Schools of Muslim Law — Shia Schools

Ithna Ashari • Ismaili • Zaidi | Origin, Doctrine, Sub-Schools, Indian Presence

1. Origin of the Sunni–Shia Division

The Sunni–Shia split originated not in matters of theology but in the question of succession to the Prophet Muhammad. When the Prophet died in 632 AD at Medina, he left no explicit, universally-accepted instruction concerning his successor as political and religious leader of the Muslim community (Khalifa / Caliph). Two broad views formed:

• The majority view (Sunni) — the community may choose its leader; Abu Bakr, father-in-law and close Companion of the Prophet, was elected first Caliph, followed by Umar, Uthman and finally Ali ibn Abi Talib (the 'Rashidun' or Rightly-Guided Caliphs).
• The minority view (Shi'at-u-Ali, 'Party of Ali') — the Prophet had designated his cousin and son-in-law Ali ibn Abi Talib as his successor at Ghadir Khumm (a stopover on the return from the Farewell Pilgrimage). Leadership therefore properly vested in Ali and his descendants — the Ahl al-Bayt (People of the House).

The tragedy of Karbala in 680 AD — the killing of Imam Husain, son of Ali and grandson of the Prophet, by the forces of the Umayyad Caliph Yazid — crystallised Shia identity. Over the following two centuries, distinct Shia schools of law emerged from disputes over the line of the Imams themselves — leading to the Twelver, Sevener and Fiver branches discussed below.

2. Distinctive Features of Shia Jurisprudence

• Imamate (Imamah) — the doctrine that legitimate spiritual and legal authority passes only through a divinely-designated line of Imams from the Ahl al-Bayt.
• Infallibility ('ismah) of the Imams — the Imams are held to be preserved from sin and legal error. Their rulings therefore enjoy a status Sunni jurists would accord only to Prophet himself.
• Rejection of Qiyas; elevation of Aql (reason) — the Shia Usuli tradition substitutes structured reasoning, controlled by Quran, Sunnah and Imams' rulings, in place of Sunni-style analogical deduction.
• Narrow Ijma — Ijma of the Companions is not a source; Ijma is binding only if it discloses the Imam's opinion.
• Muta marriage — temporary / fixed-term marriage valid in Shia law (among Ithna Ashari); void in all Sunni schools.
• Taqiyya — precautionary dissimulation — concealing one's Shia identity or practice when life, honour or property is in peril. A doctrine of self-preservation developed during centuries of minority status.
• Distinctive inheritance — Shia law does not accord residuaries (agnates) priority over sharers (descendants); closer blood relatives exclude more distant ones. This produces shares for daughters and their children that differ from Sunni law.

I. The Three Shia Schools

Overview

II. The Ithna Ashari (Twelver) School

1. The Twelve Imams

Ithna Ashari Shias (from Arabic 'ithna ashar' — twelve) recognise a line of twelve Imams descended from Ali and Fatima:

1. Ali ibn Abi Talib (600–661 AD) — first Imam.
2. Hasan ibn Ali (625–670).
3. Husain ibn Ali (626–680) — martyred at Karbala.
4. Ali Zayn al-Abidin (659–713).
5. Muhammad al-Baqir (676–733).
6. Jafar al-Sadiq (702–765) — foundational jurist.
7. Musa al-Kazim (745–799).
8. Ali al-Ridha (766–818).
9. Muhammad al-Jawad (811–835).
10. Ali al-Hadi (828–868).
11. Hasan al-Askari (846–874).
12. Muhammad al-Mahdi (born 869; in occultation since 874 AD).

The 12th Imam is believed to be alive but hidden (ghaybah) since 874 AD and will return as the Mahdi before the Day of Judgement to establish justice on earth. During the occultation, legal authority is exercised by qualified jurists (mujtahids / marja'-i-taqlid) as deputies of the hidden Imam.

2. Fiqh Jafari and its Foundation

The legal tradition of the Ithna Ashari school — called Fiqh Jafari — is named for the sixth Imam, Jafar-us-Sadiq (d. 765 AD). He was a towering juristic figure of 8th-century Medina. Many Sunni imams — including Abu Hanifa and Malik ibn Anas — are reported to have sat in his circle. The Ismaili Shias also trace their legal lineage through him, diverging only in recognising his son Ismail as the seventh Imam (below).

3. Usuli and Akhbari Sub-Schools

Within the Ithna Ashari tradition, a fundamental methodological divide opened in the 17th–18th centuries between the Usuli and the Akhbari schools:

In India, virtually all Ithna Ashari Shias are Usuli. This is legally important because it means that they accept a living mujtahid's rulings (taqlid), which updates Shia law with evolving social conditions — an important dynamism that Sunni law, with its largely 'closed door of ijtihad', generally lacks.

4. Sources of Shia (Ithna Ashari) Law

The Ithna Ashari Usuli sources are four, in descending order:

1. Quran — accepted as in Sunni law.
2. Sunnah — but only Hadith transmitted through the Twelve Imams or their reliable companions. The four canonical Shia Hadith collections — 'Al-Kutub Al-Arba'ah' — are:
   • Al-Kafi — compiled by al-Kulayni (d. 941).
   • Man la Yahduruhu al-Faqih — compiled by Ibn Babuya (al-Saduq, d. 991).
   • Tahdhib al-Ahkam — compiled by al-Tusi (d. 1067).
   • Al-Istibsar — also by al-Tusi.
3. Ijma — accepted only if it is discovered to contain the opinion of the Imam; otherwise not binding in itself.
4. Aql (reason) — replaces Qiyas. Reason, rooted in Quran and Sunnah, yields rulings where the texts are silent.

5. Ithna Ashari Presence in India

Ithna Ashari Shias in India are concentrated in:

• Lucknow and adjoining areas of UP (the Nawabi legacy — the Nawabs of Oudh were Shia).
• Kashmir Valley — historical Shia presence in districts like Budgam, Kargil.
• Hyderabad and parts of the Deccan (Qutb Shahi dynastic legacy).
• Mumbai and Gujarat — through migration and trade.

In Indian courts, Ithna Ashari law is applied where the parties are proved or admitted to be Ithna Ashari. Mulla's 'Mahomedan Law' and Tyabji's 'Muhammadan Law' — the standard Indian commentaries — each set out Shia (Ithna Ashari) variations separately.

III. The Ismaili (Sevener) School

1. Origin of the Branch

The Ismailis separated from the main Shia line in the mid-8th century when Imam Jafar-us-Sadiq's eldest son Ismail, originally designated successor, predeceased his father (or, in Ismaili tradition, was replaced in the public designation but retained inwardly). The majority of Twelver Shias followed Jafar's second designated son Musa al-Kazim, counting him as the 7th Imam. The Ismailis maintained Ismail (or his son Muhammad ibn Ismail) as the rightful 7th Imam — earning them the name 'Seveners'. They later developed elaborate and doctrinally distinct sub-branches.

2. Major Sub-Branches

A. Nizari Ismailis — The Aga Khani Khojas

The Nizari branch dates from an 11th-century succession dispute in the Fatimid Caliphate of Egypt. Today the Nizari Ismailis recognise a living Imam, His Highness Prince Karim Aga Khan IV (and, as of his passing in 2025, Prince Rahim al-Husseini as Aga Khan V), as the 49th Imam in direct succession from Ali. In India, they are principally the Khoja Ismailis, concentrated in Mumbai, Gujarat, and centres of the Indian diaspora worldwide. The Khojas are noted for their philanthropy and for the Aga Khan Development Network.

Indian legal history: pre-1937, Khojas were governed by Hindu customary law on succession; successive statutes and the Shariat Act 1937 progressively applied Muslim (Ismaili Shia) law to them. A landmark case is Advocate-General of Bombay v. Jimbabai (1915) 17 Bom LR 799.

B. Mustaali Ismailis — The Bohras

The Mustaali branch dates from the parallel succession dispute in the Fatimid Caliphate (supporting a different son of al-Mustansir than the Nizaris). The line of Imams is held to have entered 'concealment' (satr) and spiritual leadership now rests with the Da'i al-Mutlaq ('Unrestricted Summoner').

Two sub-branches of Mustaali Bohras exist in India:

• Daudi Bohras — the largest group; their 53rd Da'i al-Mutlaq is Syedna Mufaddal Saifuddin (since 2014). Headquartered in Mumbai.
• Sulaimani Bohras — smaller group; their Da'i is based in Yemen.

C. Mu'min Bohras (Alavi Bohras) and other micro-groups

Smaller Ismaili-Bohra sub-groups in Gujarat (e.g., the Alavi Bohras of Vadodara) preserve older doctrinal strains. These are of antiquarian interest in legal study but rarely feature in examinations.

3. Distinctive Legal Features of Ismaili Law

• Khojas — apply Ismaili Shia law in matters of Section 2 of the Shariat Act; traditionally admitted Hindu-style wills and adoption by custom, now curtailed unless Section 3 declaration made.
• Bohras — apply their own Mustaali juristic tradition, which on many substantive questions (marriage, divorce, inheritance) follows the Ithna Ashari pattern.
• Muta marriage — not practised by the modern Nizari Ismailis or Bohras.
• Taqiyya — historically important, given the Ismailis' centuries of minority status.

4. Leading Indian Cases on Ismailis

Advocate-General of Bombay v. Jimbabai (1915) 17 Bom LR 799

A classic Khoja succession case. The Bombay High Court applied the then-customary Hindu-style rule of inheritance prevailing in the Khoja community — a rule that would be later restricted by the Shariat Act 1937 in the listed matters.

Advocate-General v. Yusuf Ali Ebrahim, AIR 1921 Bom 338

The Bombay High Court recognised the ecclesiastical authority of the Daudi Bohra Da'i al-Mutlaq and the application of Shia Ismaili law to community members in their internal affairs.

Sardar Syedna Taher Saifuddin v. State of Bombay, AIR 1962 SC 853

A Constitution Bench struck down the Bombay Prevention of Excommunication Act, 1949, as applied to Daudi Bohras, on the ground that it violated the Article 26 right of religious denominations to manage their own affairs. A major Supreme Court authority on Shia Ismaili religious autonomy.

Cassamally Jairajbhai Peerbhoy v. Currimbhoy Ebrahim, ILR (1911) 36 Bom 214

On the applicability of Muslim (Khoja Ismaili) law to a Khoja settlor's trust. Illustrates the legal transition from Hindu-custom-based rules to Muslim-law-based rules in the Khoja community.

IV. The Zaidi (Fiver) School

1. Origin

The Zaidi Shias trace their doctrine from Zayd ibn Ali (698–740 AD), a son of the fourth Imam Ali Zayn al-Abidin and a grandson of Imam Husain. Unlike the Ithna Ashari and Ismaili branches, who maintained a strictly hereditary Imamate in silence, Zayd advocated armed resistance to the Umayyad Caliphate and was killed in 740 AD leading a revolt in Kufa. His followers regarded him as the rightful 5th Imam — hence the name 'Fivers' — and held that the Imamate was open to any qualified descendant of Hasan or Husain who rose to claim it and enforced justice.

2. Key Doctrines

• Imamate is elective among the descendants of Fatima (either through Hasan or Husain), not strictly hereditary.
• The Imam must claim the Imamate openly and if necessary by the sword — quietism is rejected.
• Rejects the doctrine of occultation (ghaybah); the Imam must always be visible and active.
• Doctrinally, Zaidi theology is closer to Sunni Mu'tazila than other Shia branches; it rejects the doctrine of the infallibility of the Imam in the strict sense, and rejects muta marriage.

3. Zaidi Presence

Zaidis are today concentrated almost exclusively in Yemen, where they established the Rassid dynasty (897–1962) and are still a significant population in the highlands. Zaidi scholarship in jurisprudence remains distinct, drawing on its own Hadith tradition (Musnad of Imam Zayd) and its own legal manuals. In India, Zaidi Shias are negligible in number and of marginal relevance in legal practice.

V. Imam Jafar-us-Sadiq — The Common Foundation

All three Shia schools trace their early legal tradition through Imam Jafar-us-Sadiq (d. 765 AD), the 6th Imam. His legal opinions, collected and transmitted by his disciples, form the base of 'Fiqh Jafari' — the jurisprudence followed by both Ithna Ashari and Ismaili Shias, and drawn upon even by the Zaidis for the period before their divergence.

Sunni sources also treat Imam Jafar with enormous respect. Imam Abu Hanifa reportedly studied with him, as did Imam Malik. The modern Sunni scholar al-Dhahabi called Jafar 'one of the great scholars.' Islamic jurisprudence as a whole, therefore, partly converges on his pedagogy — a useful exam point when describing the common juristic heritage despite sectarian divisions.

VI. Application of Shia Law in Indian Courts

Indian courts apply Shia law when the parties are proved to be Shia (Ithna Ashari or Ismaili Bohras/Khojas as the case may be). The presumption of Sunni-Hanafi adherence that applies by default can be rebutted by showing the parties' Shia identity. The sources used in court include:

1. Mulla's 'Principles of Mahomedan Law' — with its separate Shia chapters.
2. Tyabji's 'Muhammadan Law'.
3. Amir Ali's 'Mahommedan Law' — uniquely authoritative on Shia variations.
4. Fatwas of the Akhund / Marja of the community in question.

VII. Preview — Key Differences from Sunni Schools

The comprehensive Sunni–Shia comparison is the subject of Topic 6. A quick preview of the most tested differences:

• Muta (temporary) marriage — valid only in Shia (Ithna Ashari).
• Witnesses at marriage — mandatory for Sunnis; not required for validity in Shia.
• Sources — Shia rejects Qiyas; uses Aql instead.
• Inheritance — Shia rejects the residuary-priority-over-sharers rule; closer blood excludes more distant.
• Wills — Shia permits bequest of up to 1/3 even to a legal heir without the consent of the other heirs; Sunnis require such consent.
• Triple talaq — always void in Shia; previously valid in classical Sunni (struck down in India by Shayara Bano 2017).

VIII. Exam Corner

Practice Questions

1. Explain the origin of the Shia–Sunni division. What is its legal significance? (10 marks)
2. Describe the three Shia schools of Muslim law, indicating their geographical distribution and their Indian presence. (15 marks)
3. Distinguish between the Usuli and Akhbari sub-schools of the Ithna Ashari. Why is the distinction practically important in India? (Short note — 5 marks)
4. Who is Imam Jafar-us-Sadiq and what is his place in Islamic jurisprudence? (10 marks)
5. MCQ: Which of the following Shia schools is dominant in India? (a) Zaidi (b) Ismaili (c) Ithna Ashari (d) Fatimid. Answer: (c) Ithna Ashari.

IX. Conclusion

The Shia schools of Muslim law form a distinct but internally diverse legal universe. The Ithna Ashari Twelvers dominate in India, especially in Lucknow and Kashmir; the Ismaili Khojas and Bohras, though smaller in number, enjoy a remarkable social and economic profile and a continuous living ecclesiastical leadership; the Zaidi Fivers, nearly absent in India, remain important for the comparative study of Islamic juristic method.

For the Indian judicial officer, the crucial lesson is that 'Muslim law' is never a single body of doctrine; it is a layered legal tradition in which Sunni and Shia, Hanafi and Shafi, Ithna Ashari and Ismaili, all contribute their distinctive rules. Once the parties' sect and school are established, the court must apply that school's rules in full — as illustrated in Hamira Bibi, Jimbabai, and Sardar Syedna. The wise lawyer does not assume; the wise lawyer ascertains.

X. Frequently Asked Questions

Q1. Who are the Shias?

Shias are Muslims who believe that legitimate succession to the Prophet Muhammad passed to his cousin and son-in-law Ali ibn Abi Talib and his descendants, the Ahl al-Bayt. They form about 10–15% of world Muslims.

Q2. What is the largest Shia school?

The Ithna Ashari (Twelver) school, followed by roughly 85% of world Shias, and the predominant Shia school in India.

Q3. Who are the Bohras?

The Bohras are Mustaali Ismaili Shias in India — principally Daudi Bohras (headquartered in Mumbai, led by Syedna Mufaddal Saifuddin since 2014) and Sulaimani Bohras (with leadership in Yemen). They form a distinctive Gujarati-speaking community with a strong mercantile tradition.

Q4. Are Khojas Muslims?

Yes — Khojas are Nizari Ismaili Shia Muslims, led by the Aga Khan (Prince Rahim al-Husseini, Aga Khan V, since early 2025). They were governed by Hindu custom before the Shariat Act 1937 on certain matters, but are now governed by Ismaili Shia law in matters covered by Section 2 of the Act.

Q5. Is muta marriage legally valid in India?

It is recognised as valid under Ithna Ashari Shia personal law; Indian courts have applied it for Shia parties. It is not valid under any Sunni school. The leading Indian case is Shoharat Singh v. Jafri Bibi, AIR 1915 PC 118.

Q6. Do Shias accept Qiyas?

No — the Shia Ithna Ashari school formally rejects Qiyas and replaces it with Aql (structured reason, controlled by the Quran, the Sunnah through the Imams, and Ijma reflecting the Imam's opinion).

Q7. Is the Shariat Act 1937 applicable to Shias?

Yes — the Act applies to all Muslims regardless of sect; it does not itself state the rules of any particular school. For Shia parties, the Act directs the court to apply Shia Muslim personal law (Ithna Ashari or Ismaili, as the case may be) on the ten matters in Section 2.

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