Find a Lawyer

P L D 1960 (W. P.) Lahore 1142

Before Muhammad Shafi, J

Mst. RASHIDA BEGUM‑Appellant

versus

SHAHAB DIN AND OTHERS‑Respondents

First Appeal From Order Case No. 25 of 1957, decided on 21st July, 1960.

(a) Guardians and Wards Act (VIII of 1890)

, Ss. 7 & 17 -Distinction‑Section 7 requires Court first to see whether an order appointing guardian is "at all" necessary‑Mother of minor marrying a stranger does not by itself entitle Court to entertain application for appointment of guardian.

There is a distinction between section 17 and section 7 of the Guardians and Wards Act 1890. Whereas under the former section the personal law of the minor plays an important part, under the latter it does not. When an application is made to the Court for the appointment of a guardian, then in order to decide whether a guardian should be appointed or not, all that the Court has got to take into consideration is the welfare of the minor and not the personal law of the minor whatever it may be. Section 7 of the Guardians and Wards Act distinctly says that it is only where the Court is satisfied that it is for the welfare of the minor that an order should be made by him appointing a guardian of his person or property, or both, or declaring a person to be such a guardian that he can proceed further in the matter. The trial Court should first see whether it was for the welfare of the minor to appoint a guardian at all. If the Court thought notwithstanding the personal law of the minors it was not necessary to appoint a guardian both in respect of person and property then without proceeding further under section 17 of the Act, the Court should dismiss the application.

Merely because the mother had married a person who was not related to the minor within the prohibited degree, would not entitle the Court to entertain an application for the appointment of a guardian.

Assumption of jurisdiction to appoint a guardian without first coming to the subjective conclusion, keeping in mind the welfare of the minors, whether it was necessary to do so‑not approved.

(b) Muhammadan Law‑

Difficulty in ascertaining provisions of‑Sources, interpretation of‑Individual's right to interpret Interpretations of' Imams, whether sacrosanct‑"Ijtehad" Principles of interpretation‑Circumstances and needs of time to be taken into consideration‑Interpretation by majority‑"Ijma" "Qiyas" (analogical reasoning)‑"Istihsan" (equity)‑"Istislah" (public goody "Istidlal" (inference)‑The Qur'an‑Verse on polygamy‑ State's right to interpret‑Provisions as to minors Guardianship‑Mother of minor marrying a person not within prohibited degrees, whether to be deprived of custody of minor Hadith and Sunna‑Status of Holy Prophet‑Traditions not to be pl2ced on same level with Qur'an‑Not to be treated as source of Muslim Law until tested "objectively" and "intelligently"‑ Exegesis of Qur'an to be developed by Judges as well as by chosen representatives of people‑Law of Qur'an not " static " but " organic "‑Need for extensive changes.

(c) Muhammadan Law

‑Guardianship‑Mother of minor marrying person not within prohibited degrees of minor‑No bar to mother retaining custody of minor‑Welfare of minor, overall con sideration.

Sh. Maqbool Ahmad for Appellant.

Malik Abdul Aziz for Respondents.

Date of hearing : 17th December 1959.

JUDGMENT

One Umar Din of village Toleki, Tehsil and District Gujran wala, died some time in 1951 leaving behind a widow by the name of Mst. Rashida Begum, who is also mentioned as Mst. Rashida Bibi at some places on the record, and two minor daughters, Mst. Sakina Bibi born on 31st October 1945 and Mst. Amina Bibi born on the 18th of September 1948. He also left some landed property worth about Rs. 10,000. Mst. Rashida Begum, widow of Umar Din, married one Imam Din in 1956. It is admitted that this Imam Din is not related to the minors at all, much less within the prohibited degree. On the 25th of August 1956, Shahab Din, a real brother of the aforementioned Umar Din, made an application that he be appointed the guardian of the persons and the property of the two minors. The applica tion was resisted by Mst. Rashida Begum on the ground that the interests of Shahab Din clashed with those of the minors and also that it was in the best interest of the minors that she should continue to have the custody of the minors and look after their property. The learned Guardian Judge, Gujranwala, passed order on the 27th of April 1957 accepting Shahab Din's applica tion subject to his furnishing security to the extant of Rs. 10,000 with one surety. He further ordered that the custody of the minor should be handed over to Shahab Din by the 28th of May 1957. The mother of the minor appeals against this order.

2. The order regarding the restoration of the custody of the minors to Shahab Din was suspended by Kaikaus and Akhlaque Husain, JJ. by their order dated the 24th of May 1957, so the minors are still with the mother.

3. It has been argued before me that the mother of the minors has lost the custody of her children because of her marriage with a person not related to them within the prohibited degree. It is further urged that she is not entitled to keep the minors in her custody even though it be for the welfare of the minors. The basis of the arguments is section 17 of the Guardians and Wards Act, the relevant paragraph of which is as under:‑---

"(1) In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor."

A distinction must be drawn between section 17 and section 7 of the Guardians and Wards Act that whereas under the former section the personal law of the minor plays an important part under the latter it does not. When an application is made to the Court for the appointment of a guardian, then in order to decide whether a guardian should be appointed or not, all that the Court has got to take into consideration is the welfare of the minor and not the personal law of the minor whatever it may be. Section 7 of the Guardians and Wards Act distinctly says ‑that it is only where the Court is satisfied that it is for the welfare of the minor that an order should be made by him appointing a guardian of his person or property, or both, or declaring a person to be such a guardian that he can proceed further in the matter. In the instant case, therefore, the learned trial Court should have first seen whether it was for the welfare of the minor girls to appoint a guardian at all. If he thought notwithstanding the personal law of the minors it was not necessary to appoint the guardian of the minor girls both in g respect of their persons and their property then without pro ceeding further under section 17 of the Act, he should have dismissed the application. Merely because the mother had married a person who was not related to the minors within the prohibited degree, would not entitle the Court to entertain an application for the appointment of a guardian. The minors, it appears from the evidence, were properly looked after by the mother and there was absolutely no occasion to say that it was necessary for the welfare of the minors that their guardian in respect of both their person and property should be appointed. Learned trial Court does not seem to have looked at the case from this point of view and it has assumed jurisdiction to appoint the guardian of the minors without first coming to the subjective conclusion, keep ing in mind the welfare of the minors, whether it was necessary to do so in this case.

4. Assuming, however, that it was necessary to appoint a guardian and the application of section 17 of the Guardians and Wards Act was attracted to the facts of this case, the big question which confronts us for decision is as to what is the law to which the minor is subject. It is quite true that the minors, their father and their mother being all Muslims are governed by Muslim Law. But what is the law which may be said to govern the guardianship of a Muslim minor is a question which is not easy to answer. In practically all the text‑books, some of which are written by most eminent and distinguished jurists, lawyers and Judges, for whom I have profound respect, there are certain set of rules laid down which had been governing the Muslim minors in India and Pakistan both in regard to their property and their persons since a very long time. These rules, in fact, have been tenaciously followed by all Courts of India including the Privy Council right from the date of the advent of the British rule in pre‑partitioned India up to the present time. It is, however, possible that these rules were followed by the Judges and the jurists even before the British conquered India, and they were continued to be followed thereafter because the Muslim jurists did not want the British or other non‑Muslims to interpret the Holy Quran and enunciate law to suit their own purpose. The importance which is attached to the Fatawa‑i‑Alamgiri on all questions relating to Muslim Law is clear indication of this fact. The conditions have, however, completely changed now. In brief, these rules are as follows. Under the Hanafi Law, the mother is entitled to the custody of her male child until he has completed the age of seven years and of her female child until she has attained puberty. The right continues though she is divorced by the father of the child unless she marries a second husband in which case the custody belongs to the father. Under the Shia Law the mother is entitled to the custody of a male child until he attains the age of two years, and of a female child until she attains the age of seven years. After the child has attained the above‑mentioned age, the custody belongs to the father. If the mother dies before the child has attained that age, the father is entitled to the custody. On the death of both the parents, the custody belongs to the father's father. It is doubtful to whom the custody belongs in the absence of the father's father under the Shia law. Under the Shafi law, mother is entitled to the custody of her daughter even after she has attained puberty or until she is married. Under Hanafi law failing mother, the custody of a boy under age of seven years and of a girl who has not attained puberty belongs to the following female relatives in the order given below:‑---

(1) mother's mother, how highsoever ;

(2) father's mother, how highsoever ;

(3) full sister ;

(4) uterine sister ;

(5) consanguine sister (Not mentioned in Hidaya or the Fatawa Alamgiri) ;

(6) full sister's daughter ;

(7) uterine sister's daughter ;

(8) consanguine sister's daughter (Not mentioned in Hamilton's Hidaya or Fatawa Alamgiri) ;

(9) maternal aunt, in like order as sisters ; and

(10) paternal aunt, also in like order as sisters.

(In certain text‑books, before full sister, mother's grand mother howsoever high and father's grandmother howsoever high are mentioned at serial Nos. 3 and 4).

Provided that no male is entitled to the custody of an un married girl, unless he stands within the prohibited degrees of relationship to her.

All those females, including the mother, who is otherwise entitled to the custody of the child, lose the right of custody‑

(1) if she marries a person not related to the child within the prohibited degree ;

(2) if she goes and resides, during the subsistence of the marriage, at a distance from the father's place of residence ; or

(3) if she is leading an immoral life, as where she is a prostitute ; or

(4) if she neglects to take proper care of the child.

In default of the mother and the female relations mentioned above the custody of the minor belongs to the following persons in the order given below :‑

(1) the father ;

(2) nearest paternal grandfather ;

(3) full brother ;

(4) consanguine brother ;

(5) full brother's son ;

(6) consanguine brother's son ;

(7) full brother of the father ;

(8) consanguine brother of the father ;

(9) son of father's full brother ; and

(10) son of father's consanguine brother.

6. Under Hanafi law, the guardian of the property of the minor child is his father and after the father's death his executor ; after the father's executor the paternal grandfather and after him his executor. In the absence of the father, his executor, the grandfather and failing him his executor, the Court may take charge of the property or appoint a guardian of it. Under Shia law, the father and after him the grandfather are the guardians of the minor's property and their survival may appoint a guardian of the property. The Shia authorities are divided as to the effect of an appointment by the father of minor child's property while the paternal grandfather is living. Neither the mother's mother, nor uncle, nor brother, nor sister, under both system, is entitled to act as the guardian of the minor's property except on being appointed by the father or paternal grandfather of the minor or by the Court.

7. The question, as I have already said, which requires determination is as to whether these rules can be said by any amount of certainty to be the Muslim Law which has the same binding force as any law contained in a statute. In other words, whether these rules can be said to be the law to which the Muslim minor is subject within the meaning of section 17 of the Guardians and Wards Act.

8. According to the Muslim belief, regardless of the sect to which a Muslim belongs, the law which governs him in all variety of problems, religion or relating to the world around him and pertaining to all questions whatever, political, social or economic, is that which is established by a communication of God who alone is the King, the Supreme Being of perfect knowledge and wisdom and of infinite power. In Islam, relation ship between God and a man is direct and simple. No priest, Imam, Pir or anybody else belonging to this or that. category of people (dead or alive, in grave or out of grave) is required to intervene. We have no institution of professional priests ready to enforce their adamantine dogmas under the threat of their curse and God's displeasure which they claim to control. The people possess within the limits prescribed by the Holy Quran, a complete liberty of thought and action. In Islam there is an atmosphere of intellectual and spiritual freedom. Since the legislation inevitably limits the human liberty, the authority to legislate also belongs to God and God alone. Islam does not conceive anybody to behave in a manner as to regard himself superior to anybody else. The Quran aims at destroying individualism. By preaching universal brotherhood and complete equality of mankind, possibility of one person treating himself above the others whether in the field of learning or in any other field is completely excluded from moral system of Islam. All Muslims if not of the entire universe at least of one country have got to be welded together into one single hole. There cannot possibly be, in an Islamic State, anybody, who can arrogate to himself sovereign power or royal prerogative. Even the Head of an Islamic State, strictly speaking, has only to carry out the rules and injunctions of God. The idea of one man laying down the rule of law for the Muslims is completely repugnant to the Holy Quran and for that matter to Islam. The Holy Quran repeatedly and most emphatically proclaims that God and God alone is the King of this world and of the world hereafter and His orders are final. It is stated in Chapter VI, verse 7, and Chapter XII, verses 40 and 67 that God alone is the Ruler. Similarly in Chapter XL, verse 12, it is stated:

"So judgment belongs to Allah, the High, the Great."

That God alone is the King is abundantly clear from Chapter LIX verses 23 and 24.

"23. He is Allah, besides whom there is no God, the King, the Holy, the Author of peace, the Granter of security, Guardian over all, the Mighty, the Supreme, the Possessor of every greatness ; Glory be to Allah from what they set up (with Him)."

"24. He is Allah the Creator, the Maker, the Fashioner; His are the most excellent names ; whatever is in the heavens and the earth declares His glory ; and He is the Mighty, the Wise."

9. The conduct of the Holy Prophet Muhammad and the four Khalifas who followed him bear ample testimony to the fact that monarchy is completely foreign and repugnant to Islam ; otherwise nothing was easier for them than to proclaim them selves the Kings of Muslim nation and if they had done so, then they would have been readily accepted as such because they were of undoubted efficiency, honesty and steadfastness. It can be said with equal confidence that they neither claimed nor believed in the manner as if they were the despotic rulers of the Islamic world. Everything that they did, they did it in con sultation with other Muslims. All Muslims belonged to one brotherhood that was their creed as indeed it was the creed of Islam. This creed in its very nature excluded the superiority of one human being over the other. It introduced collective thinking and collective action. There was no ruler and no ruled, no priest and no Pirs. All were capable of becoming Imams, but had to be the followers at the same time to those persons who were superior to them in piety or in any particular line. Muaviya was the first who caused a deadly blow to the brotherhood of Islam by nominating his son as the head of the State, and then mortgaging the nation in favour of his family. The democracy introduced by Islam was replaced by imperialism soon after the death of our democratic Prophet. Muaviya cut at the very root of Islam by making the Khilafat hereditary. Prophet Muhammad however much he loved some of his close relatives, did not nominate them as his successors or as head of the Muslim community. His gesture throughout was characteristically democratic. After the death of Muaviya, his son Yazeed, as was designed by him, usurped the Khilafat and no less a person than the grandson of the Prophet himself sacrificed his own life and the lives of his dear ones in an attempt to foil Yazeed's dis obedience of the Holy Qur'an. It was this propaganda of Umaiyids that Imam Husain gave his life in an attempt to reserve Khilafat for the family of Prophet Muhammad only. It was a false propaganda which is being perpetrated strangely enough even by the Shias. Unfortunately, Imam Husain met with no success with the result that the monarchy and imperialism had since been the rule amongst the Muslims. Thereafter people had no choice in the choosing of the head of their State. They had no hand in the control of their affairs. What was started by Muaviya has had perhaps no adverse immediate effect, but in the long run it has inevitably interfered with the healthy progress and advancement of the Muslim society, which is occupying at the moment a secondary plan in the comity of nations.

10. According to the Holy Qur'an, he alone is entitled to be the Head of the State who has knowledge and physique which clearly negatives the hereditary basis of the head of a State. The following words may be quoted with advantage in this respect :‑

Chapter II, verse 247

"And their Prophet said to them : Surely Allah has raised Saul to be a king over you. They said : How can he hold kingship over us while we have a greater right to kingship than he, and he has not been granted an abundance of wealth. He said: Surely Allah has chosen him in preference to you, and he has increased him abundantly in knowledge and physique, and Allah grants His kingdom to whom He pleases, and Allah is Ample‑giving, Knowing".

11. As stated above, the legislative functions according to the strict Islamic law belong to God and God alone. Ever since the days, of Adam, God has promulgated His laws through His Messengers and Prophets. Then came a time when He in His supreme wisdom thought that the final law should be given to the people. Such lave came in the shape of revelations conveyed to the human beings through Prophet Muhammad, which were at once written or committed to memory and subsequently collected in the form of a book, commonly known as the holy Qur'an. Thereafter the conduct of all human beings, men, women and children, was to be controlled by the commands emanating from God Almighty and contained in the holy Qur'an. They lay down what is right and what is wrong, what is desirable and what is undesirable, what is permissible and what is prohibited, what is recommended and what is disapproved. The holy Qur'an, in short, is the necessary foundation of the Muslim society. It is the fulcrum and the centre on which the entire Muslim law oscillates.

11. (a) It is an accomplished fact that a society consisting of human beings is immensely complex. Although nature must be regarded as the manifestation of one eternal will and subject to one eternal law, yet the human situations cannot be identical fn all times and in all places. Combination of personalities and material conditions have no specific pattern in the future situations. There are thousand‑fold various degrees and problems of human qualities thrown against thousand, fold diverse environment. God has so ordained that every child born in the world should bear with it an amazingly new idea. Tomorrow always brings along some unexpected variation of human circumstances and environ ment. In this world, therefore, where the circumstances and affairs of the people change and must go changing with the births of new people with the creation of new circumstances, one cannot expect to have cut and dry rules and orders. The holy Qur'an is no exception to this general principle. It lays down broad and general rules necessary for the guidance of human life on variety of subjects. It gives us a most perfect system of abstract rules and a particular code of conduct based upon virtues. It is fuller and more explicit in certain matters for example inheritance than the others. There are matters in respect of which the reference in the Holy Qur'an is allegorical. There are yet matters on which it is completely silent so that the people may regulate their conduct with reference to such matters according to the needs of the society as they for the time being exist. It has been emphasized over and over again in the Holy Qur'an that it is revealed in a very simple language so that it may be understood by all. Some of the verses emphasizing the clearness of the provision may with advantage be quoted here:‑---

Chapter II, verse 242

"Allah thus makes clear to you His communications that you may understand."

Chapter VI, verse 99

"And He it is who has brought you into being from a single soul, then there is (for you) a resting‑place and a depository ; indeed We have made plain the communications for a people who understand."

Chapter VI, verse 196

"And thus do We repeat the communications and that they may say : You have read ; and that We may make it clear to a people who know."

Chapter VI, verse 127

"And this is the path of your Lord, (a) right (path) ; indeed we have made the communications clear for a people who mind."

Chapter XI, verse 1

"I am Allah the Seeing (This is) a book, whose verses are made decisive, then are they made plain, from one Wise All aware."

Chapter XII, verse 2

"Surely We have revealed it‑an Arabic Qur'an that you may understand."

Chapter XV, verse 1

"I am Allah, the Seeing. These are the verses of the Book and (of) a Qur'an that makes (things) manifest."

Chapter XVII, verse 89

"And certainly We have made distinct for men in this Qur'an every kind of description, but most men do not consent to aught but denying."

Chapter XVII, verse 106

"And it is a Qur'an which we have made distinct so that you may read it to the people by slow degrees, and We have revealed it, revealing in portions."

Chapter XXXIX, verse 28

"An Arabic Qur'an without any crookedness, that they may guard (against evil)."

Chapter LIV, verse 17

"And certainly We have made the Qur'an easy for re membrance, but is there any one who will mind "

Chapter LIV, verse 22

"And certainly We have made the Qur'an easy for re-membrane, but is there any one who will mind "

Chapter LVII, verse 9

"He it is who sends down clear communications upon His servant, that he may bring you forth from utter darkness into light ; and most surely Allah is Kind, Merciful to you."

Chapter LVII, verse 17

"Know that Allah gives life to earth after its death ; indeed, We have made the communications clear to you that you may understand."

Chapter LVII, verse 25

"Certainly We sent Our apostles with clear arguments, and sent down with them the Book and the measure, that men may conduct themselves with equity ; and We have made the iron, wherein is great violence and advantages to men, and that Allah may know who helps Him and His apostles in the secret ; surely Allah is Strong, Mighty."

Chapter XXX, verse 58

"And certainly We have set forth for men every kind of parable in this Qur'an ; and if you should bring them a communication, those who disbelieve would certainly say: You are naught but false claimants."

States that every kind of parable has been set forth in the holy Qur'an to make the common man understand. The effort has to be made by all Muslims to understand the Qur'an. See Chapter XLI, verse 44:

Chapter XLI, verse 44

"And if We had made it a Qur'an in a foreign tongue, they would certainly have said : Why have not its communications been made clear What : a foreign (tongue) and an Arabian Say : It is to those who believe a guidance and a healing ; and (as for) those who do not believe, there is a heaviness in their ears and it is obscure to them; these shall be called to from a far‑off place."

Thus it is quite clear that reading and understanding the Qur'an is not the privilege or the right of one individual or two. It is revealed in easy and understandable language so that all Muslims if they try may be able to understand and act upon it. It is thus a privilege granted to every Muslim which cannot be taken away from him by anybody, however highly placed or learned he may be to read and interpret Qur'an. In understand ing the Qur'an one can derive valuable assistance from the commentaries written by different learned people of yore, but then that is all. Those commentaries cannot be said to be the last word on the subject. Reading and understanding the Quran implies the interpretation of it and the interpretation in its turn includes the application of it which must be in the light of the existing circumstances and the changing needs of the world. The interpretation of this august Book by the commentators of bygone days, for example, Imam Abu Hanifa, Imam Malik, Imam Shall, etc. for whom all Muslims must have extreme respect, and so have I, cannot be wholly acceptable at the present time. Their interpretation indeed was also not accepted by many other equally learned people who came after them including their own pupils. The deep study made by these gentlemen on different provisions of the Holy Qur'an will reveal to us that consciously or unconsciously they were inevitably led by the circumstances, environments and the events which prevailed at that particular time. They arrived at a decision in respect of the problems which presented them at the time and place in which they dwelt. If the interpretation of the Holy Qur'an by the commentators who lived thirteen or twelve hundred years ago is considered as the' last word on the subject then the whole Islamic society will be shut up in an iron cage and not allowed to develop along with the time. It will then cease to be a universal religion and will remain a religion confined to the time and place when and where it was revealed. If as I have suggested above the Holy Qur'an does not lay down cut and dry rules then interpretation made by Imam Abu Hanifa etc. cannot be allowed to produce that effect indirectly. Unfortunately since several centuries the doors of interpretation of the Holy Qur'an in the light of new circum stances have been completely shut out with the result that Muslims have succumbed to religious coma, cultural deteriora tions, political paralysis and economic decline. Scientific research and advancement which was at one time the monopoly of Muslims has gone into other people's hands and the Muslims have gone into, as it appears, perpetual slumber. This state of affairs must end. Muslims have to wake up and march with the time. The inertia which has caught the Muslims nation socially, economically and politically has to be shaken off. In order to apply the general principles of the Holy Qur'an to the changing needs of the society it has to be interpreted intelligently and in the manner that the people may be able to shape their destinies, ideas and ethical conceptions and act as best suited to the country and the time in which they live. Like all other human beings, Muslims are also endowed, with divine gift of intelligence and it is meant to be used and not grow rusty. The people in the different regions of the world have liberty to study and explore and investigate the will and the meaning of God in making a certain provision of the Holy Qur'an and apply them to their own peculiar needs. All Muslims then have to listen, learn and interpret Qur'an.

Chapter XLVII, verse 16

"And there are those of them who seek to listen to you, until when they go forth from you, they say to those who have been given the knowledge: What was it that he said just now These are they upon whose hearts Allah has set a seal and they follow their low desires."

Chapter LXII, verse 2

"He it is who raised among the Meccans an Apostle from among themselves, who recites to them His communications and purifies them, and teaches them the Book and the Wisdom, although they were before certainly in clear error."

They must reflect on the Qur'an and not put locks on their hearts.

Chapter XXXVIII, verse 29

"(It is) a Book We have revealed to you abounding in good, that they may ponder over its verses, and that those endowed with understanding may be mindful."

They must ponder over the Holy Qur'an and understand it. In order to understand the Holy Qur'an, they must strive hard as they strive hard to attain any other object in this world. This is ijtehad.

Chapter XXIX, verse 6

"And whoever strives hard, he strives only for his own soul ; most surely Allah is Self‑sufficient, above (need of) the worlds."

Again it has been emphasized that the people must try to have complete and accurate knowledge of the holy Qur'an.

Chapter XXVII, verse 84

"Until when they come, He will say : Did you reject My communications while you had no comprehensive knowledge of them Or what was it that you did 7"

Chapter XXII, verse 78

"And strive bard in (the way of) Allah, (such) a striving as is due to Him; He has chosen you and has not laid upon you any hardship in religion ; the faith of your father Abraham ; He named you Muslims before and in this, that the Apostle may be a bearer of witness to you, and you may be bearer of witness to the people ; therefore keep up prayer and pay the poor‑rate and hold fast by Allah : He is your Guardian ; how excellent the Helper "

Chapter XX, verse 114

"Supremely exalted is therefore Allah the King, the Truth ; and do not make haste with the Qur'an before its revelation is made complete to you and say : O my Lord increase me in knowledge."

All these verses make it perfectly clear that all Muslims and not any particular class of them are expected to learn Qur'an, under stand its provisions comprehensively and accurately and interpret them. With regard to interpretation certain well‑established principles must necessarily be followed. Some of these principles may be stated as under:‑

(1) There are certain commandments in the holy Qur'an which are vital and go to the root of the matter. They must not be broken and must be fulfilled exactly.

(2) There are other provisions directory in nature which must substantially be complied with.

(3) Where words used are all plain words with well‑defined meanings entirely free from any ambiguity, it is necessary to keep very strictly to the strict grammatical meaning of word. In other words no violence on any count should be done to the language of this holy book.

(4) It should be presumed that no part of the Qur'an is meaningless or contradictory or any part, superfluous or redundant.

(5) Meaning should not be divorced from the context.

(6) It is dangerous to construe the holy Qur'an with reference to the conditions existing at the time when it was revealed.

(7) Interpretation should be rational, that is to say, it should be consistent with the human behaviour influenced by the surrounding circumstances. It should be borne in mind that new and unforeseen circumstances are continually arising. Needs of society are multiplying and the interpretation has got to be in the light of such circumstances and needs.

11. (b) Similarities and differences in various situations in time and place should be weighed. We should compare and make allowances for degree and circumstances moving from the facts in the distance to those in our presence treading tentatively through hypothesis and surmise to the point of conditional and still dismissible convictions.

12. Unfortunately, there has never been in this world not at least after the end of the rule of the first four Khalifas, a true Islamic State in which the holy Qur'an was interpreted by men acting more or less deliberately and in co‑operation with each other. The principles laid down in the holy Qur'an are eternal but their application is not because the application has got to be to the facts and for a purpose both of which go on varying and changing. Now if a certain provision of the holy Qur'an is susceptible of more than one interpretation and every Muslim is given the right to interpret it according to his own understand ing, fancy and whims then different interpretations will come into being which will lead to chaotic condition. Similarly if on the matters with regard to which the holy Qur'an is silent every individual is given an authority to lay down a rule of conduct according to his own peculiar way of thinking it would lead to a disunited society. Islamic society like any other society offers to the largest number of people the greatest amount of happiness obtainable with the smallest amount of pain. It is, therefore, the opinion of the largest number of people which must prevail.

13. One man or a handful of men in the very nature of things is deficient in wisdom and strength. However powerful and ingenious one person can be, he cannot be expected to be perfect. Even the most sensitive and imaginative heart cannot give due weight to all the qualities it perceives. Men, women and children, thousands and millions of them, placed in living relationship with each other and conducting themselves in an ordered manner have more wisdom or virtual strength than one individual. They have better imagination and better perception. According to the Holy Qur'an too, the interpretation of the Holy Qur'an and the application of its general principles to the given facts should not be left to one man or a handful of men but should be done by the mutual consultation of all Muslims.

Chapter XLII verse 38

"And those who respond to their Lord and keep up prayer, and their rule is to take counsel among themselves, and who spend out of what we have given them."

Chapter III, verse 101

"And hold fast by the covenant of Allah all together and be not disunited, and remember the favour of Allah on you when you were enemies, then He united your hearts so by His favour you became brethren ; and you were on the brink of a pit of fire, then He saved you from it ; thus does Allah make clear to you His communications that you may follow the right way."

In many other verses too, all Muslims are commanded to try to understand the Holy Qur'an and reflect upon its verses which mean that they should do it jointly and not individually.

14. In this context it is necessary to know what the word 'law' means. In my opinion, the law is what the majority of the people think should be the course of their conduct.

15. Originally there were very few human beings living in a scattered number and they could afford to live a life of their own. Subsequently when humanity increased and it became necessary for them to live together in groups the necessity to have a common course of conduct for all of them arose. For example, in a society of fifty persons, a murder was committed. Majority thought that it was a wrongful act. Some perhaps thought it was not. Since the majority had the strength, there fore, they imposed their will on the minority and this became the law, viz. no one out of fifty persons will commit murder. The same analogy would apply to the present day. In a country consisting of several crores of people, majority of the people should give the interpretation to those parts of the Holy Qur'an which are susceptible of different interpretations as are best suited to their conditions and situations or apply general principles to the existing circumstances in order to have the uniformity of action and oneness of thought. Similarly it is for the majority of the people to lay down the law on the question on which Holy Qur'an is silent. The next question which requires dis cussion is as to how crores of people are going to exercise their right with regard to the interpretation of the Qur'an or in respect of the application of the general principles to the existing circum stances or are going to lay down the law on the question the Holy Qur'an is silent. This can be decided by keeping in view the prevailing conditions in a country as to how can the people best select their representatives whom they can trust with the exercise of their authority and expression of their will. They may choose one person as their representative, but then absolute power to one person, history has taught us, has always led to dire consequences. Power corrupts an individual the country and the rule of law and the absolute power corrupts him the country and the Rule of law absolutely. In the history of a country, circumstances have compelled one single individual to take the reigns of Government in hand in order to set the matter right and thus save the country from distruction, but then that is a temporary phase perfectly permissible in order to restore democracy to the country and power to the people. According to strict Islamic law, therefore, it is of utmost importance that power is given to many persons so that each person is a check upon the other and all of them jointly lay down the rule of law for the guidance of the nation: In the very nature of things they should be answerable, and responsible to the people. It is only then that a programme of planned action can be made successful. In Islam power and authority vests in all, God alone being above them, and decisions are taken by them jointly and collectively as free citizens. This is called "Ijma."

16. Ijtihad or exercise of judgment is a recognised source from which the laws of Islam are drawn. It means people exerting the faculties of mind to the utmost for the purpose of forming an opinion in a case of law respecting a doubtful and difficult point. Ijtihad was very widely practised by Imam Abu Hanifa. The methods by which he and the other jurists of Islam exercised judgment were qiyas (analogical reasoning), istihsan (equity), istislah (public good) and istidlal (inference). Ijtihad by a single individual or by a few individuals was considered even by the Muslim jurists as dangerous. They, therefore, preferred the exercise of the judgment by the consensus of opinion of the majority of the Mujtahids or an agreement of the Muslim jurists of a particular age on a question of law. It was perhaps correct for the people of that age to confine 1jtihad to a few jurists because knowledge was not imparted to other people so freely and so commonly, but at the present time, I think, this duty should be performed by the representatives of the people because as I have already stated the reading, understanding of the Qur'an and the application of its general principles is not the privilege of one or two persons but a right and a duty of all Muslims which should be exercised by the person chosen by them for this purpose. It, therefore, automatically follows that the holy Qur'an on all matters on which it is clear is the rule of law which governs the Muslims. As regards the interpretation and the application of the general principles laid down in the holy Qur'an, the rule of law will be that which is laid down by the chosen representative of the people. I can explain the point of view given above by a few illustrations. I will first take up the of abused verse 3 of Chapter IV of the Holy Qur'an:‑

Chapter IV, verse 3

"And if you fear that you cannot act equitably towards orphans, then marry such women as seem good to you, two and three and four, but if you fear that you will not do justice between them then marry only one or what your right hands possess ; this is more proper, that you may not deviate from the right course."

As I have already stated in the earlier part of this judgment, no portion of a command of the Holy Qur'an should be considered as superfluous or meaningless. It is for the chosen representative of the people to lay down a law as to whether a Muslim can marry more than one wife and if so under what conditions and terms. Presumably such a marriage has got to be for the benefit of the orphans.

17. In any case, this provision is an enabling provision and not a compelling one and can in my view be controlled by the State. Applying the analogy, where the majority of 50 persons laid down the law that no one amongst them will commit murder, if one Muslim says, "I will not marry more than one wife because I can not afford it", then the majority of 8 crores of Muslims can lay down the law f or the nation that the economic, social or political condition of the nation do not allow its member to marry more than one wife. This verse has to be read with two other verses of the Holy Qur'an. The first one of those two verses is con tained in Chapter XXIV, verse 33, which lays down that those persons who lack the means to marry, should not marry. If a person is prohibited to marry one wife for the lack of means he must be stopped to marry more than one wife for the same or similar reasons. Marriage implies wife and children. If a person is prohibited to marry for lack of means to support the family, then it can be said that he should have only so many children as his means allow. If he cannot control the birth of his children, then the State should do it for him. Applying this principle on a larger scale, if the food position; for example, of a country is bad and the birth has got to be controlled, then it will be perfectly legitimate for the State to lay down a law that no person shall marry more than one wife and that too, if he has capacity and means to maintain the family or that he should not have particular number of children. Furthermore, it is specifically laid down in the verse quoted above that if a Muslim fears that he will not do justice between two wives, be should only marry one wife. Further on in Chapter IV, verse 129, God has made it perfectly clear that it is not in the power of human beings to do justice between wives.

Chapter IV, verse 129

"And you have it not in your power to do justice between wives, even though you may covet (it), but be not disinclined (from one) with total disinclination, so that you leave her as it were in suspense ; and if you effect a reconciliation and guard (against evil), then surely Allah is Forgiving, Merciful."

It is for the State to lay down the law in order to reconcile these two verses and place restrictions upon marrying more than one wife.

18. It may say that as two wives, according to the experience extending over a number of years has shown, and it has indeed been recognised even in the Holy Qur'an cannot be treated alike therefore the practice is stopped for good. All these three verses contain the general principles. The application of these general principles should be controlled by the State which can make a law in order to prevent persons from destroying themselves and their children by having more than one wife. It is also in the interest of the nation and the country to control marriages whenever it is considered proper.

19. Coming to theft, it is laid down in Chapter V, verse 38, that the men who steal and the women who steal, must have their hands cutoff as a punishment for what they have earned, an exemplary punishment from Allah. Verse 39 of the same Chapter lays down : "But whoever repents after his iniquity and reforms himself, then surely Allah will turn to him merci fully." This is then the general principle that the maximum punishment of theft is cutting off of the hands. But what is theft and which theft should be met with which punishment is the concern of the State. It, therefore follows that the State has got the authority to lay down the rules of conduct for the people based on the injunctions of the Holy Qur'an. These powers are very wide and should be exercised freely in order to execute the programme of planned action.

20. So far as the minors are concerned, the principles laid down in practically all the text books which have gained the force of law in India and' Pakistan are not derived from the Holy Qur'an. Some of the provisions of this august Book which deal with the minors may be reproduced here :

Chapter II, verse 233

"And the mothers should suckle their children for two whole years for him who desires to make complete the time of suckl ing, and their maintenance and their clothing must be borne by the father according to usage ; no soul shall have imposed upon it a duty but to the extent of its capacity ; neither shall a mother be made to suffer harm on account of her child, nor a father on account of his child, and a similar duty (devolves) on the (father's) heir ; but if both desire weaning by mutual consent and counsel, there is no blame on them, and if you wish to engage a wetnurse for your children, there is no blame on you so long as you pay what you promised for according to usage ; and be careful of (your duty to) Allah and know that Allah sees what you do."

Chapter LXV, verse 6

"Lodge them where you lodge according to your means, and do not injure them in order that you may straiten them ; and if they are pregnant, spend on them until they lay down their burden ; then if they suckle for you, gave them their recompense and enjoin one another among you to do good ; and if you disagree, another (woman) shall suckle for him."

According to these verses, the mothers have to suckle their children for the whole two years. The father has to bear all the expenses ; presumably both' of the child and the woman who suckles him. This lends support to the Shia Law that a son should remain with the mother for a period of two years, but then I have not been able to see any justification from the Holy Qur'an for the distinction which is made between a son and a daughter. Holy Qur'at, casts a duty on both the parents to look after and bring up their child. Neither the mother nor the father can be deprived of their child. In any case, there is no provision in the Holy Qur'an that a woman should be bereft of the child if she marries a man not related to the minor within the prohibited degrees. Strictly speaking, if a woman is to be deprived of the company of her child simply because she has married a person who is not related to her child within the prohibited degrees then on the same analogical reasoning I do not see why should a 'man who marries for the second time should not be deprived of the custody of his child. Stepmother is just as obnoxious and dangerous if not more to the child as stepfather is. In any case, it is for the State to lay down the law with regard to the minors because the holy Qur'an is completely silent about it. Guardians and Wards Act can be considered as the law which governs the minors. It was adopted asp a law after the Islamic State of Pakistan came into being by the chosen representatives of this country. But even the Guardians and Wards Act does not lay down any hard and fast rule as to who should be entitled to the' custody of the child, in case mother marries the second husband. The only consideration both from the point of view of the holy Qur'an and that of the Guardians and Wards Act is the welfare of the minor. If it is for the welfare of the minor to keep the child with the mother, then despite her marriage she must have a right to keep the child. Every case shall have to be decided on its own peculiar merits.

21. Besides the Holy Qar'an, Hadith or Sunna has come to be regarded by a considerable number of Muslims as an equally im portant source of Muslim law. Strictly speaking Hadith is what was said by Prophet Muhammad. But in common parlance it means what was said by him or what was done by him or what was practised by him or what was approved, disapproved and not approved or not disapproved by him. In order to fully appreciate the value of Hadith as the source of Islamic law, we must know the status of Holy Prophet in the Islamic world. I have already stated in the earlier part of this judgment that Islam is a divine religion. It derives its authority from God and God alone. if that be the true concept of Islam, then it necessarily follows that Prophet Muhammad's sayings, practice and conduct cannot be con fused with revelation from God. They can at the most be attracted to interpret the Qur'an in the light of the given circumst ances or to apply its general provisions to the facts of the particu lar case. Nor can one deny that Prophet Muhammad was a perfect human being. No one can claim to possess the capacity and power to show that respect and reverence to him that is due to him or which we wish to show to him. But despite all that, he was not and cannot be regarded as God. He remains like all other prophets a human being.

Chapter XII, verse 109

"And we have not sent before you but men from (among) the people of the towns, to whom we sent revelations. Have they not then travelled in the land and seen what was the end of those before them and certainly the abode of the hereafter is best for those who guard (against evil) do you not then understand "

Chapter XIV, verse 10

"Their apostles said : Is there doubt about Allah, the Maker of the heavens and the earth He invites you to forgive you your faults and to respite you till an appointed term. They said : You are nothing but mortals like us ; you wish to turn us away from what our fathers used to worship ; bring us therefore some clear authority."

Chapter XIV, verse 11

"Their apostles said to them : We are nothing but mortals like yourselves, but Allah bestows (His) favours on whom He pleases of His servants, and it is not for us that we should bring you an authority except by Allah's permission ; and on Allah to should the believers rely."

Chapter III, verse 143

"And Muhammad is no more than an apostle; the apostle, have already passed away before him ; if then he dies or is killed, will you turn back upon your heals And whoever turns back upon his heals, he will by no means do harm to Allah in the least ; and Allah will reward the grateful."

Chapter VII, verse 188

"Say : I do not control any benefit or harm for my own soul except as Allah pleases ; and had I known the unseen I would have had much of good and no evil would have touched me ; I am nothing but a warner and the giver of good news to a people who believe."

He was a mortal like us.

Chapter XLI, verse 6

"Say : I am only a mortal like you ; it is revealed to me that your God is one God, therefore follow the right way to Him and ask His forgiveness ; and woe to the polytheists."

He was warner but surely not God.

Chapter LI, verse 67

"And do not set up with Allah another God; surely I am a plain warner to you from Him."

He had to follow the commands of God just as much as we have to follow them with this difference, that perhaps his res ponsibilities and liabilities under the Qur'an were much greater than ours. He could not give to the Muslims more than what was revealed to him from God.

Chapter V, verse 67

"O apostle deliver what has been revealed to you from your Lord ; and if you de it not, then you have not delivered His message, and Allah will protect you from the people ; surely Allah will not guide the unbelieving people."

22. It is needless for me to go on quoting different provisions of the Holy Qur'an in order to impress that Prophet Muhammad though a very highly placed human being has to be given a second place to God. As a human being, apart from what was revealed to him from God, he had his own thoughts which guided his actions. It is true that Prophet Muhammad did not commit any sin but he was capable of committing mistake and this fact is even recognised by the Holy Quran.

Chapter XLVIII, verse 2

That‑Allah may rectify for you that which has gone before of the faults attributed to you and that which remains behind, and complete His favour to you and guide you on a right wax."

At more than one occasion, it is stated in the Holy Qur'an that Prophet Muhammad was a very good example to the rest of the world but then all it means is that one should be as honest as steadfast, as earnest and as religious and pious as he was and not that we should act and think exactly as he did because that is un natural and humanly impossible and if we attempted to do that, life will become absolutely difficult.

23. It is also true that the Holy Qur'an has insisted that Holy Prophet should be obeyed but that only means that where he has asked us to do a certain thing in a certain manner we should do it in that manner. Obedience can be of a command, and when there is no command there can be no obedience or disobedience. It is difficult to infer from these provisions of the Holy Qur'an that we should do exactly what the Prophet did. On the face of it, the experience of a single lifetime, even if it were that of the Prophet who, it must be emphasized was never regarded as God by Islam could not furnish precedents in more than a limited number of cases. It is quite clear that the difference between Qur'an and Hadith is substantial and real. As to what should be the rule of law for the nation to observe on certain matters and how should a particular case be decided are the questions which must be settled with reference to the existing circumstances and justice.

Chapter IV, verse 58

"Surely Allah commands you to make over trusts to those worthy of them, and that when you judge between people, you judge with justice ; surely Allah admonishes you with what is excellent ; surely Allah is Seeing, Hearing."

Chapter V, verse 42

"They are listeners of a lie, devourers of what is forbidden a:

therefore if they come to you, judge between them or turn aside from them, and if you turn aside from them, they shall no harm you in any way ; and if you judge, judge between them with equity ; surely Allah loves those who judge equitably."

Chapter XLII, verse 15

"To this then go on inviting, and go on steadfastly on the right way as you are commanded, and do not follow their low desires, and say : I believe in what Allah has revealed of the Book, and I am commanded to do justice between you : Allah is our Lord and your Lord ; We shall have our deeds and you shall have your deeds, no plea need there be (now) between us and you : Allah will gather us together, and to Him is the return."

In arriving at a certain decision both with regard to the questions relating to the individuals or those relating to the nation as whole we cannot lose sight of the differences in various situa tions in time and place.

24. There is no authentic evidence what importance the four Khalifas who followed Prophet Muhammad attached to the say ings, doings and the conduct of Prophet Muhammad. But even if it be conceded for the sake of argument that they used the Hadith very extensively as their guide in deciding questions concerning individuals and those of national importance they were justified in doing so because they were nearer to Prophet Muhammad both in respect of time and in respect of place than we are. Abu Hanifa, however, who was born in 80 Hijri and died 70 years after only used about 17 or 18 traditions in deciding the points which were raised before him. That is perhaps because he was not so near to the Prophet as the first four Khalifas were. He based all deci sions on written provisions of the Holy Qur'an and endeavoured to penetrate behind he wording of the text to the motive of the pro visions made. He possessed remarkable powers of reasoning and deductions. He formulated theories and principles of jurispru dence on the basis of analogical deduction in the light of actual facts. If Abu Hanifa had the right to interpret the Holy Qur'an without the assistance of the traditions and in the light of the existing circumstances, then that right cannot be denied to the rest of the Muslims. In interpretation of the Holy Qur'an and in the decision of the cases, Abu Hanifa's word was not taken as the last word even by his own students and followers. He was after all a human being and liable to commit mistake. It is for this reason that one should not depend upon the opinion of one individual. The opinion and rule of law which should for the time being bind the nation should be that which is arrived at by the consensus of opinion of the chosen representatives of the people. Now Abu Hanifa believed and held that Qur'an contain ed some but by no means all regulations and laws required by society. On the other hand, some of the successors held that every derived law was implicit in the text of the Qur'an and that all they did by the reasoning process was to elicit what was already contain ed in the text. I do not wish to venture my opinion on this highly controversial subject. Now that we are living in a methodical and systematic world and have all facilities to make an intelligent research, it is high time that we examined the place of Hadith as one of the "roots" of Muslim jurisprudence and also whether we should be bound by the opinion of the jurists of the eminence of Abu Hanifa etc. on matters of law or analogical deduction should be resorted to by us also in the light of the actual and given circumstances.

25. All Muslim doctors are agreed that as the time passed on, a great body of forged traditions grew into a valid source of the laws of Islam. False traditions came into existence even during the life time of Prophet Muhammad. The number of false and inaccurate traditions had become so enormous that Hazrat Umar during his Khalafat discouraged' and even stopped the reporting of traditions. Imam Bukhari selected nine thousand traditions out of six lakh as genuine. I do not think it can be denied that as it was done in the case of Holy Qur'an, no attempt whatsoever was made to preserve the traditions during the lifetime of the Prophet himself. On the contrary, the available evidence is that Prophet Muhammad very strongly disapproved the preservation of traditions. If traditions as compiled by Muslim are correct, then Prophet Muhammad most definitely prohibited the people to write down what he said or what he did. He ordered the people who had already preserved his traditions to destroy them im mediately--

The same or similar tradition has been translated by Maulana Muhammad Ali in his book "Religion of Islam" Edition 1936 Page 62 as follows :‑

"Abu Huraira is reported to have said the Prophet of God came to us while we were writing Hadith and said, what is this that you are writing. We said Hadith which we hear from thee. He said, what a book other than the Book of Allah."

There is also no evidence that the traditions were preserved or compiled during the time of the four Khalifas who immediately followed Prophet Muhammad. What significance should be attached to this fact is a matter which requires close examination. Is it possible to say that neither Prophet Muhammad nor the four Khalifas who followed him made any attempt to preserve the traditions because they were never meant to be of general applica tion. The Holy Qur'an was committed to memory by a vast majority of Muslims. It was written on all available material immediately as it was revealed and for this purpose services of several learned persons were acquired by the illustrious Prophet.

But so far as the Hadith were concerned, they were neither com mitted to memory nor preserved. They remained hidden in the minds of the people who died after casually mentioning them to others until they were collected and compiled several hundred years after the death of Prophet. I think it is high time that a systematic and thorough research is made in order to find out that in spite of the fact that the Arab memory is famous for its miraculous tenacity and they had cultivated their re-collective faculty to the highest pitch, if it is possible to rely upon the tradi tions as they at present exist and accept them as genuine. They were admittedly collected, subsequently for the first time, about a century after the death of our Prophet record of which is however not available now. Afterwards, they were collected by Imam Bukhari (died in 256 Hijri), Imam Muslim (died in 261 Hijri), Abu Daud (died in 275 Hijri), Jame Tirmizi (died in 279 Hijri), Sunan‑al‑Sai (died in 303 Hijri) Sunan‑ibn‑Majah (died in 283 Hijri), Sunan‑al‑Diribi (born in 181 Hijri), Beihique (born in 384 Hijri) and Imam Ahmad (born in 164 Hijri). The Shias recognise the collections of Hadith made by Abu Jafar (329 Hijri), Shaik hAli (381 Hijri) Shaikh Abu Jafar Muhammad ibn Ali ibn Hussain (466 Hijri) and Sayyid al‑Razi (406 Hijri). It will be seen that all these collections are of still later date than the collections made by Imam Bukhari etc. There are very few traditions upon which all the collectors have agreed. Does this not make the traditions extremely doubtful to be relied upon. Those who are entrusted with the work of research, will surely take into account thousands and thousands of false and fabricated traditions having been in troduced to discredit Islam and Prophet Muhammad. They must also take into account that however retentive the Arab memory may be whether a transcript made out of this source only can be regarded trustworth. After all Arab memory today must be as retentive as it was 1,300 years before. An examination of Arab memory as it at present exists can afford us an important clue whether the traditions handed down to us can be relied upon as accurate and genuine, Arabs' exaggerations and the convictions and prejudices of those persons who handed down these traditions to us must have distorted the narrative to a considerable extent. When words pass from mind to mind whether the mind is that of an Arab or of anybody else, they become subject to transformations deter mined by the peculiar cast of each mind. Each mind imparts to them its own turns and twists and when words have passed through several minds one can imagine the magnitude of changes they will undergo. One should not lose sight of the fact that human nature is same everywhere and God has made human being imperfect and human perception frail in the extreme.

26. If one reads the traditions as collected, one finds inherent evidence of at least some of them being difficult to believe.

Al‑Hadis‑Mishkat‑ul‑Masabih‑1938 Edition Volume I

Page 517‑Tradition 289.

"Ata'a reported that he said : I went to Ayesha and said:

Inform us of the most wonderful of what you have seen from the Messenger of Allah. She wept and said : And what thing is more wonderful than (this) He came to me one night and went with me to my bed (or she said : in my quilt) till my skin touched his skin. Then he said : O daughter of Abu Bakr leave me. Will you worship my Lord I said : Verily I desire thy nearness, but thy desire is more preferable. Then she gave him permission and so be stood by a jug of water, made ablution and did not use much water. Then he stood for prayer and wept, till his tears flowed down his chest. Then he bent down and wept, and then he made prostration and wept, and then he raised up his head and wept. He did not cease to weep in such a way till Bilal arrived. Then he (Bilal) called him for prayer. I asked : O Messenger of Allah what makes thee weep, while Allah has forgiven thy past and present sins : He said : shall I not to be a greatful servant"

Page 676‑Tradition 34.

"Ayesha reported that the Prophet used to kiss someone of his wives and then say his prayer without making ablution".

Page 702‑Tradition 118.

"Umme Salamah reported that Omme Solaim enquired : O Messenger of Allah verily Allah is not bashful for truth. Is bath obligatory on a woman in case she has got emission of semen Yes' said he, 'in case a woman sees water (semen)'. Then Omme Salamah covered her face and said : O Messenger of Allah does a woman emit semen He said : Yes, may your right hand be covered with dust, with what thing does her son resemble her Agreed upon it, Muslim added with a narra tion of Umme‑Solaim : Verily the semen of a man is white, thick, and the semen of a woman is thin, yellow. So which ever of these two is forceful or takes precedence, resemblance comes out of it."

Page 704‑Tradition 123.

"Mu'azah reported that Ayesha said: I and the Prophet used to take bath from the same vessel (placed) between me and him. He was more hasty than myself, till I used to say : Leave (water) for me, leave for me. She said : They were both im pure (at that time)" .

Page 705‑Tradition 124.

"Ayesha reported that the Messenger of Allah was asked about a man who finds moisture but does not remember emis sion of semen (in dream). He said : He should take bath. And (he was asked) about a man who sees (in dream) that he emitted semen but does not find moisture. He said : There's no bath for him. Omme Solaim asked : Is there bath upon a woman who sees that (moisture) Yes' replied he, verily women are halves of men."

Page 705‑Tradition 125

"Same reported that the Messenger of Allah said : When the front portion of male organ penetrates the female organ, bath becomes obligatory. Myself and the messenger of Allah did it and then took bath".

Page 710‑Tradition 142.

"Ayesha reported that the Messenger of Allah used to take bath from impurities and then make himself warm with me before I took bath".

Page 732‑Tradition 202

"Ayesha reported : I and the Prophet used to take bath from L‑he same vessel while we were both impure ; and he used to order me to put on a trouser and then to embrace no while I had menses. He used to take out his head towards me while he was mu'takif', and then I , used to wash it while I had menses".

Page 732‑Tradition 203.

"Ayesha reported : I used to drink water while I had menses and then give it to the Prophet. He used to put his mouth over the place of my mouth and then drink water, and I used to chew bone‑meat while I had menses and then give it to the Prophet who placed his mouth in the place of my mouth"

Page 732‑Tradition 204.

"Ayesha reported : When I had menstruation, I had used to come down from bed on the mat. The Holy Prophet used not to draw near and she used not also to come near till she become pure".

Page 733‑Tradition 205.

"Same reported : The Prophet said to me : Bring the mat for me from the Mosque. I said : I have got menses. He said: Verily your menses are not in your hand."

27. What is the subject matter of most of these traditions is reported to have been given out by Hazart Ayesha Siddiqa and Hazrat Um Salma. I cannot persuade myself to believe that these two ladies who were perfect in every respect could disclose in such a naked manner the private talk which took place between them and Prophet Muhammad in their capacity as husband and wife.

28. I am also unable to believe that Prophet Muhammad could have said that majority of the persons who were found in the hell were women and the majority of people who entered the paradise were poor.

Page 264‑Tradition 11.

"Osamah‑b‑Zaid reported that the Messenger of Allah said: I took my stand at the door of Paradise ; and (I saw) the majority who entered it are the poor, and the men of abund ance were kept confined in addition to the inmates of the Fire who had been ordered to (enter) the Fire ; and I took my stand at the door of the Fire when lo the majority who entered it were women".

Page 264‑Tradition 12.

"Ibn Abbas reported that the Messenger of Allah said : I peeped into Paradise and then found that the majority of its inmates are the poor : and I peeped into the Fire and found that the majority of its inmates are women".

29. Does it amount to say that acquisition of wealth by the Muslims is indirectly prohibited because if they do acquire wealth there are less chances of their going to heaven What will happen to the Muslims if all of them became poor Will it not annihilate them completely Will it not stop their progress in all fields of life Furthermore, is it believable that Prophet Muhammad said as has been reported by Abdullah bin Qais and written in Hadith No. 602/74 at Page 852 of Hadith Bukhari that the Muslims will have sexual intercourse with the women in heaven who would be sitting in different cor ners of a tent. The traditions and the interpretation of the Holy Qur'an made long time ago have put Islam in a very narrow compass and has limited its scope considerably which otherwise was very wide. Should we allow this state of affairs to continue

30. Assuming for the sake of argument that the traditions which have been collected by the different traditionists are genuine and accurate, still there is evidence of the fact that these traditions if they do not touch the religious matter were not intended by the Prophet to be taken as the last word on the subject. The follow ing Hadith is reported by Muslim :‑

Page 161‑Tradition 100

"Rafe'‑b‑Khadiz reported that the Holy Prophet approached Medina, while they (Medinites) were engrafting palm‑trees. He enquired : What are you doing They replied : We are doing it (engrafting). He said : Perhaps it would have been better if you had not done this. Then they abandoned it, but there was less (produce). So they mentioned that to him. He said : I am only a man ; when I bid you anything regarding the affair of your religion receive it, and when I bid you anything from my opinion, then I am only a man."

Apart from this in more than one tradition, emphasis has been laid down by the Holy Prophet that the Quran is the only Book which should guide the Muslims in all walks of life.

31. That the traditionsists themselves were not sure about the genuineness of their collections is apparent from this fact alone that they do not ask the Muslims to accept the traditions collected by them as genuine unless they satisfy the tests laid down by them. If they were sure of their accuracy this test was absolutely unnecessary.

32. There are some traditions which take away the human beings away from this world. It is a good thing to be spiritual but Islam does not allow it to be taken to absurd extreme. Fundamentally, God has made us human beings and He wants us to live as such. If He wanted us to be spiritual or angels nothing was simpler for Him than to have made us one. According to the strict Islamic law, Muslims should use their energies for making the existence more useful, beautiful and thoroughly enjoyable.

33. If we read the traditions we will find that most of them are short and abrupt and appear to have been detached from the context. In the absence, therefore of the context and the facts which led the Holy Prophet to say certain things or to do certain things, it is impossible to appreciate and judge the true significance and the impact of those sayings and acts. In any case, the traditions require thorough research and minute examination on absolutely new basis. It is said and rightly that traditions cannot abrogate the Qur'anic provisions but in one respect at least, the traditions have brought about the modification of the Holy Qur'an and that is in respect of wills by the Muslims. Giving m3 anxious consideration to the traditions I am forced to take the view that the traditions as they at present exist should not be placed at the same level with the Qur'an and should not be treated as of general application. I am not in favour of treating the traditions as collected by the different compilers as one of the sources of the Muslim law until they are tested not with prejudice and bigotry but intelligently and objectively applying all those tests a new which were applied by Imam Bukhari etc. in selecting the correct traditions out of innumerable false, fabricated and concocted traditions as well as those tests which have been made available to us by new experiments and new facts. I am further of the view that the exegesis of the Holy Qur'an should be developed by the judges as well as by the chosen representatives of the people by a subtle method of reasoning and analogy in the. light of the given facts. The decisions given by the Muslim jurists like Abu Hanifa etc. incorporated in certain books should be treated as precedents only in the same authoritative manner as the decisions of the ordinary courts of justice. Law contained in the Holy Qur'an is not static but organic. The interpretation of the Holy Qur'an has to be consistent with the human behaviour influenced by the existing circumstances and determined by diverse factors. Like Abu Hanifa, reasons should be applied to the investigation of temporal concerns. In this view of the matter, the Muslim law given to the Muslims of the sub‑continent of India shall have to undergo a very extensive change and brought in line with the existing circumstances and conditions prevailing in this country.

34. The next question which has to be considered is that assuming that the traditions as compiled by the different compilers are accurate, genuine and have as much binding force as the commands of the Holy Qur'an whether the law written in the text books with regard to the minors derives its authority from such traditions.

35. The entire Muslim law with regard to the minors which has been reproduced in the earlier part of this judgment is based on somewhat doubtful tradition reported by Ahmad and Abu Daud which is as follows :‑---

Al‑Hadis‑Miskhat‑ul‑Masabih‑1939 Edition, Volume II,

Page 727‑Tradition 11

"Amr‑b‑Shuaib reported from his father from his grandfather that a woman asked : O Messenger of Allah, my belly was a resting place of this son of mine, my breast a drinking place for him, and my lap a soothing place for him, but his father divorc ed me and wishes to snatch him away from me. The Messenger of Allah said : You have got better right to take him till you are not remarried."

36. We do not know what were the circumstances under which the Prophet told the woman to keep her son till she re marries. By analogy this provision would also apply in the case of a daughter as well but then according to this Hadith, the mother loses the right of the custody of her child irrespective of the fact whether she marries a person related to the minor within the prohibited degree or without it. That is putting a premium on the remarriage of widows which is both against the Holy Qur'an as well as some of the traditions. This Hadith also does not show as to who would be entitled to the custody of the minor in case the mother re‑marries. The inference which can be drawn from this Hadith is that the child shall in that eventuality be handed over to the father, Imam Shafi has gone to the other extreme. According to him the mother is not entitled to retain the custody of her minor children even if she marries their Mehram if he does not consent to it. This Hadith however runs counter to other traditions reported from Prophet Muhammad by com paratively better authority. Tirmizi reports as having been stated by the Prophet and heard by Abu Ayub that whoso creates separation between a mother and her child, Allah will create separation between him and those dearest to him on the Resur rection Day.

Al‑Hadis‑Mishkat‑ul‑Masabih‑1938 Edition, Volume 1.

Page 228‑Tradition 98

"Abu Ayyub reported : I heard, the Messenger of Allah say Whoso creates separation between a mother and her child, Allah will create separation between him and those dearest to him on the Resurrection Day."

In another case Prophet Muhammad cancelled the sale of the slave girl because she was being separated from her son.

Page 229‑Tradition 100

"Same reported that he made separation between a slave girl and her son. The Holy Prophet prevented him from that. Then he cancelled the sale".

So far as the son is concerned, Ibn Majah reports from Abu Musa that the Holy Prophet cursed him who separates a father from his son and a brother from his brother.

Page 229‑Tradition 103

"Abu Musa reported that the Messenger of Allah cursed him who makes separation between a father and his son, and between a brother and his brother".

Where our Holy Prophet prohibited the separation of the child from his mother he did not say that such a separation was permissible if the mother re‑marries. It is difficult to say as to which tradition was the first in time. In the very nature of the things, what was said subsequently by Prophet Muhammad would abrogate his earlier opinion.

Again, in the case of a boy, Abu Huraira reported that Prophet Muhammad gave option to the minor to choose between his father and his mother.

Al‑Hadis‑Mishkat‑ul‑Masabih‑1939 Edition Volume II Page 728‑Tradition 12

"Abu Hurairah reported that the Messenger of Allah gave option to a boy (to choose) between his father and mother".

Another incident is reproduced by Abu Daud, Nisai and Darimi :‑---

Page 728‑Tradition 13

"Same reported that a woman came to the Prophet and said : Verily my husband intends to go away with my son while he gave me water to drink and gave me benefit. The Prophet said : This is your father and this is your mother. Take the hand of any of them which you like. He took the hand of his mother and so she went away with him."

37. The same incident perhaps is differently given in the following Hadith also collected by Abu Daud, Nisai and Darimi :‑--

Pages 728 & 729‑----Tradition 14

"Hilal‑b‑Osamah reported : While I was sitting with Abu Hurairah a Persian lady came to him, with a son while her husband divorced her and both claimed him. She then spoke in Persian to him saying : O Abu Hurairah, my husband in tends to go away with my son. Abu Huraira said : Cast lottery about him. He spoke with her about it. Her husband then came and said: Who disputes with me about my son Abu Hurairah said : O Allah, verily I don't say this, except that I was sitting with the Prophet. Then a women came to him and said : O Messenger of Allah, verily my husband wishes to go away with my son, while he did me some service, and gave me drink from the well Abu Enabah. (And according to Nit ai from sweet water). Then the Prophet said: Cast lots about him. Her husband said: who is hereto dispute with me about my son Then the Messenger of Allah said: This is your father, and this is your mother. Take the hand of either of them whom you like. Afterwards he caught the hand of his mother".

38. These traditions clearly show that the boy was given an option to choose between the father and the mother and there is no indication that this choice was not intended to be given to the child if the mother has re‑married. There is yet another tradi tion in which Prophet Muhammad handed over the hand of a girl to her mother's sister because according to him the mother's sister was like a mother.

Page 726‑Tradition 10

"Bara'a‑b‑ajab reported that the Prophet entered into a treaty on the Day of Hudaibiyyah on three conditions‑on condition that if anyone of the polytheists came to him, he would return him to them, and if anyone of the Muslims went to them, they would not return him ; on condition that he would enter it in the following year and stay there for three days. When he came to it (Mecca) and the filed time elapsed, he came out. The daughters of Hamjah followed him proclaiming O Uncle, O uncle. Ali overtook her and caught her by her hand. Ali, Zaid and Jafar began to quarrel about her. Ali said : I have taken her as she is the daughter of my uncle Ja'far said : She is daughter of my uncle and her mother's sister is my wife. Zaid said : She is daughter of my brother. The Prophet handed her over to her mother's sister and said : Mother's sister is in the place of a mother. He then told Ali : You are of me and I am of you. He said to Ja'far: My appearance and character resemble with those of yours. And he said to Zaid : You are our brother and our master."

39. There are numerous traditions which enjoin the children to serve their parents and in particular the mother, which shows that Prophet Muhammad considered the mother better person to have the custody of the child then the father. All these traditions only show that Prophet Muhammad decided the questions as the facts of each case required and his decisions therefore could not be accepted as of general application. Lastly, did Prophet Muhammad (peace be upon him) himself not marry Umme Salmah who had children from her previous husband who were not related to the Prophet within the prohibited degree. Were the children taken away from Umme Salmah after she married the Prophet for this reason History shows that they were not. Then why should the children be taken away from other mothers

40. With regard to the property of the minor, I have not come across any tradition laying down any hard and fast rule. After giving my anxious consideration to this question, I have arrived at the conclusion that there is no law in Islam which governs the guardianship of the person and the property of the minor. The overall consideration should be the welfare of the minor. The child should not be taken away from the mother if it is in its welfare simply because the mother has remarried a person not related to the minor within the prohibited degree. I don't see why should the mother, or mother's mother or whoever has the custody of child lose that custody after a certain age. Why should such person not retain the custody if it continues to be for the welf are of the minor. Mother and mother's mother are the only two persons who can guard the minor against any onslaught. They have that love and affection for their minor children or grand‑children, as the case may be, which nobody else can claim to have.

41. In this case, the contest is between the mother who has remarried a person not related to the minor girls within the prohibited degree end the paternal uncle of the minors. I have seen the second husband of the mother who is considerably old and very respectable looking fellow. I see no justification what soever to snatch the girls from the mother and hand them over to the petitioners whose sons and other relation will certainly not be related to the minors within the prohibited degree. In the case of the girls it is necessary to see if the person who wants their custody has himself not got. boys who may prove dangerous to them. In the case of the father married to another woman, that woman's relations who must certainly visit his house may be abso lutely undesirable person. It should not be forgotten that mother or mother's mother stands in a better position to protect the minor girl from men even if they be their husbands than the father or other male relation I consequently accept this appeal, set aside the judgment of the Guardian Judge of Gujranwala and dismiss the application Shanab Din.

[The order was announced on 22nd July, 1960 by M. R. Kayani, C. J. to counsel of appellant.‑Ed.]

A.H. Appeal accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.

🔍 Find a Lawyer