Islamic Law or what is called Muslim Personal Law comes under attack not only
by Hindutva forces but also is criticized by secular forces who stand for
gender equality. The Hindutva forces attack it not for their love for gender
justice but out of hostility for Islam. But same cannot be said for secular
forces. They find existing Muslim personal law as gender biased in favour of
man.
Most of us think that the Muslim personal law as applicable in India today is
Shari’ah law. However, it is not so. Those Muslims who defend Muslim personal
law as Shari’ah law do not understand the difference between Muslim personal
law applicable today and Shari’ah law. In fact it was called Anglo-Mohammedan
law before independence but was renamed as Muslim personal law after
independence.
The British Government, after it seized power from Mughals, established its own
courts, which also heard cases pertaining to Muslim marriage, divorce,
inheritance etc. In most of these courts there were either British or
non-Muslim judges who did not know Shari’ah law or if even Muslim judges heard
these cases, most of them were trained in British laws.
What these judges did was to consult Hidayah, written by Mirghayani, a Hanafi
scholar, and translated into English by Mr. Hamilton. Often they also consulted
some Maulavi before delivering the judgment. Since the cases were heard in
these British courts, the procedural law followed was English law and
substantive law was based on Hidayah, it came to be known as Anglo-Mohammedan
law.
The judgments in these cases delivered by higher courts became precedents for
subsequent cases and thus whole corpus of law came into existence based on
these judgments which came to be known as Anglo-Mohammedan law and renamed as
Muslim personal law as calling it Anglo-Mohammedan law was now rather
embarrassing. Thus to call it Shari’ah law would be a misnomer.
Unfortunately what we Muslims or rather Muslim personal law Board is defending
is not divine law but Anglo-Mohammedan law known by another name. It is unjust
in many respects to women and we try to rationalize these injustices in the
name of Islam. In fact Islamic law has to be based on Qur’an and Sunnah and
then alone it could be called Shari’ah law and such law would not tend to be
unjust.
In all Muslim countries too traditional laws have been amended to bring them
closer to Qur’an and sunnah thus giving more rights to women as in the Qur’an.
In Turkey too what came to be known as Tanzeemat, was based on different
provisions favouring women taken from different schools of Sunni law like
Hanafi, Shafi’I, Maliki, Hanbali etc. In India too, the Dissolution of Muslim
Marriage of 1939 was based on Maliki School as in Hanfi law a woman has to wait
for 90 years if her husband disappears without a trace.
If we codify the present Muslim personal law, many shortcomings in the present
law can be removed thus making it much more gender–just than it is at present.
In fact in its original spirit Islamic law in matters of marriage, divorce,
inheritance etc. was most progressive and empowered women as no other law had
done before. However, over period of time this original spirit was lost due to
then prevailing social ethos and values. And customary laws acquired greater
importance over Qur’anic and Prophet’s (PBUH) pronouncements. Codification can
remove these accretions over a period of time and restore original Qur’anic
spirit.
We are doing this codification precisely for this reason. And our team is
meeting noted ‘Ulama and Muftis, Muslim lawyers and Muslim women activists to
evaluate their views and problems encountered by them. Our team has recorded
their interviews based on properly designed questionnaire prepared in
consultation with some experts on Islamic law. It is important to know that we
are interviewing Ulama of various schools i.e. Hanafi, Shafi’I, Ithna Ashari,
Ahl-e-Hadis etc. those who have presence in India.
These views will be very much kept in mind while actual codification is done.
And it need not be reiterated that this codification will be based on Islamic
framework and nothing outside it so that it is acceptable to all. It will not
be based on anything outside Islamic laws. However, codification need not
follow only one school of law as in some schools there are provisions more
favourable to women, than other schools. Thus partly we may follow what was
done in Turkey in framing Tanzeemat laws.
It is interesting to note that so far our interviews are very encouraging and
many Ulama from Deoband, Lucknow, Aligarh, Azamgarh and other places have fully
supported our views about making present Muslim personal law gender-just by
bringing it closer to Qur’anic spirit and spirit of Sunnah of the Prophet
(PBUH). It was indeed very pleasant surprise to us. They also do not agree
with Muslim personal board in maintaining status quo and causing problems to
women.
Most of the Ulama, with some exceptions of course, agreed with us that polygamy
cannot be permitted unregulated as Qur’an makes it strictly conditional, on
ability of men to do equal justice to his wives as Qur’an clearly states in 4:3
and 4:129 that if justice is not done, one should marry only one. In fact 4:129
is very very emphatic on justice so much so that it says you cannot do justice
even if you want and do not leave first wife suspended or neglected.
Thus in Qur’an priority is not for number but for justice. However, in Muslim
personal law in India spirit of justice is totally lost and number has replaced
it. Qur’an laid so much emphasis on justice 1400 years ago and today in 21st
century when women are much more educated and aware of their rights, justice
has receded into background.
It is interesting to note that some Ulama maintained that one need not even
obtain consent of first wife as it is ‘privilege’ of men to marry up to four
wives and they even denied that verse on polygamy was revealed after the Battle
of Uhud in which more than ten per cent of men were killed and widows and
orphans had to be taken care of.
Their ignorance was indeed very shocking as they maintained that polygamy is
needed to take care of sexual need of man and if polygamy is not allowed
prostitution will flourish. If one wife is undergoing menstruation or is
pregnant or has delivered man must have other wives to fulfill his sexual need.
This is not mentioned in Qur’an even indirectly and yet these few ulama
justified polygamy on these un-Qur’anic grounds.
Some prominent Ulama from Deoband, Lucknow and Aligarh, to our pleasant
surprise, favoured abolition of triple divorce and they were critical of Muslim
Personal law Board on its insistence to retain it. One of them pointed out that
if triple divorce in one sitting is justified on grounds of 2nd Caliph Hazrat
Umar permitting it, why don’t they take into account that he later punished
those who resorted to it.
These Ulama pointed out that divorce should be pronounced on three different
occasions as described in the Qur’an so that reconciliation could be brought
about in the meanwhile, if possible. Some even maintained that it should be
only thrice in lifetime. All of them agreed that as per Qur’anic requirement
prior to divorce arbitration should be attempted failing which divorce
procedure may be started (4:35). This verse too emphasizes reconciliation
rather than divorce.
Thus these are two main issues in Muslim personal law, which are causing
injustices to Muslim women. If polygamy and triple divorce are properly
regulated Islamic personal law will not only come much closer to the Qur’anic
spirit but would become much more progressive than what it is today.
Though incidence of polygamy is not very high among Muslims in India still some
men do marry second wife (rarely four wives as in Hindutva propaganda) by
either deserting first wife or refusing to divorce her when wife asks for
khula’. Thus there is need to regulate polygamy by stipulating strict
conditions as required by the Qur’an and no man should be free to take another
wife according to his whims. Codification would attempt to lay down such
conditions and make it justiciable as per law.
Also, triple divorce should be replaced by talaq al-sunnah or Qur’anic form of
divorce both are quite fair to women. Even divorce where inevitable has to be
fair to women and Qur’an repeatedly exhorts men to either retain her (in
marriage) in goodness or leave her (i.e. divorce her) in kindness (2:229). She
cannot be thrown out arbitrarily as it is usually done through triple and oral
divorce. Law must prevail and proper procedure must be followed as laid down in
Qur’an and sunnah. Triple divorce is not in keeping with either of the two,
Rethinking Muslim personal law as prevalent in India is certainly not to
violate divine injunctions as often maintained by some people but to bring in
much closer to divine injunctions i.e. to infuse in them really divine spirit.
Well it may not always be possible to achieve complete unanimity but certainly
we will attempt to create a broad consensus around codification so that Muslims
women really enjoy equal status as they are entitled to according to Qur’anic
injunctions and also in accordance to modern laws.
