By Asghar Ali Engineer
23 May 2012
It was a huge gathering on the last day of the All-India Muslim Personal Law Board (AIMPLB) in Mumbai on 22nd April 2012. It was a three day conference from 20-22 April and lots of efforts were made through announcements in the mosques, local processions and individual efforts to mobilize Muslims in support of AIMPLB and to prove its clout. As usual, emotional speeches were made to warn government against interference in Muslim Personal law called shari’at-e-mutahhira (holy shari’at). It is interesting to note that this time the word ‘holy’ was added to what is usually called shari’at probably to emphasise its divine character.
Maulana Rabi’ Hasan Nadwi, President of the AIMPLB made highly emotional speech and said that Muslims will lay down their lives if Government interfered in the holy shari’at and that even if whole Islamic world makes changes in shari’at law Indian Muslims will not allow any change in it and will continue to embrace as it is without any change. Of course this emotional rhetoric greatly appeals to the masses who hardly know anything about the way shari’at law came into existence and for them the words of Ulama are like ‘divine’ words.
Today shari’at law in India as it is practiced unregulated is causing lot of suffering to Muslim women who are also part of Muslim ummah. Today the shari’at law is biased in favour of men as if women are not part of Muslim ummah. That is why almost all Muslim countries have made necessary changes to remove this male bias and make it more just towards women. The central principle of Islam is justice and it is Divine Will to do justice to all including women.
If the Maulana sahib considers shari’at law as evolved in 8th and 9th centuries more central than justice (the holy Qur’an says ‘do justice, it is closest to piety’) it is for him to decide what they want to follow. In fact shari’at is nothing but human approach to the divine injunctions and human approach is influenced by the circumstances and the context in which the law is developed. As human circum stances and context were involved there is nothing wrong in reformulating these laws and regulating them within the frame-work of Qur’an and sunnah (the holy Prophet’s words and deeds) and that is precisely what Muslim countries have done. These Muslim countries also have great ulama and Islamic thinkers who care as much for Qur’an and sunnah as India’s AIMPLB does.
Why talk of other Muslim countries, the Fiqh Academy, New Delhi recently held an international conference in Mhow and decided in the presence of ulama and eminent Islamic jurists that Muslim women are entitled to khula’, if they insist on it, without permission from their husband. Also a few days ago a fatwa from Darul ‘Ulum Deoband was sought by a person who asked whether he could take another wife while first wife he is married to is alive. The Darul Uloom advised him to desist from that as far as possible. Generally polygamy is considered in India as man’s privilege. These changes are taking place and must take place in the changed circumstances.
A great ‘Alim (theologian and jurist) from Qatar Allama Yusuf Qardawi has published a book in which he says that fatwas can and must be changed with the change of place and circumstances. He has give 10 different grounds in which these fatwas can be changed. He pleads that one should not simply consult books written in the past and issue fatwa but should deeply reflect on changes of place and circumstances before issuing any fatwa. Allama Qardawi is a highly respected ‘alim of the Islamic world. Does Yusuf Qardawi not know that shari’at is divine? Shari’at is divine as much as it is based on Qur’an and sunnah but it is also human as much as it is also based on human interpretations of these divine sources. And to that extent it must change, with the change in places and circumstances, as Allama Yusuf Qardawi insists.
Our Institute of Islamic Studies. Mumbai has also tried, in consultation with prominent ulama, Muslim lawyers, women activists belonging to Bhartiya Muslim Mahila Andolan and other women activists to codify the Muslim Personal Law strictly within the framework of Qur’an and sunnah to make it more just for women who suffer mainly because of triple divorce and polygamy. A representative of Fiqh Academy also attended the consultation along with some teachers of Zakir Husain Institute of Islamic Studies, Jamia Millia Islamia and each and every provision of codified law was discussed thoroughly in the light of Qur’an and sunnah before it was incorporated.
I must point out here that the Shari’at law as it is today is much more empowering for women than any other religious law but it also must be accepted that it has male bias and to that extent it must be corrected in 21st century by exercising ijtihad (creative re-interpretation), a principle which the Prophet (PBUH) himself propounded while sending Ma’ad bin Jabal as governor of Yemen anticipating that he might encounter new situations there. Ijtihad makes enough space available for necessary changes in law with change of place and time. The Prophet (PNUH) gives clear approval for such changes to Ma’adh bin Jabal and patted his back when he said that I will exert my brain for appropriate changes in law to meet new situations. The principle of ijtihad is an appropriate tool to bring about necessary changes. However, the Indian ‘Ulama, for reasons best known to them, have failed to rise to the occasion and make shari’ah law more gender just.
The male bias is so inbuilt that though in Islam women have share in landed property, it was abolished by the British at the instance of Jagirdars (feudal lords) but Ulama never protested and now under constant pressure from women Jami’at-yl-Ulama-i-Hind (Mahmud Madani group) have passed a resolution in its convention of Madrasa teachers that women’s right to landed property be restored. But Ulama are protesting against government move to give half the property in marital house at the time of divorce.
The Ulama, if they care for the security of the community, could have raised the question of communal and targeted violence bill in such a huge gathering which has been thrown into cold storage by the UPA Government. However, the MPLB failed to do that. This Bill is much more relevant in the present circumstances than anything else.
Asghar Ali Engineer is a Mumbai-based Islamic scholar.