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Outlines of Muhammadan Law {Fifth Edition}
Outlines of Muhammadan Law {Fifth Edition}
Description
Preface to the First Edition

No apology appears to be necessary for this book. There are, indeed, a number of standard works on the subject – Ameer Ali, Wilson, Tyabji and Mulla, for instance; none of them, however, is written for the elementary student; they aim rather at instructing the practioner of aiding the Judge. The need for a systematic and brief textbook on Muhammadan law as administered in India has been greatly felt in recent years both by students and by teacher; and the author has, after fifteen years of teaching experience, endeavoured to make a beginning in this direction.

Muhammadan Law is often conceived as a conglomeration of chaotic rules based in the main on the arbitrary dictates of revengeful Semitic deity, and on the decisions-sometimes apocryphal, often without reason-of the Prophet of Islam, coupled with the fatwas and deduction of financial mullas and muftis and kazis throughout the Middle Ages. Such a view can only be held by those who possess a superficial acquaintance with the rules of law and deplorable ignorance of the social and historical factors which existed during the centuries in which the law of Islam flourished and developed. A satisfactory textbook cannot possibly neglect the historical and cultural elements, and must try to expound the law in its social and political background. The author is fully alive to the difficulties of the task and conscious of the many shortcomings in his work; nevertheless he has made a beginning, and he hopes that other, more competent, will complete the task.

The treatment is elementary and not historical; only the first principles of the law in India kept in view. By a 'University student' I do not merely mean a law student cramming away for his degree, but any serious student of the law of Islam who is willing to approach the subject from the viewpoint of the conditions prevailing in India; and possibly it may also serve as a' refresher course' for practising lawyers.

In this writing of the book I have made every possible endeavour to be brief, lucid and precise; for I have a horror of undue prolixity. One's style out never, in the exquisite phrase of Virginia Woolf, 'be allowed to settle into stagnancy or swell into turbidity'; and, in the manner of presentation, I have kept before me three models of almost unapproachable excellence Kenny on Crimes, Anson on Contract and Dicey on Constitution. Such mastery of subject, grace of exposition and distinction style can only be achieved by inspiration or by accident-the accident that comes from a combination or rare talent. But one can at least emulate the great masters whose renown has deservedly grown almost to legendary proportions, and who guide one's faltering steps by the light they shed. English is now a world language, used by millions, and yet the acquisition of an individuality in style in given to but few. Nevertheless, I hope I have avoided, in some measure at least, that twin pitfalls of a jejune brevity and a diffuse garrulousness, to be found in some of our textbooks. At any rate, the reader may be assured that not a paragraph has escaped unremitting attention and careful pruning.

The Introduction in this book is based upon an earlier booklet of mine entitled Introduction to the study of Mahomedan Law, published by the Oxford University Press in 1931. Although the topics dealt with are the same, it has been carefully revised and in parts rewritten, and a number of newer references added. I adhere to my earlier view that, in order to understand a system of jurisprudence like that of Islam, the student must have an opportunity to acquaint himself with the historical and cultural background of the law; and I venture to hope that in the universities, at any rate, the importance of this aspect will not be overlooked. For the general reader, the Introduction should in my estimation, prove to be of popular interest.

Citations have been reduced to a minimum and only the most important decision have been referred to. Where a clear and positive rule of law his been correctly stated by one of the standard works, care has been taken not to overload the footnotes and add additional cases or ancient texts. In addition to the works mentioned above, older textbooks such as Macnaghten and Sircar, modern writers such as Fitzgerald and other have been gratefully used and due acknowledgment made.

It is necessary to explain that by 'India' is meant the area comprising both the Union of India and the Dominion of Pakistan. The book was completed in March 1947, prior to the partition of India into two self-governing Dominions. The proper term at the time would have been 'British India'. But 'India' is now preferable for various reasons: the first by, 'India is meant a geographical entity well known all over the world, and 'India and Pakistan' would be a cumbersome expression; secondly, 'British India' is no longer an accurate term; and thirdly, although the Muhammadan law as slated in this book is to be found in the judgments of British Indian courts, it is also the law, with but few minor exeptions, of the Indian States; for it is an invariable convention that the courts in the Indian States freely cite and follow the law as laid down by the High Courts in British India. Thus, on the whole, the brief world' India' is to be preferred to all the other alternatives in an elementary work.

Although a few late cases have been added during the curse of printing, case references have been brought down to the end of 1946; but, as is well known, parts of certain reports were not available, and it is possible that some cases of importance remain unnoticed. Having regard to the conditions prevailing after the war, I crave the indulgence of the critical reader in this respect.

As regard references, the Bibliography gives sufficient information concerning the leading authorities used; in other cases, full titles are given. The system of transliteration is the one commonly used by writers in English, and recommended by the Royal Asiatic Society, London; common words, however, like 'wakf', 'kazi' and 'Koran', are left in their usual garb.

The elision of the final/in certain Arabic and Persian words requires explanation. Let us take, for example, the words Imamate, imamat and imama; or Caliphate, khilafat and khilafa. Similarly, Shariat, shariat and sharia; also ariya(t), sadaqa(t), da'wa(t), 'Imamate', 'Caliphate', and 'Shariat' are forms commonly employed in English; imamat, Khilafat, shariat are in general use in Persian and Urdu; imama, khilafa, sharia are the pausal forms in classical Arabic. They are also written 'imamah', 'khalifah' and 'shariah'. The elision of the penultimate t, and its change into a form of h at the end of a word, is a well-known rule of Arabic grammar; and I hope that his explanation is sufficiently simple and will not cause further confusion.

European scholars usually refer to Fluggel's edition of the Koran – Corani Textus Arabicus, 2nd Edition, by G. Glugel, Leipzig, 1841, and subsequent impression. This edition is somewhat scarce in India, and I have therefore referred to The Meaning of the Glorious Koran, 2 Volumes, Text and Translation, Hyderabad, 1938. The text is that of the famous Egyptian Edition, A.H. 1342, known as 'The King's Koran', and the translation by M. Pickthall is extremely accurate.

My sincere gratitude is due to Freda Ramsay who very kindly read the typescript, and made many suggestions or the improvement of the language. My former pupils, K.S. Cooper and P.N. Bhagwati have kindly read the book, chapter by chapter, while it was being written and I have benefited by their advice and criticism. K.S. Cooper has, in addition, laid me under a debt of gratitude by preparing the index of Subjects. Finally, the Oxford University Press have done everything in their power to have the book printed accurately and expeditiously, and I should like to offer to them my deep acknowledgements.

Preface to the Fourth Edition

This edition has been brought up to the end of 1970. It is unfortunate that Pakistan cases from 1961 to 1970 have not been included: they are not available in India at present, at least not my knowledge. Nor have I been able in Bombay to consult learned periodicals published in Europe and America such as Studia Islamica and Orient (Paris). Saeculum (Munich), Oriens (Istanbul) and Der Islam (Berin), among others. With such handicaps, it is impossible to produce a satisfactory edition, as the development of the law is intimately connected with social and cultural changes.

Since the last edition of this book, a new edition, the fourth, of Tyabi on Muslim Law has appeared after 29 years; this has necessitated a large number of alterations in the references and I hope that not many mistakes still remain undetected. A companion to this volume, Cases in the Muhammadan Law of India and Pakistan (Clarendon Press, Oxford, 1965)*, gives in a handy from all the most important cases necessary for the student. And a little known branch of the law applicable to Daudi and Sulaymani Bohoras has been treated in s summary fashion in my Compendium to Fatimid Law (Simla, India, 1969).

The most regrettable event for students of the figh has been the death of Joseph Schacht on 1 August 1969 at New Jersey. He belonged to a brilliant group of contemporary scholars; but probably few of them will deny his preeminence in his chosen field. His Origins (1950) and introduction (1964) will long be studied and referred to as monumental works of erudition and originally.

I am indebted to my cousin Danial Latifi, Bar-at-law of the Supreme Court, New Delhi, for drawing my attention to mistakes and latest decision, and to my nephew Qais Taybji, Advocate (O.S.) for revising the text of Appendixes A and B.

The publication of this edition has been held up for unforeseeable reasons. Conditions prevailing in the country are making it almost impossible to keep abreast with the modern contributions to Islamic law in the different part of the world. The book was written some twenty ago, probably a new book should now be attempted, for at least a fresh and entrusted with the task of editing it,

From the Jacket

OUTLINES OF MUHAMMADAN LAW
Fifth Edition

The classic work, an authoritative treatise on Islamic law, examines the law in its social, historical, and political context. In the original book Fyzee lucidly explains, apart from the extant law, its background, sources, history, development, and complexities,

The fifth edition, revised and updated by Tahir Mahmood, traces changes and modifications that have taken place in the law since the publication of the fourth edition in 1974. It highlights more than three decades of developments in the statutory as well as case law, without disturbing the framework and intellectual design of the original book, While remaining primarily an examination of Muslim law as it is administered in India, the book includes, where relevant, references to the legal position in Pakistan, Bangladesh, and Muslim countries in West Asia and Africa.

All major topics including marriage and its dissolution, dower and conjugal rights, parentage ad guardianship, legitimacy, maintenance, gifts, wakfs, as well as the Sunni and Shia laws of inheritance have been clearly and systematically covered.

This revised and updated edition will be indispensable for students and scholars of Islamic law, family law, legal history, jurisprudence, sociology, and gender studies, as well as law professionals.

About the Author

Asaf A.A. Fyzee was a preeminent scholar of Islamic law. During his long and distinguished career he served in many capacities including as Principal and Professor of Jurisprudence, Government Law College, Bombay and Vice-Chancellor, University of Kashmir. His others books include A modern Approach to Islam (OUP, 1981; 2/e 2008) and Cases in the Muhammadan Law of India. Pakistan and Bangladesh 2/e (OUP, 2005) edited and revised by Tahir Mahmood.

Tahir Mahmood is Jurist-Member, Law Commission of India, New Delhi and Founder-Chairman, Amity University of Advanced Legal Studies, New Delhi. He was formerly Professor of Law and Dean, Faculty of Law, University of Delhi, Chairman of the National Minorities Commission and Member of the Ranganath Misra Commission for Backward Classes among Minorities. A distinguished scholar of Islamic law, he is the author of many books regularly cited in Indian Supreme Court and High Court Judgments

Contents

Foreword ix
Preface to the First Edition xi
Preface to the Fourth Edition xv
Introduction 1
1.Application and Interpretation 42
2.Marriage 69
3.Dower 105
4.Dissolution of Marriage 117
5.Parentage and Legitimacy 152
6.Guardianship 160
7.Maintenance 173
8.Gifts 181
9.Law of Wakfs 224
10.Pre-emption 271
11.Wills and Death-bed Gifts 289
12.Administration of Estates 304
13.Sunni Law of Inheritance 314
14.Shia Law of Inheritance 352
Appendix I: Tables & Diagrams from the Fourth Edition 370
Appendix II: Texts of Indian Statutes 375

Outlines of Muhammadan Law {Fifth Edition}

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Edition:
2008
Publisher:
Oxford University Press
ISBN:
0195691695
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430
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Preface to the First Edition

No apology appears to be necessary for this book. There are, indeed, a number of standard works on the subject – Ameer Ali, Wilson, Tyabji and Mulla, for instance; none of them, however, is written for the elementary student; they aim rather at instructing the practioner of aiding the Judge. The need for a systematic and brief textbook on Muhammadan law as administered in India has been greatly felt in recent years both by students and by teacher; and the author has, after fifteen years of teaching experience, endeavoured to make a beginning in this direction.

Muhammadan Law is often conceived as a conglomeration of chaotic rules based in the main on the arbitrary dictates of revengeful Semitic deity, and on the decisions-sometimes apocryphal, often without reason-of the Prophet of Islam, coupled with the fatwas and deduction of financial mullas and muftis and kazis throughout the Middle Ages. Such a view can only be held by those who possess a superficial acquaintance with the rules of law and deplorable ignorance of the social and historical factors which existed during the centuries in which the law of Islam flourished and developed. A satisfactory textbook cannot possibly neglect the historical and cultural elements, and must try to expound the law in its social and political background. The author is fully alive to the difficulties of the task and conscious of the many shortcomings in his work; nevertheless he has made a beginning, and he hopes that other, more competent, will complete the task.

The treatment is elementary and not historical; only the first principles of the law in India kept in view. By a 'University student' I do not merely mean a law student cramming away for his degree, but any serious student of the law of Islam who is willing to approach the subject from the viewpoint of the conditions prevailing in India; and possibly it may also serve as a' refresher course' for practising lawyers.

In this writing of the book I have made every possible endeavour to be brief, lucid and precise; for I have a horror of undue prolixity. One's style out never, in the exquisite phrase of Virginia Woolf, 'be allowed to settle into stagnancy or swell into turbidity'; and, in the manner of presentation, I have kept before me three models of almost unapproachable excellence Kenny on Crimes, Anson on Contract and Dicey on Constitution. Such mastery of subject, grace of exposition and distinction style can only be achieved by inspiration or by accident-the accident that comes from a combination or rare talent. But one can at least emulate the great masters whose renown has deservedly grown almost to legendary proportions, and who guide one's faltering steps by the light they shed. English is now a world language, used by millions, and yet the acquisition of an individuality in style in given to but few. Nevertheless, I hope I have avoided, in some measure at least, that twin pitfalls of a jejune brevity and a diffuse garrulousness, to be found in some of our textbooks. At any rate, the reader may be assured that not a paragraph has escaped unremitting attention and careful pruning.

The Introduction in this book is based upon an earlier booklet of mine entitled Introduction to the study of Mahomedan Law, published by the Oxford University Press in 1931. Although the topics dealt with are the same, it has been carefully revised and in parts rewritten, and a number of newer references added. I adhere to my earlier view that, in order to understand a system of jurisprudence like that of Islam, the student must have an opportunity to acquaint himself with the historical and cultural background of the law; and I venture to hope that in the universities, at any rate, the importance of this aspect will not be overlooked. For the general reader, the Introduction should in my estimation, prove to be of popular interest.

Citations have been reduced to a minimum and only the most important decision have been referred to. Where a clear and positive rule of law his been correctly stated by one of the standard works, care has been taken not to overload the footnotes and add additional cases or ancient texts. In addition to the works mentioned above, older textbooks such as Macnaghten and Sircar, modern writers such as Fitzgerald and other have been gratefully used and due acknowledgment made.

It is necessary to explain that by 'India' is meant the area comprising both the Union of India and the Dominion of Pakistan. The book was completed in March 1947, prior to the partition of India into two self-governing Dominions. The proper term at the time would have been 'British India'. But 'India' is now preferable for various reasons: the first by, 'India is meant a geographical entity well known all over the world, and 'India and Pakistan' would be a cumbersome expression; secondly, 'British India' is no longer an accurate term; and thirdly, although the Muhammadan law as slated in this book is to be found in the judgments of British Indian courts, it is also the law, with but few minor exeptions, of the Indian States; for it is an invariable convention that the courts in the Indian States freely cite and follow the law as laid down by the High Courts in British India. Thus, on the whole, the brief world' India' is to be preferred to all the other alternatives in an elementary work.

Although a few late cases have been added during the curse of printing, case references have been brought down to the end of 1946; but, as is well known, parts of certain reports were not available, and it is possible that some cases of importance remain unnoticed. Having regard to the conditions prevailing after the war, I crave the indulgence of the critical reader in this respect.

As regard references, the Bibliography gives sufficient information concerning the leading authorities used; in other cases, full titles are given. The system of transliteration is the one commonly used by writers in English, and recommended by the Royal Asiatic Society, London; common words, however, like 'wakf', 'kazi' and 'Koran', are left in their usual garb.

The elision of the final/in certain Arabic and Persian words requires explanation. Let us take, for example, the words Imamate, imamat and imama; or Caliphate, khilafat and khilafa. Similarly, Shariat, shariat and sharia; also ariya(t), sadaqa(t), da'wa(t), 'Imamate', 'Caliphate', and 'Shariat' are forms commonly employed in English; imamat, Khilafat, shariat are in general use in Persian and Urdu; imama, khilafa, sharia are the pausal forms in classical Arabic. They are also written 'imamah', 'khalifah' and 'shariah'. The elision of the penultimate t, and its change into a form of h at the end of a word, is a well-known rule of Arabic grammar; and I hope that his explanation is sufficiently simple and will not cause further confusion.

European scholars usually refer to Fluggel's edition of the Koran – Corani Textus Arabicus, 2nd Edition, by G. Glugel, Leipzig, 1841, and subsequent impression. This edition is somewhat scarce in India, and I have therefore referred to The Meaning of the Glorious Koran, 2 Volumes, Text and Translation, Hyderabad, 1938. The text is that of the famous Egyptian Edition, A.H. 1342, known as 'The King's Koran', and the translation by M. Pickthall is extremely accurate.

My sincere gratitude is due to Freda Ramsay who very kindly read the typescript, and made many suggestions or the improvement of the language. My former pupils, K.S. Cooper and P.N. Bhagwati have kindly read the book, chapter by chapter, while it was being written and I have benefited by their advice and criticism. K.S. Cooper has, in addition, laid me under a debt of gratitude by preparing the index of Subjects. Finally, the Oxford University Press have done everything in their power to have the book printed accurately and expeditiously, and I should like to offer to them my deep acknowledgements.

Preface to the Fourth Edition

This edition has been brought up to the end of 1970. It is unfortunate that Pakistan cases from 1961 to 1970 have not been included: they are not available in India at present, at least not my knowledge. Nor have I been able in Bombay to consult learned periodicals published in Europe and America such as Studia Islamica and Orient (Paris). Saeculum (Munich), Oriens (Istanbul) and Der Islam (Berin), among others. With such handicaps, it is impossible to produce a satisfactory edition, as the development of the law is intimately connected with social and cultural changes.

Since the last edition of this book, a new edition, the fourth, of Tyabi on Muslim Law has appeared after 29 years; this has necessitated a large number of alterations in the references and I hope that not many mistakes still remain undetected. A companion to this volume, Cases in the Muhammadan Law of India and Pakistan (Clarendon Press, Oxford, 1965)*, gives in a handy from all the most important cases necessary for the student. And a little known branch of the law applicable to Daudi and Sulaymani Bohoras has been treated in s summary fashion in my Compendium to Fatimid Law (Simla, India, 1969).

The most regrettable event for students of the figh has been the death of Joseph Schacht on 1 August 1969 at New Jersey. He belonged to a brilliant group of contemporary scholars; but probably few of them will deny his preeminence in his chosen field. His Origins (1950) and introduction (1964) will long be studied and referred to as monumental works of erudition and originally.

I am indebted to my cousin Danial Latifi, Bar-at-law of the Supreme Court, New Delhi, for drawing my attention to mistakes and latest decision, and to my nephew Qais Taybji, Advocate (O.S.) for revising the text of Appendixes A and B.

The publication of this edition has been held up for unforeseeable reasons. Conditions prevailing in the country are making it almost impossible to keep abreast with the modern contributions to Islamic law in the different part of the world. The book was written some twenty ago, probably a new book should now be attempted, for at least a fresh and entrusted with the task of editing it,

From the Jacket

OUTLINES OF MUHAMMADAN LAW
Fifth Edition

The classic work, an authoritative treatise on Islamic law, examines the law in its social, historical, and political context. In the original book Fyzee lucidly explains, apart from the extant law, its background, sources, history, development, and complexities,

The fifth edition, revised and updated by Tahir Mahmood, traces changes and modifications that have taken place in the law since the publication of the fourth edition in 1974. It highlights more than three decades of developments in the statutory as well as case law, without disturbing the framework and intellectual design of the original book, While remaining primarily an examination of Muslim law as it is administered in India, the book includes, where relevant, references to the legal position in Pakistan, Bangladesh, and Muslim countries in West Asia and Africa.

All major topics including marriage and its dissolution, dower and conjugal rights, parentage ad guardianship, legitimacy, maintenance, gifts, wakfs, as well as the Sunni and Shia laws of inheritance have been clearly and systematically covered.

This revised and updated edition will be indispensable for students and scholars of Islamic law, family law, legal history, jurisprudence, sociology, and gender studies, as well as law professionals.

About the Author

Asaf A.A. Fyzee was a preeminent scholar of Islamic law. During his long and distinguished career he served in many capacities including as Principal and Professor of Jurisprudence, Government Law College, Bombay and Vice-Chancellor, University of Kashmir. His others books include A modern Approach to Islam (OUP, 1981; 2/e 2008) and Cases in the Muhammadan Law of India. Pakistan and Bangladesh 2/e (OUP, 2005) edited and revised by Tahir Mahmood.

Tahir Mahmood is Jurist-Member, Law Commission of India, New Delhi and Founder-Chairman, Amity University of Advanced Legal Studies, New Delhi. He was formerly Professor of Law and Dean, Faculty of Law, University of Delhi, Chairman of the National Minorities Commission and Member of the Ranganath Misra Commission for Backward Classes among Minorities. A distinguished scholar of Islamic law, he is the author of many books regularly cited in Indian Supreme Court and High Court Judgments

Contents

Foreword ix
Preface to the First Edition xi
Preface to the Fourth Edition xv
Introduction 1
1.Application and Interpretation 42
2.Marriage 69
3.Dower 105
4.Dissolution of Marriage 117
5.Parentage and Legitimacy 152
6.Guardianship 160
7.Maintenance 173
8.Gifts 181
9.Law of Wakfs 224
10.Pre-emption 271
11.Wills and Death-bed Gifts 289
12.Administration of Estates 304
13.Sunni Law of Inheritance 314
14.Shia Law of Inheritance 352
Appendix I: Tables & Diagrams from the Fourth Edition 370
Appendix II: Texts of Indian Statutes 375
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