Athar Husain (b. 1920) hails from [the] district [of] Faizabad in Uttar Pradesh [northern India]. He had a brilliant academic career, securing [the] top position in every class and obtaining first division in every examination. Even though he had studied Science subjects in his B.Sc. & M.Sc. classes, he had a flare for writing and literary work. He entered the Provincial Civil Service in 1942 and was promoted to the Indian Administrative Service and placed in the 1952 batch of that Service. He served in various capacities in the State Government as well as in the Government of India. For two years he was Commissioner of Lucknow Division and retired from the post of Secretary to the Government of Uttar Pradesh. He is a member of the Board of Research of the Indian Institute of Islamic Studies and is the author of a large number of books and pamphlets, the more well-known of which are Prophet Muhammad and his Mission,The Book of a Thousand Lights, Wakf Laws and Administration in India, The Message of Quran,  The Path of Bliss, Approach to the Study of the Quran, The Glorious Caliphate, etc,

Contents (linked as chapters uploaded Insha Allah)

Part I

Jehad 

Zakat 
Zakat or Sawa'im of Flock and Herd
Quantum of Zakat
Zakat on gold and silver
Zakat on goods of trade and business
Zakat on animals or live species

 
Part II

Polygamy

Divorce
General 
Conditions of validity of divorce 
Dissolution of the marriage by the wife
Maintenance  (1)
Maintenance  (2)
Maintenance of minor children
Maintenance of parents
 

Wills or Wasiyat 
Capacity to make a will
Objects in whose favour a Will can be made
Bequests by insolvent persons is void
Lapse of [a] Legacy
Revocation
Executor
The powers of the Executor
 

Hiba or Gifts
Definition
Capacity for making a gift
Gift[s] with [the] intent to defraud creditors
Scope of [the] gift
Capacity to receive a gift
Gift of mushaa or undivided share In property
Revocation of a gift
Gifts for Consideration

Inheritance
Obstacles to succession
The Hanafi Law of Succession
The Sharers
The shares of the sharers
Asabah or Residuaries
Residuaries in their own right
Receiving another's rights
Distant kindred
Exclusion
Inheritance of the Grandson
Table of Sharers
 

Wakf
Origin History and Development 
Existence of Wakfs During Muslim Rule in India
Implications of the Wakf Act, 1954
Definitions of wakf and [the] beneficiary
Assumption of direct management
Recovery of wakf properties illegally transferred
Removal of Mutawallis
Mutawalli and Wakf Accounts
Institution of Certain Suits
Registration of Wakf Properties
Substantive Law of Wakf
Kinds of Wakfs
Creation of Wakf
Who can Create a Waqf?
What can be Dedicated as [a] Wakf
Other formalities
Illusory Wakfs
Contingent or Conditional Wakfs
Private and Public Wakf
Other valid objects
Wakfs in farour of existing mosques
Application of the Cypres doctrine
THE MOSQUE

Part-III

What Islam has to offer to the modern world

in the controversy sparked off by the Supreme Court's judgement in the Shah Bano case [in India] many intellectuals claiming to be progressive and modern joined hands with rabid communists like Arun Shouri to publicise feigned imperfections and blemishes supposedly inherent in Islam and its system of law which was represented as unseemly and confounded and no better than an assemblage of fossilized, outdated, outmoded and impractical usages. These progressives unwittingly conferred respectability on a section of bigoted militants which was out to denigrate and defame [certain] minorities, particularly the Muslims. without giving a second thought to the question whether a Detn llahi type Common Civil Code was at all feasible and whether they ought to acquaint themselves with the rudiments of Islamic creed and thought before criticising it. Had they done so, they would have surely reached the conclusion arrived at by the eminent scholars and professors of Law from both the East and West who met at the International Congress of Comparative Law in Paris on the 7th July 1951. 

The resolution adopted by them said, "The delegates, being interested in the problems brought about during the 'Week of Islamic law' and in the discussions which demonstrated the indisputable value of the principles of Islamic law, and the fact that the variety of schools within this great [judicial] system implies a value of [judicial] elements and remarkable techniques allowing this law to respond to all needs of adaptation required by modern life."

In this work of Syed Athar Husain, being published posthumously, the learned author has dealt with the subjects of marriage, maintenance, divorce, [the] status of women, inheritence and polygamy at some length. Unlike other digests of Muhammadan Law, the author has not only given the essentials of Muhammadan Law on these and other related subjects, but also explained the reasoning, justification and fairness of various stipulations and endeavoured to show that these laws are the best that can be conceived for the good of man. This work also throws light on Zakat and Jehad though these do not form part of the so-called Muhammadan Law. The chapter on Human Rights in Islam and Status of Women in Islam should serve as an eye-opener for many who may like to compare them with rights given and status granted to women in most countries around the world. Another chapter on 'What Islam has to offer to the Modern World' needs a close study particularly by the modernists [so that they can] judge for themselves whether any other religion or system offers all that Islam holds out to humanity.

[The] late Syed Athar Husain has undertaken this study in a manner that it will be found useful and enlightening both by [the] average reader and those who are already acquainted with the subject.

INTRODUCTION

In every age, Islam had a good many pseudo well-wishers who saw vigour in the principles and practices of Islam and tried to ease the lives of Muslims by making suggestions on the basis of their own Ijtihad or assumptions without ever having bothered to study the Islamic literature on the subject. It was probably in 1964 when I was serving as Deputy Secretary to the Government of India that Dr. Qamar Rais, a Lecturer in the Urdu Department of Delhi University came to meet me in my office along with my father-in-law, late Mr. Syed Rashid Ahmad (a literary figure in his own right) to get my recommendation on his application for passport as he had got an assignment in Tashkent University, Russia. My father-in-law had probably told him about a biography of the Holy Prophet of Islam entitled Prophet Muhammad and His Mission which I had written but which had not till then gone to the press. (It was published by Asia Publishing House two years later and its second Edition was published by the Academy of Islamic Research and Publications, Nadwatul Ulama, Lucknow. It has since been republished in Pakistan and Nigeria). Dr. Qamar Rais started asking about this biography and enquired of me how it would be different from other biographies of the Prophet (peace be upon him). 

I told him that I have written the book for the English educated intellectual class which. without ever taking the trouble of studying Islamic literature, seems to have done a piece of research work to come to the conclusion that Islam is an obsolete religion and that they have themselves risen far above it. Obviously their conclusion is based on pathetic and lamentable ignorance. Dr. Qamar Rais did not say anything thereafter, but a friend of mine asked me some days after whether Dr. Qamar Rais had met me and what I had told him. I repeated the sentence mentioned above. He told me that Dr. Qamar Rais was greatly impressed by what I had said and added, 'When I taught, about myself, I realised that I belonged to the class of intellectuals who, having studied almost nothing about Islam, have arrived at the usual conclusion."

In 1982 I bad gone to Kuwait to attend, a seminar on Human Rights in Islam. organised by the International Commission of Jurists in collaboration with the Government of Kuwait. While returning from there, I had stopped for a few days at Karachi to meet my relations and friends. One evening I paid a visit to a close friend of mine. He was drinking in the company of two of his friends After some routine talk my friend told his companions of the book that I was particular about prescribed prayers and other obligations laid down by Islam. One of them asked me to cite a single verse of the Quran prescribing five times daily prayers. I told him that the prescribed prayers have been stressed by God in about 750 places in the Quran and all the timings have been mentioned at various places yet not in a single verse or in a single place but I could gather the verses for him. He did not want to be convinced and gave me a benign smile over a sip of the whisky. Maulana Syed Abul Hasan Ali has mentioned in one of his books, that a so-called scholar had read out in his thesis that the word Salat (the Arabic word for Namaz or prescribed prayers) used in the Quran in over 750 places, really means acquisition of authority, rulership and Islamic State. Thus, according to him, the Quran has commanded every male and female Muslim to struggle five times a day at stated hours at home or in congregational rows in a mosque to acquire rulership and to establish an Islamic State, and that, too. without single-minded devotion to God, reciting the Quran; bowing and prostration! Can there be a more rabid explanation or theory?

A friend of mine recently asked me to point the verse of the Quran which declares liquor, as Haram 'unlawful' and prohibits its use. When I asked him whether he was inclined to enjoy the forbidden fruit he said that a friend of his insisted in a conversation that the Quran has only declared that there are some advantages in drinking but the harm and the evil of it leads to overshadow the advantages. The ban on liquor in any form came in three stages. The first was what this gentleman had heard from somebody, the second had said that the believers should not say their prayers in a state of inebriety and, thereafter when the Muslim society had been toned up, came the categorical prohibition. This gentleman, an educated person otherwise, thought that the first revelation was good enough for him and there was no necessity to look ahead. As mentioned by Maulana Burhanuddin in an article appearing in the Daily Qaumi Awaz of 18th September, 1985. Some professional pseudo-sufis of the past had interpreted verse 99 of Surah 15, the Rock, to provide them a licence and authorised exemption from observing any obligatory practices like prescribed prayers, fasting etc. Verse 98 and 99 read as follows:

But do thou go on extolling thy Lord, and be of those who bow down in adoration and continue to serve thy Lord till what is certain comes to thee."  (Q. 15 : 98-99)

The poor Magistrate obviously did not know that Islam prescribes capital punishment for adultery and [a] hundred stripes to both the partners in case of fornication. He did not know that marriage with another person is prescribed so that all the husband should know that divorce is a very serious matter and should not be resorted to in haste and without mature consideration and the woman is allowed the liberty to choose between the two bush ands i.e., to remain wedded to the second husband or re-unite with the first.

It was probably 1432 when we had organised a gathering in Sapru House, New Delhi, in connection with the birthday anniversary of the Holy Prophet (peace be upon him). The main speakers were Dr. Tara Chand, a noted historian and the late Mau!ana Hifzur Rahman, M. P. and President of Jamiat-e-Ulama-e-Hind. 

In his speech, Dr. Tara Chand, without the slightest intention to belittle or disparage Islam, offered some wonderful (sic) suggestions to Muslims of the world with the help of which they could reduce the burden cast upon them by Islam, and remaining all the while good believers, they could alleviate their lot. Dr. Tara Chand had said that Islam requires the believers to pray five times a day and to keep thirty days fast in the month of Ramadhan. He asked the Muslims to seriously consider whether in an industrial age when life has become so fast and people have to devote all their energies to mundane matters, will it not be adequate if Muslims say the prescribed prayers twice a day, once in the morning and other in the night Pursuing the matter in the same logical strain, he [wondered] whether fasts [could] be observed only in winter and that, too, for a shorter period of say seven days. We had listened to the learned doctor almost dumb-founded without any voice being raised by way of interruption.

In his speech Maulana Hifzur Rahman covered the gracious suggestions of Dr. Taro Chand. He had said that the Quran is a Divine Book, the Word of God. and whatever commandments and injunctions it contains are of God who knows everything from eternity to eternity and who is aware of everything that anyone in the universe does at any moment of time and that the commandments are eternal in character and not the whole world put together can change one dot of it. He continued to say that the Muslims who offer five times prayers do not find it a rigorous affair or irksome and those who do not observe them out of sheer negligence, or apathy, might think that their brethren are over-burdened. 

The times in which the Holy Prophet (peace be upon him) and his companions lived were days of severe heat, cruel oppression (extending over thirteen years) and they had to fight and wage battles for sheer preservation of life and the nascent religion. They did not leave prescribed prayers even in actual engagements. The army used to break up in two parts-one part would hold the front and the other would busy itself in prayers and then change positions. The great Maulana added that those who leave regular prayers and were particular about the prescribed prayers, feel miserable if by chance they are not able to observe one single prayer at the stated time. The worshippers find [that there is] consolation, a relief from the pressures and tensions of daily life, an awareness of their responsibility and nearness to God in these prayers and those who want to do better they say scores of supererogatory prayers during the day and the small hours of the morning. 

Speaking about fasts, he said that some of the educated people, the so-called intellectuals, the more highly placed persons, who do not keep fasts themselves might be feeling in the cool of air-conditioned offices and homes that their less fortunate brethren, who have to do hard manual labour to eke out their living but who cheerfully observe the thirty day's fast, must be having a hard time and their sympathy naturally flows to them. There are many Muslim countries where the whole population, excluding the very young, the very old, the feeble and the ill who are exempted by the Quran, observe the thirty days Ramadhan fasting and those countries have much hotter climate than India. He cited the case of railway porters who observe the fasts regularly in tin loo and intense beat of May and June white carrying heavy loads on 'heir backs and heads and who have nothing more than some parched gram or morsels of bread to break their fasts, after sunset. Iman or faith has entered their hearts. While those polished, sophisticated Muslims who generally are Muslims chiefly because of the unavoidable fact that they have been born in Muslim families, must air their views and harp upon them--the more modern one is, the more vocal he is, and the ultra modernists who have chosen to be bred in western thinking try to ape the Western civilization to the limit. 

They do not realise that neither the western civilization, suffering from so many ills and weaknesses, is prepared to recognise them or to attach any value to them' nor are they even a dismal specimen of Islam. They will do well to learn a verse of the Quran that those who deliberately abstain from prescribed prayers have reached the brink of infidelity. In making the suggestion that Ramadhan fasts could be held only in the winter season, Dr. Tara Chand forgot thatm Islam is a world-wide religion. If it is winter in some parts of the world, it is summer in other parts. The rotation of the lunar months enables Muslims everywhere to keep their fasts in every season over a period of time.

It was probably 1n 1962 when a Seminar on the Common Civil Code was held under the auspices of the Government of India at Vigyan Bhawan, of New Delhi, under the Presidentship of Mr. M. C. Chagla. 

The invitees were Muslims who had to be brought round and included ambassadors and other representatives from various Muslim countries. Quite a large number were modernists and ultra-modernist Muslims, besides Muslim theologians and jurists and the Muslim elite of Delhi. I had attended that Seminar. The first round of speakers were the modernists, the so-called intellectuals and representatives of other countries. The latter tried to show what changes had been made to the Shariat Laws in their countries which generally related to minor matters. Nobody had attacked the fundamental laws and the doctrines and commandments of the Quran. The modernists and the intellectuals tried to show off their forensic ability and fluency of speech and they expressed the view that the time had come for a common civil code. 

Some even tried to distort the meaning of secularism while forgetting that secularism does not mean negation of religion but only means toleration of all the religions and creeds prevalent in the country, that the State as such has no religion of its own and that every community is free to observe and practice its religion and its rites without causing harm or annoyance to the followers of other religions or creeds and that a secular society does not mean anti-religious society. The trend of the discussion being favourable, Mr. M. C. Chagla was all smiles.  He must have been thinking that the necessary climate had been created. 

Then Mr, Syed Hossain Nasr of Iran stood up. He is a brilliant orator and a world-renowned scholar and author of dozens of books. He began by saying that the Muhammadan Law is not based on Roman Law which has been the prototype of laws of almost all the countries. The Roman Law has been suffering changes, deletions and additions, alterations, amendments because it is not Divine Law but is man-made law. In every country, in every session of the Parliament, so many amending bills are introduced and enacted, but nothing satisfying every situation has been achieved. The Muhammadan Law, based on the Quran and its exposition (the Hadith) is Divine Law and is eternal in character and it will not be required to be changed a whit in any country until Doomsday. 

It has stood the test of more than fourteen centuries in all the Muslim countries. All the four Sunni schools of late are fundamentally and essentially the same. The differences pertain to minor points. There is flexibility in the Shariat in the matter of miner details to cover emerging situations and new and complex problems arising in so many societies. He briefly stated what the Quran has offered to the world and how the world has been adopting, down the ages, its principles, with or without admitting it. His speech was electrifying. Every speaker who came after, him warned the government not to even think of abrogating the Personal Law of Islam or of meddling with it and  replacing it by a common civil code. 

The Seminar, so assiduously arranged, ended in a fiasco. When Dr. Chagla reported the proceedings to Pundit Jawaharlal Nehru he advised him not to open a hornet's nest and to transfer the subject to Pafiz Muhammad Ibrahim, the then Minister for Irrigation and Waqf. I was the Deputy Secretary attached to him. The matter came to me and it was shelved. Like a malignant growth, however, it came up time and again. I have not written all this with any idea of regaling the readers with ludicrous and amusing interpretations of the Quran. I have not written anything about the detractors of Islam, the ignorant critics, who see everything in Islam with a jaundiced eye or the hostile orientalists who have made it the business of their life to paint a lurid picture of Islam or, at least, to blur its image. They are a tribe by themselves, their motives are not clean. They have, however, been fully exposed. My purpose in writing all this is serious. It is to show to what limits these misguided intellectuals can go. They want to twist the verses of the Quran to suit their way of thinking giving a goby to the fundamental truth that the Quran is the Word of God and is eternal in character. If they cannot openly criticise the Quran or say anything against it, they will say that the Quran has not said such and such a thing and the Ulama (the so-called Mullahs) have misinterpreted it. Thus Zia Gokulp of Turkey had the effrontry to say that it is not the Quran which has given half share in inheritance to a daughter as against the full share of a son, it is the interpretation of the Mullahs. He did not care to make a deep study that this only brings parity between the two shares as fully explained in a chapter of this book.

So many organizations, societies, mushroom growths and even political parties have sprung up or have started taking an interest to lend weight to the demand of a common civil code.  No Muslim wants it barring a few modernists. They may have read Muhammadan law, but it is doubtful whether they have ever studied the Quran and the various books of Hadith. As  Jesus Christ has said in the Bible, mere knowledge or intellect is barren unless there is the light of faith in the heart. How much faith glimmers in the hearts of such intellectuals is known to God alone.

Striking a personal note, I may say that before I had started serious study of Hadith literature, I had written about two dozen books and pamphlets on various aspects of lslam. The study of Hadith literature, done with a view to select five hundred of them for the purpose of translation into English, generated a heavy feeling within me that till then I had known very little about Islam. nnumerable gems of wisdom are embedded in the Ahadith. Anybody desiring to look at them can read my translation. If he cannot read the whole lot, which was published by the Academy of Islamic Research & Publications, Nadwatul Ulama. Lucknow, under the title "The Book of Thousand Lights." Rendering of the famous book of Dr. Mustafa Sabai of Egypt into English under the title of The Traditions of the Prophet as a legislative base of Islam gave me further insight into the Hadith, the wealth of knowledge they contain and the clear and precise directions they give to lead a noble life.

I have dealt with the subjects of marriage, maintenance, divorce, status of women inheritance and polygamy  at some length. I have not only given the essentials of Muhammadan Law on these and other subjects, but [have given] the reasoning, justification and fairness of the various stipulations and have [also] endeavoured to show that these laws are the best that can be conceived for the good of man. 

No book on Muhammadan Law has been written with this point of view. Even though polygamy has almost disappeared from Muslim society of India, quite some pages have been devoted to it; for many people consider it abhorrent and blame Islam (which came to curtail it) Islam has only permitted it under certain circumstances and under certain strict conditions.

Besides drawing material from so many other books I have relied on Kitab-ul-Fiqh of Allama Abdul Rahman At jazairi running into five volumes of about a thousand pages each (the book is in Arabic, but it has been translated by the Waqf Department of Pakistan into Urdu), Hedaya-Hamilton's translation and the  Principles  of Muhammadan Lam by justice Abdul Rahim, Ameer Ali and D. F. Mulls As regards the chapter on Waqf, it is from my own book Waqf Law and Administration !n India. which runs into 500 pages.

I have added chapters on Zakat and Jehad though they are not part of Personal Law but these have been written because the English educated Muslims have generally perfunctory knowledge of Zakat and Jehad and the terms are grossly misunderstood by non-Muslims. Those interested in knowing full details may read my translation of Maulana Abul Ala Maududi's renowned book Al-Jehad fil Islam. The chapter on Human Rights in Islam and the status of women in Islam should serve as [an] eye-opener for many. We may compare them with rights given and status granted to women in most countries around the world. 

The Chapter on 'What Islam offers to the modern world,' needs close study, particularly by the modernists to see for themselves whether any other religion or system offers all that Islam offers. Those who talk of a common civil code are not fully aware that [the] personal laws of Muslims, Hindus, Buddhists and people of other faiths are so fundamentally different that nothing [in] common [could] ever be evolved which may be acceptable to the followers of all the faiths. There is nothing like a middle course. A Hodge podge will not do. It may be like Deen Elahi of Akbar which evaporated immediately upon his death.

All the personal laws of Muslims like marriage, divorce, maintenance and inheritance, which people have generally assailed [have] come almost in all their details from the Quran itself. Even those who are ignorant of the four schools of jurisprudence cannot blame them or the theologians, Muslim jurists or the Ulama. Changes in the commandments and injunctions of the Quran cannot possibly be forced down Muslim's throats.

[Finally] I may mention that while dealing with the laws, I have concentrated on the Hanafi laws and have not mentioned Shafi. Maliki or Hanbali laws for Hanafi laws generally prevail in India. I have not touched Shia laws except on the subject of waqf. The book would have become voluminous otherwise. For enabling the readers to appreciate what has been written in this book, it may be stated at the very outset that the Islamic Law, the so-called Muhammadan Law, is based essentially on the Quran. It has been explained or amplified wherever it was needed. 

Often questions arose for [a] decision for a solution of which no direct revelation was forthcoming. The Pronouncements made by the Prophet of Islam, his precepts and practices called Hadith, Sunnah or Traditions, have equally sacred authority for they were inspired by God. In the first Chapter, therefore, I have briefly stated something about the Quran, its authority and its sacred and eternal character. The next chapter is on Hadith, its analysis, compilation, its fundamental importance and its sacred and binding character. The third chapter is devoted to a brief history of the development of four Schools of laws and on consensus and analogy. Many readers may not be aware what erudition, care, indefatigable labour were employed in the process. 

To mention only one School, the Hanafi School, its leaders and its founder Imam Abu Hanifa, was an exceptionally gifted person who possessed a remarkable memory, vast and amazing erudition and was a very high-ranking master of law and theology. He had set up a full fledged academy which was attended by thousands of persons and many of his pupils were equally brilliant. He had set up a Committee of forty of his most gifted pupils. If any complex or new matter came up for [a] decision, it used to be referred to this Committee which deliberated over it for full three days and then the consensus was recorded in all its details. This Committee laboured for thirty years and recorded opinions and decisions in as many as eighty thousand matters. 

It may be emphasised that the superstructure of four Sunni Schools of Jurisprudence has been constructed on the texts of the Quran and the Traditions of the Prophet. The essentials and fundamentals are the same. [The] differences lie in [the] details, in interpretation for [the re]solution to new problems, The process of interpretation has not ended, but it can be done only by persons [who are] eminently competent to do so, i.e. the mujtahids and the jurists and theologians by consensus of opinion. Those who have not made a deep study of law and religion, howsoever they may be qualified otherwise, are no better than a layman and it is their duty to follow the accepted principles and the guidance of the learned in law and theology. Those who are not qualified to pass verdicts or give opinion[s], but are still tempted to do so, may well remember a Hadith of the Prophet (peace be upon him): "They pass opinion without knowledge and not only they themselves go wrong but lead others astray."

For the benefit of man, God created almost the entire Universe -- the galaxies, the sun, the moon. stars. and planets, the atmosphere, gases, water and other liquids, the earth with its land, rivers, forests, and mountains, the seas, and oceans, the physical laws governing nature and an infinite variety of trees, flowers, and vegetation etc. He bestowed [up]on man intellect, reason and conscience but they all have their limitations. The intellect can be shallow or even perverted, reason can be faulty, there can be conflict of views and opinions, each decrying the other and the conscience can be warped. "W'hen God took so much care about the material well-being of man, it would have been beyond His compassion and benevolence if He had not arranged for the spiritual well-being of man. He could not let him eddy about in his own fancies. whims and conjectures. For the guidance of man, He sent in all ages and times, His revelations through prophets in the various languages of the people and this continued till the Last Revelation through the Last Prophet.

The Quran was revealed in a period of history and in an era of reason when man could ponder, reflect , observe for himself and evaluate the fundamental truths. The Quran employs no artifice or conventional poser. It appeals to the intellect of man, his feelings and imagination. The Quran repeatedly exhorts man to study the natural phenomenon, the forces of nature and the working of the universe. It points to revelation; it is open for all times.

AI-Quran, the Word of God, is not only inimitable in the profundity of its contents and message, but also in the grandeur of its diction, its imagery and word painting Its literary form sad style surpasses the powers of man and defies imitation.

The Quranic speech appears to be superhuman in its transcendence of the psychological law that intellect and feelings are always found in inverse proportion to each other. In the Quran we find constant cooperation between the two antagonistic powers of reason and emotion, for we find that in the narrations, arguments, doctrines, laws and principles, the words have both a persuasive teaching and an emotive force. Throughout the Quran the speech maintains a wonderful solemnity and powerful majesty which nothing can disturb.