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The Role of Imarate Sharia in Development of Muslim Personal Law in India

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The Role of Imarate Sharia in Development of Muslim Personal Law in India THE ROLE OF IMARATE SHARIA IN DEVELOPMENT OF MUSLIM PERSONAL LAW IN INDIA THESIS SUBMITTED FOR THE AWARD OF THE DEGREE OF IN LAW By BADRE ALAM KHAN Under the Supervision of PROF. (DR.) S.S. HASNAT AZMI (FORMER CHAIRMAN D/O LAW & DEAN F/O LAW AMU) DEPARTMENT OF LAW ALiGARH MUSLIM UNIVERSITY ALIGARH (INDIA) 2000 Prof. (Dr.) S.S. Hasnat Azmi Department of Law Former Chairman & Dean Aligarh Muslim University Aligarh - 202002 Dated: 5.10.2000 dtxlMxtviit I certify that the work of Mr. Badre Alam Khan on "THE ROLE OF IMARATE SHARIA IN DEVELOPMENT OF MUSLIM PERSONAL LAW IN INDIA" has been carried out under my supervision. It is upto date and original. He is allowed to submit his thesis for the consideration for the award of the degree of Doctor of Philosophy in Law. (Prof. S.S. Hain^t Azmi) Phone ; Office (0571-400547), Residence (0571-501589) Telex : 564-230 AMU IN Fax : 91-0571-400528 DEDICATED TO THE HUJJAI OF ESP. MY PARENTS WHO NEVER FACED THE PROELEMS IN PREVIOUS ASFAR OF HAJ. j;i;J*^/' » It is waste to thinK about materials I am nothing who can do anything. What is achieved is Vour gift. What will be achieved is based upon \foyxT mercy" ACKNOWLEDGEMENT The praise worthy is only Ahnighty Allah who has enabled me to complete this work. **Allah is He, than whom There is no other god; - Vho knows (all things) Both secret and open; He Most Gracious Most Merciful The sovere^n, the Holy One, The Source of Peace (and Perfection), The Guardian of Faith, The Preserver of Safety, The Exalted in Might, The Irresistable, the justly proud Glory to Allah! (High is He) Above the partners They attribute to Him He is Allah, the Creator The Or^lnator, The Fashioner To Him belong The Most Beautiful Names: Whtever is in The heavens and on earth. Doth declare His Praise and Glory And He is the Exalted /J In Might, the wise (S59A 22- 24). Peace and Blessing be upon the Prophets especially upon the last Prophet of Allah Mohanunad Arabi, Hashmi, Ummi Sallallahu Alaihe Wasallam and upon his companions, descendents and followers. Every work is a result of joint effort of human being. So this work is also the result of the help and co-operation of several persons to whom I must acknowledge. I am much indebted to my parents Jaban Alhaj Chaudhri Rs^imdad Khan Sb.and Hajin Nasirun Nisa Khatoon who showed their happiness when they found me engaged in the studies ,M^ch was source of encouragement to me. I am equally indebted to my supervisor Professor (Dr) Syed Shamimul Hasnat Azmi who has guided me at every stage despite that within the period of research, twice he owned tiie responsibilities of Chairmanship and Deanship but my work did not suffer. He managed all the things at the cost of his own schedules. I am also indebted to Prof. Qaisar Hayat, Dean and Chainnan, Departmen of Law, Faculty of Law for his valuable suggestions. I am also indebted to Prof. Saleem Akhtar, former Dean and Chainnan, Departmen of Law, Faculty of Law A.M.U. Since he is ejqjert in personal laws and had suggested me to woric^ upon this topic, his guidance has given over all encouragement. I am equally indebted to Prof Ishaque Qureshi for his keen interests and help about my work. I am also indebted to Prof. Shabbir, Prof. Shamim Ahmad (Head, Deptt. of Ag. Management), Prof. Nazir H. Khan, Late Aftab Ahmad, Dr. Faizan Mustafa, Dr. Javed Talib, Dr. A. Wani, Dr. Iqbal Ali Khan, Eh". Zaheeruddin, Mr. Zubair A. Khan, Mr. Shakeel Ahmad Samdani,Dr.Ashraf^ Mr. Shakil Ahmad, Mr. Z.M.Nomani, Dr. Wasim Ali, Mr. 2^ar Eqbal, Mr. Nafees, Mr. Abu Sufyan, Mr. Shoaib Khan, Mr. Mashhood, Chaudry Ishrat, Mr. Tariq, Mr. Abid, Mr. Zulfiqar Baig. I am thankful to my collaterals Zaibun Nisa Khatoon (Alima, Alig), Dr. S.H. Khan (B.H.U.), Ch. Niyaz Ahmad Khan (Alig) Advocate High Court, Alld., Ch. Manzoor, Ch. Hamdam (Alig), Ch. Bholu, Ch. Shahnawaz (Alld.), Ch. K.F.M. Yahya (J.N.U.) alongwith my nephew Ch. Man Raza Khan (Alig). I am also thankful to my room partners and friends who devoted much time for proof reading and help esp. Mr. Jilani Khan, Mr. Zea, Mr. Haider, Mr. VI Abu Zafar, Mr. Tanveer Zaki, Mr. Sauban Ghani, Mr. Shah Alam, Mr. Iftekhar Alam and Mr. Akram. 1 will be failing in my duties if I do not thank Dr. Saud Alam Qasmi, Nazim Sunni Diniyat, A.M.U. who helped me to determine the Schools view and present day views of Ulema from Arabic books, and Mr. Abdul Moid of Medina (Univ.) to know the Ahle Hadith view and evaluate the views of other schools. I am also thankful to Mr. Zakaria Nadvi, and Mr. Saleem Salafi for explaining and translating the Arabic texts. I am equally indebted to the Seminar Staff especially Mr. S. Anwar, Mr. Wajid, Mr. Roshan Khayal, Mr. Tarique and Mr. Arshad. The office stafT has also helped me a lot. I am thankful to Mr. Naeem, Mr. Shah Sb., Mr. Anwar, Mr. A. Rauf, Mr. Sharif, Mr. Yasin Khan, Mr. A. Matin, Mr. M.A. Chaman ,Mr.Mo^s and Mr. Mohd. Mian. I am also thankful to Mr. Kalam and Mr. Jamshed for helping me at Computer till late nights along with Mr. Pradeep Sharma for word processing. I am highly thankful to my wife Ms M. Shabina for her patience, love and encouragement. ^ Y 'K (BADRf At AM t^v^/VN; Vll ABBREYUTIOKS "A word to the wise." V ABBREVIATIONS AND EXPLANATIONS AbbreviatioiXiA FuUform Explanation A Ayat Sentence of the Holy Quran AH After Hijra AS Alaihis Salam Peace be upon him CH 1 Chapter CH 2 Chaudhri Diss Dissolution Dism. Dismissed Rah Rahmatullah Alaih May Allah send his blessings Raz Raziallaho Tala- Anaho; May Allah be happy with^ him, Anha & Anhuma her, both'^them A S 1. Sura The chapters of the Holy Quran 2. Sections SLS State Legal System SWT Subhanaho Wa Tala Who does not suffer from short coming and He is above all V 1 Versus 2 Verse> Sentence of the Holy Quran VIU CONTENTS CERTIFICATES I-DI ACKNOWLEDGEMENTS IV-VD ABBRExflATIONS Vni-X INTRODUCTION 1-12 CH-1 : IMARAT AND HISTORICAL PERSPECTIVE 23-39 1. Introduction-13 2. The Holy Quran and Institution oflmarat-13 3. The Traditions (Ahadith) and Institution oflmarat-15 4. Religious Leaders and Institution oflmarat-17 5. Historical Development and Institution of Imarat-20 (1) Qualifications of Ameer-29 i. Essential-34 ii. Desirable-35 (2) Comparative Study-37 CH-2 : ALTERNATIVE SETTLEMENT MECHANISM-40-83 1. Introduction-40 2. Historical Developments and Altemative-40 3. Causes of Altemative-45 (1) Adversarial System Reactive Mobilisation-45 (2) Time Taking Process-47 i. Executive Caused Delays-47 ii. Mismanagement of Court Work-48 iii. Delay Due to Bar-50 (3) Revenue Collecting Agency-52 (4) Old and Outdated Legal System-54 (5) Judiciary is not Free-55 (6) Demand of Change in Existing Legal System-56 4. Constitution and Altematives-5 8 5. Practical View of Altemative-61 6. Arbitration and conciliation as an Altemative-62 7. International View on Altemative-63 (1) UNCITRAL-65 (2) TheI.C.C.-67 (3) London-68 (4) American Arbitration-69 (5) TheICSD-71 (6) European Arbitration-73 (7) Arbitration in Socialist Countries-74 (8) Enforcement of Awards-77 (9) The Geneva Protocol and Convention-79 (10) The New York Convention-80 (11) Enforcement of Awards in Absence of International Regulation-81 (12) Maritime Arbitration-82 CH-3 MARRIAGE AND VIEW OF IMARATESHARIA-84-109 1. Introduction-84 2. Nature of Marriage-86 3. Capacity and Guardianship-89 (1) HanafiView-89 (2) MalikiView-91 (3) ShafeyeeView-92 (4) HambaliView-92 (5) Imarate Sharia's View-92 (6) Age of Puberty-93 i. Legislations-94 a. Turkey-94 b. Cyprus-94 c. Egypt-95 d Jordon-95 e. Syria-95 f Tunisia-95 g. Moracco-95 h. Iraq-95 i. Iran-96 j. Ceylon-96 4. Formalities96 (1) Offer and Acceptance-96 (2) Dower-97 (3) Witnesses-98 i. Hanafi View-99 ii. Maliki View-99 iii. Shfeyee View-99 iv. Hambali View-100 V. Indian Jurist's View-100 vi. Imarate Sharia's View-101 5. Prohibitions in Marriage-103 6. Stipulations in Marriage-106 (1) Hanafi View-106 (2) Maliki View-107 (3) Shafeyee View-107 (4) Hambali View-108 (5) Imarate Sharia's View-108 CH-4 : DOWER,DIVORCE AND VIEWOFIMARATE SHARIA- 110- \26 1. Introduction-110 2. Dower and the Holy Quran-112 3. Dower and theTraditions(Hadith)-116 4. Nature of Dower-117 5. Quantum of Dower-119 (1) HanafiView-120 (2) Maliki View-120 (3) Shafeyee View-120 (4) Hambali View-120 6. Nature of Dower Amount-121 7. Dower and Imarate Sharia-123 8. Submission-125 PART-B: DIVORCE -127 -1 So 1. Introduction-128 2. Islam and Divorce-129 (1) Better Treatment With Wife-129 (2) Alternative Measures to avoid Divorce-132 (3) Divorce is abominable in Islam-134 (4) Permissible Number of Divorce-13 5 3. Classification-136 (1) By the death of the parties-136 (2) By the act of the parties-136 i. By Husband-136 a Talaqus Sunnat-137 b. TalaqulBiddat-138 4. Imarate Sharia's view on Divorce-144 CH-5: DISSOLUTION OF MARRIAGE AND VIE OF IMARATE SHARIA -151-210 1. Introduction-151 2. Grounds of Dissolution-154 XI (1) HanafiView-154 (2) Maliki View-154 (3) Shafeyee View-154 (4) HambaliView-154 (5) Indian Legislation-154 (6) ImarateSharia'^riew-155 Detailed Discussion of Imarate Sharia'Mew-156 (1) Dissolution on Account of Untraceabilit}' V^-156 i.
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