By Asghar Ali Engineer
12 July 2012
A few days ago we had organized a discussion on codification of Muslim personal law in a way that could be acceptable to all the sects of Islam in India. We have done so in consultation with the Ulama Muslim intellectuals, lawyers and women activists. Also, this codification is strictly with frame-work of Shariah that is Qur’an and Sunna. We have had a few consultations before we finalized certain proposals and we also had kept in view the codification done in many Muslim countries like Pakistan, Jordan, Egypt and other countries.
Our draft codified law addresses the question of misuse of polygamy, triple talaq, inheritance, custody of children etc. The orthodox Ulama who have constituted the Muslim Personal Law Board since seventies of last century, hardly do anything to stop misuse of these provisions with the result that a large number of Muslim women suffer – are arbitrarily divorced ruining their lives forever and throwing their children in an uncertain future. Many men taking advantage of provision for polygamy desert their fist wives and marry another one and in order to take revenge do not even divorce them as under unregulated Muslim personal law today Khula’ cannot take place without the consent of husband.
Our proposed codification is chiefly meant to stop such abuses and restore its thrust for justice and gender equality. Though we have finalized proposals we, by no means, consider it perfect and so have kept it open for consultation and further perfection. Continuing with consultation we organized one such consultation at Lucknow which is a centre of Islamic learning and invited Ulama from Nadwat-ul-Ulama and Farangi Mahal, the two great centres of Islamic learning, besides other Ulama, intellectuals and women activists.
Though we are aware that it is by no means easy to get such proposals accepted by orthodox Ulama or Muslim Personal Law Board (MPLB) we continue to discuss with them and persuade them to accept these proposals in the interest of Islamic spirit and justice to women. We also wish to have dialogue with MPLB, preferably its chief Maulana Rabe Hasni. In this consultation we requested that MPLB should depute some representative to have at least preliminary discussion with us.
A Maulana was deputed and from Farangi Mahal its chief Maulana Irfan Siddiqui himself came. The consultation was great disappointment and proved how rigid our Ulama are and one of the reasons why Islam appears to be so rigid to non-Muslims and rationalist Muslims is chiefly because of this rigidity. Right at the beginning the Maulana from Nadwa (I am not naming him) right in the beginning said you are undertaking very ‘dangerous’ work (khaufnak kam kar rahen hain).
He also alleged that you are trying to ‘change Qur’an.’ I said let us first go through the proposals and then you point out why it is ‘dangerous’ and how it amounts to change Qur’an. We again reiterated that our proposals are strictly within the frame-work of Qur’an and Sunnah, all we are doing is to regulate and prevent their misuse like polygamy, triple divorce etc. We have proposed, for example, that a man should not be allowed to marry another wife unless he is permitted to do so by the marriage council (or Shariah court) presided by a Qazi and his first wife after thorough inquiry which could include need for second wife and his capacity to do justice.
Both the Qur’anic verses in on polygamy in Qur’an (4:3 and 4:129) stress justice, not number and justice is very primary in Islamic value system too and in taking second wife too justice cannot be ignored. The Maulana then said it is Hindus who marry more than one wife more often than Muslims. I said so what; we are here discussing the Muslim Personal Law and not Hindu law or violation of Hindu law. We must understand the maqasid al-Shariah (intentions of Shariah) and should not go by formal law as formulated by early jurists. In fact early jurists also had kept justice in mind and even tried to define justice but soon it began to be misused by men and justice became quite secondary to number (up to four)
Similarly triple divorce in one sitting is not mentioned in Qur’an and Qur’an has clearly prescribed method also and requires two witnesses at the time of divorce (65:1-3) and yet among Hanafi Muslims triple divorce in one sitting has become the only form of divorce in India. Qur’an also makes provision for arbitration before divorce (4:35) which is also avoided today. Thus Qur’an becomes secondary when it comes to men’s domination.
The Maulana said if I prove the Propjet (PBUH) had allowed triple divorce would you accept it? I said surely I would. Please quote the source. He could not and then I quoted the hadith in which the Prophet (PBUH) had strongly denounced triple divorce when Rukkana divorced his wife thrice in one sitting. The Maulana had no reply but again he said very few Muslims divorce their wives. One ‘alim even said none of us present here has divorced his wife. I said we are not going by numbers but quality and intent of law, not how many Muslims divorce their wives. I know of several Muslim women whose lives have been ruined because of triple divorce.
The Maulana when rendered speechless adopted tactics of munazarah (debate) in which matter is twisted rather than give solid reply. The Maulana at last left in a huff rather than give any constructive suggestion. I was very much pained that our religious leaders are so rigid and have lost the true spirit of Islamic legislation.
Asghar Ali Engineer is a scholar of Islam, and Head of the Centre for Study of Secularism & Society, Mumbai