For A Common Cause
By Arif Mohammed Khan
18 August 2009
"Family law is undoubtedly most important among the civil laws. Conscious of its primacy, Islam had prescribed a law based on right principles, and Muslims had received a family code that was useful, complete and comprehensive...but unfortunately this law became victim of 'Mohammedan Law' (Muslim Personal Law) and has become so distorted that now there exists a remote resemblance between the two. The law as applicable in the name of Shariat is neither useful nor comprehensive. In fact, no other law has so adversely affected the social life of Muslims. Today, there should be hardly any Muslim family among whose members someone's life has not been ruined by this pernicious law.''
This scathing attack on the Muslim Personal Law was not penned by any modern, liberal thinker but by Maulana Maudoodi, the founder of Jamaat Islami, whose members in India are ardent votaries of the impugned law.
One cannot agree more with the observation of the Law Commission in its 277th report that "traditional understanding of Muslim law on bigamy is gravely faulty and conflicts with true Islamic law in letter and spirit". Based on this understanding the commission has rightly proposed insertion of a new clause in Hindu law to ensure that the provision for bigamy in Muslim law is not taken advantage of by non-Muslims who, allured by this law, resort to sham conversion.
But what defies logic is that if the Muslim law on bigamy as practised in India is faulty and conflicts with true Islamic law, then who is more in need to be saved from its consequences few non-Muslims who mischievously try to abuse this faulty provision or the Muslim community which, according to Maulana Maudoodi, has suffered so much that in each family one or the other person's life has been ruined by it?
Law Commission member Tahir Mahmood, who is an expert on Muslim law, argued in this column
that "conscious of the religious sensitivities of the Muslim society in respect of personal law, the commission did not touch upon misuse of Islamic law on bigamy by born Muslims themselves, which is not unknown". It is a clear recognition that there is misuse of Islamic law by those who are born Muslims, but it is the perceived 'religious sensitivity' that has kept the commission from making any observation on the need to put an end to this practice and bring the law in conformity with the letter and spirit of true Islamic law, as the commission sees it.
What does it mean? Does the commission hold that someone born Muslim can misuse "true Islamic law" with impunity and the newly-converted cannot? It is a travesty of not only the principle of equality but also of the morality of any Law Commission. If the Law Commission genuinely believes that the "traditional understanding of Muslim law on bigamy is gravely faulty and conflicts with true Islamic law" then it had the moral and legal duty to make recommendations to revisit the law and leave the question of religious sensitivity to the government to handle. How the Law Commission can hold that it aims to prevent misuse of a certain law only by one section of society and not by others is baffling.
There is no doubt that contrary to popular perception marriage norms prescribed by the Quran is monogamy, and the permission for polygamy in extraordinary circumstances is laced with conditions difficult for any ordinary human being to satisfy. According to the commentators of Quran, the two verses (4.2-3) that permit conditional polygamy were promulgated on the occasion of the battle of Uhud, which had wiped out more than one-tenth of the nascent Muslim community of Medina and had left behind a large number of orphans and widows. The subject matter of these verses is welfare of war widows and orphans and polygamy is mentioned merely as an instrument to take care of these hapless individuals.
On the other hand, right from the story of creation, the Quran speaks of man and his wife, not wives. In fact, in a positive command it says: "Marry those among you who are single" (24.32). Elsewhere it says: "God has not made for any man two hearts in his (one) body" (33.4) The stand of the Law Commission to refrain from making any recommendation to update Islamic law on bigamy, which it believes is faulty, is itself problematic not only from a legal and constitutional perspective but also from an Islamic viewpoint.
The Quran abhors the tendency to ignore the truth for fear of offending popular opinion. It says: "Were you to follow the common run of those on earth, they will lead you away from the path of God" (6.116). This argument is buttressed by a prophetic tradition reported by Ibn Maja. It goes like this: "Let no one humiliate himself. When asked how does one humiliate himself? The Prophet said: 'When someone sees an occasion to speak for the sake of God, but does not'."
Arif Mohammad Khan is a former Indian union minister.
Source: Times of India, New Delhi