Download the role of imarate sharia in development of muslim personal law in india law badre alam khan PDF

Titlethe role of imarate sharia in development of muslim personal law in india law badre alam khan
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Page 255

in righteousness."^^ He has thus declared in unequivocal terms that all

human beings are equal, regardless of their individual or racial status, and

that no one can claim any preference or superiority over others, except by

reason of his piety. Moreover, equality in lineage was not a condition of

equality in marriage in the early period of Islam. Abdur Raman b.

Awf(Raz), a prominent companion, gave his sister in marriage to

Bilal(Raz) who was a Negro emandpated slave, hnam Zainul Abidin, the

cognatic great grandson of the Prophet (SAW) and a very learned Scholar

gave his daughter in marriage to a liberated non-Arab slave. The ruler

wrote to liim that he had brought disgrace on all the Arabs. In reply the

Imam referred to the Ruler the precedents set up by the Prophet (SAW),

who had given his own cousin in marriage to Zayd bin Haresa(Raz), a

liberated non-Arba slave. '̂

It appears from a historical analysis that the concept of the

superiority of the Arabs over non-Arabs developed later and it may be the

result of their victories over the Persian and Byzantine empires. Besides

this, the Arabs were very particular about maintaining racial purity and

considered themselves superior to the non-Arabs on this account. Thus, it

is stated in Sharah Wiqayah that superiority of the Arabs in respect of

marriage is due to the fact that non-Arabs have lost their pedigree (racial

purity) by inter-tribal marriages. It also seems likely that non-Arab jurists

of later period adopted this view on account of their great reverence for

the Prophet (SAW) and attached great importance to everything connected

with him. Hence they considered the Arabs to be superior to the non-

Arabs, and amongst Arabs they considered the Quraysh tribe, to which the

Prophet (SAW) belonged, to be superior to other Arabs.'** Hafiz Ibn Hajar

** Ahmad b. Hambal: 'Musnad', Vol., V. p. 411.
*^HedayaVol. lip. 300
** Ubydullah b. Masud; Shara al-Wiqaya (Delhi, 1345 A.H.) Vol. II pi 17.

230

Page 256

has, however, stated that there is no basis or Tradition for making equality

in lineage a condition of marriage.'*' Iliis view seems to be correct,

(b) 1. HANAFI VIEW:

The Hanafi jurists lay great stress that there should be equality

in lineage in marriage.̂ '' For this purpose they hold that people belon^g

to the Quraysh are superior to other Arabs while all the other Arabs are

superior to the non-Arabs.̂ ' Arabs excepting Quraysh are considCTed to be

equal to each other, as they were considered notorious throughout the

Arabia.̂ ^ This shows that character not only of an individual, but even of a

group to which he belonged was taken into consideration in the matter of

equality in nasab^^.

(b) 11. VIEWS OF OTHER SCHOOLS:

Maliki, Shafi and Hambali view do not considered equality in

lineage a condition of equality in marriage.

According to Hanafi jurists, lineage is an important part of

kafat. It seems to be based on class distinction which is not permissible in

Islam. The conception arose due to prevalent social conditions of the

Arabs. Besides Arabia and Indo-Pakistan sub-continent where it is due to

the influence of Hindu culture and civilization on Muslims, in no other

Muslim country any importance is attached to the equality in lineage

relatmg to the doctrine oikqfaf'^.

(c). PROFESSION (HIRFAH):

*' Ibn Hajr al-Asqalani: Path al Bari, Cairo, 1325 A.H, Vol. EX, p. 104 cited by Rehman p. 201.
^ Hedaya Vol II p 300.
*' Fatwa Alamgiri Vol U p. 12.
^Jlbid.
'" The Arabs were supposed to be superior to the non-Arabs to such an extent that the marriage of an
Arab girl to a non-Arab was considered to be derogator>- to the girl's family, however, high the
wordly position of the husband might be. Thus, even a non-Arab Ruler is not deemed to be the equal
in marriage with in Arab woman (Rehman p. 202).

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