By Asghar Ali Engineer
(Islam and Modern Age, August 2012)
Centre for Study of Society and Secularism, Institute of Islamic Studies and BMMA (Bhartiya Muslim Mahila Andolan) and Muslim Law academy, Trichi, Tamil Nadu, recently have tried to codify the Muslim personal law as applicable in India after wider consultations with Ulama, Muslim lawyers, Islamic scholars and women activists and the draft is being widely discussed in concerned circles and the draft is also open to suggestions.
The question is why codification is at all necessary? We thought of codification after we began to receive number of complaints about misuse of Sharias by men to harass and exploit women. The misuse is possible as the Muslim personal law is not codified and is applied often arbitrarily and unthinkingly injuring the very spirit behind these laws. Also, all Muslim and non-Muslim countries with sizeable Muslim minorities have, in other countries, already codified it long ago. India is the only exception where Muslim Personal Law Board (MPLB) has been resisting any change doggedly.
The question is does codification amount to change in Shariah? Certainly not. It only amounts to regulate these laws in strictly keeping with the Islamic laws as formulated by various schools of Islamic jurisprudence. And it is of course not a first attempt but in the past too such attempts have been made the best example of which is the 1939 Act called Muslim Marriage Dissolution Act of 1939.
Before we throw more light on codification and its contents we would like to discuss some important doctrinal issues. First we have to understand and we have on several occasions drawn attention to this fact that Fiqh (jurisprudence) is a human approach to the divine pronouncements in Qur’an in the light of authentic ahadith (Sahih ahadith) in the given circumstances. And it is for this reason that the Prophet (PBUH) allowed aadaat (customs and traditions) of the given society to be included in formulations of Sharias.
Thus the present Shariah has Arab aadaat included in it. This was to make these laws easily acceptable by the people of that particular society. Also, acceptability very much depends on practices of people in the given period. If something is totally alien to the given period and its norms people would not practice those laws. All sociologists agree that social change is a very complicated process which among other things, include understanding of people’s psychology and resistance to change.
The Islamic jurists (Fuquaha) had to keep this in mind while applying Qur’anic injunctions and those of authentic Sunna while formulating Sharias even if it meant a degree of compromise with the ideals and values. Thus it was very complex process and varied from time to time and place to place. It is for this reason that Imam Abu Hanifa and Imam Shafi’I differed from Imam Malik and Imam Hanbal on many issues as both of them were in places (Iraq and Egypt) where there were composite cultures. In Iraq 60% population was of non-Arabs who were Iranian and Babylonian origin and in Egypt Arabs were living with those who were of Coptic origin.
Imam Shafi’I changed his opinion when he went to Egypt from what he held when in Madina because he was confronted with new situation in Egypt. It is for this reason that so many schools of Islamic jurisprudence came into existence. In Sunni Islam there exists today five schools of law i.e. Hanafi, Maliki, Hanbali and Shafi’I and then there are three school of jurisprudence in Shia Islam i.e. Ithna Ashari (Ja’fari). Isma’ili and Zaidi.
In India most of the Muslims follow Hanafi school whereas in Kerala and Tamil Nadu a section of Muslims (Tamil) and (Malayli) follow Shafi’I school and also the Konkani Muslims in Western India too follow Shafi’i school as Islam in Kerala, Tamil Nadu and Konkan came through traders from sea route whereas in North and Central India it came through Iraq, Afghanistan through conquests as these regions followed Hanafi law.
It is said that in early period of Islam there were more than 100 schools of law of which these schools (named above) survived. This shows that there was no rigidity in applying Qur’anic injunctions and sunnah and people were free to interpret these injunctions as per their social needs, customs and traditions. Thus human approach to divine injunctions was no less important and the doctrine of ijtihad (exerting utmost ones intellectual capacity to serve ones needs). Ijtihad is very crucial and provides dynamics of social change.
We would here also like to throw some light on basic values of Islam which constitute the central core of Islamic values: justice and equality. Qur’an greatly emphasizes these core values and no Shariah can be acceptable if it violates these two central values. And it is these two values which distinguished Islamic laws from other laws then in existence. Roman laws before Islam played central role in the world. However, as Islamic laws emphasized these values its laws began to replace Roman laws and Islamic laws acquired centrality.
However when Islam spread to various parts of the world from Arabia to Central and South Asia to Europe, it was confronted. As pointed out above, with complex social and civilizational situations. It was not possible for people to accept change in keeping with these two central values i.e. justice and equality. Age old customs and traditions asserted themselves and local practices remained in force in many cases. Indonesia and India are good examples of this. In certain communities in India like Cutchi Memons and Khojas Hindu customs and traditions prevailed until they were replaced by Shariat Act of 1937.
Also in 19th century when Muslims came face to face with colonial cultures of the West they felt need for change and new debates started for changes and many Ulama and scholars as well as intellectuals began to argue in favour of change using the principle of ijtihad. Ulama like Muhammad Abduh of Egypt who rose to the eminent position of Chief Mufti of Egypt also argued in favour of change and issued several epoch making fatwas Abduh had spent several years in France during his exile from Egypt and hence he realised the importance of central values of Islam like justice and equality and argued in favour of change in Sharia laws which had stagnated over centuries losing its original dynamics.
India too scholars, Ulama and intellectuals like Maulvi Chiragh Ali, Maulvi Mumtaz Ali Khan and Justice Ammer Ali argued in favour of change. Maulvi Mumtaz Ali Khan and Maulvi Chiragh Ali were particularly concerned with the plight of Muslim women and their subjugation to men in clear violation of Islamic spirit of justice and equality. Maulvi Mumtaz Ali Khan wrote a book Huquq al-Niswan (Rights of women) in which he argued on the basis of Qur’an and Sunna that women must get equal rights and she is in no way inferior to men as generally believed in the society.
This book was systematically suppressed and was never published by anyone as his cogent arguments were so strong that Ulama could not easily reply to them and patriarchal society like that of India (Arab society too was highly patriarchal and hence could not easily swallow the Qur’anic values of justice and gender equality and tried to scale them down in various ways through fabricated ahadith). Thus Maulvi Mumtaz Ali Khan’s book never saw light of the day after its first edition published by Maulvi sahib himself, went out of edition. Maulvi sahib wrote the book in his own handwritings as no Katib (calligrapher) would write. Such was the furious opposition to his book.
These laws which came to be known as Mohammadan laws during the British period and now called Muslim Personal Law in post-independence India have remained unchanged wrongly arguing that these are divine laws and cannot be changed. In fact laws are always human but values are divine and cannot be changed. Law must change to keep the spirit of central values in tact.
The Qur’anic injunction for gender equality pronounced in the verse 2:228 is very clear and yet because of complex social situation it was never applied in practice except a brief period of Holy Prophet’s life. Over period of time she was deprived of her rights and by 4th century she, under the influence of feudal cultures of Iran, Central Asia and Europe of medieval ages was totally subjugated to men.
The concept of gender equality is so important in Qur’an that this scripture of Islam does not use words like husband and wife and husband is indicative of authority over wife. The word for husband in Arabic is ba’ul which is used in Qur’an only twice and it uses instead the word zawj i.e. couple indicating complete equality. Even today in marriage forms (nikah forms) word used is zawj and zawjah.
Also, a careful study of Qur’an shows that it is men who are exhorted repeatedly to safeguards rights of women (wives, mothers, sisters and daughters) and no where women are exhorted to perform their duties towards their husbands. However, in practice and in personal laws as applicable today it is women who are exhorted to perform their duties and men are hardly ever reminded of their Islamic duties towards their women i.e. wives and others.
It is this distortion of Qur’anic injunctions which need to be attended to through codification. It is codification which would correct this imbalance. Now question is what is codification and does it amount to changing the Shariah law? Codification is nothing but regulating Shariah rules and in no case it amounts to any changed in substantive law. In fact if anything it would bring it nearer the spirit of law and the values underlying it. It will remove the anarchy in its application today. It would mean regulating and avoiding injustices prevalent today.
For example take polygamy. In India there are absolutely no rules regulating it today. Anyone can marry up to 4 wives at ones will. It is thus injurious to the Qur’anic spirit. Qur’an does not intend to encourage polygamy but subject it to rigorous process of justice to women. In fact polygamy in Qur’an has been allowed to ensure justice to widows and orphans and the verse on polygamy (4:3) has been revealed only in connection with war widows due to battle of Uhud in which 10 per cent of Muslim men were killed leaving behind many widows and orphans.
It was to take care of these widows and orphans that Qur’an allowed taking up to four wives from amongst these widows and to look after their properties. However, soon Muslim men began to marry more than one wife from amongst other women treating this verse as general permission to marry any women up to four. This is far from Qur’anic concept of polygamy. In fact our Ulama today when asked about polygamy said that if polygamy is not allowed it will promote prostitution.
This shows how ignorant these Ulama are about the concept of polygamy in Qur’an. Qur’an treats extra-marital sex as great sin and says clearly in 4:3 that if you cannot do justice to four wives better marry one (fa wahidatan). Thus where is the question of encouraging prostitution, if one is allowed to marry only one? Also when Prophet (PBUH) was asked what to do if one has no means to marry the reply through Qur’an was to restrain oneself until Allah makes means available. Our Ulama treat man as sexual animal to which Qur’an is strongly opposed to. Qur’an on the other hand wants man to restrain and lead a pious life. Justice to women is most fundamental and as 4:129 clearly states justice is far more important than number and if one reads 4:3 and 4:129 together polygamy should be an exception.
Codification has laid down rules which must be followed to take second wife in order to ensure justice to co-wife or wives. It proposes a marriage council in every district to comprise of qazi, Muslim lawyers and prominent women activists or lawyers to which one will have to apply if one wants to take second wife and the council will scrutinize application and give chance to first wife to represent her case whether there is need for second wife and whether she gives her consent and man will also be closely questioned as for the need for second wife and also look into his capacity to do justice to both wives and then only will allow, if need by, to take second wife.
Such regulations have already been introduced in almost all Islamic countries to ensure justice to women and no one can take second wife without going through this judicial or semi-judicial scrutiny. Some countries like Morocco and Tunisia have abolished polygamy altogether. However, our codification does not propose abolition but regulation of polygamy. Today incidence of polygamy among Indian Muslims is not very high but nevertheless many men do marry more than one wife and first wife complaints of total neglect or humiliation. In some cases men take second wife to humiliate first wife which is prohibited by Qur’an (see 4:129).
Another common complaint is of misuse of triple divorce which is permissible in Hanafi as well as Shafi’i law but is prohibited among Ahl-e-Hadith among Sunni Muslims and among both Ithna Ashari and Ismaili Shias. In Hanafi law unfortunately triple divorce is valid even if pronounced in a state of anger, inebriation or even pronounced by way of joke. Thus it has become very easy for men to pronounce three words talaq-talaq-talaq and permanently alienate his wife.
In fact this was customary law among Arabs before Islam and wife so divorced could not be taken even if man repented until she married someone else and her second husband divorced her to allow her to marry the first husband. Thus in the Arab customary law woman was punished and humiliated for man’s mistake. This is grossly unfair and hence the Prophet (PBUH) strongly condemned triple divorce in one sitting as is obvious from Hadis of Rukkana.
When Rukkana divorced his wife through triple divorce (talaq-e-thalatha) and this was reported to the Prophet (PBUH) he stood up, his face became red with anger and said Allah’s laws are being violated in my own life time. It is for this reason that Ahl-e-hadith do not allow triple divorce and treat it as one. Triple divorce in one sitting was prohibited during Prophet’s (PBUH) life time as well as during Hazrat Abu Bakr’s time.
Hazrat Umar allowed it after initial two and half years of his reign as some men started misusing it by divorcing their first wife thrice and taking second wife from countries like Syria, Egypt etc. and taking back their first wife after coming back to their own country saying the Prophet (PBUH) had disallowed it. These women complained to Hazrat Umar who enforced it again to stop its misuse but it was not absolute enforcement as he also flogged those who gave triple divorce.
Imam Abu Hanifa allowed it for similar reason but one of his disciple disagreed with him and anyway I was banned by the Holy Prophet and it would be quite in the Islamic spirit of justice to treat three Talaqs as one as Ahl-e-hadith do. In any case in 1939 when serious problems arose with Hanafi law in case of disappearance of husbands (in Hanafi law one has to wait for 90 years before woman could re-marry) and took from Maliki law in which waiting period is only 4 years which is quite reasonable. Thus the Dissolution of Muslim Marriage Act 1939 was passed. In this case we can take from ahl-e-hadith and treat triple divorce as one. Thus our codification proposes that triple divorce be treated as one. The Shia law also treats triple divorce as one.
In case of divorce too man has to approach Shariah court or Marriage Council whatever the case and apply for divorce and also serve a notice to the Marriage Council or Shariah Court and Marriage Council shall set up an arbitration as per Qur’an’s injunction 4:35 to bring about reconciliation failing which divorce will be allowed through one divorce i.e. talaq-e-ahsan. Today talaq is generally given only through triple divorce which is nothing but sinful form of divorce and best form of divorce is talaq-e-ahsan
CASE OF KHULA’
As per present rule husband’s consent is a must for Khula’. This is in contradiction to Prophet’s Sunna. Prophet (PBUH) granted Khula’ to Jamilah as she insisted on it and he did not consult her husband who swept bitterly when he learnt about it that the Prophet (PBUH) has granted Khula’ to his wife. Moreover the Fiqh Council in its session this year (2012) in held in Mhow has also recommended that Khula’ be granted, if necessary, without the consent of her husband.
At present in India among Sunni Muslims and they constitute overwhelming majority of Muslims the only form of divorce is triple divorce which results in gross injustice to women. Our Ulama even do not educate general Muslim masses that this is sinful form of divorce and that only form of divorce they should resort to is talaq-e-Ahsan so that they can take back their divorced wife or remarry her if iddat period is over. And they do not tell Muslim masses that Qur’an requires reconciliation process before they pronounce final divorce and that they should have two witnesses when they finally pronounce divorce (65:1-3)
Thus codification would bring great relief to victims of such arbitrary triple divorce. Many men repent after pronouncing triple divorce in a state of anger or in a state of drunkenness but then our Ulama tell them that if they want to take their wives back they will have to marry another man and if they divorce them then only they can re-marry them. It is grossest form of injustice. Why a pre-Islamic oral customary law should be binding on Muslims especially when Prophet (PBUH) had strongly condemned it.
OTHER ISSUES LIKE MEHR, INHERITANCE, CUSTODY OF CHILDREN ETC
There are of course other issues which have been covered by codified law i.e. Mehr, inheritance, custody of children, age of marriage etc. It has been proposed that minimum Mehr should be one year’s earning of the man and that it should be paid not in cash but in terms of gold or silver as cash loses its value every year. But there are different opinions as most of the Muslims are poor and may not afford one year’s income. Any way one can be more flexible on this question but in any case Mehr should not be very meagre as it tends to be.
Two issues have been taken as far as inheritance is concerned: 1) Daughter’s share should increase if she is earning and contributing to family wealth and made half or her earnings should be allowed to be accumulated separately which she can take with her at the time of marriage. And if she is not able to marry, for whatever reason, father should give her up to 1/3rd of his wealth to her (which father has right to make hiba) so that she can lead independent life. Qur’an allows women full property rights so she can accumulate her own earnings which will be hers and hers alone.
2) There is problem about grandson’s inheritance if his/her father dies in life time of grandfather. In that case too grand children should be given up to 1/3rd of grandfather’s wealth so that grandchildren are not deprived of share in inheritance.
Custody of children: In all four schools of Sunni jurisprudence different ages have been fixed for sons and daughters for custody to father. These ages were fixed according to the opinions held by Imams and in keeping with the ethos of time. Custody of children should, instead be decided keeping welfare of child in mind and should not necessarily go to father at certain ages. The Prophet (PBUH) is reported to have given custody of son to mother when he found out that mother was more concerned with the education of her son compared to father.
Thus these are some of the suggestions unanimously recommended in various consultations held with Ulama, lawyers and judges and women activists. Consultations were held jointly by BMMA, CSSS, Muslim Law Academy Trichi, Tamil Nadu and Institute of Islamic Studies. The Draft code is attached.
Asghar Ali Engineer is an Islamic scholar who also heads the Centre for Study of Society & Secularism, Mumbai.
Institute of Islamic Studies, Mumbai