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I- Family
Laws
II-
Criminal
Laws
III- Personal and other Laws
Islamic Laws are also called Shariah or Shariah Laws. Islam has
laid down a comprehensive code of laws in civil, criminal and
family matters. Many volumes can be written to discuss in detail
these laws. In a single volume of an average size like the present
book which is devoted to many subjects relating to Islam, it is
not possible to provide much space to the discussion of Islamic
laws. Therefore, we will discuss very briefly some important laws
of Islam in this chapter.
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I-
Family Laws
Marriage
Islam
considers family as cradle of civilization and marriage as the
foundation of family. According to Islam marriage is essential.
The Prophet of Islam is reported to have remarked: “Nikah
(marriage) is my Sunnah and whosoever rejects my Sunnah is not
from me.” The Qur’an says: “Marry those among you who are single”
–(24:32). The Arabic word Ayyama means single or solitary. A
single person, may be a man or a woman, should be married. He or
she may be single on account of having not yet married or on
account of dissolution of his or her marriage by divorce or by
death of the other spouse. Whatever may be the reason for being
single, he or she is supposed to marry or remarry. Even poverty is
no excuse or justification to abstain from marriage, as the Qur’an
says in this very verse “If they are in poverty, Allah will give
them means out of His grace”. Monasticism which is considered to
be an ideal way of life in some religions like Christianity is
discouraged by Islam. Similarly life of celibacy is not encouraged
as the prophet of Islam strongly objected to one of his companions
living such life. According to a Hadith, one makes his religion
half perfect by marrying and he would meet Allah pure and
purified. There is consensus of Muslim jurists that marriage is
‘Sunnat Muwakkidah’ (recommended practice). Institution of
marriage embraces in itself the character of ‘Ibadah’ as well as
character of ‘Muamlat’. Marriage in Islamic society though
essentially a civil contract is also devotional act.
Islam
permits marriage of widows and divorced women unlike certain other
religions like Hinduism which do not allow such women to remarry.
However, virgins (unmarried women) may be preferred for the first
marriage of a young man since virgins are generally more prolific,
more affectionate and are easily satisfied with little means of
income of the husband.
Islam, as the religion of nature, understands human nature
thoroughly and, therefore, it allows a man and a woman, who want
to marry, to look at each other before marriage. Apparently it may
look rather a liberal and progressive approach which is rejected
by many creeds and customs, but actually it is the correct
approach. Would-be-spouses should see each other and should
exercise their right of choice. On the contrary if they are herded
together forcibly by their parents or guardians, their union is
likely to break apart.
Islamic law has made it compulsory that a woman’s consent must be
obtained before she is married. According to the Ahadith of the
Prophet, the consent of the women, whether previously married or
virgin, is essential for marriage. A virgin may feel shy and keep
quite. If she remains silent that shall be considered her consent,
but if she declines there shall be no compulsion on her. Thus
Islamic law provides clearly a right to woman to exercise her
choice for marriage by saying yes or no. This idea of obtaining
consent has led to the legal concept that for the completion of a
marriage contract there must be proposal (Ejab) from one side and
acceptance (Qabul) from other side. No compulsion or coercion can,
therefore, be exercised to force a woman into marriage against her
will.
Marriage contract like any other civil contract is to be evidenced
by two competent witnesses. This has been emphasized by the
Prophet of Islam and is established by the common practice among
his followers. The verse number 2 of chapter 65 of al-Qur’an also
enjoins upon the believers to call to witness two just men from
among them at the time of divorce.
A
minor girl, when given in marriage by her guardian, has the option
to repudiate the marriage when she attains puberty. The Prophet of
Islam annulled the marriage of a girl who had been given in
marriage by her father, since she disliked it. However,
repudiation must be made immediately after she attains puberty and
before cohabiting with the husband.
Females prohibited to a man for marriage have been mentioned in
detail by the Qur’an in its verses 22,23 and 24 of Chapter 4. The
following women are forbidden to you as commanded by the Qur’an:
-
Your mothers (real mothers).
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Women whom your father married (step mothers).
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Your daughters.
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Your sisters.
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Your father’s sisters.
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Your mother’s sisters.
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Your brother’s daughters.
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Your sister’s daughters.
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Your foster-mothers.
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Your foster-sisters
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Your mother-in-law.
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Your step-daughters born of your women unto whom
you have gone-in.
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Wives of your real sons.
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Two sisters together.
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All married women save those captives whom your
right hands possess.
Certain unions have also been prohibited by Prophet Muhammad
(PBUH). According to the Prophet:
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What is unlawful by reason of consanguinity is
unlawful by reason of fosterage. Foster suckling relationship is
established only when milk is the only food of the child.
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A woman and her paternal aunt cannot be united, nor
a woman and her maternal aunt.
Proclamation and publicity of marriage is very important in Islam
as it dislikes secret marriage. Hosting of Waleema (marriage
feast) is an obligatory Sunnah of the Prophet which should be
performed by the bridegrooms to entertain their relatives and
friends in order to celebrate their marriages. Even Daf beating
and singing is allowed on the occasion of marriage for the purpose
of celebration and jubilation.
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Dower
The
Arabic word ‘Mahr’ is generally translated into English as
‘dower’. Dower has been defined in different ways. According to
one definition, it is a consideration for the surrender of person
by the wife. According to Ameer Ali, dower is a consideration for
wife’s sole and exclusive use and benefit. D.F. Mullah defines
dower’s as “a sum of money or other property which the wife is
entitled to receive from the husband in consideration of the
marriage”. Muhammad Asad writes: “The expression nihlah signifies
the giving of something willingly, of one’s own accord, without
expecting a return for it (Zamakhshari). It is to be noted that
the amount of the marriage-portion or dower, which the bridegroom
has to give to the bride has not been circumscribed by the Law: it
depends entirely on the agreement of the two parties, and may
consist of anything, even a mere token. According to several
authentic Traditions recorded in most of the compilations, the
Prophet made it clear that “even an iron ring’ may be enough if
the bride is willing to accept it. Or, shot of that, even “the
imparting to thy bride of a verse of the Qur’an”.
The
payment of dower by a Muslim husband to his wife is essential
obligation of marriage. The Qur’an and the Prophet of Islam have
laid much stress on dower which a believer is duty-bound to pay.
The amount of dower, however, has not been fixed by either the
Qur’an or the Sunnah. There is no minimum or maximum limit of
dower which is prescribed by Islamic Shariah. The fixation of
amount of dower entirely depends on the agreement of the husband
and wife. It is generally held that the amount should be fixed
according to the means of the husband and keeping in view the
practice in the family.
If a
person divorces his wife before touching her and before appointing
an amount of dower for her, he has been directed to make provision
for her according to his means. But if he divorces her before
touching her and after fixing the amount of dower for her, he is
bound to give half of the amount of dower which has been fixed.
However, if the woman agrees to forgo her rights of accepting this
half dower or the man shows generosity in giving her full dower,
such an accord is permitted by the Qur’an. (Al-Qur’an 2:237)
The
men should give to their wives their dower willingly. But if the
women of their own accord agree to remit the whole or part of
their dower, the husbands must welcome this gesture –(Al-Qur’an
4:4). Caliph Umar and Qadhi Shuraih have decreed that if a wife
remits the dower but later on demands it, the husband shall be
compelled to pay it because the very fact that she demands it is a
clear proof that she did not remit it of her own free will.
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Divorce
The
Arabic word ‘Talaq’ which is translated into English as divorce
means ‘freeing or undoing the knot’ or ‘dismission’ or
‘rejection’. Under Islamic Fiqh, it is a release from marriage
tie. It is the dissolution of marriage between the husband and the
wife by the pronouncement of certain words. Any adult Muslim of
sound mind can divorce his wife whenever he desires, without
assigning any reason. Under Shiah fiqh, intention and free will
are necessary for valid ‘Talaq’ while these are not required under
the fiqh of Sunnis.
The
divorce is the most hated and unpleasant thing in Islam. According
to a well reported Tradition, the Messenger of Allah said: “The
most detestable of lawful things near Allah is divorce.” Despite
that, Islam permits divorce because divorce becomes inevitable in
some extreme situations when it is not possible for the husband
and the wife to pull on together. Divorce is allowed normally when
all the efforts for reconciliation have proved abortive and there
are no chances left for the couple to live together amicably.
To
resolve the differences between the husband and wife, resort can
be made to arbitration. The Qur’an in its verse 35 of chapter 4
instructs its followers to appoint arbiters, one from husband’s
family and one from wife’s family for making reconciliation and
rapprochement. If the parties wish for settlement and peace, the
efforts of the arbiters shall be successful and Allah would effect
harmony between the spouses.
The
method of divorce as propounded by the Qur’an and the Sunnah is
briefly described in these words: “If the husband intends to
divorce his wife, he can do so by making a single pronouncement of
divorce within Tuhr during which he has not had sexual intercourse
with her, and then leave her to observe Iddah. After expiry of
Iddah (three monthly courses) the divorce would attain finality.
The other method is that the husband would pronounce divorce
thrice in three successive Tuhrs, and in this way, the divorce
would become irrevocable after the third pronouncement.” In case
of one or two divorces, the husband retains the right of Rajuah or
reunion within period of Iddah by resuming sexual intercourse or
by verbal retraction. However, after the expiry of Iddah, divorce
becomes irrevocable and the husband’s right of Rajuah stands
forfeited. Now, the couple has the right to remarry if they desire
to live together. But when a husband has repudiated his wife by
pronouncing three divorces, he has no right of revocation, neither
the couple can remarry. In this situation, the parties can remarry
only when the woman marries another husband and the latter dies or
divorces her after actual consummation of marriage. Tuhr is period
of purity between two monthly courses and Iddah is the waiting
period which a divorcee has to undergo before she can contract a
second marriage.
The
procedure of divorce enunciated by the Qur’an and the Sunnah, as
stated above, is spread over a period of almost three months,
during which the husband has a right to revoke the divorce. It has
been done with a view to check hasty, rash or an arbitrary action
on the part of the husband and also to leave the door open for the
parties to reconcile during the period. During Iddah the wife
cannot be expelled from the house and she would be entitled to
full maintenance and also to good treatment.
Those
who pronounce three divorces at a single sitting, they have been
condemned by the Holy Prophet. According to an authentic
Tradition, the Prophet of Islam, when he heard of a man who had
given three divorces to his wife at one time, got up enraged and
said: “Are you playing with the Book of Almighty and Glorious
Allah, while I am still amongst you?” So, the simultaneous
pronouncement of three divorces was treated as a single divorce
during the time of the Prophet and of Abu Bakr and even in the
early days of the caliphate of Umar. Umar reportedly used to whip
such persons who gave three divorces in one sitting. However,
later on, Umar changed his mind when he found that people
frequently divorced by three pronouncements. He, therefore,
ordered to treat three pronouncements as three divorces and made
them operative as a matter of punishment upon those who used this
sinful method.
Al-Qur’an has given the right of obtaining divorce to a wife if
she agrees to pay some ransom or compensation. This is called
Khula. If the husband and wife are not able to keep the limits of
Allah and they agree to dissolve the marriage on the condition
that the wife gives some compensation, such agreement is valid
under law. The jurists are generally of the opinion that such
compensation should not exceed the dower given by the husband to
the wife. Thus the Khula is a kind of facility provided to the
woman to secure divorce from her husband by returning a part of or
full amount of the bridal gift or Mahr if she dislikes her
husband.
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Iddah (waiting period)
Iddah
is the period of waiting or probation during which it is incumbent
upon a Muslim woman, whose marriage has been dissolved by divorce
or death of her husband, to remain in seclusion and abstain from
marrying another man. Syed Ameer Ali calls it ‘interval which a
woman is bound to observe between the termination, by death or
divorce, of one matrimonial alliance and the commencement of
another. Thus, Iddah is the period during which a divorced woman
or a widow is not permitted to remarry.
Period of Iddah in case of a divorced woman with whom marriage has
been consummated and who is still in the age of menstruation is
three monthly courses while in case of a divorcee who is past the
age of menstruation the period is three months. In the case of a
pregnant woman the Iddah is up to her delivery. In the case of a
widow, the waiting period is 4 months and 10 days. In case of a
marriage which has not been consummated, there is no Iddah to be
observed. In the case of a pregnant widow, if delivery or
miscarriage takes place before 4 months and 10 days, the remaining
period will have to be observed, according to some jurists. The
period of Iddah when husband dies after divorce would run from the
day of his death. The primary purpose of the Iddah is two fold:
firstly the ascertainment of possible pregnancy and thus
preventing the confusion of parentage of the would-be baby;
secondly to provide opportunity to the husband and the wife to
resolve their differences and reconcile if the divorce is
revocable. During the period of Iddah, the woman, who has been
divorced by less than three pronouncements and is pregnant, shall
be entitled to have both dwelling and maintenance. A woman
separated by revocable divorce shall also have dwelling and
maintenance, even if not pregnant, during the period of Iddah. As
for a woman whose husband has died, she will have no maintenance
but will have dwelling during the Iddah. In the case of a woman
who has been divorced irrevocably but is pregnant, both
maintenance and lodging are almost unanimously approved by the
jurists.
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Maintenance
The
meaning of ‘Nafqah’, which is the Arabic equivalent of
‘maintenance’, is what person spends on his family. Maintenance
includes food, clothing and lodging. Under Islamic law, a person
is bound to maintain his wife and children and in certain
circumstances his parents. The law regarding maintenance is
briefly discussed as below:
According to some well known Traditions reported in authentic
books of Hadith, the Prophet (may Allah’s peace be upon him)
required his followers to accord their wives the best possible
treatment. He impressed upon men the rights of women regarding
food, clothing and lodging. Even in his famous Farewell Address at
Arafat, the Apostle of Allah did not forget to exhort the
believers to fulfill their obligations regarding the proper
maintenance of their women. The Qur’an also enjoins upon the
believers to accord proper treatment to their wives.
Duty
of providing maintenance to the wife is so important that the
Qur’an makes even a divorced wife entitled to it during the period
of Iddah when the husband would provide her food, clothing and
lodging and cannot expel her from his house (Al-Qur’an 65:1 and
65:6). If she is expecting, the husband is bound to maintain her
till delivery and in case she suckles the child she would be
entitled to receive the due payment for this service (Al-Qur’an
65:6)
The
Qur’an makes it a duty for the pious and God-fearing persons to
make some provision even for those women who have been divorced by
them (2:241).
No
scale or standard has been fixed for maintenance by the Qur’an or
by the Sunnah. However, a lot of guidance has been provided to
determine it in the given circumstances. The Qur’an says: “No one
should be charged beyond one’s capacity” (2:233). At another
place, the Qur’an directs: “Provide for them, the rich according
to his means and the straitened according to his means, a fair
provision” (2:236).
Spending for the maintenance of the children and for their
education and well being, carries higher merit even in comparison
to spending in the way of Allah or spending in emancipating a
slave. A father must provide for the maintenance of children and
in the absence of a nurse, the mother is obliged to suckle her
infant at breast. If the father is poor and incapable of earning,
the mother, if she is rich, is bound to maintain her children. The
liability of a father for the maintenance of his children is not
dissolved even if the children are living with their divorced
mother. In case of father’s death, the mother should bring up her
children till they attain majority instead of contracting a second
marriage.
Children are bound to maintain their parents when the parents have
no property or due to old age or illness they are unable to earn
their livelihood. If the children are prosperous and the parents
happen to be poor, the children are obliged to maintain them and
spend for their comforts even if the parents are capable of
earning. Difference of religion does not relieve children of their
obligation of maintaining the parents. Maintenance of the parents
in case of absentee child may be met out of his property or
effects. According to Hedaya, parents include paternal and
ancestral grandfather and grandmother in the matter of
maintenance.
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Polygamy
The
revealed book of Islam, the Holy Qur’an, allows Muslims to have
more than one wife (two, three or four) at a time. The relevant
verse of the Qur’an reads:
“And
if ye fear that ye will not deal fairly by the orphans, marry of
the women, who seem good to you, two or three or four; and if ye
fear that ye cannot do justice (to so many) then one (only) or
(the captives) that your right hands possess. Thus it is more
likely that ye will not do injustice.” (An-Nisa 4:3)
The
Qur’an in its verse 3 of chapter 4, permits polygamy and
promulgates:
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If you fear that you would not be able to deal
fairly and equitably with the orphans, you should marry the women
who (have these orphans with them and) seem good to you.
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You are permitted to marry even two, three or four
women but not more at a time provided you can treat them justly
and equitably.
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If you have reason to fear that you cannot do
justice with all of them, you should marry only one.
‘Adl
or justice has not been defined in this verse. However, all the
commentators of the Qur’an unanimously hold that justice in this
verse means equality of treatment in food, clothing and lodgment.
Mu’tazilite doctors hold that in addition to food, clothing and
lodging there must be equal treatment in love and affection also.
There
is almost consensus of opinion among all the scholars of the
Qur’an that verse 3 of chapter 4 of the Qur’an permits polygamy.
However, the injunction is in the nature of permission and not in
the nature of order or command. The Qur’an simply permits its
followers to contract plural marriages but it does not command
them to do so. It also restricts the maximum number of wives at
four and makes the permission subject to the condition that the
husband must do justice with all the wives and deal with them
equally. In my view there is another condition or proviso also and
that is that the choice of wives for plural marriages must be from
among the widows or orphan girls. It is only in this sense that
the relevance of the opening sentence of this verse (4:3) is
justified which reads: “And if ye fear that ye will not deal
fairly by the orphans…….”. If this sentence of the verse under
discussion is read and considered with the preceding verse (4:2),
the meanings become more clear. “Give unto orphans their wealth.
Exchange not the good for the bad (in your management thereof),
nor absorb their wealth into your wealth. Lo! that would be a
great sin. And if ye fear that ye will not deal fairly by the
orphans, marry of the women, who seem good to you, two or three or
four ….” (4:2 and 4:3). It is clear from this that the Qur’an is
exhorting its followers to do justice with the orphans who are
under their care. It is against this background that polygamy has
been permitted so that they may be able to do justice with the
orphans and treat them fairly by marrying the mothers or the
sisters of the orphans and thus becoming their close relations. In
that way they would feel and develop love, affection and
tenderness towards the orphans and would treat them kindly as if
the orphans were their own children.
The
Qur’an did not, in fact, introduce polygamy. That existed in
pre-Islamic Arabia and also in the neighbouring communities.
Al-Qur’an actually limited the number of wives, which was
unrestricted among the pagans, to four and also subjected polygamy
to a very strict condition of doing justice between the wives.
Traditions of the Prophet of Islam also support this
interpretation. It is reported that Gailan, the chief of Ta’if had
ten wives when he accepted Islam. The Prophet (Peace be upon him)
allowed him to keep four wives and divorce the rest. The Prophet
(Peace be upon him) also declared: “When a man has two wives and
he does not deal equitably between them, he will come on the Day
of Judgment with a side hanging down.” Thus, he enjoined upon his
companions and followers who indulge in polygamy to deal equitably
with their wives. Polygamy is justified in exceptional
circumstances and in the following situations:
a)
First such exception is war. In case
of war men are generally killed in large numbers. Thus the number
of men is decreased while the number of females increases
specially of helpless widows and orphans. If polygamy is not
permitted to support the widows and the orphans and also to bring
the unmarried women into marriage bond, it would lead not only to
economic misery of many families but also to immoral practices
like prostitution, adultery, sexual anarchy etc. Such a social
disintegration can be averted only if a man is permitted by law to
have more than one wife.
b)
The wife may be sterile and the
natural desire for progeny may lead the husband to contract
another marriage, who does not want to divorce the first wife but
at the same time wants to have children.
c)
Some men may, by nature, be sexually
very strong. So they cannot remain content with one wife. A woman
is disabled on account of menses for almost a week in every month
and besides that, pregnancy, delivery and weaning of the child is
spread over almost a period of more than two years. During these
periods, she is unable to meet the husband’s biological needs.
Hence the need of the husband for the second wife.
d)
The wife may be chronically diseased
and unable to satisfy the sexual urge of her husband. In certain
cases she may be able to perform marital obligations but her
fragile health may not withstand pregnancies and child births.
Hence a second marriage in such a situation may become a
necessity.
e)
Dr. Hamidullah offers yet another
interesting situation which justifies Islam’s permission of
polygamy. He says: “Supposing there is a case, in which a woman
has young children, and falls chronically ill, becoming incapable
of doing the household work. The husband has no means of employing
a maid-servant for the purpose, not to speak of the natural
requirements of the conjugal life. Supposing also that the sick
woman gives her consent to her husband to take a second wife, and
that a woman is found who agrees to marry the individual in
question. Western law would rather permit immorality than a legal
marriage to bring happiness to this afflicted home.”
f)
It is also said that prostitution can
be controlled by the introduction of polygamy.
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Guardianship
The
term ‘guardianship’ means the guardianship of a minor regarding
his person or his property. Islamic Law of guardianship has been
developed by the jurists in the light of the verses of the Qur’an,
the Sunnah of Prophet Muhammad (PBUH) and the practice of
companions of the Prophet. The law recognises three types of
guardianship:
1)
Guardianship of
the
minor in marriage: According to Islamic law, a boy or girl who is
minor is not competent to enter into a contract of marriage, but
he or she may be contracted into marriage by his or her guardian
like father, grandfather, brother or mother.
2) Guardianship
of
the person of the
minor: The mother is entitled to the custody of her male child
until he has completed the age of seven years and female child
until she has attained puberty. The right normally continues
though she is divorced by the father of the child unless she
marries a second husband in which case the custody shall belong to
the father. A father is entitled to the custody of a boy over
seven years of age and of an unmarried girl who has attained
puberty.
3) Guardianship
of the
property
of the minor: There are three class of the guardians of the
property of the minor, namely: Legal or natural guardians;
guardians appointed by the court, and de-facto guardians.
Age
of puberty or the age when a minor attains majority has not been
fixed by the Qur’an or the Sunnah. Views of the jurists differ a
lot. Generally the age of puberty for the purpose of marriage is
considered to be the age of fifteen years while for other purposes
it is eighteen years.
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II- Criminal Laws
Murder
Life
is a trust of Allah and Allah has made it the most sacred.
Therefore, the Qur’an regards the murder of one individual (save
in the course of justice) as the murder of all mankind. The Qur’an
says: …. Whosoever kills a human being for other than man-
slaughter or corruption in the land, it shall be as if he had
killed all mankind and whoso saves the life of one, it shall be as
if he had saved the life of all mankind – (5:32). The security of
life is the most fundamental right of every human being. Human
life is so sacred that it cannot be taken for any reason except in
course of justice for manslaughter or for corruption (fitna) in
the land. According to the Prophet of Islam, life of a man cannot
be taken except for one of three reasons, namely: life for life,
adultery by a married person and apostasy from religion.
The
murder of human being is the greatest sin after the sin of ‘shirk’
(assigning partners with Allah) and is, therefore, unpardonable.
It is the crime against humanity and it is the most heinous
offence. The first of what will be decided on the Resurrection Day
among the people will be about murder. Islam not only forbids
committing of murder but has also forbidden committing of suicide
with equal stress.
Islam
has established perfect equality in the matter of punishment for
the offence of murder. Punishment is equal for all irrespective of
the status of the murderer or the murdered. Though, retaliation (Qisas)
is prescribed in the matter of murder and physical injuries, yet
the acceptance of blood money or giving pardon (afw) is also
recommended.
For
accidental murder or murder by mistake, there is no capital
punishment. The murderer would, however, pay diyat (blood-wit or
blood-money) to the heirs of the murdered and also free a
believing slave. But if the offender cannot find a slave, he
should fast for two consecutive months. Islamic law empowers the
heirs of the victim to remit blood-money and pardon the assassin.
For
intentional murder, Qisas or retaliation is allowed. In fact, for
such murder, the heirs of the slain have three options, i.e.
either to take Qisas and slay the murderer or to take diyat and
accept blood-wit or to pardon and remit blood-wit as charity.
Where
the murderer cannot be detected or found, blood-money shall be
paid by the state from public treasury. Blood-wit is the same in
case of intentional or unintentional murder.
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Theft
The
term ‘theft’ has neither been defined by the Qur’an nor by the
Sunnah. In the common parlance, theft means the act of depriving a
person of his property dishonestly, stealthily and illegally. It
is, thus, an act of taking other’s property without any lawful
claim to it. Protection of property is one of the fundamental
rights of a citizen and the state is duty-bound to safeguard it
from the encroachments of others. A thief infringes the right of a
citizen with regard to his property and deprives him permanently
of his hard-earned belonging. The Qur’an has prescribed very
severe punishment of cutting off the hands of a thief to make him
an example for others and thus create a deterrent effect.
The
Qur’an has not prescribed any value of property the theft of which
makes a culprit liable for the punishment of amputation of hands.
However, Prophet Muhammad (PBUH) has fixed minimum value of
property at one-fourth of Dinar or at three Dirhams for which the
hands of a thief can be cut off. According to another version, the
Prophet decreed that the hand of a thief shall not be amputated
for a thing whose value is less than that of a shield. At that
time the price of a shield, according to Ibn Abbas, was ten
Dirhams, according to Ibn Umar three Dirhams, and according to
Ayesha one-fourth of a Dinar.
Generally the punishment of amputation of hands is not given for
theft of food items, fruits, vegetables, eatables, dry wood,
grass, hay, fish, milk, meat, cooked food, birds, animals grazing
in forest, etc. No such punishment is awarded normally to one who
steals in a journey, expedition or Jihad or to one who commits
theft during a famine. A servant or slave who steals anything
belonging to his master or a person guilty of stealing something
from the house of a relative within prohibited degrees is not
awarded punishment of cutting of limbs. Person guilty of stealing
from public treasury or of misappropriation or of embezzlement or
of corruption is also not liable for this punishment. Needless to
say that such offences and such persons are, however, liable for
Taazir (discretionary) punishment by the judge according to
circumstances.
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Adultery
The
Arabic word ‘Zina’ is used for illicit or unlawful sexual
intercourse between a man and a woman who are not married to each
other. This term stands both for adultery and fornication and does
not make any difference between the two. In English language there
is difference between adultery and fornication. Fornication stands
for illicit relations between two unmarried persons; while
adultery denotes unlawful sexual relationship between the persons,
one or both of whom are married to other or others.
Zina
(adultery and fornication) is the most abominable act and has been
expressly made unlawful by the Islamic penal code. It is one of
the gravest sins and one of the greatest crimes. The revealed book
of Islam strictly prohibits its followers even from going near it
because it is an abomination and evil way. It is one of the crimes
liable for hudood, the punishment for which has been prescribed in
the Holy Qur’an and the Sunnah of the Prophet (PBUH).
The
punishment for the offence of Zina has been prescribed by the Holy
Qur’an (in its chapter 24 verse number 2) at one hundred stripes
for each of the guilty parties. Thus the Holy Book of Islam has
not made distinction between fornication and adultery and has laid
down the punishment of one hundred lashes for a Zani (Adulterer)
and for a Zaniah (Adultereress) who are guilty of this offence.
The Sunnah of the Prophet (PBUH), however, makes distinction
between fornication and adultery by treating the guilty persons
differently on the basis of marital status. If person involved in
Zina is unmarried, he or she is to be punished by one hundred
lashes. But if a person guilty of this offence is married, he or
she will be awarded punishment of stoning to death (rajm).
In
case of rape, the man guilty of forcing the woman is punished
while the woman subjected to rape is let off without any
punishment.
For
establishing the offence of Zina, the Qur’an stipulates (see verse
15 of chapter 4, and verse 4 and 13 of chapter 24 of the Holy
Book) the direct evidence of four competent witnesses instead of
the two required in all other judicial cases. The confession of a
person four times is sufficient evidence for his conviction
provided the confession is being made without any external
pressure, coercion or duress, and also, provided the person making
confession is not mad nor he is in the state of intoxication.
Once
the offence of Zina is established beyond any doubt, punishment
has to be awarded to the guilty parties. No compromise among the
parties, no ransom or expiation, nor remorse or repentance, no
pardon or reprieve, and no promise of good behaviour in future can
avert punishment. It has, therefore, been recommended that this
offence should be concealed, if possible, not only by the persons
involved but also by the people who know about it. Publicity of
this evil in any case is undesirable.
When
the offence of Zina is proved or established and decree of Hadd is
issued, then the prescribed punishment against the culprits shall
be executed publicly. No pity for the guilty parties can withhold
the executioners of punishment from enforcing Hudood of Allah in
accordance with the law.
A
minor or mad or insane person or a lunatic, if involved in
fornication, is not liable for Hadd.
To
punish a married person guilty of adultery some additional
conditions have to be fulfilled. The offender must have been
legally married and must have consummated the marriage. It is also
essential that the offender must have done the act of Zina under
his own free will and not under pressure.
In
case the adulteress is pregnant, she will not be punished till
delivery. Even her punishment shall be postponed till the time
when she has weaned her child and the child is no longer dependent
on the milk of the mother only.
If
the culprit is sick and he is likely to recover, then the
punishment of flogging shall be postponed till his recovery. But
in case the disease is incurable, then a bunch of one hundred
twigs will be struck on his body in one go to absolve him of the
liability of Hadd.
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Wine-drinking
Wine
and other intoxicants have been prohibited by the Qur’an. The word
used by the Qur’an in its verse 219 of chapter 2 and verse 90 of
chapter 5, is Khamr. The word ‘Khamr’ is derived from ‘Khamara’
which means ‘he concealed’ or ‘obscured’. The ‘Khamr’ thus denotes
every substance or intoxicating thing the use of which obscures or
covers the intellect. Hence, the prohibition of intoxicant
promulgated by this verse is not restricted merely to alcoholic
drinks but also includes drugs which have a similar effect. This
is the view based on many authentic traditions according to which
the Prophet is reported to have declared: “Every intoxicant is
unlawful”. “Every liquor which intoxicates is forbidden”. Every
intoxicant is Khamr and every intoxicant is forbidden”. The
Prophet of Islam is also reported to have said: “Wine is made from
grape-syrup, raisins, dried dates, wheat, barley, millet, and I
forbid you from every intoxicant”. According to another tradition,
the Messenger of Allah forbade every intoxicant and everything
which produces languidness. The Prophet also closed the door of
taking wine calling it by another name when he said: “Some of my
people will assuredly drink wine calling it by another name”. The
wine cannot be converted into vinegar and used. Umar is reported
to have defined Khamr as everything that dulls the faculty of
thinking.
Wine
is the mother of many evils (Umul Khabaith). It is one of the
major sins to drink it. According to a tradition of the Prophet of
Islam, a person is not a believer at the time of drinking wine.
Paradise has been prohibited for a habitual drinker. God accepts
repentance of a drinker only for three times and when he takes
wine for the fourth time after repentance, neither his prayer is
accepted nor his repentance is accepted.
Despite condemning wine-drinking in unequivocal terms, the
punishment for drinking has not been prescribed by the Holy
Qur’an. In the Sunnah also, we do not find any definite punishment
for this offence. In almost all cases of wine-drinking which came
to the notice of the Prophet, the Prophet ordered for beating of
the offenders with shoes, sticks and hands. This punishment of
beating of the culprit remained in force during the rule of Abu
Bakr and early part of the caliphate of Umar. But according to
another version, the sentence of 40 stripes was awarded during the
times of Prophet Muhammad and Abu Bakr.
Umar,
the second right-guided caliph of Islam, held consultations with
the companions for fixing the punishment of wine-drinking as the
incidence of such cases was rising. Ali said: My decision is that
you should flog such a person by 80 lashes, for when he drinks, he
becomes intoxicated, and when he becomes intoxicated, he muses,
and when he muses, he tells lies. Umar agreed with Ali and thus
punishment of 80 lashes was prescribed for wine-drinking.
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Gambling
The
word used by the Qur’an for gambling is ‘maisir’ which literally
means ‘getting something too easily’ or ‘getting a profit without
working for it’. Originally, it stood for a game or play with
unfeathered or headless arrows. Gambling can briefly be defined as
wagering money or other valuable things upon the outcome of an
event or making money upon some chance. Thus it is a game of
chance by which you either win or lose. The evil of gambling is in
vogue since the time immemorial. According to a writer: ‘Games of
chance’ are as old and as wide-spread as humanity…..”
The
extent to which gambling prevails in the modern world is difficult
to assess. Most of it is centred in the horse racing. Dice and
wagering are rightly included in the definition of gambling.
Modern forms of gambling are lottery, betting, cross-word puzzles,
card-playing (with bets), prize schemes, etc.
Gambling and all games of chance have been strictly prohibited by
the Qur’an. According to the Qur’an, gambling, as wine-drinking,
is devil’s handiwork through which he seeks to cast enmity among
the people and turns them away from remembrance of God. Gambling,
like drinking, has been declared a major sin and followers of
Islam have been enjoined to refrain from these evils. Thus
gambling and all other games of chance are illegal in an Islamic
society.
Although Islamic penal code recognizes gambling as an offence but
no prescribed punishment (Hadd) has been fixed by the Qur’an or
the Sunnah. Gambling is a crime and is cognizable by the courts of
law in an Islamic state. Since no prescribed (Hadd) punishment has
been fixed, therefore, according to the jurists, punishment for
this offence is discretionary (Tazir). The judge (Qadhi) would
award suitable punishment to a culprit keeping in view the nature
and extent of crime by exercising his discretion judiciously.
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III- Personal and Other Laws
Inheritance
Islam’s law of inheritance is very detailed and sometimes very
complicated. It is not possible to do justice with it in a short
space. In this section, therefore, only fundamental principles of
law of inheritance, as laid down by the Qur’an and the Sunnah, are
described.
1.
It has been ordained by the Holy
Qur’an in its verse number 7 and 8 of chapter 4, that the male as
well as the female heirs are entitled to inherit the estate
(according to their prescribed shares) left by their deceased
parents and near kindred. It has been further enjoined upon the
believers to bestow something on the kinsfolk, orphans and the
needy who are present at the time of division of the heritage.
2.
The verse
number 11 of chapter
4 of the revealed book of Islam prescribes the shares of the
children (descendants) and parents (ascendants) of the deceased.
These shares are:
-
Share of the male child would be
equal to the shares of two female children.
-
If there are two or more daughters
but no son, the daughters would inherit two-third of the estate.
-
If there is one daughter and no son,
the daughter would get one half of the heritage.
-
If the deceased has a son, his father
and mother (each) would have one-sixth of inheritance.
-
If the deceased have no son and
(only) his parents are his heirs, then mother would get one third
and the remaining portion would go to his father.
-
If the deceased has brethren (but no
children) then his mother would get one-sixth and the balance
would be inherited by his father.
3.
Verse No. 12 of chapter 4 of the Holy
Book of Islam prescribes shares of the husband and the wife. It
also prescribes the shares of the distant kindred in case the
deceased has no children and parents to survive him. These shares
are mentioned as under:
-
If the wife dies
and leaves no child, the husband would
inherit one half of her heritage.
-
If the wife dies and leaves a child
or children, then the share of the husband would be one fourth.
-
If the husband dies and leaves no
child, the wife or the wives would get one fourth of his estate.
-
If the husband dies and leaves a
child or children, then the wife or wives shall get one eighth of
his heritage.
-
If the deceased leaves neither
parents nor children to inherit him, then his distant heirs shall
inherit him.
-
If such a deceased is survived by a
uterine brother or a uterine sister, then each of them shall get
one sixth in his or her heritage.
-
If such a deceased is survived by
more than two brothers and sisters on mother’s side, then they
will be sharers in one third of his or her heritage.
4.
Verse No.
176 of chapter 4 deals with the division of inheritance of a
person who is not survived by any child (and not survived by
parents). In that situation, the distant kindred of the deceased
would succeed him. The estate of such a person shall be divided as
under:-
-
If a man dies childless and has a
sister, her’s is half the heritage.
-
If such a man has two sisters, then
they would inherit two-third of the estate.
-
If such a man is survived by more
brothers and sisters, then the heritage shall be divided among all
on the basis of the principle that the share of one male would be
equivalent of the shares of two females.
5.
The heritage
of
the deceased, which is to be divided among his legal heirs, is
what remains after the payment of his debt and the legacy which he
has bequeathed. However, the debt or the legacy should not be
injurious to the rights of the heirs. It means that the deceased
must not deliberately have contracted debt injuring the rights of
the heirs or he must not have made a will of more than one third
of his property or a will in favour of any legal heir without the
consent of his legal heirs or other legal heirs as the case may
be.
6.
The rules
of
inheritance as laid down by the Sunnah of Prophet Muhammad (PBUH)
are:
-
Pay the fixed shares of inheritance
to the persons entitled to them. What remains thereafter is for
the nearest male person.
-
No Muslim inherits a non-Muslim nor a
non-Muslim inherits from a Muslim.
-
The murderer shall not inherit (from
one who has been murdered by him).
-
An illegitimate child will neither
inherit from his (illegitimate) father, nor he will be inherited
by him.
-
Wife of the slain would be entitled
to get her prescribed share in the blood-money of her husband.
-
When an infant child raises its
voice, it will be treated as an heir.
Will
The
Arabic terms used in connection with the law of will are
‘Wasiyyah’ ‘Musi’, ‘Musa lahu’ and ‘Wasi’. ‘Wasiyyah’ means will
or bequest, ‘Musi’ means the testator who makes the will, ‘Musa
lahu’ is the legatee in whose favour the will is made, and ‘Wasi’
stands for the executor who is charged with the responsibility of
executing the will. The jurists have defined will as an endowment
of property to a person (legatee) which takes effect after the
death of the testator (maker of will). It may be made either
verbally or in writing.
According to verses from 180 to 182 of chapter 2 of the Holy
Qur’an, it is obligatory on every Muslim to make a will. It is a
great sin that the executor or the hearers of will should change
it. But if a person fears that the testator has made some
injustice in the will and he makes some change or modification in
the will with a motive to make peace between the concerned
parties, then there is no sin for him. Before the revelation of
the verses regarding the division of inheritance, it was
prescribed that the will should be made in favour of parents and
the near relations. It was also required that the will should be
made regarding the wives that they should not be expelled from the
houses of their husbands and they should be provided maintenance
for an year after the death of their husbands.
At
the time of making of the will, presence of two witnesses, who are
from tribe of the testator and are just men, is essential.
However, if the maker of will is away from home being on a journey
or in Jihad and his death approaches he is allowed to make others
as witnesses. But if such witnesses are later on suspected to be
liars, then they can be replaced by another two witnesses who are
more truthful.
The
Qur’an has not fixed any upper or lower limit upon the quantity or
amount of property which can be willed. However, Prophet Muhammad
(peace be upon him) prescribed that one should not make a will for
more than one-third of his property. But there is no minimum
limit. In view of the Sunnah of the Prophet, the Shariah has laid
down that none should make a will of more than one-third of his
property so that the rights of his legal heirs may not be
adversely affected. It has been also laid down that will cannot be
made in favour of an heir to the exclusion of other heirs. Thus,
will is generally made in favour of strangers i.e. in favour of
those who are not otherwise entitled to inherit the property of
the testator.
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Contract
The
Arabic word for contract is ‘Aqd’ which literally means
conjunction or tie. In the language of law it signifies
conjunction of elements of disposition i.e. proposal (ejab) by one
party and acceptance (Qabul) by the other. For validity of the
contract, the conditions are: the persons who enter into contract
should be legally competent; there should be free consent of the
parties to contract; consideration is an important factor in a
contract, and physical transfer of the thing involved from one
party to the other is essential. Evidence of two witnesses is also
a basic requirement of a valid contract. Islamic law of contract
has been laid down in detail by the Holy Qur’an in its verse
282and 283 of Chapter 2. Although the Holy Qur’an mentions in
these verses only those contracts which relate to debt and
exchange of merchandise, yet the law laid down in the said verses
is general in nature and embraces all lawful contracts executed
between the parties relating to various activities. The main
points of the law of contract in the light of the teachings of the
Qur’an and the Sunnah are:
-
When you contract a debt for a fixed
term, record it in writing.
-
Let a scribe, whom Allah has taught
how to write, record it in writing with equity for the parties
concerned. He should not refuse to write.
-
Let the one who incurs the debt give
dictation to the scribe for writing down the documents. He should
fear Allah and should neither omit nor add anything to the terms
which have been settled between him and the creditor. While giving
dictation to the scribe, he should act fairly and honestly.
-
If the debtor is of low understating
or is unable to give dictation for any other reason, then his
guardian shall honestly dictate the terms which have been settled
between the parties.
-
The documents of contract should be
testified by two male witnesses or by one man and two women. The
witnesses should be from among you i.e. they should be Muslims.
They should be of good moral character, reliable, steadfast and
honest. When the witnesses are asked to testify, they should not
refuse.
-
The scribe and the witness should not
be harassed.
-
In verse 283 of its chapter 2 the
Qur’an lays down law of mortgage. If you are on a journey and
cannot find a scribe to write down the contract, then get loan or
debt against the security or pledge of something in hand such as
some goods or belongings. But if one does some business or gives
some loan without any pledge in hand merely on the basis of trust,
then the one who is trusted should fulfil his trust and fear God.
-
Writing down of contracts of loan is
so much important that the Prophet of Islam is reported to have
said that those who lend money to others without any document or
evidence are not helped by Allah when they cry for help in case of
non-recovery of such loan.
-
The Prophet (PBUH) has enjoined upon
those who enter into some agreement, pact, pledge or covenant that
they should fulfil the terms thereof. Those who do not fulfil
their trusts or promises are not reliable and have no religion.
-
The Prophet (PBUH) has forbidden the
creditor to accept any gift or any favour from the debtor after
giving him loan as it would be considered usury unless the
practice of exchanging gifts or accepting favour was prevalent
between them previously.
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Food Laws
According to Islam it is the exclusive prerogative of God to
declare a food item as lawful and permitted (Halal) or as unlawful
and forbidden (Haram). All pure and wholesome food lawfully earned
such as sea food, fruits, vegetables, pulses, corn, meat of
permitted (Halal) animals slaughtered in the name of Allah, is
allowed. Forbidden items of food have been clearly mentioned by
the Qur’an in some of its verses and by the Prophet of Islam in
some of his traditions. The Holy Qur’an for example, says: “O ye
who believe! Eat of the good things wherewith we have provided
you, and render thanks to Allah if it is (indeed) He whom ye
worship. He hath forbidden you only carrion, and blood, and swine
flesh, and that which hath been immolated to (the name of) any
other than Allah. But he who is driven by necessity, neither
craving nor transgressing, it is no sin for him. Lo! Allah is
Forgiving, Merciful” (2:173-174).
Following items of food have been forbidden by the Qur’an and the
Sunnah:
-
All animals and birds which die of
themselves without being slaughtered in the name of Allah. These
include animals strangled to death, or beaten to death or killed
by a fall or attacked by horns and killed, or torn to death by
beasts.
-
Blood
-
Swine – flesh.
-
Food on which Allah’s name is not
taken or meat of even lawful animal which is not slaughtered in
the name of Allah, or which is slaughtered in the name of other
than Allah.
-
Everything which is offered to idols.
-
All beasts and birds of prey i.e. all
quadrupeds that seize prey with teeth such as lions, tigers,
leopards, jackals, etc, and all birds such as hawks, kites, crows,
raven, etc. which attack with claws.
-
All unclean things repugnant to
health and morality. These include dogs, cats, mules, horses,
asses, lizards.
-
Wine and all other intoxicants.
-
All the food items though lawful but
acquired by unlawful means.
Principle of necessity, however, makes temporarily an unlawful
thing lawful. However this principle can be applied only where
there is real necessity and not merely an excuse. For example if
someone is dying of hunger and he has nothing to save his life
except a dead animal or swine-flesh to eat, then he can take it.
Similarly a sick person can take alcohol or wine provided a doctor
certifies that he would die if he is not instantly given that.
According to the Qur’an following two conditions should be kept in
view while making use of a haram thing:
-
that it should not be taken with a
view to rebel against Allah or to break the law of Allah and
-
that
it should be taken only in a minimum possible quantity just with a
view to save life.
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