Ijtehad has got important status in Islamic law. discuss. (19980(2006) Sponsored Links

1. Introduction:
Ijtehad is one of the dependent sources of Islamic law. if a matter is not resolved expressly in a Quran Sunnah and by way of Ijma the jurist must not leave the matter unresolved rather he should strive hard to find out the solution under right ofQuran and Sunnah.
2. Meaning and definition of ijtehad:
I. Meaning of ijtehad:
(i) Literal:
Ijtehad Iiterally means striving expending of maximum effort in the performance of an act.
(ii) Technical:
It is the effort made by Mujtahid in seeking knowledge of the ahkam (rules) of the Shariah through interpertation.
II. Definition of Ijtehad:
"Ijtehad means the application by a lawyer of all his faculties to the consideration of the authorities of the law, that is theQuran Traditions and the Ijma with a view to find out what in all probability is the law.
3. Arguments in support of Ijtehad:
I. Quranic verses in support of Ijtehad:
Following Quranic verses are in favour of Ijtehad:
"And we have revealed on you the book which describes everything."
"We have omitted nothing form this book.:
"The ask those who have knowledge, if you yourselves do not know,"
II. Ahadith in suppopt of ijtehad:
Following Ahaditths are also in support of Ijtehad.
"Exercise Ijtehad because God makes the work easy for the person for which he is born in this world."
"When a ruler exercise Ijehad properly in resolving an issue he is to be rewarded by God in dual wayand if he is wrong in this conclusion he gets one reward."
4. Function of Mujtahid:
Following are the functions or tasks of the Mujtahid:
(i) To discover the law that is either stated explicitly in the primary sources or is impiled by the texts, that is literalinterpretation.
(ii) To extent the law to new to new cases which are similar to cases mentioned in textual sources.
(iii) To extend the law to new cases which are not covered by the previous methods.
5. Limitations of Ijtehad:
Ijtehad cannot be made in case which are covered by the express words of Quran Hadith or has been determined by basic Ijma. A jurist cannot exercise Ijtehad on the basic pillars of Islam e.g paying of Zaket, Prohibiton of Murder etc.
"PLD 1981 FSc 23."
"Ijtehad is permissible only in field where on rule of Injunction form Holy Quran or Sunnah is available."
6. Modes of performing Ijtehad:
A jurist may perform Ijtehad by following the following pattern.
I. Literal constrution:
A jurist first concentrates on literal meaning of the texts and follow the plain meaning rule.
(i) Qiyas:
After the literal construction the jurist may turn to qiyas but must confined to strict types of analogy.
III. Collectively reliance on texts:
After exhausting the first two methods or modes the jurist may rely on all the texts considered collectively. this means that legal reasoning is undertaken more in line with the spirit of the law and its purposes rather than the confines of individual texts.
7. Qualifications of Mujtahid:
The word Mujtahid means a person who can make Ijtehad. following are the qualifications of a mujtahid.
I. According to author of Jam Ul Jawami:
According to the Author of Jam'al Jawami following are thequalifications of a mujtahid.
(i) Major:
A mujtahid must be a major i. e. has attained the age of majority so a minor cannot be a mujtahid.
(ii) Sound and rational mind:
He must be of sound mind, possessing the understanding and of sufficient intellectual to grasp the subject.
(iii) Knowledge of grammar:
He must have average knowledge of the Arabic language, grammar and recognized principles of jurisprudence and sourcesof law i. e. Quran Sunnah etc.
(iv) Acquaintance with the principles of Shariah:
He must have well versed the main principles of Shariah or the legal code so as to able to ascertain true intention of the law-giver.
(v) Knowledge of Naskh:
The mujtahid must understands abrogation (Naskh) and identifies the occasions on which rules have been repealed by law-giver.
(vi) Knowledge to circumstances of Quranic revelations:
A must know the circumstances in which the texts of HolyQuran were revealed or repealed.
II. According to Fakhural Islam:
The great thinker Fakhural Islam enumerates the following conditions.
(i) Conversant with Islamic Jurisprudence:
A mujtahid must be conversant with the science of Islamicjurisprudence and the rules of law applied is various departments.
(ii) Knowledge of the Quran:
A mujtahid should have knowledge of Quran together with itsmeaning both literal and dictionary and he must be able to interpret its verses.
(iii) Knowledge of the Traditions:
A mujtahid should have knowledge of the traditions as well. he must be fully familiar with the traditions reported by from the Holy Prophet (P.B.U.H) and able to distinguished between authentic and un-authentic matwater and Mashhoor traditions. he must be familiar with rules for authenticity leading to the genuineness of the traditions.
(iv) Acquaintance with the rules of analogical deduction:
A mujtahid must be aware of and full conversant with the rules and methods of analogical deduction.
III. Other qualifications:
Following are also considered as necessary qualifications ofmujtahid.
(i) He must have faith and the courage of convocation.
(ii) He must have competence and advanced proficiency in Arabic language.
(iii) A comprehensive understanding of Fiqh, the basic principles and other relevant matters.
(iv) He must understands the different forms of bayan or elaboration of the texts, which is usually provided by the law-giver himself, and also identifies the occasions on which such bayan is invoked.
(v) A proper understanding of modern development and a reasonable appraisal of contemporary exigencies.
8. Kinds of Mujtahid:
I. Mujtahidum Fish-Shari:
These are the jurists who have an absolute and independent power of expounding the law e. g. Abu Hanifa Malik, Shafi etc.
II. Mujtahidum Fil Madhhab:
The jurists having authority to expound the law according to a particular school comes into this category. the were the disciples of jurists of first rank like Abu Yusuf belongs to Hanafi school. these mujtahids followed the fundamental principles laid down by their respective masters but not consider themselves bound to follow the general principles or arguments in particular cases, and they often profounded view opposed to those of their masters.
III. Mutahidum Fil Masal'l:
These are the jurists who are competent to expound the law on a particular question which had not been settled by the juristof first and the second class. the jurist of this rank is at liaberty to lay down the law in conformity to the principles of his school e. g, Khassaf, Qadi Khan.
IV. Mujtahidum Muqallid:
They are also called Mujahid Muqayyid. they have not any right o deduct the law but their function was to explain the law and draw inferences. theses mujtahids are divided into four groups.
(i) Ashabu't Takrij.
(ii) Ashabu'i Tarjih.
(iii) Ashabu'i Tashih.
(iv) Asabu'i Shariah.
9. Legal effect of Ijthad:
The legal effect of Ijtegad is the probability of the conclusion so arrived at being correct but the possibility of such conclusion being erroneous is not discretionary or presumptive law.
10. Position in Pakistan:
The courts in Pakistan specially Federal Shariat court applies Ijtehaed in its judgment and cases. the Federal Shariat court provided guideline to the rulers as well public through Ijtehad. the court observes the basic principles of democracy, freedom, equality, tolerance and social justice as enumerated by Islam.
11. Modern principles of Ijehad:
Modern principles of Ijtehad are as under:
(i) State and social justice.
(ii) New age new laws.
(iii) What is not categorically and unconditionally prohibited is permissible.
(iv) Follow the modern pattern.
(v) The necessity of new Sunnah and new Fiqh.
(vi) Need of revision of Islam.
(vii) Revision and reform of the recess and practices of an early society.
(viii) Istihsan.
12. Importance of Ijtehad in modern world:
Ijtehad is a living source of law. it has become important in the modern times due to the needs of the present time, such as encomic, social and political change, so that the Muslim socciety and people may become a powerful force in the modern times. Shah Wali Ullah was the first Muslim thinker to propoued a theory of cautious exercise of Ijtehad. then it iwas followed by Sir Syed Ahamad Khan and Allama Mohammad Iqbal. according to Allama Iqbal, Ijtehad can be undertaken not only by an individual jurist but also by a legislative assembly recognizing the Importance of Ijtehad in the modern times, the Shariah Qrdinance of 1988. in Pakistan has entrusted the task of making the laws in the country to conforms to the Quran and Sunnah to the judiciary.
13. Conclusion:
To conclude, I can say, that the importance of Ijtehad lies in the dynamic and flexible spirit of Islam, which is by the Quran and Sunnah, Islamic law can be interpreted by a mujtahid who may be either an individual or a legislative assembly. this development will bring about an accommodation between the prescriptions and injunctions of Islam, on the one hand, and the imperatives of modern life on the other.

Discuss the importance of Sunnah as a source of Islamic Law. (2002)(2003)

1. Introduction:
Sunnah is the second primary source of Islamic law. if the Mujtahid does not find a text in the Quran for a case he has to settle, he has recourse to the Sunnah for the derivation of the Hukms. there is a special bond between Quran and Sunnah which must not be served as Sunnah is the explanation of the Holy Quran.
2. Meaning of Sunnah:
I. Literal meaning:
The word Sunnah stands for the 
"Well known path" or the "Well-trodden path which is followed again and again.
II. Technical meaning:
"What was transmitted from the messenger of Allah (P. B. U. H) of his words, act and 9tacit) approvals."
3. Kinds of Sunnah:
Following are the kinds of Sunnah.
(i) According to its of nature.
(ii) According to its written record.
I. According to its nature:
According to its nature, Sunnah is of following types.
(i) Sunnah al Qawliah:
It is saying or narration of the Holy Prophet (P. B. U. H) through which he intended the laying down of the law or the explanation of the Ahkam.
Example:
(i) "La darar Wa-la dirar"
(No injury is to be caused and none is to be borne)
(ii) Sunnah Al Filiyah:
It is defined as the deeds and practices of the Holy Prophet (P. B. U. H) having a legal content like his prayers facts etc.
(iii) Sunnah Taqritiyah:
It is defined as the commission of certain acts, by wondor deed. if something was done in a particular way and Holy Prophet (P. B. U. H) maintained silence without expressing disproval to it, his silence in such a case is called Taqir or Tacit approval and is considered a Sunnah.
II. According to its written record:
Sunnah may also be classified according to its entire written record, that is Ahadith.
(A) Division of Ahadith:
With respect to its narration, Ahadith are divided into two types.
(i) Hadith Muttasil.
(ii) Hadith Mursal.
(i) Hadith Muttasil:
The Ahadith whose chain of narration is complete. these are the ones in which the narrator are mentioned from the beginning of the sand upto the Holy Prophet (P. B. U .H) and no narrator is missing.
Types of Hadith Muttasil:
It is one that is related by such a large number of people that thier agreement to falsehood cannot be conceived. twatur is of two.
Twatyr Lafzi:
When all the narrators agree about the words as well as meaning the hadith is called Twatur Lafzi. for example. following Hadith is Twatur Lafiz."He who attributes falsehood to me should person his abode in the fire."
Twatur Manawi (Meaning)
It is a hadith which conveys the same meaning even it the words are not exactly the same.
(b) Hadith Mashhur:
The mashhur tradition is one the number of whose reporters do no reach the level of twatur in the first generation. thus if one or two companions related the tradition form the prophet but in the next generation the generation of tabium, a very large number related form them and so on till the end of the chain when the traditions were compiled the such a tradition is called mashhur.
(c) Hadith Ahad:
The hadith ahad or the Khabar Wahid is reported by one or two persons from the beginning of its chain upto its end when all traditions were recorded.
(ii) Hadith Mursal:
Hadith Mursal is one that is not continuous and one one more names of the narrators are missing from the chain of narration the jurists disagreed about the employment of a Mursal hadith as proof for a Hukm.
4. Sunnah as a source of law:
Allah Almighty has delegated legislative powers to the Holy Prophet (P. B. U. H). the Quran from time and again makes the Prophetic Sunnah as obligatory on the Muslims the reason why Sunnah is treated as a source of law is based on the argument that Sunnah of Holy Prophet (P. B.U.H) was also revealed on him.
"And came to you from God the light (Prophet) and the book." (Surah Al-Maida 15)
"And remeber what is read in your houses out the Quran and the Hikam (Sunnah) (Surah-Al-Ahzaab 34)
The authority of the Sunnah as a source of law is derived from the Quran. following Quran verses throws light on the importance of Sunnah.
"If ye differ in anything among yourselves, refer it to the Allah and his Holy Prophet (P.B.U.H)." 9Surah-Al-Nisa 59)
"And he does not speak of his own desire all is revealed on him". (Sura-Al-Nahal)
"He who obyes the Holy Prophet (P.B.U.H) obeys. (Surah Al Nisa: 80)
II. Legislative function of Sunnah:
Sunnah is the second primary source of law. the jurists must recourse to the Quran first for the search of the Hukm and should not move to the Sunnah unless the search in the Quran has been completed. more often than not, it is not possible for the jurist to understand the meaning of the text of the Quran from the derivation of the ahkams, unless he has recourse to the explanation and commentary of the Quran which is sunnah itself.
(i) Qualification for Sunnah as a source of law:
It is not every Sunnah that is a source of law. to qualify Sunnah as a source of law, it is necessary that the acts must have a legal content. the purpose of the saying or acts of the Holy Prophet (P.B.U.H) should be the laying down of the law or its elaboration.
(ii) Original law-making by Sunnah:
Where some Hukm is not mentioned in the Quran and Holy Prophet (P.B.U.H) decides it according to its own wisdom, it becomes a source of original law making.
(iii) Legislative function of Sunnah with respect to Holy Quran or relationship btween Quran and Suuna:
Quran laid down the basic principles and Sunnah explains these principles. the legislative function of Sunnah with respect to the Holy Quran or the relationship between Quran and Sunnah can be discussed as under.
(a) Specification of General Rule:
The Ahkams in the Quran is in general, undetermined. form the Sunnah restricts or qualifies theses ahkams.
Example:
Quran says that "for the male two shares of the female the Sunnah explains that the murderer will not inherit.
(b) Elaboration of Ahkams:
The Ahkams in Quran are general in unelaborated form. the Sunnah elaborates these Ahkams.
Example:
Quran order prayer, Sunnah provied for timing, number and rak' as of prayers.
(c) Analogy on the basis of rule in Quran:
The Sunnah may add supplement the legal provision of the Quran.
Example:
Quran prohibits marriage of two sisters with one man Sunnah prohibits it with maternal or paternal aunt.
(d) Lainkage of case with well known principle:
Sunnah links a case with the well-known principle mentioned in the Holy Quran.
Example:
Quran has permitted all good things and has commanded the avoidance of khabaith. the Sunnah has liked with the Khabaith the consumption of animals with molars and birds with claws.
(e) General principles laid down by Sunnah:
Some times Sunnah lays down a genera principle.
Example:
Sunnah lays down the principle.
"No injury is to be caused or borne."
Quran mentions a number of cases in which injury to others has been prohibited.
(f) Explanation of the implicit:
The Quranic injunctions are sometimes implicit and the Sunnah makes it explicit by providing the details.
Example:
Quran provides that the hands of each theif are to be cut. the Sunnah restricts this to the thief who steals wealth equivalent to the Nisab and from the protective custody.
5. Difference between Sunnah and Hadith:
Hadith is the noun derived from the word "Hadatha" which means a tale or verbal communication of any kind. in legal sence Hadith means saying of Holy Prophet (P.B.U.H) which must be practiced. Sunnah and Hadith means one and the same thing, yet there are few differences between these two terms.
(i) As to meaning:
Hadith means saying off Holy Prophet (P.B.U.H).
Sunnah refers to every saying of Holy Prophet (P.B.U.H) and to every act which he did or performed and every act which was permitted to be done by him.
(ii) Scope:
Sunnah is bigger in scope.
Hadith is narrow in scope as it refers to only the sayings of Holy Prophet (P.B.U.H).
(iii) As to element:
Sunnah is a complete term which has three elements.
Hadith is one element of Sunnah.
(iv) As to Activity:
Hadith consisted in some sort of activity. there must be saying of the Holy Prophet. (P.B.U.H)
In Sunnah, there may be no activity. it may be that act of Holy Prophet (P.B.U.H) where he kept quite in case he saw people doing a particular thing.
(v) As to collection:
Hadith have been collected and compiled in a proper form.
Collection of Sunnah was never made and it is out of collection.
6. Conclusion:
To conclude, I can say, that Sunnah is the second primary source of Islamic law. it is interlinked with the Quran insofar as it restricts its general meaning or qualifies its absolute texts or explains its difficult words.

Difference between Void (Batil) and Invalid (Fasid) Marriages

Difference between Void (Batil) and Invalid (Fasid) Marriages

, there is neither dower, nor iddat, nor legitimacy of the children. Thus, a In Muslim law, marriages are of three kinds:

(i) Sahih i.e., true, which is a completed valid contract;

(ii) Batil i.e., bad in its foundation, and one which is a completely void agreement; and

(iii) Fasid, i.e., irregular, or one which is good in its foundation, but unlawful in its attributes. In the batil and fasid kinds of marriages, there are no mutual rights of inheritance between husband and wife.

In Muhammadan law, marriages that are not valid may be either irregular (also sometimes referred to as invalid) or void. This distinction is peculiar to Sunni law alone. Under Shia law, marriage is either valid or void. Marriages that are irregular under Sunni law are void according to Shia law.

The following are the three important points of difference between a void (batil) and an invalid (fasid) marriage:

1. As to Definitions:

A batil marriage is altogether illegal, and does not create any civil rights and obligations between the parties. In such casesmarriage which is prohibited on the ground of consanguinity, affinity, or fosterage, is void, the prohibition against such a marriage being unconditional and absolute. Similarly, a marriage with a woman who is the lawful wife of another is void.

An irregular (fasid) marriage, on the other hand, is good in its foundation, but unlawful in its attributes because of the lack of some formality or the existence of some impediment. The lack of formality may subsequently be made up, or the impediment may subsequently be removed. In other words, such a marriage is not unlawful in itself. Thus, in a marriage:

 (i) Without witnesses, the irregularity arises from accidental circumstances, and may be removed by a subsequent acknowledgement, express or implied, before sufficient witnesses.

(ii) Without the guardian’s consent, the objection may be removed if the guardian subsequently ratifies it.

(iii) With a fifth wife, the impediment may be removed by the husband divorcing one of his earlier four wives,

(iv) With a woman undergoing iddat, the impediment ceases on the expiration of the period of iddat.

(v) With an idolator or fire-worshipper, the impediment may be removed if the woman is converted to Islam.

(vi) With a woman so related to the wife that if one of them had been a male, they could not have lawfully inter-married, this impediment may be removed by the man divorcing the wife who constitutes the obstacle. Thus, if a man, who has already married one sister, marries another, he can divorce the first, and thus regularise the second marriage.

[All these are instances of invalid (fasid) marriages.]

2. As to their Legal Effect:

The effect of a batil marriage is that it creates no civil rights or obligations between the parties, but after consummation, the wife becomes entitled to customary dower only.

A fasid marriage has no legal effect before consummation. Even after consummation, the husband and wife have no mutual rights of inheritance between themselves, but the issues of such a marriage are legitimate. If consummation has taken place, the wife is (i) entitled to dower, proper or specified, whichever is less; and (ii) bound to observe iddat.

3. As to Issues of the Marriage:

The issues of a void (batil) marriage are illegitimate; those of a fasid marriage are legitimate.

A valid Muslim marriage confers upon the wife the rights of (i) Dower; (ii) Maintenance; (iii) Suitable matrimonial residence; (iv) Equal affection and impartially, if she has a co-wife; and (v) Right to the society, and up-bringing of her infant children, even in case of a divorce.

A Muslim marriage imposes upon the wife the obligations (i) to be faithful and obedient to her husband; (ii) to admit him to sexual intercourse, due regard being had to health and decency; (iii) to suckle her own children, if the husband cannot afford a wet nurse, and (iv) to observe iddat.

A Muslim marriage creates between the parties prohibited degrees of relationship and reciprocal rights of inheritance. It also confers upon both the parties the right to marital confidence. But the husband acquires no rights over his wife’s property.

Define 'marriage'. what is the difference between irrgular and void marriages. (1998)

Q. Define marriage? what do you understand by valid, irregular and void marriage. (2006/S)
1. Introduction:
Marriage of Nikah is a civil contract, which is made by parties for the sole purpose and object of benefiting themselves according to Shariat it is a method to legalize the cohabitation of a man and a woman and issues out of this union are legitimate. under Islamic law, contract of marriage, need not to be proved through a written document.
2. Meaning of marriage:
Marriage means wedlocks, the mutual relation of the husband and wife. it is a contract for the legalization of intercourse and procreation of children.
3. Definition of marriage:
Hedeya:
Marriage is defined to be a contract which has for its object the procreation and legalizing of children.
According to Ameer Ali:
Marriage is an institution ordained for the protection of society, and in order that human being may guard themselves from foulness and unchastity.
4. Classification of marriage:
Classification of marriage is as under.
(a) Valid.
(b) void.
(c) Irregular.
(a) Valid:
A marriage which conforms in all respects whit the law is called valid marriage.
(b) Void:
A void marriage is one which is unlawful in itself the prohibition against the marriage being perpetual and absolute. so it is no marriage at all.
(i) Examples:
(i) Marriage without the consent of either party.
(ii) A marriage prohibited on the ground of affinity.
(iii) A marriage prohibited on the ground of consanguinity.
(v) A marriage with the wife of another person.
(c) Irregular:
An irregular marriage is one which is not unlawful in itself, but unlawful for something else. in irregular marriage irregularity arises from an accidental circumstances.
(i) Examples:
(i) A marriage without witnesses.
(ii) A marriage with a woman observing Iddat.
(iii) A marriage prohibited on ground of difference of religion.
(iv) A marriage with two sister at the same time.
(v) A marriage to a fifth wife.
5. Difference between void and irregular marriage:
I. As to legal position:
Void marriage has no lawful position.
Irregular marriage is not in itself unlawful.
II. As to prohibition:
In void marriage the prohibition is perpetual and absolute.
In irregular marriage prohibition is temporary.
III. As to legitimacy:
In void marriage the children born out of the union are not legitimate.
In irregular marriage the children born out are legitimate.
IV. As to rights and obligations:
In void marriage no civil rights and obligations are arisen.
In irregular marriage if consummation has taken place some rights and obligations are arisen.
V. As to legal effect:
A void marriage has no legal effect.
An irregular marriage has legal effects after consummation.
VI. As to modification:
A void marriage cannot be modified into valid marriage.
An irregular marriage can be modified into valid marriage.
6. Kinds of marriage under Shia law:
The Shia law only recognizes two kinds of marriage viz, valid and void marriage.
7. Capacity to contract marriage:
(i) Parties must be able to understand the nature of their act.
(ii) The parties must be adult.
(iii) There should be free will of the parties.
(iv) There should be no element of compulsion.
(v) There should be no legal disability.
8. Modes of avoiding irregular marriage:
Following are the modes of avoiding irregular marriage.
(a) By the court:
The court can cancel the marriage if the matter is brought to its notice.
(b) By husband:
The husband can repudiate his wife.
(c) By wife:
The wife can also to avoid the marriage by relinquishment.
9. Conclusion:
To conclude I can say that the marriage is a civil contract. according to Sunnhi law a marriage which is not valid may be either void or irregular. the Shai law recognized only two kinds of marriage. a void marriage is not lawful whereas irregular marriage is not unlawful but unlawful for some other reason.

Define marriage (Nikah) what are its essentials. (2005)

Q. Define marriage. what are the essentials of a valid marriage according to Islamic law? (2003)
Q. Define marriage? explain the essential conditions of a lawful marriage. (2000)(2001)(2006/A)
1. Introduction:
Marriage of Nikah is a civil contract, which is made by parties for the sole purpose and object of benefiting themselves according to Shariat it is a method to legalize the cohabitation of a man and a woman and issues out of this union are legitimate. under Islamic law, contract of marriage, need not to be proved through a written document.
2. Meaning of marriage:
Marriage means wedlocks, the mutual relation of the husband and wife. it is a contract for the legalization of intercourse and procreation of children.
3. Definition of marriage:
Hedeya:
Marriage is defined to be a contract which has for its object the procreation and legalizing of children.
According to Ameer Ali:
Marriage is an institution ordained for the protection of society, and in order that human being may guard themselves from foulness and unchastity.
4. Objects of marriage:
Following are objects of a marriage.
(i) Legalization of sexual inter course.
(ii) Procreation of children.
(iii) Preservation of human race.
(iv) Regulation of social life.
5. Nature:
Muhammedan marriage is purely contractual. it is considered a religious duty. it is an act of Ibadat which is called Sunnat-Muwa-Kkidah.
Hazrat Muhammad (P.B.U.H) says:
If a person is in a position to maintain his wife and pay the amount of dower, he must get himself married.
6. Capacity for marriage:
(i) Every Muslim of sound mined, who has attained puberty may enter into a contract of marriage.
(ii) Lunatics and minors who have not attained puberty may be validity contracted in marriage by their respective guardians.
(iii) A marriage of a Muslim who is of sound mind and has attained puberty is void, if the is brought about without his consent.
7. Essentials of marriage:
Following are the essentials of a marriage.
I. Offer (Ijab)
There are must be offer by one party. it is also called Ijab.
II. Acceptance (Qubul)
The offer so made should be accepted by or behalf of the other party. it is called Qubul.
III. Offer and acceptance must be in the same meeting:
The offer and acceptance must both be made at the same meeting. an offer made at another meeting do not constitute a valid marriage.
IV. Freedom:
The parties contracting marriage should be free persons. marriage with a slave girl is permitted.
V. Consideration:
There must be some consideration in marriage which is dower. the parties are bound to fix amount of dower at the time of marriage. a marriage without dower is void.
VI. Majority:
The parties contracting marriage should be major. the majority act does not apply on marriage, divorce, maintenances cases. majority means age of puberty.
VII. Persons of opposite sex:
Persons of opposite sex:
Marriage is a contract between two persons of opposite sex. there is no concept of marriage of same sex in Islamic personal law.
VIII. Witnesses
(a) In case of Suni marriage:
Either two male or one male and two female witnesses.
(b) In case of Shia marriage:
No witnesses is necessary.
Qualification of witnesses:
The witness should be
(i) Adult
(ii) Sane
IX. Free consent:
Marriage is only valid under free consent. no person can be compelled by guardian to marry.
8. Legal effects of a valid marriage:
Following are the legal effects of a valid marriage.
(i) Sexual intercourse becomes lawful.
(ii) Issues born out are legitimate.
(iii) The wife becomes entitled to dower
(iv) The wife becomes entitled of maintenance.
(v) The husband can restrain the movements of wife in reasonable manner.
(vi) The wife has to go under period of Iddat in case of.
(a) death of her husband
(b) on the dissolution or divorce of marriage.
(vii) Rules of Affinity come into operation.
(viii) Mutual rights of inheritance are established.
(ix) A woman does not change her status.
9. Number of Wives:
A Muslim husband may have as may as four wives at the same time, but not more. if he marries a fifah wife when he has already four, such marriage would be irregular.
10. Conclusion:
To conclude I can say that marriage is not a sacrament but a civil contract between two persons of opposite sex. every Muslim of sound mind and has attained the age of puberty, may enter into contract of marriage. the main essentials of marriage are proposal, acceptance, witnesses, free consent and consideration which is called dower.

Define marriage. discuss legal effects of valid, and irregular marriage. (2002)

1. Introduction:
Marriage of Nikah is a civil contract, which is made by parties for the sole purpose and object of benefiting themselves according to Shariat it is a method to legalize the cohabitation of a man and a woman and issues out of this union are legitimate. under Islamic law, contract of marriage, need not to be proved through a written document.
2. Meaning of marriage:
Marriage means wedlock, the mutual relation of the husband and wife. it is a contract for the legalization of intercourse and procreation of children.
3. Definition of marriage:
Hedeya:
Marriage is defined to be a contract which has for its object the procreation and legalizing of children.
According to Ameer Ali:
Marriage is an institution ordained for the protection of society, and in order that human being may guard themselves from foulness and unchastity.
4. Proof of marriage:
Marriage can be proved by two modes.
(i) By the direct evidence of the witnesses.
(ii) By the written document i. e. documentary evidence.
5. Presumption of marriage:
If there is no direct evidence or documentary evidence such case prolonged and continues living together as husband and wife shall be presumed as marriage.
6. Classification of marriage:
Classification of marriage is as under.
(a) Valid.
(b) void.
(c) Irregular.
(a) Valid:
A marriage which conforms in all respects whit the law is called valid marriage.
(b) Void:
A void marriage is one which is unlawful in itself the prohibition against the marriage being perpetual and absolute. so it is no marriage at all.
(I) Examples:
(i) Marriage without the consent of either party.
(ii) A marriage prohibited on the ground of affinity.
(iii) A marriage prohibited on the ground of consanguinity.
(v) A marriage with the wife of another person.
(c) Irregular:
An irregular marriage is one which is not unlawful in itself, but unlawful for something else. in irregular marriage irregularity arises from an accidental circumstances.
(II) Legal effect of valid marriage:
Following are the legal effects of valid marriage.
(a) Lawful sexual intercourse:
The sexual inter course becomes lawful.
(b) Mutual rights of inheritance:
Mutual rights of inheritance are established.
(c) Legitimacy of child:
The children born out of the wedlock are legitimate.
(d) Right of maintenance:
The wife becomes entitled for maintenance.
(e) Right of dower:
The wife becomes entitled to dower.
(f) No right of interest in property:
Neither of the spouse acquire any interest in property of the other by reason of marriage.
(g) Observation of iddat:
The wife has to observe the iddat in case of death of her husband or in case of divorce.
(h) Rules of affinity:
The rules of affinity come into operation in case of valid marriage.
(I) Examples:
(i) A marriage without witnesses.
(ii) A marriage with a woman observing Iddat.
(iii) A marriage prohibited on ground of difference of religion.
(iv) A marriage with two sister at the same time.
(v) A marriage to a fifth wife.
(II) Legal effects of void marriage:
Following are the legal effects of void marriage.
(a) No rights and obligation:
The void marriage creates no right and obligation upon any party.
(b) Illegitimate children:
The children born out of such marriage are illegitimate.
(c) No rights to inheritance:
The death of one them dose not entitle the other to inherit form the deceased.
(III) Legal effect of irregular marriage:
(i) Legal effect where consummation has not taken place:
The irregular marriage has not legal effect if consummation has not taken place.
(ii) Legal effect if consummation has taken place:
If consummation has taken place the irregular marriage has following legal effects.
(a) Legitimacy of children:
The children born out of such marriage are legitimate.
(b) Right of dower:
The wife is entitled of dower.
(c) Observation of iddat:
The wife has to observe the period of iddat.
(d) Right of inheritance:
No right of inheritance is created the husband and wife.
(f) Right of issues:
The issues are entitled to share the inheritance.
7. Conclusion:
To conclude I can say that, the legal effects of three kinds of marriages are different in nature. a void marriage being illegal is null and void abinitio. an irregular marriage is not unlawful in it self but it has no any legal effect before consummation.

Define and dicuss Ijtihad as a source of Islamic Law.

Q.1:Define and dicuss Ijtihad as a source of Islamic Law. 
Q.2: Ijtihad has got a significance role in the Islamic legislation.Dicuss.And illustrate.(Supply.2001)
Q.3:What is the importance of Ijtihad in islamic legal syste?Dicuss.(Annual 1998)
Q.4:What is the Qualfications of a Mujtahid?(Supply.1999)
Q.5:Define Ijtihad and elaborate.What is the significance of Ijtihad in Islamic legal syste?(Annual2001) 
Introduction: 
Quran is a code of conduct and not a code of law.Althought it does issue instructions about various acts but it must be known that legislating a code of law is not its priority.Out of 666 verses only 200 lay down specific rules of law.Thus there are many mattes, which need to be solved, and no direct answer to them is given in the Quran,Sunnah or Ijma. 
Ijtihad (Arabic: اجتهاد‎, ʼijtihād) is the making of a decision in Islamic law (sharia) by personal effort (jihad), independently of any school (madhhab) of jurisprudence (fiqh). as opposed to taqlid, copying or obeying without question.

Ijtihad is mainly associated with the Usuli Shi'a Muslim Jafari school of jurisprudence. To be valid and accepted it has to be rooted in the Qur'an and the hadith and it is required that no established doctrine rules the case. A mujtahid is an Islamic scholar who is competent to interpret sharia by ijtihad. Whereas Akhbari Shi'a Muslim outright reject ijtihad and do not imitate a mujtahid who practice ijtihad.Contents 
Etymology and definition:
The word derives from the three-letter Arabic verbal root of ج-ه-د J-H-D (jahada, "struggle"): the "t" is inserted because the word is a derived stem VIII verb. In Islamic political theory, ijtihad is often counted as one of the essential qualifications of the caliph, e.g. by Al-Baghdadi (1037) or Al-Mawardi (1058). Al-Ghazali dispenses with this qualification in his legal theory and delegates the exercise of ijtihad to the scholars of religion (ulema).
History
The Qur’an commands ijtihâd[citation needed] and Door of Ijtehad was opened by Umar ibn al-Khattab.[2][3] Muslim scholar Muhammad al-Tijani writes in his first book Then I was Guided that the first Companions to open the door of Ijtihad was the second Caliph, who used his discretion vis-a-vis the Qur'anic Texts after the death of the Messenger of Allah (saw).

In early Islam it was common practice and later it integrated with early Islamic philosophy. It slowly fell out of practice in Sunni fiqh for several reasons, particularly due to the efforts of the Asharite theologians, most notably al-Ghazali whose book The Incoherence of the Philosophers was the most celebrated statement of the view that ijtihâd was leading to errors of over-confidence in judgement.

Some western scholars such as Joseph Schacht say the "closure of the door of ijtihad" had occurred by the beginning of the 10th century CE: "hence a consensus gradually established itself to the effect that from that time onwards no one could be deemed to have the necessary qualifications for independent reasoning in religious law, and that all future activity would have to be confined to the explanation, application, and, at the most, interpretation of the doctrine as it had been laid down once and for all.
                                                        Sponsored Link: Www.Zohaibarts.Blogspot.Com
Other scholars (e.g. [Wael Hallaq]) demonstrate that ijtihad has remained an essential part of the Sunni Muslim tradition, despite the emphasis on taqlid. Hallaq writes that a minority always claimed that a properly-qualified scholar must have the right to ijtihad at all times.[citation needed] Long after the 10th century the principles of ijtihad continued to be discussed in the Islamic legal literature and Asharites continued to argue with Mutazilites about its applicability to science. Al-Amidi (1233) mentions twelve common controversies about ijtihad in his book on Islamic law (usul al-fiqh), such as the question of whether the Prophet himself depended on ijtihad and whether a mujtahid should be allowed to follow taqlid. Ironically, the loss of its application in law seems to have also led to its loss in philosophy and the sciences, which some historians think caused Muslim societies to stagnate before the 1492 fall of al-Andalus.[citation needed]
Qualifications of a mujtahid
In some, but not all, Islamic traditions, a mujtahid can specialise in a branch of shariae such as economic or family law.

Sunni qualifications
The necessary qualifications were set out by Abu’l Husayn al-Basri (died 467 AH / 1083 CE ) in “al Mu’tamad fi Usul al-Fiqh” and accepted by later Sunni scholars, including al-Ghazali. These qualifications can be summed up as an understanding of the objectives of the sharia and a knowledge of its sources and methods of deduction. This includes:
being an upright person whose judgement people can trust (Male/Female(Aishah is considered a mujtahid))
competence in Arabic allowing correct understanding of the Qur’an and of the sunnah so as to be able to draw accurate deductions.
adequate knowledge of the Qur'an, the events surrounding its revelation and its legal contents (the ayat al-ahkam) - some 500 verses, according to al-Ghazali - and with all the classical commentaries on the ayat al-ahkam, especially the views of the companions of the Prophet and with incidences of abrogation (suspending or repealing a ruling) as well as the use of narratives and parables and sections relating to the hereafter to infer a legal rule in Sunni qiyas; a thorough knowledge of the rules and procedures for which allows the application of revealed law to an unprecedented case.
adequate knowledge of the sunnah, especially as related to one's specialization, the relative reliability of the narrators of the hadith, distinguishing between the general and specific, the absolute and the qualified. One estimate (by Ahmad ibn Hanbal) suggests that 500,000 hadith(including variants in wording and sanad) need to be known.
ability to verify the consensus (ijma) of the companions of the Prophet, the successors and leading imams and mujtahideen of the past, especially with regard to his specialisation, and familiarity with issues on which there is no consensus.
understanding the revealed purpose of the sharia as related to considerations of public interest including the Five Pillars of the good; the protection of "life, religion, intellect, lineage and property" and of general maxims for the interpretation of sharia', which include the "removal of hardship", that "certainty must prevail over doubt" and the achievement of a balance between too rigid and too free an interpretation.

The following are the conditions that Imam Baghawi laid out for ijtihad:
Knowledge of the Quran
Knowledge of the ahadith of the Blessed Prophet
Knowledge of the sayings of the Salaf-us-Salaheen; that is to know which rulings they disagreed and upon which they were unanimous.
Knowledge of Arabic linguistics
Knowledge of Qiyas, the knowledge by which one learns the method of deriving a ruling from the Quran and Sunnah. In this case, the above mentioned ruling (which is derived from the Quran and Sunnah) should not be apparent in the Quran and Sunnah or Ijma’. If there is no derivation involved due to the explicitness of the ruling in the Quran and Sunnah, than such a person is not by definition a mujtahid.
Shia qualifications
Shi'a hawza students start their studies learning fiqh, kalam, hadith, tafsir, philosophy and Arabic literature. After mastering these levels they can start becoming mujtahid by studying advanced textbooks known as sat'h, and research courses known as kharij.

The following points are presented in order to clarify the purpose of ijtihad:
God is all-powerful, all-knowing.
God created laws for humankind and only God has the authority to do so.
God appointed messengers to convey the laws to humankind.
God appointed imams to guide humankind about the laws.
At present, neither the messenger (Muhammad), nor the imams (God-appointed leaders) are accessible. The current imam, Muhammad al-Mahdi, is in the Occultation.
Therefore, qualified jurists have the duty to find God's law, not create God's laws.
Therefore, ijtihad is the process of finding God's law from the Qur'an and the hadith using specific methods.

Formal preconditions for being considered to be able to give ifta and thus be a mujtahid are:
Maturity
Being of legitimate birth
Faith
Intelligence
Justice (integrity, specifically refraining from all the prohibitions of the Sharia and performing all of its obligations.)

*It must be noted that a woman can be a mujtahid (for instance, Lady Amin and Zohreh Sefati). There are diverging opinions as to whether a female mujtahid can be a Marja or not. Zohreh Sefati and some male jurists believe a female mujtahid can become a marja, but many male jurists believe a marja must be male. In other words, they believe that believers cannot do taqlid (imitation) of a woman mujtahid.
Types of Mujtahideen
Mujtahid Mustaqil
He regulates the usul of his madhab He studies, researches, and engrosses himself in the verses and ahadith of the Blessed Prophet to find proof for issues that confront him. He favors one proof over the other when they contradict each other. He also expounds on the references from which he derived his rulings. He confronts new issues which have not yet been discussed and presents them in light of evidence (from the Quran and Sunnah).


Mujtahid Muntasib: is one who is a follower of his teacher in the usul and who takes help from him in seeking evidence on rulings. He knows the rulings in light of their evidence and is fully capable of deriving rulings from the evidence.


Mujtahideen fil shara’: These are the four Imams who devised the usul and derived rulings from the four sources (i.e., Quran, Sunnah, Ijma’, Qiyas) without being muqalideen (followers) of anyone in fundamental or derivative rulings.

Mujtahideen fil madhab: As in Imam Abu Yusuf (rah), Imam Muhammud bin Hassan Shaybani (rah) and all the students of Imam Abu Hanifah (rah) who derived rulings using the usul of Imam Abu Hanifah (rah) which he derived from the main sources. Although they disagreed in some derivative rulings with Imam Abu Hanifah (rah), they are his muqallideen (followers) in the usul. The difference between them (mujtahideen fil madhab) and mu’aaredheen fil madhab (parallel scholarship) like Imam Shafi’ (rah) is that they (mujtahideen fil madhab) are his (Imam Abu Hanifah t) muqalideen in usul while Imam Shafi’ (rah) is not.


Mujtahideen fil masaail: They practice ijtihad in the rulings in which there is no known opinion of Imam Abu Hanifah (rah). This category includes scholars like Khassaaf, Tahawi, Shams ul-Aima Halwani, Shams ul-Sarakhsi, Fakhr-ul-Islam Bazdawi, and Qazi Khan, etc. This group of scholars follows Imam Abu Hanifah (rah) in his usul and his derivative rulings, but derives rulings, based on his usul, on issues in which there is no known opinion or ruling by Imam Abu Hanifah (rah).
Modern application
Muslims living in the West are subject to secular laws of the state rather than Islamic law. In this context ijtihad becomes mainly a theoretical and ideological exercise without any legal force.

Conservative Muslims say that most Muslims do not have the training in legal sources to conduct ijtihad. They argue that this role was traditionally given to those who have studied for a number of years under a scholar. However, liberal movements within Islam generally argue that any Muslim can perform ijtihad, given that Islam has no generally accepted clerical hierarchy or bureaucratic organization. At the other end of the political spectrum, a number of fundamentalist tendencies have also re-opened the doors of ijtihad though not in a liberal direction.

Irshad Manji supports project ijtihad. She argues that Muslims can use their independent judgment to break free of religious conformity.
Conclusion:
Thus the process of Islamization will remain incomplete untill activities of legislature in Islamic status are bought under the purview of institution of Ijtihad. I was vital force of Islamic Law but it has been greatly ignored in the modern socities.

Define custom and discuss its importance in Islamic law. (1994, 1999, 2000, 2002, 2005)

Custom

Q. Define custom and discuss its importance in Islamic law. (1994, 1999, 2000, 2002, 2005)
Q. Define custom. What it its importance in Islamic law. Enumerate the major customs of Arabs adopted by Islam. (1993/A, 1993/S, 2001)
Q. Describe the role of custom in Islamic legislation with special reference to Arabian customs adopted by Shariah. (2001)
Q. Define custom as source of Islamic law in Islam. What is the status of pre-Islamic custom? (2004/S)
1. Introduction 
Islamic legal system has its origin in Arabia and has been developed by Arab jurists. The groundwork of the Muhammadan legal system, like that of other legal systems, is to be found in the customs and usages of the people among whom it grew and developed. The Muhammadan code includes many rules of Pre-Islamic customary law which have been embodied in it by express or implied recognition.
2. Meaning of custom
According to Ibn Najeem:
“Those recurring practices which are acceptable to people of sound mind.”
3. Custom as source of law 
In Islamic law, custom is regarded as a secondary source and Hanafi writers include it as a source of law, under the principle of Istihsan.
4. Force of custom
Custom generally are of spoken of as having the force of Ijma, and their validity is based on the same texts as the validity of the later.
(I) Preferred over analogical deduction
Though custom does not command any spiritual authority like Ijma of the learned, but a transaction sanctioned by custom is legally operative, even if it be in violation of a rule of lawderived from analogy. However is must not opposed to Holy Quran or Sunnah.
5. Significance of Per-Islamic customs

Some of Pre-Islamic customs were expressly recognized by Islam.
For example:
Islam expressly recognize one of the different modes of marriage prevalent among Arab people in which a man asks another person for the hand of his daughter and then marries her by fixing a dower.
(II) Implied
Implied recognition of customs means those pre-Islamic customs which were not expressly abrogated by Islam. They were deemed sanctioned by the silence of Holy Prophet (Peace be Upon Him)
7. Reason for recognition of Pre-Islamic customs in Islamic structure.
Following are the reasons of the basis of which the customs are recognized and included in Islamic law.
(I) Based on Shariat-I-Ibrahimi
Arab custom which are incorporated in the Islamic law are those which related to Shariat-i-Ibrahimi.
(II) Claim of Islam
Islam never claimed to be the original religion some customs were related to the other religions which were given to the whole chain of the Prophets.
Holy Prophet (Peace be Upon Him) said, “He has revealed the book to you confirming the preceded scriptures, for he has already revealed Gospel and Torch, for the guidance of human being.”
(III) Reformatory spirit in Islam
Because of its reformatory spirit, Islam modified certain laws which needed to be retained those laws or customs which were just.
8. Examples of some Pre-Islamic customs which are adopted by Islam
(I) Customs of punishment
(i) Punishment by retaliation commutable to a payment of blood money or campensation for the injury.
Punishment of Qisas and Diyat is imposed by Islam.
(ii) Imputation of right hand of thief.
This custom was adopted by Islam.
(iii) Adulterer to be stoned to death if poor, otherwise blackening his faced and flogging him.
If the person who commits Zina is Mohsin, he is to be stoned to death.
(II ) Customs regarding marriage
(i) Man asked another for the hand of latter’s ward or daughter and then marries her by giving her a dower.
Islam recognized this custom
(ii) Husband asked his wife to have Cohabitation with a famous man to secure a noble seed.
This custom was abrogated by Islam.
(iii) Number of men less then 10 used to have intercourse with a woman.
This custom was abrogated by Islam.
(iv) Prostitution was common.
This custom was abrogated by Islam.
(III ) Customs of dower
In the regular form of marriage the fixing of dower for the benefit of the wife was in vogue among the Pre-Islamic Arab. It formed a part of the marriage contract.
Islam recognized this custom Quran says, “And give women their dower freely”.
(IV ) Polygamy
There was no restriction to the number of wives in Arab.
Islam does not allow more than 4 wives for a Muslim at a time.
(V ) Divorce
In Pre-Islamic Arab, there were four modes of divorce which may be pronounced at any time.
(i) Talaq
(ii) Ila
(iii) Zihar
(iv) Khula
Islam disapproved Pre-Islamic custom and allowed three distinct period under which spouses can patch up and after lapse of third period, talaq is effected.
(VI ) Custom of succession and inheritance
In Pre-Islamic Arab, woman and minors have no right of succession and inheritance.
Islam abolishes this custom and give woman and minors right of succession and inheritance.
9. Conclusion
To conclude, I can say, that the Islam is a religion of nature and it would not be correct to suppose that Islam Professed to repeal the entire customary law of Arabia and to replace it with a code of altogether new laws. Islam adopts certain customs of Pre-Islamic era and certain customs were also abolished by Islam and to discover the rules of Islamic law and to interpret their meaning, the knowledge of customs prevalent at the time of revelation is essential.