A Secular Marriage Law Comes To the Rescue of Indian Muslim Parents
By Arshad Alam, New Age Islam
17 March 2023
Some Families Are Quietly
Subverting the Muslim Personal Law to Provide Inheritance to Their Daughters By
Registering Their Marriages Under The Special Marriage Act
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M. Jaffrey, a retired employee of a reputed public sector
establishment in India, decided to register his marriage in 2004 under the
Special Marriage Act. His Nikah/Islamic marriage took place way back in 1981.
So, what prompted Jaffrey to re-register his marriage after 23 years? And why,
as a believing Muslim, did he seek to register his marriage afresh under a
secular law? According to Jaffrey, what made him do so was the realization that
he was a father to two daughters.
Since he was married under Muslim law, he could not bequeath
the entirety of his property to his daughters. Under the Muslim Personal Law,
which was put on the statute books in 1937, he could only will one-third of his
property to his daughters. In the absence of a will, the daughters would get a
share but her uncles and male cousins will also get a share in the said
property. For Jaffrey, this was non-negotiable. “My hard-earned money should go
to my wife and my daughters; I am very clear on this issue. There is no reason
why my brother or my nephew should have a claim on what I have earned. I love
my religion and I think it is perfect but I also love my daughters and I would
want to see that their future is secure. Moreover, it is not my fault that I don’t
have a son. It is all the will of God”.
Muslim parents who only have daughters are increasingly
seeing the Special Marriage Act of 1954 as a way out. Recently, a Kerala Muslim
couple registered their marriage under the Special Marriage Act for the same
reason. A couple of any religious denomination may register their marriage
under the Special Marriage Act, without having to change their religions. Also,
registering their marriage under this secular act does not make their religious
marriage or the Nikah invalid. That’s because the Special Marriage Act
supersedes the provisions of Islamic law of inheritance and allows them to
bequeath their entire property to their daughters, and not just a fraction of
it.
The Islamic law of inheritance gives sons double the share
of what daughters receive. This rule complicates matters for Muslim families
which only have daughters. In the absence of son(s), a share of the property
also goes to other specified male relatives.
The Debate on Muslim Law of Inheritance
Modern Muslim sensibilities, however, want the Muslim law of
inheritance to be gender just. Mohammad Irfan, a professional based in Aligarh,
says, “I do not expect to see change in the Muslim personal law in my lifetime.
Any change in the legal apparatus takes a long time. What is the option before
me except to take recourse to the secular law.” Just like Jaffrey, Irfan, 50,
father to a lone daughter, is planning to register his marriage under the
Special Marriage Act to ensure his property is transferred to his daughter
after his demise.
For some Muslims, though, demanding a change in the Islamic
law is like tinkering with the sharia, which is unacceptable. “How can you
demand a change in the divine law,” asks Zeeshan Misbahi, a religious scholar
and teacher based in Allahabad. “In the absence of a father or a son, the
Islamic law makes uncles the protectors of daughters and hence it is only fair
that they get a share in his brother’s property. Those who are bypassing this
law or demanding changes in it do not understand the objectives of the sharia.”
Not all religious scholars though are on the same page on
this issue. Waris Mazhari, who is a Deoband graduate and now teaches Islamic
studies at the Delhi-based Hamdard University, argues that law should be in
tune with contemporary reality, otherwise it becomes an obstacle to societal
progress. “Women make lots of sacrifices and it is because they invest time and
energy within the household that men become successful. Our law should evolve
to recognize the efforts and contributions of women. Islam was the first
religion to give women a share in property. The need of the hour is to honor
this spirit and move towards a more equitable distribution of resources between
the two genders.”
Zeeshan disagrees. “The Islamic law is divine that cannot be
changed for all times to come. Moreover, if Muslims want to give more share to
their daughters, what is stopping them from doing Hiba or gift? Islamic law
provides for this option. But it appears that the sole intention of some modern
Muslims is to defame Islam, hence they are opting for a secular law like
Special Marriage Act.”
Gift or Will
Though the provision of gift does exist, there is a major
difference between the Islamic Hiba and making a will. Saif Mahmood, a lawyer
at the Supreme Court, explains, “Bequeathing property by a will is very
different from transferring by way of Hiba, which is a gift. By Hiba, the
property is transferred in presenti i.e. immediately and the transferor loses
ownership in his/her lifetime whereas a will is enforceable only after the
death of the person(s) making the will. Hiba is a transfer of property; will is
a succession to property.”
This means that those doing Hiba would lose the ownership of
the property immediately after the execution of the deed. And since, unlike a
will, the Hiba is irrevocable, he or she will be at the mercy of the one who
receives the gift. Says Jaffrey, “If tomorrow, due to some problems, I want to
take back my gift, then I cannot do it, as it is irreversible. It is better
therefore to execute a will, which is only possible for Muslims if they
register themselves under the Special Marriage Act.”
Mahmood agrees: “Once the marriage is registered under
Special Marriage Act, the Islamic law ceases to apply to the parties. This
means that Muslims who register their marriages under the Special Marriage Act
can bequeath their properties by way of a will to anyone without any of the
restrictions prescribed in the Islamic law. For example, under the Muslim law,
only a third can be bequeathed and that too not to the legal heirs as their
shares are already prefixed within the Islamic law of inheritance.”
In such a scenario, Muslim couples who only have daughters
see merit in registering their marriages under a secular law, while some
activists think requisite changes should be brought about in the Muslim law
itself.
Zakia Soman, the co-founder of Bhartiya Muslim Mahila
Andolan, says that it’s high time that the Muslim law became gender just. “For
years now, our organization has been campaigning that sons and daughters should
get equal share in their father’s inheritance. The Kerala example tells us that
Muslim society is ready for change but the Ulama and their regressive and
misogynistic interpretation of Islam is what is keeping Muslims from achieving
these reforms. Our reading of Islam tells us that the core of religion is about
justice and hence there should be no place for such discriminatory laws in our
religion.”
It remains to be seen whether the campaign to formally
change the Muslim Personal Law will succeed or not. What is certain, however,
is that some Muslims are already quietly subverting it.
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A regular contributor to NewAgeIslam.com, Arshad Alam is
a writer and researcher on Islam and Muslims in South Asia.
URL: https://newageislam.com/islamic-society/secular-marriage-law-indian-muslim-parents/d/129342
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