By Muhammad Yunus, New Age Islam
6 September 2015
(Co-author (Jointly with Ashfaque Ullah Syed), Essential Message of Islam, Amana Publications, USA, 2009.)
This assessment is based on the following considerations and should be read in conjunction with the draft of Indian Muslim Family Law, “A Draft of Indian Muslim Family Act Prepared By Bharatiya Muslim Mahila Andolan” posted in the website on Sep. 02.
• The Qur’anic verses on leaving behind a will (2:180-182) and division of inheritance (4:8, 4:11/12)
• The change in gender dynamics
• The geographic spread of the inheritee resulting in a widow living herself or at the mercy of a child.
• The reduction in family size reducing the share of a widow viz a viz children (2-3 these days)
Assessment/ Audit of the draft Family Act
Comments are made only against those points that raise a question mark when read against the Qur’anic message.
1. It is heartening to note that the draft act is based on the Quranic verses and covers procedures regarding Muslim marriage, divorce, maintenance during marriage, maintenance after divorce and widowhood, custody and maintenance of children.
2. The prescribed minimum ages – 21 years for a man and 18 years for a girl can be supported by:
• The Qur’anic directive to men and women to choose their own spouse (2:221)
• The Qur’anic injunctions on the obligations and privileges of respective spouses that call for their attaining a level of maturity to comprehending and implementing their respective roles in wedlock.
• Finally, the opening injunction of the verse 4:6, “test the orphans until they reach marriageable age” is explicit about the notion of a ‘marriageable age’ that is not supportive of marrying off minors.
Thus, the Qur’anic illustrations are clear in support of a marriageable age for both the sexes
The Prophet’s example of marrying a minor girl (Aisha) is not relevant for it is conceivable that all his marriages that he contracted as the head of a rapidly expanding community after the death of his first wife Khadija were of purely of political and conceivably celibate nature and no Muslim can replicate his role as a head of an expanding community under divine guidance. Therefore his marriage with Aisha cannot be considered as a basis for marrying off a minor girl.
i. Mehr should be left on negotiation between the representatives of the bride and the groom rather than linking it with the groom’s income. A groom of low yearly income may be the son of a multi-millionaire who may offer a handsome Mehr funded by the dad, while a poor man’s son of similar or even higher yearly income may have to borrow from others to pay the stipulated Mehr.
ii. The Qur’anic verse relating to Mehr (4:4) allows a bride to forgo a part of the Mehr thereby distinguishing it from a purely commercial transaction. Fixing Mehr amount purports to turn the sacred institution of marriage into a commercial venture. From the Qur’anic perspective, marriage – that is authorization for availing sexual blessings and living together in conjugal bond is based on love and mercy and not on purely monetary considerations:
“And among His signs is that He has created for you, of yourselves, spouses (Azwaj), that you may console yourselves with them, and (He) has set love and mercy between you. There are signs in this for a people who reflect” (30:21).
iii. Mehr should be payable in cash or gold or any other item that has a cash value.”
Comment: The statement needs a closer look. As the personal gifts – bridal attire, and other appurtenances (lingerie, make up kit, shoes, purse etc) are consumption items and provide no financial security, they should be excluded from the Mehr which represents a financial security.
iv. The Mehr only represents the compensation to the bride for availing of sexual intimacy and blessings and must not be traded against any maintenance or post-divorce settlements.
4. Invalid Marriage – a clause need to be incorporated for allowing the marriage of an underage girl in a crisis or catastrophic situation such as fleeing from a bloody riot or caught in civil war and risking indiscriminate rape/ gang rape etc, or living in acute poverty or in slums dominated by stalkers.
5. Grounds for Divorce
i. “That the whereabouts of the husband have not been known for a period of four years.”
Comment: The question is the Qur’an allows a widow to enter into fresh marriage after 4 months and 10 days of the expiry of her husband. And the draft MPL asks married Muslim women to wait for 4 years without any knowledge of the whereabouts of their husbands. The period of four years appears too long.
(ii) “That the husband has neglected or has failed to provide for her maintenance for a period of two years.” As with i above, two years appear too long for a wife to wait if she is not funded by her husband to meet her living expenses.
(iii) “That the husband has been sentenced to imprisonment for a period of seven years or upwards”;
(iv) “That the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years.”
These stipulated periods appear too long and should be reduced to say minimum one year or appropriate precedents/ examples may be sought – though the wife may be free to wait indefinitely for her husband.
Maintenance during Marriage and Widowhood:
“The widow has a right to maintenance and right to stay in matrimonial home” – Question: who will bear her expenses and how long? .
6. Notes on Inheritance
“A person must make a will for its family and relatives. There is no restriction that the will has to be only 1/3rd of the value of the property. There is no mention of 1/3rd division in the Quran.”
Comment - This is indeed correct. The problem is, allowing a man to will 100% of the property gives him infinite power to dictate terms with the legal inheritors. For example, an old man marrying a young woman after the death of his old wife at considerable opposition from children can totally deprive them of the inheritance and nominate the newly wed young wife as the sole inheritor. The proposal is flawed and fraught with risk.
“In order to make the daughter get equal share in the parent’s property the parents can make a gift-will to their daughter.”
Comment - Rather than equalizing the shares of brothers and sisters, the Qur’anic clause of leaving a will be retained and the testator should have the option to make a will “in just and fair manner for his parents and kin” as mandated by the Qur’an (2:180):
“It is prescribed for you that when death approaches any of you, and he leaves behind (some) property, he should make a will in a just and fair manner for his parents and near of kin. (This is) binding for the heedful (Muttaqin) (2:180). If anyone changes it after having heard it, the sin shall be on those who change (it). (Remember,) God is All-Knowing and Aware (2:181). However, anyone who fears bias or injustice by the testator and patches things up among the concerned parties,* there shall be no sin on him. (Remember,) God is Most Forgiving and Merciful” (2:182)
“The logic of wills in Islam is that the owner of the property decides what he/she wants to do with his/her property”
Comment - The statement is flawed. The logic is to distribute the property left behind “in a just and fair manner for his parents and near of kin” (2:180)
The grandson or granddaughter must inherit from the grandfather/grandmother in case of the death of the intervening son. Yes indeed – this is on the basis of the passage 4:8/9, which reads –
“If other relatives, orphans, and the needy (not specifically listed but worthy of consideration) are present at the (time of) division (of the inheritance,) provide for them out of it, and speak to them reasonably (4:8). Let those (who ignore orphaned children) fear, as they will (indeed) fear, if they were to leave behind helpless children. Therefore, they should heed God and speak out honestly (in favour of such orphans) (4:9).
“The wife has right to receive part of husband’s property (the Qur’an 2: 240)” – the reference should also be made to the verse 2:180.
“An additional specified share in lieu of her housework contributing to the conjugal home and property creation.”
Comment: It is for the deceased to decide the portion of the wife in compliance with the mandatory directive of the verse 2:180. The share allocated in the division verse (1/8 th. if there are children may be set aside in favour of 2:180 as the family size has reduced and the children are not staying at homes – a situation that is unfavourable for the widow and did not exists in the earlier times.
“The portions mentioned below are to be allotted only after making a will and clearing debts.”
The above sentence should read: “The portions mentioned below are to be allotted only if the deceased has left no will – after clearing.”
Muhammad Yunus, a Chemical Engineering graduate from Indian Institute of Technology, and a retired corporate executive has been engaged in an in-depth study of the Qur’an since early 90’s, focusing on its core message. He has co-authored the referred exegetic work, which received the approval of al-Azhar al-Sharif, Cairo in 2002, and following restructuring and refinement was endorsed and authenticated by Dr. Khaled Abou El Fadl of UCLA, and published by Amana Publications, Maryland, USA, 2009.