As seen earlier, it has been held by the Privy Council that where a passage of the Koran was interpreted in the same way both in the Hedaya (Sunni law) and in the Imamia (Shia law), it is not open to a Judge to put his own construction on the Koranic text. (Aga Mohamed Jaffer v. Koolsom Bibi, (1897) 25 Cal. 9)
Likewise, no Court should examine the conformity of any traditionally settled legal principle with the relevant text of the Koran. (Aga Mohammed Jaffer v. Koolsom Bibi, above)
Neither the ancient texts nor the precepts of the Prophet should be taken literally, so as to deduce from them any new rule of law, especially, when such a rule is not conducive to substantial justice. (Baqar Ali v. Anjuman, (1902) 25 All. 236)
It is interesting to note that in one case (Abdul Fata v. Russomoy, (1894) 22 Cal. 619), the Privy Council, misapplying a rule of English law to a Muhammdan wakf, held that family wakfs were void. In doing so, the Court had departed from a long line of Muslim Jurists who had taken a contrary opinion. However, as Fyzee rightly remarks, poetic justice was done when the Privy Council itself was overruled by the Mussalman Waif (Validating) Act, 1913.
However, the Courts should not also follow the Islamic texts slavishly. As Chagla J. warned in Asharafalli v. Mahomedalli (48 B.L.R. 642):
“Now, there is no doubt that these ancient Muslim texts must be considered with the utmost respect. But it must also be remembered at the same time that Muslim jurisprudence is not a static jurisprudence.
It is a jurisprudence which has grown and developed with the times, and the quotations from Muslim texts should be so applied as to suit modern circumstances and conditions. It is also dangerous to pick out illustrations wrenched from their context, and apply them literally.”
Mo Court should, in any way, circumvent or deviate from the law as settled by the jurists of the past, even If it does not sound “modern” or “just” or “logical”. As observed by the Madras High Court (in Veerankutty v. Kutty Umma (1956) Mad. 1004):
“We have, therefore, to administer, without in any way circumventing or deviating from the original texts, the law, as promulgated by the Islamic law-givers, to suit the present-day conditions, and in doing so, it has to be remembered that Courts are not at liberty to refuse to administer any portion of those tenets, even though in certain respects, they may not sound quite modern.”
As regards interpretation of Hanafi law, the following rules of interpretation are to be applied:
(a) If there is any difference of opinion between Abu Hanifa, the founder of the Hanafi School, and his two disciples, Abu Yusuf and Imam Muhammad, the opinion of the disciples, prevail. (Ebrahim Alibhai v. Bal Asi, (1934) I.L.R. 58 Bom. 254)
(b) If there is any difference of opinion between Abu Hanifa and Imam Muhammad, that opinion which coincides with the opinion of Abu Yusuf is to be accepted.
(c) If there is a difference of opinion between the disciples, the view of Abu Yusuf will prevail. (Abdul Kadir v. Salima, (1886) I. L.R. 8 All. 149)
(d) When there is a conflict of opinion, and there is no specific rule to guide the Court, the Court will follow that opinion which is in accordance with justice, equity and good conscience. (Aziz Bano v. Muhammad (1925) I.L.R. 47 All. 823)