Schools of Muslim Law: Sunni and Shia

The Sunni tradition has four surviving schools, Hanafi, Maliki, Shafii and Hanbali, of which the Hanafi predominates in India; the Shia tradition has three, Ithna Ashari, Ismaili and Zaidi. The divergence is methodological in origin and produces concrete differences in marriage, divorce, guardianship, wills and inheritance.

The division between Sunni and Shia originates in a dispute over succession to the Prophet's authority, but its legal significance is methodological. The two traditions accept different sources and different interpretive authorities, and therefore generate different rules. Within each tradition there are further schools, all of which are regarded as internally valid. A person is presumed to belong to the school of his parents, and the school governs the substantive rules applied to him.

Legal Framework

Tradition	School	Founder or authority	Predominant location
Sunni	Hanafi	Imam Abu Hanifa (roughly 699 to 767)	India, Pakistan, Bangladesh, Turkey, Central Asia
Sunni	Maliki	Imam Malik ibn Anas (roughly 713 to 795)	North and West Africa
Sunni	Shafii	Imam Shafii (roughly 767 to 820)	Egypt, Indonesia, Malaysia, parts of South India
Sunni	Hanbali	Imam Ahmad ibn Hanbal (roughly 780 to 855)	Saudi Arabia
Shia	Ithna Ashari (Twelver)	The twelve Imams	Iran, Iraq, parts of India
Shia	Ismaili	The Ismaili line of Imams; includes Khojas and Bohras in India	Parts of India, East Africa
Shia	Zaidi	Zaid ibn Ali	Yemen

The great majority of Indian Muslims are Hanafi Sunni, so unless a problem question states otherwise, apply Hanafi law and note the point expressly.

The Basis of the Sunni and Shia Divergence

The Sunni position is that authority passed to the elected Caliphs, and that the law is to be derived from the Quran and Sunna by the collective reasoning of qualified jurists, using ijma and qiyas. The Shia position is that authority passed by designation to Ali and his descendants, the Imams, who are regarded as divinely guided interpreters. Shia jurisprudence therefore rejects qiyas in the Sunni sense and restricts ijma to a consensus that includes the opinion of an Imam, relying instead on the traditions of the Imams and on aql, reason.

Why the methodological difference produces the substantive differences: Where the Sunni jurists could extend rules by analogy, Shia jurists could not, and had instead to find authority in the traditions of the Imams. The result is a Shia law that is in some respects stricter in requiring textual warrant (for example in refusing to recognise the intermediate category of irregular marriage, and in disallowing all inference of talaq from ambiguous words), and in other respects more permissive where the Imams' traditions supply authority that the Sunni schools lack (most obviously in muta, temporary marriage). It is a mistake to characterise either tradition as generally more liberal; the differences follow from method, not from disposition.

The Four Sunni Schools

Hanafi. Founded on the teaching of Abu Hanifa, who worked largely by reasoning and gave a wide role to qiyas and to istihsan. The school is characterised by relative flexibility and a preference for reasoned solutions over strict traditionalism, and it is the school of the great majority of Indian Muslims.

Maliki. Founded on the teaching of Malik ibn Anas, who worked in Medina and attached great authority to the practice of the Medinan community. The school gives an important place to public interest (istislah). Its most notable practical divergence for Indian purposes is that it gives the wife wider grounds of judicial dissolution.

Shafii. Founded on the teaching of Imam Shafii, who is credited with systematising the theory of the sources (usul al fiqh) and with fixing the classical four source hierarchy. The school occupies a middle position between Hanafi reasoning and Hanbali traditionalism.

Hanbali. Founded on the teaching of Ahmad ibn Hanbal, the most traditionalist of the four, insisting on the authority of the text and of Hadith and confining independent reasoning narrowly.

Why the Maliki position mattered in India

Classical Hanafi law, as administered in British India, gave a Muslim wife almost no ground on which to obtain a judicial dissolution of her marriage. Under Maliki law her position was considerably better. Indian Muslim wives began converting to other faiths in order to escape unhappy marriages, since apostasy dissolved the marriage.

The Dissolution of Muslim Marriages Act 1939 was enacted against that background. It supplied statutory grounds of dissolution drawn substantially from Maliki doctrine and made them available to all Muslim wives in India whatever their school, and S.4 removed apostasy by the wife as a mode of automatic dissolution. This is the clearest example in the syllabus of one school's doctrine being borrowed by statute for the benefit of adherents of another.

The Shia Schools

Ithna Ashari (Twelver). The largest Shia school, recognising twelve Imams, the last of whom is regarded as in occultation. It is the school of most Indian Shias and the one referred to in textbooks when "Shia law" is discussed without qualification.

Ismaili. Recognises a different line of Imams. In India the community includes the Khojas and the Dawoodi Bohras. The Bohras are governed in religious matters by the Dai ul Mutlaq, whose authority was the subject of Sardar Syedna Taher Saifuddin Saheb v State of Bombay (1962).

Zaidi. The school closest to Sunni doctrine, found principally in Yemen and of little practical importance in India.

**Sardar Syedna Taher Saifuddin Saheb v State of Bombay (1962)** Supreme Court of India

Facts: S.3 of the Bombay Prevention of Excommunication Act 1949 provided that notwithstanding any law, custom or usage, no excommunication of a member of any community should be valid or of any effect, and the statutory definition of "community" included the Dawoodi Bohras. The petitioner, the 51st Dai ul Mutlaq and religious head of the community, challenged the Act as violating Arts.25 and 26.

Issue: Whether a statute invalidating excommunication infringed the right of a religious denomination to manage its own affairs in matters of religion.

Held: By four to one, Sinha CJ dissenting, the Act was held void. On the faith and tenets of the Dawoodi Bohras, the exercise of the power of excommunication by the religious head on religious grounds forms part of the management of the community's affairs in matters of religion, and by invalidating even such excommunication the Act infringed Art.26(b). Arts.25 and 26 protect not merely belief but acts done in pursuance of religion, and what is essential is judged in the light of the community's own doctrine.

Relevance: The leading authority on the constitutional protection of a Shia sub-school's internal religious authority, and the standard illustration in this paper that the schools are recognised as distinct religious denominations and not merely as differing legal opinions. Currency point: the correctness of Saifuddin was doubted and referred to a larger Bench in Central Board of Dawoodi Bohra Community v State of Maharashtra (2005) 2 Supreme Court Cases 673, and that reference was later tagged with the questions framed in the Sabarimala review before a nine Judge Bench. Whether the reference has since been decided was not established when this note was written, so state Saifuddin as the position subject to that pending reconsideration.

Principal Sunni and Shia Differences

This table is the single most examinable thing in the note. Learn it as a table, and reproduce it as one.

Matter	Sunni (Hanafi)	Shia (Ithna Ashari)
Witnesses to marriage	Two adult witnesses required	Not essential to validity
Muta (temporary marriage)	Not recognised	Recognised as a valid institution
Categories of marriage	Three: valid (sahih), irregular (fasid), void (batil)	Two only: valid and void. There is no fasid category
Marriage with a Kitabia	Valid	Not permitted, though muta with a Kitabia is allowed
Talaq in ambiguous words	May be inferred from ambiguous expressions with intention	Must be express and in the prescribed Arabic form, no inference
Talaq-e-biddat (triple talaq)	Historically recognised as valid though disapproved; now void under Indian law	Never recognised
Talaq during ihsan or by compulsion	May be effective even if pronounced under compulsion or in intoxication	Ineffective unless free and deliberate
Guardians for marriage of a minor	A wider list of relations may act	Only the father and the paternal grandfather
Legitimacy of child of an irregular marriage	Legitimate, the marriage subsisting until terminated	The category not existing, the marriage is void and the child illegitimate
Bequest to an heir	Invalid without the consent of the other heirs, consent to be given after death	Valid up to the bequeathable one third without consent
Bequeathable third exceeded	Requires consent of heirs after the testator's death	Consent may be given before or after death
Doctrine of aul (increase) in inheritance	Applied, shares being proportionately reduced	Not applied; the deficiency falls on specified heirs, usually daughters or full sisters
Doctrine of radd (return)	Applied	Applied differently
Classes of heirs	Three: sharers, residuaries, distant kindred	Two: heirs by consanguinity (nasab) and heirs by marriage (sabab), grouped in three classes
Position of daughter's children	Distant kindred, excluded while any sharer or residuary survives	Included among heirs of the first class and may exclude collaterals
Waqf, subject of dedication	May be constituted by a Sunni for objects recognised as charitable	Similar in substance; procedural differences on delivery to the mutawalli
Gift to a minor, acceptance	Order of guardians of property applies	Similar, with differences of detail

Why the inheritance differences are the largest single divergence: Sunni law builds its scheme on the pre-Islamic agnatic system, retaining the male agnates as residuaries and adding the Quranic heirs as sharers on top of it. Shia law rejects the agnatic preference and organises heirs purely by proximity of relationship through either parent, grouped into classes, so that a nearer relation through a female excludes a more remote male agnate. Once that structural difference is grasped, the individual divergences, such as the position of the daughter's son, follow from it rather than needing to be memorised separately.

Illustrations

Nikah without witnesses. A man and woman contract a marriage before no witnesses. Under Hanafi law the absence of the two required witnesses is a defect, rendering the marriage irregular (fasid). Under Ithna Ashari law witnesses are not essential and the marriage is valid.
Child of an interfaith marriage. A Muslim man marries a Hindu woman. Under Sunni law the marriage is irregular, it subsists until terminated, and the child is legitimate and inherits from the father, applying Mohd Salim v Shamsudeen (2019). Under Shia law there is no fasid category, the marriage is void, and the child is illegitimate. The school therefore decides the case.
Bequest to a son. A testator bequeaths one fourth of his estate to one of his three sons. Under Sunni law the bequest, being to an heir, is invalid unless the other heirs consent after the testator's death. Under Shia law it is valid without consent, being within the bequeathable third.
Daughter's son competing with a brother. A Muslim dies leaving a daughter's son and a full brother. Under Sunni law the brother, a residuary, excludes the daughter's son, who is only distant kindred. Under Shia law the daughter's son is in the first class of heirs and excludes the brother.

Recall Check

Name the four Sunni and the three Shia schools, and identify which predominates in India.
State the methodological difference between Sunni and Shia jurisprudence on the sources, and give two substantive consequences.
Which school's doctrine did the Dissolution of Muslim Marriages Act 1939 draw on, and why was that necessary?

Key Cases

Mohammed Salim v Shamsudeen (2019) Mohd Salim v Shamsudeen 2019
Issue: Whether the marriage of a Muslim man and a Hindu woman is void or irregular, and whether the child is legitimate.
Rule: The marriage is irregular (fasid) and subsists until terminated, so the child is legitimate and inherits from the father, though the wife takes dower but does not inherit.
Held: The child's claim to a share in the father's property was upheld. Relevant here because the fasid category is a Sunni classification with no Shia counterpart, so the outcome depends on which school governs.

Sardar Syedna Taher Saifuddin Saheb v State of Bombay (1962) Sardar Syedna Taher Saifuddin v State of Bombay 1962
Issue: Whether a statute invalidating excommunication infringed Arts.25 and 26.
Rule: The power of excommunication exercised by the religious head on religious grounds is part of the management of the denomination's affairs in matters of religion, protected by Art.26(b).
Held: The Bombay Prevention of Excommunication Act 1949 was void, by four to one, Sinha CJ dissenting. Subject to the pending larger Bench reconsideration noted above.

Distinctions

Basis	Sunni jurisprudence	Shia jurisprudence
Source of interpretive authority	Collective reasoning of qualified jurists	The Imams, regarded as divinely guided
Qiyas	Accepted as the fourth primary source	Rejected in the Sunni sense
Ijma	Consensus of the mujtahids of an age	Restricted to a consensus including an Imam
Additional source	Istihsan and istislah developed as secondary sources	Aql, reason, given a primary role
Consequence for the law	Greater flexibility through analogy	Greater insistence on textual warrant, with different permissions where the Imams' traditions supply them

Basis	Hanafi	Maliki
Method	Wide use of qiyas and istihsan	Great weight to the practice of Medina, and to istislah
Wife's grounds for dissolution	Narrow in the classical law as administered in India	Considerably wider
Indian significance	The school of most Indian Muslims	Source of the grounds borrowed by the Dissolution of Muslim Marriages Act 1939

Flashcards

Name the four Sunni schools and their founders.

Hanafi (Abu Hanifa), Maliki (Malik ibn Anas), Shafii (Imam Shafii) and Hanbali (Ahmad ibn Hanbal).

Name the three Shia schools.

Ithna Ashari (Twelver), Ismaili and Zaidi.

Which school governs most Indian Muslims?

The Hanafi school of the Sunni tradition.

Which two Indian communities belong to the Ismaili school?

The Khojas and the Dawoodi Bohras.

What is the methodological root of the Sunni and Shia legal divergence?

Shia jurisprudence rejects qiyas in the Sunni sense and restricts ijma to a consensus including an Imam, relying instead on the traditions of the Imams and on aql, reason.

How many categories of marriage does each tradition recognise?

Sunni law recognises three, valid (sahih), irregular (fasid) and void (batil). Shia law recognises only valid and void; there is no fasid category.

Are witnesses essential to a Muslim marriage?

Under Sunni (Hanafi) law two adult witnesses are required. Under Shia law witnesses are not essential to validity.

Which tradition recognises muta, temporary marriage?

Only the Shia (Ithna Ashari) tradition. Sunni law does not recognise it.

Can a Sunni bequeath to an heir?

Not without the consent of the other heirs, and that consent must be given after the testator's death. Under Shia law a bequest to an heir within the bequeathable third is valid without consent.

Why does the daughter's son inherit under Shia but often not under Sunni law?

Sunni law retains the agnatic preference, so the daughter's son is only distant kindred and is excluded while a sharer or residuary survives. Shia law organises heirs by proximity of relationship through either parent, placing him in the first class.

Which school's doctrine did the Dissolution of Muslim Marriages Act 1939 draw on?

Maliki doctrine, because classical Hanafi law as administered in India gave the wife almost no grounds for judicial dissolution.

Exam Scenario

Problem: Ayesha, a Shia Muslim woman of the Ithna Ashari school, marries Farid, a Sunni Muslim of the Hanafi school. No witnesses were present at the nikah. A son is born. Farid later executes a will bequeathing one fourth of his estate to that son, and dies leaving the son, a daughter, and a full brother. Disputes arise as to whether the marriage was valid, whether the bequest is good, and whether the brother takes anything. Advise the parties, identifying at each stage which school's law you are applying and why it matters.

Step 1: Identify the governing school first, which is the examiner's real target

A person is governed by the law of his or her own school.
In a dispute the court applies the law of the school of the person whose act or status is in question.
Absent evidence, the general presumption in India is Hanafi Sunni.

Step 2: Validity of the marriage

Take the two schools separately and state the divergence.

Point	Hanafi (Farid)	Ithna Ashari (Ayesha)
Witnesses	Two adult witnesses required	Not essential to validity
Effect of their absence	The marriage is irregular (fasid), not void, and subsists until terminated	The marriage is simply valid

A Sunni man may validly marry a Shia woman, the difference of school not being a bar. The marriage has legal existence either way, so the practical outcome converges while the reasoning differs; give both.

Step 3: Legitimacy of the son

On the Hanafi analysis the marriage is irregular and subsisting, so the son is legitimate and may inherit from his father, applying Mohd Salim v Shamsudeen (2019).

Step 4: The bequest

Farid is Hanafi, so Sunni law governs his will. A bequest to an heir is invalid without the consent of the other heirs, and that consent must be given after the testator's death, applying Jafri Begam and Abdul Manan Khan.

The bequest fails unless the daughter and the brother consent after death, and consent by one heir binds only that heir's share. Contrast the Shia position expressly: had Farid been Ithna Ashari, the bequest would have been valid without any consent.

Under Sunni law the brother is a residuary. The son is a residuary who excludes the brother entirely, so on these facts the brother takes nothing even under Sunni law.

The answer would differ if there were no son. A daughter alone does not exclude the brother under Sunni law, whereas under Shia law a daughter, being in the first class, would exclude him.

Two traps in this problem

The fasid classification is doing the work. Had the marriage been characterised as void rather than irregular, the son would be illegitimate and could not inherit from the father at all.

The objection to the bequest is not quantum. One fourth is within the bequeathable third; the defect is that the legatee is an heir.

Conclusion. The school is not a matter of religious label but a choice of the governing rules, and identifying it correctly is the first step in every Muslim law problem.