Difference between the Sunni and Shia Schools

The following are briefly some of the important points of difference between the Sunni and the Shia Schools:

Law of Marriage

(i) Among the Shias temporary marriage (Muta) is lawful but it is unlawful among the Sunnis.

(ii) According to the Shias only the father and grandfather are guardians for marriage, others are regarded as Fazuli or unauthorised persons and, consequently, marriages contracted by the latter have no legal effect, unless ratified by the party concerned on attaining puberty. The Sunnis recognise a long list of other guardians for marriage besides the father and the grandfather who can act as Wali-ul-Nikah, they being father, father’s father how highsoever, brother, other paternal relations, mother, paternal uncle, etc.

(iii) The Sunni law prescribes the presence of two male witnesses at the time of marriage which the Shia law does not deem it a necessary condition. The Shia law requires the presence of two witnesses at the time of dissolution of marriage, but under the Sunni law, presence of witnesses is not necessary at the time of divorce.

(iv) As regards consummation of marriage, the Sunni law presumes consummation if there has been a valid retirement of the husband and wife into the nuptial chamber under circumstances which leave no doubt as to sexual intercourse (Khilwat-us- Sahih). But this doctrine of valid retirement is not recognised in Shia law. Under Shia Law consummation is presumed by actual intercourse only.

(v) The Shias hold ten months as the longest period of gestation whereas the Sunnis two years. Under the Shin law the child will be presumed legitimate only if born within ten months from the dissolution of marriage. Whereas under Sunni law a child born within two years of the termination of marriage is presumed to be legitimate. [The above rule for both Sunni and Shia has been superceded by Section 112 of the Indian Evidence Act, 1872.]

Dower

⯀ Ten Dirhams is the minimum amount of dower, under Sunni law, whereas under Shia law there is no minimum limit fixed. But under the Shia law ‘proper’ dower should not exceed 500 dirhams. Under Sunni law no upper limit is laid in any case. In Shia law, if there is no stipulation at the time of marriage as to whether the dower is to be prompt or deferred the whole of it is presumed as prompt, but according to Sunni law, the rule is to regard part as prompt and part as deferred, the proportion of each being governed by custom or by the status of the parties and the amount of the dower.

Divorce (Talaq)

(i) Talaq under Sunni Law may be effected orally or by a written document. Under Shia law a Talaq must be pronounced orally in the presence of two witnesses and a Talaq communicated in writing is not valid unless the husband is physically incapable of pronouncing it orally.

(ii) The pronouncement of Talaq under Shia Law, must be strict accordance with the Sunnnt. So Talaq-ul-Biddat is not recognised und whereas Sunni Law recognises it.

(iii) Under Sunni law, where the words of divorce used by the husband are ‘express’ the divorce is valid even if it was pronounced under compulsion or in a state of voluntary intoxication whereas the Shia law does not recognise divorce pronounced under such circumstances.

It is to be noted that ‘Triple Talaq’ under Muslim law has been declared unconstitutional as violative of Article 14 on the ground that it is arbitrary. The Parliament of India, on the direction of the Supreme Court has enacted the Muslim Women (Protection of Rights on Marriage) Act, 2019, making the pronouncement of ‘triple talaq’ by the husband as an offence.

Maternity

⯀ Maternity under Sunni law is fixed in the woman who gave birth to the child whether from the adulterous intercourse or of a valid contract of marriage. The Shia law, on the other hand, distinguishes between child of fornication and child whose mother was validly married before conception but her husband disavowed its parentage. In the case of latter, maternity is established in the woman while the former is deemed to have no mother at all. Another consequence of the above is that the Shia Law does not permit mutual rights of inheritance between the mother and her illegitimate child. Under the Sunni law such child has got the right of inheritance from the mother and maternal relations who also inherit from the child.

Guardianship

⯀ The mother under Sunni law is entitled to the custody of a boy until he has completed the age of seven years and girl until she has attained puberty. Under Shia law, the mother is entitled to the custody of a boy until he attains the age of two years and a girl until she attains the age of seven years. In default of her, it belongs to the father and in default of him to the grandfather.

Maintenance

⯀ Under the Sunni law the liability to maintain the father rests on his children. The sons are liable even if the father is earning. But under the Shia law it is not obligatory to maintain if the father is in a position to earn.

Gift

⯀ A gift of undivided share (mushaa) in a property which is capable of division is irregular under Sunni law, unless some special conditions are satisfied. Under Shia law a gift of an undivided share is valid, though it be a share in property capable of partition. Similarly, Shia law recognises a gift of a property to two or more donees as valid, though no division is made either at the time of gift or subsequently.

Waqf

(i) A Waqf inter-vivos is completed under Sunni law by a mere declaration of endowment by the owner, whereas under Shia law a Waqf inter-vivos cannot be created by a declaration. There must also be delivery of possession.

(ii) Under Sunni law the settlor

(i) may provide for his maintenance out of the income of the waqf property

(ii) may reserve the whole income for himself, for his life, or

(iii) may provide for the payment of his own debts out of the income of the waqf property.

Under Shia law the settlor cannot reserve for himself a life-interest in the income of the waqf property or provide for the payment of his personal debts out of the income of the waqf property.

Pre-emption

⯀ Sunni law recognises three classes of pre-emptors-Shaji-e-khalit, Shafi-e-sharik, and Shafi-e-jar. Shia law recognises only one class of pre-ernptors, that is, Shafi- e-sharik (co-owners) and that too when there are only two co-owners. if there are more co-owners, there is no such right in the Shia Law.

Wills

⯀ A person under Sunni law cannot bequeath anything in favour of an heir except with the consent of the other heirs signified after the testator’s death, whereas under Shia law no consent is necessary if the bequest does not exceed one-third, and where it does exceed, the consent of the heirs may be given even during the lifetime of the testator.

Inheritance

(i) According to Sunni law there are three classes of heirs, namely, sharers, residuaries and distant kindred. Whereas under Shia law there are only two classes of heirs, sharers and residuaries i.e., heirs by consanguinity and heirs by marriage.

(ii) The sharers, according to Sunni law, exclude residuaries and residuaries exclude the distant kindred. Under Shia law, the sharers and the residuaries are all jointly divided into three classes; the first excluding the second from inheritance and the second excluding the third.

(iii) The Sunni law does not recognise any right of primogeniture, (the state or fact of being the First born Child in a family) the Shia law recognises it to some extent.

(iv) Sunni law restricts recognition of the doctrine of representation to a few limited cases whereas in Shia law it is the cardinal principle of succession.

(v) Without exception, homicide is a bar to succession in Sunni law but under Shia law it is bar only if it is intentional.

(vi) Under the Sunni law both husband and wife can take by return, i.e., where there is residue. Under the Shia law only the husband is entitled to return and not the wife. (vii)Under the Sunni law, the doctrine of increase extends to all sharers alike, but it applies only to the daughter and sister among the Shias.