Obsolete Muslim Personal Law In India Needs Urgent Reform: Historical Background
By
Grace Mubashir, New Age Islam
24 June
2022
Reformation
Of Muslim Personal Law In India Is Mired In Political And Social Controversies.
Timely Reforms In Muslim Laws Are What Religious Corpus Say. Before We Delve
Deeper Into The Issues With The Muslim Personal Law, It Is Important To
Understand Its Historical Background And Social And Political Milieu In Which
It Was Institutionalized. This Article
Tries To Cut The Clutter Around The Historical Developments Of Muslim Personal
Law In Indian Subcontinent
Main
Points:
1. During
Mughal period, the administration followed major Fiqh books for different
sects.
2. The
concept of Muslim Personal Law is basically from English legal morality.
3. First
act to regulate Muslim Law in India was in 1772.
4. Muslim
Shariat Act was passed in 1937.
5. The
current laws are obsolete and need urgent reform
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India has
seen the essence of Islamic law since the conquest of Sindh by Muhammad ibn
Qasim in 712 AD. However, the law was not established until after the reign of
Qutbuddin Ibn Bakr in the early 13th century. The Mughal kings followed Hanafi
Madhhabs. The first authentic Islamic law book found in India was the Hanafi
Law Book, Hidaya, written in the 12th century by Burhanuddin Marginani, who was
born in present day Russia and Turkey. Later, in the 13th century, a Shia
scholar by the name of Najmuddin al-Hilli wrote a book on Shia law entitled
Sharaul Islam. The Fatawa Alangiri, a collection of fatwas issued by
scholars up to the time of Aurangzeb during his reign, was written in the 17th
century because of the fact that judgments based on principles were more useful
than books containing abstract principles. 'Hidaya' was translated from
Arabic into Persian and later into English.
'Fatawa
Alangiri' and 'Sharul
Islam' were published in English by a judge named Bailey as 'Bailey's
Digest'. These three books were written in India to understand Islamic law.
These books trace the roots of Muslim personal law in India even today. The
Shafis also have an English translation of the book Minhaj-u-Talibeen.
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It has long been accepted that Hindu law and
Muslim law are inextricably linked to their religions. As a result, when Muslim
law was applied to Muslims, Hindu law was extended to Hindus by the Mughal
emperors. This policy was not re-introduced by the British except to be
followed later. When the East India Company began trading and governing in the
17th century AD, the Hindu-Muslim communities were given the freedom to obey
their religious personal rules in all matters. According to Regulation II,
passed in 1772, cases relating to rituals, inheritance, marriage, caste, and
caste (here caste means religion), according to the Qur'an, belong to Muslims,
and 'Shastra' to Hindus. It was suggested that the verdict should be decided
accordingly.
Maulvis
were appointed to teach the Qur'an and Pandits to teach science. This measure
has been in place for a long time. In all but the above cases, caste and
religion were judged in accordance with the principles of justice of the
English.
When the
British took over India from the East India Company in 1858, the 'authority' of
British law was tightened. The British Parliament passed the Prohibition of
Slavery Act in 1843 and the Caste Disability Prevention Act in 1850. One
forbade enslaving human beings. A person of another caste or religion does not
lose the inheritance and inheritance rights under civil law. They implemented
both these Acts in India. Since the enactment of the Indian Penal Code in 1860,
the same penal code has been enacted throughout India. With the implementation
of all these communal remedies, Muslims were unable to enforce their own law on
these issues.
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Also
Read: Why is the Muslim Personal Law Board Crying Hoarse
Over a Non-Existent Uniform Civil Code?
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In 1861,
the High Court was established in three places, Bombay, Calcutta and Madras. In
1872, Evidence Act was enacted for India in accordance with British principles.
Since then, Muslims have lost the Islamic proof of law. The Act, passed by
Parliament in 1887, required that when adjudicating matters relating to the
property, marriage and religion of a Muslim, all other parts of the body should
be applied except those which have been altered or removed by law. Relevant in
this context is the fact that the British law amended the Islamic property law,
which states that the property of a Muslim cannot be given to a non - Muslim,
but the property rights are not destroyed by caste change. But British law did
not interfere in marriage and religious ceremonies. They respected traditions
and customs. It is a fact that the opposition to rituals is still prevalent
among Muslims to the extent that some un-Islamic practices are accepted.
With the
establishment of the High Courts in 1860, the office of Court Adviser to the Maulvis
and Scholars came to an end; the presence of lawyers with legal training in the
courts was required. The system in which the Maulvi was replaced by
lawyers had both advantages and disadvantages. The Maulvis were still strict
theorists. They were not sure of worldly contact or procedure. The language
they knew was unknown to the British judges or to the language the judges knew.
The number of cases had increased. Their diversity and complexity increased.
From the 1880s to the 7th century, India can be said to have been the golden
age of Muslim personal law.
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Also
Read: Introduce Comprehensive Gender-Neutral Reforms in
Muslim Personal Laws
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During this
period, modern jurists such as Justice Mahmoud, Justice Amir Ali, Justice Abdur
Rahim, Barrister AFM Abdurrahman, and others echoed what was available in
Arabic and Persian. Justice Tayyibji and others made valuable contributions to
the development of Muslim personal law. They were able to access the original
texts in Arabic. But British judges were amazed at the complexity of Islamic
law and the difficulty of interpreting it from its original sources. A senior
British judge once said in a ruling that he would have been glad if the Muslim
legal issue had come before him and he could not have escaped without making a
decision. Codification has taken place in only a small part of Muslim personal
law.
Family Waqf
Validation Act of 1913, Shariah Act of 1937, Fasq Act of 1939, Waqf Act of
1854, Mappila Marriage Act of 1918, Mappila Vasyat (will) Act of 1928, Kashmir
Muslim Maher (dowry) Act of 1920, The laws were codified in 1938 as the
Kachimeman Act and in 1949 as the Muslim Marriage and Talaq Registration Act (for
Odisha, Assam, Bihar and West Bengal only) and the null and void Khasi Act of
1880. The most important of these, the Shariah Act, is described below.
Except for
the parts contained in the Acts, the rest are 'Hidayah' for Hanafi law
and 'Minhaj' for Shafi'i law. Because the Hanafis are in the majority,
court decisions are more in accordance with Hanafi law. Today's lawyers and
judges do not go into the original texts. They usually look only at past Privy
Council rulings and now Supreme Court rulings and High Court rulings.
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Also
Read: Reforming Muslim Personal Law: All India Muslim
Personal Law Board and its Bogus Arguments
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The Privy
Council had imposed some wrong judgments in Muslim law. In 1894 they annulled
the family Waqf. The Prophet (peace and blessings of Allah be upon him)
allowed and encouraged it. The British judges did not heed Justice Amir Ali's
first ruling in a judgment that it should not therefore be invalidated. The
judges rejected Amir Ali's opinion because they could not believe that the
Prophet (peace and blessings of Allah be upon him) did not allow property to be
permanently held by charity, but was allowed to do so in the name of 'dharma'.
(Abdul Fatah Case). The Family Waqf Validation Act of 1913 was passed in India
as a result of the agitation of the Indian Muslim community against this
erroneous judgment.
In 1897
another erroneous judgment was made. Amir Ali argued that the Qur'an commands
that a woman who has lost her husband stay in her husband's house for a year
and protect her, citing Chapter 2, Verse 240 of the Qur'an. The judges did not
accept. The reason given is strange. They do not have to look at what the
Qur'an says. The reason given was that they did not see such a right in
'Hidayah' or 'Imam'. (Kulsumbi case). The Privy Council disagreed with Justice
Mahmoud's ruling that Shiites should not make waqf by will; The reason given
was that they were not prepared to accept any new principles which the ancients
had not stated. Their judgments in religious matters did not address the
'right' aspects of the subject. They were based on rules. However, Such
judgments later became law.
When a
dispute arose in the Bombay High Court in 1871 over whether three statements in
one breath could result in three divorces, it was counted as three Talaqs,
saying that such statements had been considered as three divorces for 75 years.
When the
issue of whether Ahmadis were Muslims came up in the Madras High Court in 1921,
a British judge and Justice Krishnan from Kannur ruled that they were Muslims.
Justice Krishna Iyer had also passed a similar order in the Kerala High Court.
It is doubtful whether the verdicts would have been the same if the Muslim
judges had been in the judicial chair. These judgments indicate that those with
religious knowledge and perspectives are more capable of deciding religious
issues. Hindu judges have the same ability in cases involving Hindu issues.
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Many
un-Islamic laws in Muslim personal law have been passed on to ritual force. The
law of marriage, which has been observed for centuries among the Mappilas, and
some of the Hindu customs that existed in the Kachimeman, Khoja and Bora sects.
In Kashmir, the law denies women property rights and is content with mere
protection (this has been changed with abrogation of Article 370). These were
all part of the Muslim Personal Law. The Shariah Act, passed in 1937, is an
important milestone in Muslim personal law. The Act declares; If the parties
are Muslims, even if there is a contradictory custom or custom, property of
non-possession, property for women, property by contract or gift, marriage,
divorce, protection, Mahr, guardianship, alms, including divorce and
divorce, Sihar,, Qul’ and Mubara; Cases between Muslims on
matters of trust and Waqf of religious institutions should be decided in
accordance with Shariah principles. Those who have written to the authorities
stating that they wish to take advantage of the Act will be able to abstain
from adoption and possession of the entire property in addition to the above
matters.
The reason
for this is that in the Kachimeman-Khoja communities, there was this un-Islamic
adoption as a custom and the practice of confiscating all property. They were
able to enjoy the benefits of this act by not adopting it freely if they
wished, and by doing so only in accordance with the Shariah. The following
year, the Kachimemans passed another act in 1938, deviating from these
un-Islamic customary rules and enacting the Shariah Act. The Khojas have a
mixture of some Muslim and some Hindu laws. They also follow some Sunni laws
and some Shia laws. The Shariah Act does not apply to Kashmir Muslims. Because
this is the law of India except Kashmir (changed after abrogation of Article
370).
The Malabar
Mappilas practiced certain Hindu rules in ancient times. They possessed all
their possessions like the Hindus. Even sovereign property was not inherited by
the heirs except the son-in-law after death. This situation was amended by two
Provincial Acts. In 1918, the Matriline Act was passed. As a result, the
inherited property was given to the heirs under Muslim law. With the passage of
the Mappila Vasyat (will) Act in 1928, only one-third of Muslim law allows them
to make a will. The property, which was divided according to the custom of
marriage, passed to the heirs according to Muslim law. After the Shariah Act,
no un-Islamic practice was allowed to comply with property matters. The nuptial
system should no longer be created.
The Shariah
Act is only a declaration act. It does not elaborate on the Shariah principles
of the issues raised in it. As this applies to all Muslims, the different legal
aspects of Shia, Sunni, Shafi, Hanafi, etc., and sects remain unchanged and
that they can obey their own sectarian rules. The Fasq Act (marriage
Dissolution by women) of 1939 has taken a more effective approach in this
regard. This Act applies to all Muslims, regardless of Sunni-Shia or Madhhab
distinctions. It enumerates the legal principles of Fasq. Therefore,
they can be known to everyone. The Shariah Act required so.
Other
Muslim countries have codified Sharia law. In India, codification came into
force after the Shariah Act was enacted (two years later) under the Fasq Act.
It became the most appropriate and useful. Shariah law requires its
codification. For this, it is sufficient to explain and reconstruct the Shariah
Act.
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A regular columnist for NewAgeIslam.com, Grace
Mubashir is a journalism student at IIMC, Delhi
URL: https://newageislam.com/islam-politics/muslim-personal-law-india-reform-historical/d/127314
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