased. The father is allotted a share of 1/6 and the mother will take a share of 1/6 if
the deceased is survived by descendants or by two or more collaterals (i.e. brothers or
sisters). Otherwise her share is 1/3. The daughter is given a share of 1/2 of the estate and
if there are two or more daughters the share of the full or consanguine sister is also
1/2 or 2/3 for two or more. Finally, where there is a single uterine brother or sister, they
will inherit 1/6 of the estate. If there are two or more surviving uterine brothers and/
or sisters, they will inherit 1/3 of the estate collectively. The heirs will inherit equally
as there is no provision in the case of uterine heirs that the male will take double the
share of the female.
These nine heirs are the only sharers recognised by the Shi’ah but Sunni Islam quickly
added a further three by the application of the doctrine of qiyas (analogy). These are:
1. the son’s daughters (by analogy with the daughter) who were accorded the same
share as the daughter or daughters as the case may be
2. the paternal grandfather, by analogy with the father, was given a share of 1/6
3. the paternal grandmother, by analogy with the mother, was given a share of 1/6.
The early Muslim jurists – with the Qur’anic verses creating a new set of heirs before
them and a system of agnatic succession in place from the pre-Islamic era – faced
the challenge of reconciling the two regimes. The Qur’an, while naming the nine
new heirs, had laid down no provisions as to a priority of succession. Clearly the son
and agnatic brothers of the deceased were to continue to be important heirs, hence
the verse in the Qur’an commanding that the male be given double the share of the
female. The efforts of the early Muslim jurists to create a law of succession based on
the reconciliation of the pre-Islamic system and the Qur’anic verses resulted in the
Islamic system of inheritance.
In the quest to develop a law of inheritance the Sunni and the Shi’ah adopted different
approaches. Indeed, the differences between the Shi’ah and the Sunni laws of succession
are perhaps the most important differences between the laws of the two sects.
11.1.2 Sunni law

The Sunni doctrine perhaps has its base in Sa’d’s case. The tradition is that Sa’d Ibn
Al Rabi’ died leaving a wife, two daughters and a brother. The brother of Sa’d, in
accordance with the practice of the pre-Islamic era, took possession of the estate
and the widow approached the Prophet asking for his help. It is said that the verse of
inheritance was then revealed and the Prophet ordered the brother to give the widow
of the deceased 1/8 and the daughters of the deceased 2/3 and to keep the remainder
for himself. From Sa’d’s case is derived the so-called golden rule of the Sunni law of
inheritance – first give the Qur’anic heirs their share and then give the residue to the
entitled male agnates. Before this rule is applied, however, it must be established
which of the Qur’anic heirs are entitled to inherit and which of the male agnatic kin are
entitled to the residue. Sunni Islam divides the heirs first into two general categories.
Different terminologies have been used to refer to these categories and, although
none is entirely satisfactory, perhaps the most accurate is the one adopted by Coulson
(1971). He describes the first category as the ‘inner family’, consisting of the Qur’anic
sharers and the male agnatic kinsmen. The second category he calls the ‘outer family’,
which consists of all other kinsmen, such as heirs connected to the deceased through
the female link (cognates) – for example, the daughter’s son or a female descendant of
male agnates, such as the brother’s daughter.
The most complex part of the law of succession is that dealing with the inheritance by
the outer family. However, it is only in extremely rare circumstances that a member of
the outer family will inherit. This is because even a far removed kinsmen, provided he is
linked to the deceased through an unbroken male line, will exclude them. For example, a
daughter’s son will be excluded from succession by the consanguine brother’s son’s son.
Of most importance are the primary heirs. These are the heirs who will always inherit,
as they cannot be excluded by the presence of any other heir. There are six such heirs:
the husband, the wife, the father, the mother, the son and the daughter. Of these heirs,
the husband and the wife always inherit as Qur’anic sharers. The son always inherits
as a residuary. The father and the daughter may inherit sometimes as Qur’anic sharers
and at other times as residuaries. The mother always inherits as a Qur’anic sharer
except in one instance. See Table 11.1 below for an overview of the inheritance of the
primary heirs.
The succession by the primary heirs of Sunni Islam can perhaps best be explained by
way of examples.
1. A is survived by a daughter and a son. In this case, in the presence of the son,
the daughter cannot inherit her Qur’anic share of 1/2 as the Qur’an enjoins that
the male should inherit double the female. Accordingly, the son will convert the
daughter into a residuary with himself and the son will take 2/3 of the estate and
the daughter 1/3.
2. B is survived by a son and a father. In accordance with the golden rule the father
will first take his Qur’anic share of 1/6 and the son will take the residue of 5/6 as the
nearest male agnatic kinsman.
3. C is survived by his daughter and father. The daughter will take her Qur’anic share
of 1/2. The father will take initially his Qur’anic share of 1/6 and will then take the
residue of the estate in his second capacity as a residual heir.
4. D is survived by a daughter and a mother. The daughter will take her Qur’anic share
of 1/2. The mother in the presence of a descendant will take her minimum Qur’anic
share of 1/6. In the absence of any male agnatic kinsman the residue of the estate
will be divided between the mother and the daughter in accordance with their
original shares. The daughter’s share will thus become 3/4 of the estate and the
mother’s share 1/4.
5. E is survived by a daughter and a husband. The daughter will take her Qur’anic
share of 1/2 and the husband will take 1/4 in the presence of the daughter. The
residue of the estate will then pass to the daughter, as the share of the spouse
relict (i.e. the surviving spouse), be it husband or wife, and whether it is the
minimum or the maximum share, may never be increased.
Table 11.1 The primary heirs in Sunni law.

Note: h.l.s. = how low so ever, h.h.s. = how high so ever i.e. descendants or ascendants
of any degree
Capacity in which
Heir Qur’anic share Excludes Comments
inherits
Husband Qur’anic sharer 1/2 in absence of children None The share of the
or agnatic grandchildren husband and the wife
h.l.s. may not be increased
by radd when the estate
1/4 in the presence of
is undersubscribed.
children or agnatic
Both their shares
grandchildren h.l.s.
may be reduced by
’awl when the estate
Wife Qur’anic sharer 1/4 in the absence of None
is oversubscribed. If
children or agnatic
there are several wives
grandchildren h.l.s.
surviving they will share
1/8 in the presence of the Qur’anic share of 1/4
children or agnatic or 1/8 equally between
grandchildren h.l.s. them.
Father Qur’anic sharer in the 1/6 All collaterals and their Inherits with true
presence of child or descendants. grandmother on the
agnatic grandchild. With maternal side and, in
Paternal ascendants and
daughter and agnatic Hanbali law only, with
their descendants.
granddaughter takes his own mother as a
first as Qur’anic sharer, true grandmother. The
then takes as nearest grandmother takes 1/8 as
residuary. In absence a quasi-Qur’anic sharer.
of children and agnatic
grandchildren takes as
residuary heir.
Capacity in which
Heir Qur’anic share Excludes Comments
inherits
Mother Qur’anic sharer 1/3 in the absence of None other than Where the only heirs are
children or agnatic grandmothers. the spouse relict and the
grandchildren h.l.s. or father and the mother,
two or more collaterals the mother will inherit
of whatever blood tie. 1/3 of the residue after
the spouse relict has
1/6 in all other cases.
taken their share.
Son Always a residuary. — All heirs except the Legislation in various

Converts daughter into primary heirs and the countries (Egypt, Syria,
residuary with him and paternal grandfather Tunisia, Kuwait, Morocco,
takes double her share. h.l.s. in the absence Oman) has provided that
of the father, and an orphaned grandchildren
entitled grandmother shall inherit as obligatory
in the absence of the legatees. In Pakistan,
mother. orphaned grandchildren
will inherit per stirpes
(i.e. as representatives of
their deceased parent).
Daughter Qur’anic sharer in 1/2. Two or more Uterine collaterals. A If the daughter inherits
absence of son. daughters will inherit 2/3 single daughter in the with germane or
equally between them. absence of a son or a consanguine sisters and
son’s son will inherit there is no male (i.e. a
with a son’s daughter, son, a germane brother
the daughter taking 1/2 or a consanguine
and the son’s daughter brother) to agnatise
taking 1/6. Two daughters any of them, the sister
will exclude a son’s will be converted into a
daughter unless a son’s residuary heir.
son is present to convert
her into a residuary.
11.1.3 Shi’ah law

As has been stated above, the greatest difference between the law of the Sunni and
the Shi’ah is in the provisions relating to succession on death. It has been said that
the jurists of Sunni Islam interpreted the Qur’anic verses on inheritance, in which the
Qur’anic sharers are specified, as amending legislation and developed a system to
combine the new Qur’anic sharers with the former agnatic heirs, who were the sole
persons to inherit in pre-Islamic Arabia. The Shi’ah, on the other hand, could be said
to have held the Qur’anic verses to be repealing legislation and have developed their
system of intestate succession by developing a hierarchy of classes with no preference
given to the male agnatic kin.
The spouse relict in Shi’ah law inherits with any member of any class but a deviation
from Sunni doctrine is that the childless widow may never inherit from the landed
property of her husband. The heirs who are in class one are the immediate parents
(the mother and father) and the sons and daughters of the deceased and their issue
how low so ever. Within the class the nearer in degree will exclude the more remote
so that a daughter will exclude the son’s son. If any heir in class one survives the
deceased they will exclude the members of the lower classes. Class two heirs are the
grandparents on the maternal and paternal side and the collaterals of the deceased,
germane, consanguine and uterine. Any heir in class two will exclude all members of
class three, which comprises the uncles and aunts of the deceased and their issue.
11.1.4 Doctrine of return (radd) and doctrine of increase (‘awl)

When the only heirs are Qur’anic sharers, instances may arise when the estate is
under- or over-subscribed. If the estate is under-subscribed, for example where the
only heirs are a mother and a daughter, the doctrine of radd (return) will be applied
and the shares of the heirs will be increased proportionally. Thus, in the case of a
mother and a daughter as the only heirs, the mother’s share of 1/6 and the daughter’s
share of 3/6 will not exhaust the estate and accordingly their shares must be increased.
This is effected mathematically by changing the common denominator of the
basic shares, in this case, 1/6 and 3/6, to a number representing the sum total of the
collective numerators. Thus, the mother’s share of 1/6 and the daughter’s share of 3/6
will by radd become 1/4 and 3/4 respectively.
If a spouse relict is also present they may never participate in the radd and the
mathematical process of increasing the shares of the other Qur’anic sharers is more
complex. The simplest way of effecting distribution is that explained by Coulson (1971).
First the Qur’anic share of the spouse relict is allotted and then the residue of the
estate is divided between the other heirs, in accordance with the ratio of their original
shares. For example, if the heirs are a husband, a daughter and a mother, the husband
will take his share of 1/4. Of the remaining residue the daughter will take initially 3/6
and the mother 1/6 which will then be increased to 3/4 of the residue for the daughter
and 1/4 of the residue for the mother. Thus, the result will be the husband takes 4/16,
the daughter takes 9/16 and the mother takes 3/16.
The Maliki school rejects the doctrine of radd and, in the absence of any residuary heir,
the residue will go to the public treasury.
In practice, in Sunni law the doctrine of radd will rarely be invoked as any male agnate,
however far removed from the deceased, will be entitled as a residuary heir. In Shi’ah
law on the other hand radd is more likely to be applied. For example, the presence of a
daughter or the mother of the deceased will exclude all heirs of the second and third
classes, whether they are male agnates or not. Also, a daughter in Shi’ah law will, as we
have seen, also exclude all grandchildren, whether male or female.
Where an estate is over-subscribed in Sunni law the shares of all the Qur’anic heirs
must be reduced proportionally using the same mathematical process as in radd. This
process is called ‘awl. For an example of the application of ‘awl consider the situation
if the heirs of the deceased are a husband, mother, father and two daughters. In this
case the basic share of the husband is 1/4 (3/12), the mother’s share is 1/6 (2/12), the
father’s share is 1/6 (2/12) and the two daughters’ share is 2/3 (8/12). By the process
of ‘awl their shares are reduced so that the husband will take 3/15, the mother 2/15,
the father 2/15 and the two daughters 8/15. In Shi’ah law in such a case the burden
of reduction would be borne only by the daughters and the other sharers would
take their basic Qur’anic shares.
It will be clear from this brief introduction to the law of succession that the law of the
Shi’ah is more favourable to female heirs, in particular to the daughter and the mother
of the deceased, than is the Sunni law. Table 11.2 provides a few examples that will
perhaps further clarify the position.
Table 11.2 Examples of the differences between Sunni and Shi’ah law when the
mother or daughter is an heir.
Sunni Shi’ah
Mother 1/6 All

Germane brothers Residue
The mother is reduced to her Mother, being a class one heir, excludes brothers, who are
minimum Qur’anic share by class two heirs
presence of two brothers
Mother 1/6 1/3 Qur’anic share

Father 1/3 1/6 residue
Husband 1/2 as Qur’anic sharer 1/2 Qur’anic share
This distribution is in accordance
with the Umariyyatan whereby
the mother is restricted to a share
of 1/3 of the residue of the estate
only, not to 1/3 of the whole estate
Mother 1/3 as Qur’anic sharer All as class one heir

Father’s father Residue as nearest male agnate Excluded as class two heir
Mother 1/6 minimum Qur’anic share in 1/6 minimum Qur’anic share in presence of brothers and
presence of brothers the father
Two consanguine Excluded by father Excluded by mother and father
brothers
Residue Residue
Father
Daughter 1/2 as Qur’anic sharer All

Son’s son Residue as nearest male agnate Both are class one heirs but daughter excludes son’s son
as she is nearer in degree
Daughter 1/2 as Qur’anic sharer 3/4 Qur’anic share increased by radd

1/4 Qur’anic share increased by radd
Father 1/6 as Qur’anic sharer and residue
as nearest male agnate
Daughter 1/2 as Qur’anic sharer All as class one heir

Germane brother Residue as nearest male agnate Excluded as class two heir
Daughter 1/2 as Qur’anic sharer All

Son’s daughter 1/6 to couple the 2/3 share of Excluded although a class one heir as daughter is nearer
daughters in degree
Both shares will then be increased
by radd except in Maliki law
where the residue goes to the
public treasury
Daughter’s daughter Excluded as member of outer All

family
Son’s son’s son All as nearest male agnate Excluded although a class one heir as daughter’s
daughter is nearer in degree
Daughter’s daughter Excluded as outer family 1/3 as representative of daughter

Son’s daughter All – 1/2 as quasi-Qur’anic sharer 2/3 as representative of son
and residue by radd except in
Maliki law
11.2 Testate succession

Subject to the limitations described below, all sane Muslims who have attained
majority may dispose of their property by will. The will can be made either orally
or in writing and does not require any particular form or formula. However, the
testamentary powers are restricted in respect of the persons to whom and the extent
to which the property may be bequeathed. A bequest to an heir is not valid unless the
other heirs consent to the bequest after the death of the testator. However, the Ithna
Ashari sect of the Shi’ah permits a bequest to any heir as long as it does not exceed 1/3
of the testator’s estate.
All schools and sects agree that Muslims cannot dispose of more than 1/3 of their estates
by will. However, any bequest in excess of 1/3 of the testator’s estate is not rendered void
ab initio but is instead reduced to 1/3 of the estate. The remaining 2/3 must go to the heirs
in the shares described above. A bequest in excess of the bequeathable 1/3 can also be
validated if the heirs consent to it after the death of the testator.
11.3 The estate of a mafqud

As mentioned in Chapter 3, all the schools and sects recognise the principle of istishab
(presumptions known to have existed in the past continue to exist until the contrary is
proved). The Shi’ah view of istishab results in the law of this sect differing from that of
the Sunni schools when succession to the estate of a mafqud (missing person) opens.
All the schools and sects of Islam agree that until the judicial decree of the death of the
missing person is given, the presumption of istishab deems that the missing person is
still alive. Succession to the mafqud’s estate will only open upon the decree of death.
However, if between the date of the mafqud’s disappearance and the decree of death,
the mafqud himself becomes an heir (for example if his son died a share of 1/6 of the
estate would be set aside for the mafqud) the views of the schools differ.
The Sunni view is that the doctrine of istishab would not be applied to enable this
share of 1/6 to form part of the estate of the mafqud, which will be distributed at the
issuing of the decree of death. The Sunni view is that istishab acts as a shield to protect
the estate of the person who is missing but it cannot be used as a sword to enable
the mafqud to succeed to the estate of another person. The Shi’ah, however, apply
the presumption of istishab rigidly and hold that during the time of the mafqud’s
disappearance, until the decree of death is declared by the court, he must be
presumed to be alive. Therefore, applying that principle, he would have been deemed
alive at the time of the death of his son and will therefore inherit from the son’s estate.
Thus, if A went missing in 1990 and at the time of disappearance he had two sons and a
grandson, when one son, the father of his grandson, died five years later, 1/6 of his son’s
estate would, according to all schools and sects, have been set aside for A. However, if
in 2010 a court decrees the death of A, a dispute arises between the surviving son and
the grandson of the mafqud A as to entitlement to the 1/6 share set aside. In Sunni law
the presumption will be that the mafqud died at the date of his disappearance and the
burden of proof will lie on the surviving son to prove that in fact the mafqud was alive
on the death of the second son. In Shi’ah law, on the other hand, the presumption will
be that the mafqud survived until the court’s decree of death and the burden of proof
will lie on the grandson to prove that the mafqud had died before the death of the
second son.
11.4 Death-sickness
A unique feature of Islamic law is the interdiction imposed on a person who is deemed
to be in the so-called ‘sickness of death’. This interdiction is imposed in order to
safeguard the interests of the legal heirs, whose entitlement to a share of the estate of
the person in the death-sickness is deemed by the jurists to be beginning to vest. The
first criterion that must be satisfied in death-sickness is that the person actually dies
from the sickness, so establishing that a person was at any particular time in death-
sickness is necessarily retrospective. Death-sickness may not extend beyond one year
and the sickness from which the person is suffering must be likely to kill. In the law of
the Indian sub-continent there is a further requirement that the person suffering must
have a subjective apprehension of death.
The major restriction upon those in death-sickness is that they may not dispose
gratuitously of more than 1/3 of their property by analogy with the law on bequests.
Gifts in death-sickness, being completed transactions, take precedence over bequests.
Therefore, if a person has made a gift of 1/3 of the estate during death-sickness and has
also made a bequest, the bequest will fail as the ‘disposable’ 1/3 of the estate has been
exhausted by the gift in death-sickness.
A contract of sale concluded by a person in death-sickness for a price below the

market value will be considered as having a gratuitous element. As in the case of a
bequest which is in excess of 1/3 or is made to an heir, a gift in death-sickness is not
void but is ultra vires and can accordingly take effect only if the legally entitled heirs
give their consent.
11.5 Reforms
Although many reforms have taken place in the areas of family law concerned with
marriage and divorce, reforms in the area of succession have been limited – no doubt
partly because precise rules have been laid down by both the Qur’an and the Sunnah.
When Iraq embarked upon a programme of unification of the law, the law of
succession was amended and a system of inheritance by class, as in Shi’ah law, was
introduced. However, in order not to offend the Sunni population, no reference was
made to the fact that the inspiration for the reform was Shi’ah law. Although this law
has been in place since 1957 it appears that many courts still distribute an estate in
accordance with traditional Hanafi law if the deceased was a Hanafi.
Tunisia, traditionally a Maliki country, now has a law of succession on death which,
in the majority of cases, restricts succession to the immediate family. This means
that if, for example, a person is survived only by daughters and no sons, the
daughters will take the residue of the estate in addition to their Qur’anic portions
unless the other heirs present are sons or grandsons how low so ever or the father
or paternal grandfather.
Many reformers in the Muslim world believed that the rigid application of the principle
that the ‘the nearer excludes the more remote’ (a rule accepted, although with a
different interpretation, by Sunni and Shi’ah alike) was inequitable in the case of
grandchildren of the deceased whose parents had died beforehand. They held that
the grandchild was being disadvantaged merely because his or her parent had pre-
deceased their own parent. The first reform took place in Egypt with the enactment
in 1946 of the Law of Testamentary Dispositions. The Law provides that where the
deceased has failed to make a bequest in favour of an orphaned grandchild who is not
a legal heir (e.g. a son’s son where there is also a son surviving), the grandchild will
be entitled to the share the dead parent would have received or to a share of 1/3 of
the deceased’s estate, whichever is less, by way of an obligatory bequest. Any smaller
bequest or a gift inter vivos will be offset against the obligatory bequest. The obligatory
bequest will take precedence over any other bequest that has been made, even if
these are for charitable purposes. Note, however, that if the deceased has made a will
in relation to part of the estate, for example 1/3 in favour of a charity, when calculating
the share the parent of the grandchild would have inherited had they survived, the
provisions of the will must be taken into account.
For example, say the deceased has made a bequest of 1/3 in favour of a charity and he
dies survived by two sons and a grandson who is the child of his pre-deceased son.
In calculating the share which the deceased parent of the grandchild would have
taken, the provisions of the will must be considered, as the share of the deceased
parent would have been 1/3 of the estate of his father after the will had taken effect.
He would therefore have inherited 1/3 of 2/3 of the estate (i.e. 2/9 of the total of the
estate). Accordingly, the orphaned grandchild will be entitled to a share of 2/9 of his
grandfather’s estate. The question now arises whether or not, as this share of 2/9 does
not exhaust the bequest of 1/3 made to the charity, the charity will be entitled to a
bequest of 1/9 of the estate. In our opinion, the better view is that the charity will be so
entitled since this appears to be the most logical solution.
The juristic basis for the reform was the so-called ‘verse of bequest’ in the Qur’an
(Surah 2 verse 180) which enjoins Muslims to make bequests to ‘their close kin’.
Although the Sunni schools of law consider that this verse has been repealed by the
later verses naming the Qur’anic sharers, many jurists within the schools, including
Shafi’i himself, took the view that the verse was repealed only in respect of heirs who
actually received a share of inheritance. The Egyptian reformers cited this minority
view as the basis of their reform. The Egyptian reform was quickly followed by similar
legislation in Syria, Morocco and Tunisia and later by reforms in Kuwait, Oman, Qatar
and the United Arab Emirates.
Article 4 of the Muslim Family Laws Ordinance 1961 of Pakistan also sought to make
provision for orphaned grandchildren. However, the wording of the Ordinance
presented complications and if the ordinary rules of statutory interpretation were to
be applied, the Islamic law of succession as interpreted in Pakistan would have been
thrown into confusion. The Federal Shariat Court, in 2000, declared Article 4 to be
contrary to the principles of Islamic law and stated that it should therefore no longer
be applied. Instead, the court recommended that an adaptation of the Middle Eastern
concept of an obligatory bequest to an orphaned grandchild should be enacted. An
appeal against this decision to the Shariat Appellate Bench of the Pakistani Supreme
Court was dismissed.
1. What are the restrictions imposed on a gift in death-sickness?
2. Are there any restrictions on Muslims’ powers to give away their property as a
lifetime gift?
3. Describe the extent to which the principle that ‘the nearer in degree excludes
the more remote’ has been eroded by legislation in Egypt, Kuwait and Pakistan.
4. Ibrahim died leaving behind the following relatives: his wife; his mother;
his father; one son; one daughter; one full brother; and one full sister. Citing
relevant authorities, explain the specific share of each of these relatives in his
estate under both the Sunni and Shi’ah schemes of inheritance, indicating the
capacity in which each entitled person would inherit.
11.6 Waqfs
The gift of property, whether real or personal, by a Muslim for a purpose that is
recognised by Islamic law as religious, pious or charitable constitutes a waqf (trust).
The dedication of the property has to be permanent both as regards the purpose of
the waqf and as regards the period of the dedication (i.e. the waqf must be established
in perpetuity). The person establishing the waqf loses his ownership of the waqf
property and the property of the waqf cannot be alienated by the former owner, nor
by the administrator of the waqf.
In the Indian sub-continent the Waqf Act 1995 contains a comprehensive list of the
purposes for which a waqf may be created. The list includes, for instance, the support
or building of mosques or colleges, the payment of moneys to the poor and the
provision for reading of the Qur’an in public places.
All sane Muslims who are not a minor may dedicate their property by way of a waqf. No
particular form is required but a waqf created by will or made in death-illness cannot
exceed more than 1/3 of the estate of the donor unless the heirs give their consent
after the death of the testator. A waqf will not be declared invalid only because the
specified objects of the waqf happen to fail. In such a situation the doctrine of cy
près will be applied and the income of the waqf will be applied to objects as near as
possible to the objects that failed.
Further reading
¢ Rahman, H. ‘The role of pre-Islamic customs in the Islamic law of succession’
(1988) 8 Islamic and Comparative Law Quarterly 13–29.
¢ Kimber, R. ‘The Qur’anic law of inheritance’ (1998) 5 Islamic Law and Society
291–325.
Self-assessment exercises
1. What is a waqf?
2. For what purposes can a waqf be created?
3. Are bequests to a waqf exempt from the 1/3 restriction on testamentary

dispositions?
4. Can adult Muslims give away their entire property by way of gift to a waqf or can
their heirs prevent this, so that they are not deprived of their Qur’anic share of
the inheritance?

u distinguish between testate and intestate succession
u understand and explain the formal requirements for a valid will
u assess the effect of non-compliance with these requirements on the will of the
testator
u describe and analyse the principal features of a waqf.

Explain the limitations imposed by Islamic law on adult Muslims wishing to divest
themselves of their entire property by:
1. bequeathing everything to a local mosque after their death
2. using all their property during their lifetime to establish a school for orphans.

1. Explain the restrictions placed on Muslims in respect of bequeathing their
property. Explain that Islamic law is a law of forced succession and that
testamentary freedom is restricted.
2. Explain the right of Muslims to divest themselves of their property in any way they
wish during their lifetime. Explain any interdiction which may apply to prevent
such gifts.
Reflect and review



I can distinguish between testate and intestate

succession.   
I can understand and explain the formal

requirements for a valid will.   
I can assess the effect of non-compliance with these

requirements on the will of the testator.   
I can describe and analyse the principal features of

a waqf.   
revise?
Must Revision
revise done
11.1 Intestate succession  
11.2 Testate succession  
11.3 The estate of a mafqud  
11.4 Death-sickness  
11.5 Reforms  
11.6 Waqfs  
Notes
12 The courts and procedure
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
12.1 Judges (Qadīs) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
12.2 Evidence and proof . . . . . . . . . . . . . . . . . . . . . . . . . . . 124

Introduction
Judicial procedure is normally classified as procedural law but there are substantive
jurisprudential rules and principles regulating the administration of justice under
Islamic law. At first only the Caliph could administer justice. Under the reign of Caliph
Umar, judges (Qadīs) were appointed. Mazalim courts were also established. These
were connected with the local governors and police courts, could not apply hadd
punishments (see Chapter 4) and accepted a lower standard of evidence. Judges are
enjoined by relevant provisions of the Qur’an and Sunnah to always discharge justice
fairly, but the details of doing so were laid down by the early Muslim jurists. Evidence
in Islamic courts depended largely on the oral testimony of witnesses and written
documents were mistrusted. Confessions and oaths were also important.
Learning outcomes
u explain the functions of a Qadī
u assess the different forms of legal proof
u determine the function of witnesses with reference to both trial and oath
u explain the importance of the oath.
Core texts
¢ Baderin, Chapter 9 ‘Administration of justice’.
¢ Coulson, Chapter 9 ‘Islamic government and Shari'a law’.
Essential reading
¢ Baderin, M. ‘The application of Islamic law in practice’ in Baderin, Islamic law in
practice, pp.xi–xxxix. Available at: http://eprints.soas.ac.uk/18458/
¢ Schacht (1950), Chapter 8 ‘Consensus and disagreement’ (available on the VLE).
¢ Anderson, J.N.D. ‘Muslim procedure and evidence’ (1949) 1 Journal of African

Administration 123–129 and 176–183 (available on the VLE).
Introduction to Islamic law 12 The courts and procedure page 123
12.1 Judges (Qadīs)

The position of courts and of legal procedure in Islamic law is closely related to
the historical development of Islam. Like the legal systems of ancient Rome and
Greece (and also Europe in the Middle Ages), Islamic law did not provide for a proper
separation between judicial and executive powers. At the beginning of Islam it was
the Caliph who administered justice. It was only under the rule of the Caliph Umar that
judges were appointed. However, these judges, referred to as Qadīs, were regarded as
the delegates of the Caliph or of the governor of a province. A Qadī court was usually a
single-judge court with general jurisdiction – there were no specialist courts dealing,
for instance, with just criminal or just civil cases.
The Qadī court fulfilled a number of functions. The most important were:
u the resolution of disputes between two parties either through a compromise

between the litigants or through a coercive judgment
u the enforcement of claims made by plaintiffs once they had been proven
u the protection of the property rights of people with a mental illness, for instance
by appointing a guardian charged with looking after their interests
u the administration of pious foundations (waqfs) if no administrator had been

appointed
u the execution of lawful testamentary provisions of the testator
u the application of hadd punishments (see Chapter 4) and the exercise of police
powers within the area under the Qadī's jurisdiction.
The exercise of the function of a Qadī was regarded as a religious duty. He was obliged
to follow certain basic principles of procedure. The most important was to consider all
people equally and to act impartially. The Qadi was supposed to listen carefully to the
evidence given by the witnesses, to encourage compromise between parties, as long
as the agreement did not violate principles of Islam and was not otherwise illegal, and
to give judgment. Qadīs were not bound by previous judgments and no rule of binding
precedent emerged in Islamic law.
The first function of the Qadī was to establish who, in the case before him, was the
plaintiff and who the defendant. In establishing the role of each party Islamic law
generally follows the principle of Roman law that the person who makes the claim is
the plaintiff and is therefore the party who bears the burden of proof. The party who
denies a claim is the defendant.
The courts of the Qadīs were not the only organs for the administration of justice.
Because of the position of the Qadīs under the Ummayyad regime as appointees of the
local governor and, in many instances, the mere secretaries of the governor, it was felt
that cases involving parties of high social or political status should be dealt with by a
person of higher status than the Qadī. Thus, the Mazalim courts came to be established.
These courts were sometimes presided over by the governor. However, the law they
applied was, in theory at least, Islamic law or the Shari‘ah as understood in the region.
The police also had their own courts. These courts were not empowered to apply the
hadd punishments but could hear evidence which did not conform to the stringent
standards of the Shari‘ah courts. Thus, in cases of theft the police courts could hear
hearsay evidence and circumstantial evidence, whereas the Qadī courts (bound by
the stringent rules of Shari‘ah evidence) could only hear direct evidence by testimony
from witnesses of the ‘highest moral probity’. The police courts were entitled to apply
‘discretionary punishments’ if they found the accused guilty, but only the Qadī courts
could impose a hadd penalty.
In Saudi Arabia at the present time the Shari‘ah courts are still the courts of general
jurisdiction. There are, however, tribunals created by various regulations which
have jurisdiction to hear cases in certain specific areas. Thus, for example, in 1967
the Commission for the Settlement of Commercial Disputes was established with
jurisdiction to decide litigation in private commercial disputes. However, cases in
which the government of the state of Saudi Arabia is a party go before the Grievance
Board. The Grievance Board appears to be the present-day successor of the Mazalim
jurisdiction of early Islam.
Further reading
¢ Liebesny, Chapter 11 'Procedure before the westernization of the law'.
¢ Powers, D.S. ‘On judicial review in Islamic law’ (1992) 26(2) Law & Society Review
315–41.
¢ Amedroz, H.F. ‘The office of Kadi in the Ahkam Sultaniyya of Mawardi’ (1910)
Journal of the Royal Asiatic Society of Great Britain and Ireland 761–96.
¢ Amedroz, H.F. ‘The Mazalim jurisdiction in the Ahkam Sultaniyya of Mawardi’

(1911) Journal of the Royal Asiatic Society of Great Britain and Ireland 635–74.
¢ Haneef, S.S.S. ‘The structure and procedure of the Shari‘ah courts: historical
dynamics and some contemporary practice’ (2009) 32 Hamdard Islamicus 7–39.
¢ Bauer, K. ‘Debates on women’s status as judges and witnesses in post-formative

Islamic law’ (2010) 130 Journal of the American Oriental Society 1–21.
12.2 Evidence and proof

Once the roles of plaintiff and defendant had been established the plaintiff was
required to prove his claim through the testimony of witnesses. To give evidence
before an Islamic court the witnesses had to possess the quality of adalah (i.e be a
Muslim of the highest moral probity). The testimony of a woman was of half the value
of that of a man. However, in cases where only women would have knowledge the
testimony of two women was acceptable. In most cases the testimony of two adil
witnesses was required, although in cases involving property the testimony of one
witness and the oath of the plaintiff was sufficient.
Islamic jurists distrusted documents because they could be tampered with or could
be forged. For this reason the jurists accepted only three legal means of proof: the
testimony of a witness, a confession and an oath. The reluctance of the jurists to
accept written documents as evidence brought them in conflict both with the Qur’an,
that enjoins the writing down of the contents of a contract, and with general legal and
commercial practice, where written documents were widely used. Islamic procedural
law developed a compromise to overcome this conflict: documentary evidence was
adduced from the proof through a witness. The same principle applies to the drafting
of contracts; two honourable persons should witness the contract.
The use of witnesses and the oath is therefore an important area of Islamic procedural
law. The person making a claim (the plaintiff) has to be able to prove his claim through
witnesses. Confronted with a claim the defendant is required to take an oath denying
the claim. If he refuses to take the oath judgment is given for the plaintiff. Otherwise
the matter will proceed to trial where the plaintiff calls his witnesses. As mentioned
above, the evidence of women is accepted, but the testimony of two women is
needed to rebut the evidence of one man.
The Qadī examined the reliability of witnesses on the basis of their moral standing and
was empowered to reject the evidence depending on the result of his enquiry. As a
result, professional witnesses emerged whose moral standing and integrity had been
established by a Qadī and whose testimony could therefore not be rejected. Their
function was not unlike the function of a notary in English law.
The second method of ensuring that the oral evidence given in court represents the
truth is to require witnesses to take an oath. The oath taken by the plaintiff or the
defendant has to be supported by witnesses in certain circumstances. The support of
witnesses is required for cases involving serious allegations such as bodily hurt, theft
and homicide.
Introduction to Islamic law 12 The courts and procedure page 125
Further reading
¢ Ahmad, N. ‘Comment on women’s testimony in Islamic law and misconceptions:
a critical analysis’ (2011) 6 Religion and Human Rights 13–23.
¢ Badawy, T. ‘Towards a contemporary view of Islamic criminal procedures: a focus

on the testimony of witnesses’ (2009) 23 Arab Law Quarterly 269–305.
Self-assessment exercises
1. What was the role of the Qadī in the administration of justice?
2. Why are witnesses so important in Islamic procedural law?
3. Describe the role of oaths in the Islamic law of evidence.

u explain the functions of a Qadī
u assess the different forms of legal proof
u determine the function of witnesses with reference to both trial and oath
u explain the importance of the oath.

Discuss the role played by witnesses in a case before an Islamic court.

You should discuss the capacity required to be a witness under Islamic law and the
reasons why Islamic law places so much importance on oral rather than documentary
evidence. The impact of the stringent requirements imposed on witnesses, especially
in criminal litigation, should be discussed.
Reflect and review



I can explain the functions of a Qadī.

  
I can assess the different forms of legal proof.
  
I can determine the function of witnesses with
reference to both trial and oath.   
I can explain the importance of the oath.   
revise?
Must Revision
revise done
12.1 Judges (Qadīs)  
12.2 Evidence and proof  

Introduction to Islamic law page 127
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Introduction to

u Doreen Hinchcliffe, PhD, Barrister at Law, Gray’s Inn, London.

Published by: University of London

2 Introducing Islamic law . . . . . . . . . . . . . . . . . . . . . . . . . . 9

3 The origins, sources and evolution of Islamic law . . . . . . . . . . . . 19

5 Civil law: contracts and torts . . . . . . . . . . . . . . . . . . . . . . . 47

6.5 The effects of impediments to marriage . . . . . . . . . . . . . . . . . . . 62

7 The incidents of a Muslim marriage . . . . . . . . . . . . . . . . . . . 67

8 Stipulations in marriage contracts . . . . . . . . . . . . . . . . . . . . 79

12 The courts and procedure . . . . . . . . . . . . . . . . . . . . . . . 121

Courses on which this module is offered

Notional study time

MODULE PURPOSE AND OVERVIEW

LEARNING OUTCOMES: KNOWLEDGE

1. Detailed knowledge and critical understanding of the sources, methods and

3. Detailed knowledge and critical understanding of the main features of the

4. Detailed knowledge and critical understanding of specific substantive topics

LEARNING OUTCOMES: SKILLS

6. Articulate well-argued solutions to complex legal problems in the areas of Islamic

7. Reflect on learning, identifying areas for improvement in Islamic law, particularly in

BENCHMARK FOR LEARNING OUTCOMES

LEARNING AND TEACHING

The Laws Virtual Learning Environment

u a module page with news and updates;

u a complete version of the module guides;

u mini lectures are provided in some modules;

u past examination papers and reports;

The Online Library

u the professional legal databases LexisLibrary and Westlaw;

u cases and up-to-date statutes;

u key academic law journals;

u links to important websites.

Summative assessment is through a three hour and fifteen minute unseen

1.1 What is Islamic law? . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

1.2 How to use this module guide . . . . . . . . . . . . . . . . . . . . . . . 4

1.3 Three short background readings . . . . . . . . . . . . . . . . . . . . . 5

1.4 Introductory activity . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

1.5 The examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

In an introductory module like this one, we cannot hope to do complete justice to

1.1 What is Islamic law?

1.1.1 A study of religion as much as law

1.1.2 Aims of this module guide

We have attempted to include guidance by way of sample examination questions

1.2 How to use this module guide

1.3 Three short background readings

¢ Baderin, M.A. ‘Historical and evolutional perceptions of Islamic law in a

¢ Spells, S. ‘Researching Islamic law: an introduction’ (2009) 9 Legal Information

1.4 Introductory activity

¢ Coulson, N.J. A history of Islamic law. (Edinburgh: Edinburgh University Press,

¢ Kamali, M.H. Principles of Islamic jurisprudence. (Cambridge: The Islamic Texts

Essential and further readings

¢ Fyzee, A. (ed.) Outlines of Muhammadan law. (Delhi: Oxford University Press,

¢ Hallaq, W.B. A history of Islamic legal theories. (Cambridge: Cambridge University

¢ Hallaq, W.B. An introduction to Islamic law. (Cambridge: Cambridge University

¢ Hallaq, W.B. Shari’a: theory, practice, transformations. (Cambridge: Cambridge

¢ Schacht, J. An introduction to Islamic law. (Oxford: Oxford University Press, 1982)

¢ Schacht, J. The origins of Muhammadan jurisprudence. (Oxford: Clarendon Press,

¢ Weiss, B. ‘Interpretation in Islamic law: the theory of Ijtihad’ (1978) 26(2)

¢ Welchman, L. Women and Muslim family laws in Arab states. (Amsterdam: