B.A. LL.B. (Five Years) Sem 6 Family Law II (Mohammedan Law and Indian Succession Act) 2024 Aug Question Paper with Solutions

Muslims by birth

A child is a Muslim by birth if both parents are Muslims. Where only the father is a Muslim, the child is ordinarily treated as a Muslim. A child's religion is taken to follow that of the father. Such a person remains a Muslim until he renounces Islam, even if he neglects its practices.

Muslims by conversion

An adult of sound mind may become a Muslim in either of two ways:

1. by formally embracing Islam, for example by reciting the Kalma before a religious authority; or
2. by openly professing the faith and living as a Muslim.

The conversion must be genuine. A court may disregard a conversion made only to escape an existing marriage or to defeat another person's rights. Its effect then depends on the question before the court.

Sects do not matter

Islam has many sects: Sunni and Shia, and within them several schools. A member of any of them is a Muslim. A difference of doctrine within Islam does not make a person an apostate.

2. The Sunna (traditions). The Sunna is the model conduct of the Prophet, recorded in reports called hadith. It covers what he said, what he did and what he silently approved. Example: the rule limiting bequests to one-third of the estate rests on a tradition.

Sources made by jurists

3. Ijma (consensus). When a question is not answered by the Quran or the Sunna, the agreement of the learned jurists of an age becomes law. A great deal of the detailed doctrine of the Sunni schools is built on such agreement.

4. Qiyas (analogy). A known rule is extended to a new case that shares its reason. Example: the ban on wine is extended to other intoxicants because they too intoxicate. Shia jurists rely on reason (aql) in its place.

Other sources applied in India

1. Custom (urf). It once displaced the Shariat for many communities. Since the Shariat Act 1937 it cannot be pleaded in the matters that Act lists.

The Quran's priority in practice

Shayara Bano v. Union of India, AIR 2017 SC 4609. Muslim wives challenged instant triple talaq, and the practice was set aside by three to two. Justice Kurian Joseph, concurring in the result, asked whether what is Quranically wrong can be legally right. He answered that a practice against the basic tenets of the Quran cannot have legal sanction. The case shows the Quran standing at the head of the sources.

Conclusion. A Muslim is any person who professes the unity of God and the prophethood of Muhammad, by birth or by genuine conversion, whatever his sect. Narantakath Avullah shows that sectarian differences do not end that status. Muslim law draws on the Quran, the Sunna, Ijma and Qiyas, and today on custom, statute, precedent and equity. As Shayara Bano shows, no practice can stand against the Quran.