Why Arshad Madani is wrong on the Uniform Civil Code

By Arshad Alam, New Age Islam

21 June 2023

It Is a Sad Commentary on Muslim Society If People like Him Continue to Hold Such Sway

Main Points:

1.    Madani argues that Indian Muslims have been observing their personal laws since the last 1300 years which is historical rubbish.

2.    Muslims in NWFP and Kerala gave more weightage to their customary laws rather that the Shariat

3.    The Muslim Personal Law was only enacted in 1937 and that too because the Muslim League wanted a homogenous identity for all Muslims

4.    Despite the zeal to do so, the weight of custom was such that Muslim women were divested of agricultural property

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Arshad Madani

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In a recent television interview with a prominent Hindi news channel, Arshad Madani, the leader of one faction of Jamiat Ulama e Hind, rejected the Uniform Civil Code as being completely unnecessary for the country. It must be recalled the 22nd Law Commission of India has invited views from all religious organizations and individuals regarding a UCC. Madani was being interviewed as a “representative” of the Muslim community, although the Jamiat is largely unelected and family-controlled organization. But then, when it comes to Muslim issues, the Indian media is hardly bothered to take a cross section of views. It usually projects the most retrograde Muslim voices, so that the whole community can represented as regressive. Needless to say, Muslim intellectuals (with some exceptions), have done precious nothing to change this perception as they normally ally their views with the conservative clergy.

Coming back to Arshad Madani, he makes some intriguing observations in the interview. But first, we must thank him for stating very categorically that in case the government moves with the implementation of UCC, Muslims should not hit the streets in protest. This is clearly very wise of him, as we have seen how the state has on occasions reacted to such protests by Muslims. One can clearly see that Arshad Madani is interested in maintaining peace in the country and that it is truly salutary, given the blighted times in which we find ourselves.   

Madani argues that Muslims have been observing their personal laws since the last 1300 years and that Indian Muslims should continue to do so. This is historical rubbish. The Muslim Personal Law only came into existence in 1937. The application of the law before that period differed from region to region and was a curious mix of customs and the Islamic law. The Muslims in North West Frontier Province, for example, were guided more by their tribal code rather than the Shariat. The matrilineal code continued amongst the Mappila Muslims for centuries after their formal conversion to Islam. Different Muslim caste Panchayats existed (and still do) in various parts of the Indian subcontinent which followed their own laws to organize their community affairs. It cannot be said therefore that Muslims have been following the shariat since the time they set foot on this soil.

Custom and the Sharia

It was only in 1866 that the judicial committee of the Privy Council put the Islamic law over customary law, though it allowed the latter to be used for special circumstances. However, the high courts of Calcutta (in 1882) and Allahabad (in 1900), altogether discontinued the reliance on customary laws for Muslims. But it 1913, the Privy Council remarked that the usage of customary laws amongst Muslims was of “vital importance” and hence allowed that it could be relied upon in adjudicating such cases.

It was only in 1937, with the passage of the Shariat Act, that such a reliance on customs was done away with. However, this has to be seen in the context of the mobilization of the Muslim League and the demand for a separate homeland for Muslims. The Muslim League spearheaded the demand for Pakistan, arguing that Hindus and Muslims were two separate nations. But till the time Muslims were governed by customary laws, which were often Hindu, the argument that Hindus and Muslims formed separate nations was not very convincing. Muslims had to be seen as separate from Hindus and the shariat law was designed precisely to do that. The irony is that the Jamiat has historically been opposed to the two-nation theory, yet they are advocating for upholding a law which is at the very root of giving legitimacy to this philosophy.

Despite the creation of Shariat Act 1937, custom did not take a back seat. Hindus and Muslims both did not give a share in agricultural land to women. But with the passage of 1937 Act, Muslims were bound to do so. Punjab became restive as Muslim landlords wielded considerable influence in those parts. The Muslim League became nervous and made an exception to the provision in the Dissolution of Muslim Marriage Act, 1939. Muslim women were debarred from any share in agricultural land. The Muslim clergy tells us no end that the Sharia is divine. And yet when to comes to divesting women from their legitimate share, they forget about the divinity of their own law!

Regressive Views

Throughout the interview, Madani does not even hint at the possibility that certain aspects of the Muslim Personal Law need to be reformed. He defends the practice of polygyny by stating that “men have needs”, that if the wife is unable to give him a progeny, then he should be free to take another one. Not for a minute does it occur to Madani that lack of children could be because of the condition of the man also. Moreover, it becomes clear from the interview that marriage for Madani is just about making babies and women are nothing more than just wombs. Such thinking permeates all levels of the Muslim clergy. If one of the leading lights of the Muslim personal law has such an opinion, what would be the condition lower down the hierarchy, where actual cases of Muslim divorce get heard? With such misogynistic attitudes, will women who access the local Qazi ever get a fair hearing?

On the issue of unequal inheritance for Muslim women, Madani answers as if he is living in a different world altogether. He says that the Islamic law is correct because it is men/sons who take care of the parents in old age, etc. Hence it is logical that they should get a larger share in parents’ property. This is downright anachronistic. More and more Muslim women are getting educated and financially independent. In many cases, they are taking better care of their parents than their brothers. Will the Islamic law make exception in such cases? But of course, for Madani, such financially independent Muslim women do not exist or rather they should not exist. Madani might still be living in a time when women were treated as mere chattel and he can very well continue to do so. But as a representative of a powerful organization, he has the potential and capacity to take down the Muslim community with him. And that’s the real worry.

Most of the Muslim clergy resort to lying when they are confronted with facts. One feels sorry to say that Madani is no different. He knows that he is not being truthful by calling the sharia divine. He knows that the sharia has been evolving with the times; he knows that Muslim majority countries have been making changing in the sharia when such necessity arises. In 1939, the Shariat Act was amended, which for the first time provided some grounds on which Muslim women could file for divorce. This was truly ahead of its time, since Hindu women would only get this right nearly two decades later. So, the so-called divinity of the sharia has been tampered with many times. But Madani would have us believe that it has remained unchanged for the last 1300 years!

People like Madani, and by extension, the religious orthodoxy, would never address the question of gender justice within Muslim society. It is a sad commentary on the Muslim community that instead of side-lining such people, they have a huge following.

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A regular contributor to NewAgeIslam.com, Arshad Alam is a writer and researcher on Islam and Muslims in South Asia. 

 

URL:   https://newageislam.com/islam-politics/madani-uniform-civil-code/d/130043

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