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Moderate Muslims Discuss the State of India's Muslim Personal Law after Shah Bano Controversy With Reference To the Model Nikahnama Initiative

 

The Model Nikahnama Initiative

By Suneetha Achyuta

November 17, 2014

In popular imagination Muslim women’s unequal position in marriage is symbolized by cases such as Shah Bano or Imrana. It is understood this is the result of the religion-based Muslim personal law and the rigid control of women by the community in general and ulema in particular. Not many are aware that the same religion-based marriage law also offers tools for changing Muslim women’s position in marriage. In the last ten years, an ordinary document that every Muslim couple signs at the time of marriage – Nikahnama or marriage contract – has assumed such a role. It has been innovatively used to initiate discussions and push for changes in the community’s thinking about the Muslim women’s position in marriage. In these efforts, a large number of “religious” and “non-religious” Muslim groups got into a conversation and set off a consensus-building process on the issue of a Muslim woman’s “entitlements”.

This discussion assumes importance in the context of the ongoing debate on UCC.  The debate on the UCC entered a new phase when, unhappy with the removal of Muslim women from the ambit of S 125 Crpc that guarantees all divorced women a minimum maintenance and the promulgation of a separate provision for divorced Muslim women called Muslim Women’s Maintenance Act 1986, many women’s groups renewed their demand for a UCC in 1990. Such a Code, it was hoped, would bring marital equality to women of all religions. When the Bharatiya Janata Party hijacked this demand to castigate Muslim men, (as if Hindu men were free of misogynist and patriarchal behaviour), such a hope was irretrievably lost. In the post-Babri Masjid demolition period, when there were pogroms against the Muslim communities, such a law would have found it impossible to garner support from the Muslims, especially if it were made by the BJP dominated Parliament. As anyone familiar with law knows, a consensus is important for law-making so that it is accepted and followed. But the changed situation of unparalleled parliamentary dominance of BJP brings newer challenges to all those working on issues of gender justice in all communities.

Muslim women were caught in this unenviable position since the 1990s – of having to address their own situation - under-age marriages, non-payment of Mehr, arbitrary Talaq, cruelty in marriage, maintenance after Talaq, multiple marriages of men, resistance to women’s employment etc. while taking care that the Muslim men are not vilified further. What did they do? In 1995, a group of Muslim women in Mumbai, led by Uzma Naheed, chose the most important but most taken for granted document in Muslim marriage and decided to propose changes in it – a new model Nikahnama. Nikahnama being a valid legal document, such changes would have far-reaching consequences.

What is a Nikahnama? It is a simple document that contains guidelines instructing the couple about the spirit in which they should conduct themselves in marriage, details of gifts exchanged and personal details as well as obligations of the couple, under the Shariat. Uzma Naheed et al expanded the guidelines and introduced a little-known Islamic practice of – additional conditions in the Shariat obligations. Their model Nikahnama stipulated that the husband should not inflict physical harm nor wrongfully confine the wife nor indulge in any other inhuman behaviour; leave the wife in her natal home for extended period of time, use abusive language in instances of marital tiff, should not accept dowry and should not utter triple Talaq or Talaq in isolation. In case of differences the couple should try to resolve them through arbitrators. The new conditions were – that the husband would need the permission of wife to contract a second marriage; that in case of Talaq or second marriage, Mehr (the gift that husband gives to the wife at the time of marriage, connoting her worth to him) be doubled; that the Mehr would not be ‘forgiven’ by the wife; that the wife’s due share in husband’s property be ensured as well as her right to reside in matrimonial home in case of divorce.  This was submitted to the All India Muslim Personal Law Board which was a body of ulema of different Firqa – Sunni, Shia, Barelvi, Deobandi etc. If it got the approval of the Board, then, Muslims of all persuasions can emulate it.

 The AIMPLB, in turn, sent it for discussion to several madrasas in the country seeking their opinions on the validity of the Nikahnama. 54  ulema – students and teachers (of Imarat-e-Sharia of Bihar, Islamic Fiqhi Academy, Delhi, Imarat Sharia Phulwari, Dar ul Uloom, Hyderabad, Dar ul Uloom Sabeel-us-Salaam, Hyderabad) included – submitted their opinions which were then compiled in the form of a book – Ishtirat Fin Nikah that was published by Islamic Fiqh Academy, New Delhi. Many of the ulema expressed their unhappiness about the state of Muslim marriage – the wrong practices of triple Talaq, of Muslim women giving up Mehr, and their general state of disempowerment in the current times.

Is a conditional Nikahnama the right way to correct all these ills? This was the question that they deliberated upon. Traditions of interpretation drawn from all schools of fiqha – Hanafi, Hanbali, Shafai and Maliki were used to discuss its validity. Standing out from among the varied opinions were those of senior and reformist ulema such as Maulana Saifullah Rahmani and Maulana Mujahid ul Islam Qasmi. They argued that existing   Hanafi tradition, most followed in the subcontinent, should be supplemented by the other traditions such as Maliki or Hanbali when there is a need.  Approving the idea of a conditional Nikahnama, they suggested some minor changes in 1997.

 Unfortunately, the Board, mired in its sectarian quarrels, delayed the release of the approved document till 2005. Its approved Nikahnama deleted the mandatory clauses regarding triple talaq; replaced them with a simple caution against it and retained clauses regarding mehr in kind, prohibition on dowry and against violence. But it introduced something new: a conservative code of conduct for women such as they should not step out without the permission of the husband etc.

Disagreeing with the Board on the tone, tenor and the content of the Nikahnama, two new Boards, the Muslim Women’s Personal Law Board and Shia Personal Law Board were formed and framed two new Nikahnama, which were released in 2006 and 2008 respectively. The Shia Board’s Nikahnama was introduced after its approval from Ayatollah Sistaini of Iran. Claiming to stress the well-being of women, it incorporated the provision of Khula (women initiated divorce), strictures against preventing the wife’s progress in education and employment, and provision of alimony to the divorced wife too, the last on the ground of “humanitarianism.”

The Women’s Board’s Nikahnama (in Hindi and Urdu) takes the pedagogic intent of the Nikahnama quite seriously and includes an elaborated code of conduct for the couple: that the Quazi should be well-versed in Shariat, explain the Nikahnama to them, that marriage should not be forced, that the marriage of under-age men and women should be avoided as they lack the knowledge about rights and obligations in marriage, that the pardoning of Mehr should be done willingly by women and not by deception or wrong interpretation of Quran. It also lays out in detail a modern husband’s proper conduct, including ways in which he could help with housework. It stipulates proper procedures of giving and avoiding Talaq and Khula.

 All the Boards, while releasing the Nikahnama, asserted that it was agreed upon by the members, that it would safeguard the interests of Muslim women, and that it was not obligatory but voluntary on the community. The differences in the positions come through in the code of conduct and conditions sections. Except the Muslim Personal Law Board’s Nikahnama, the rest clearly stipulate against the triple Talaq and spell out the desirable way of Talaq. Nearly all of them encourage Muslim men and women to resolve their disputes through arbitrators and Darul Quaza.

 At this juncture, we can pause and ask if any of these is implemented and if so, to what extent.  An individual woman’s ability to get her own conditions into the Nikahnama or get what is written, existing research indicates, depends on the social milieu, community ethos and especially on the history of any re-form movement in that area. Organizations such as Bharatiya Muslim Mahila Andolan that have come up to defend Muslim women’s rights in the last decade have used their own gender-just Nikahnama in hundreds of marriages that they conduct. Young Bohra Muslim men in Gujarat have adopted the Nikahnama approved by the Muslim Personal Law Board in their marriages.

 Occupying a socio-legal terrain, which distinguishes it from the largely state-directed initiatives of reforming Muslim Personal Law, it has also prevented the consolidation of conservative Muslim opinion against the state, resumed the (contested) conversation among “religious” and “secular” domains on marriage practices, and even enabled a continuation of a discussion on “secular” feminists’ concerns such as dowry and destitution of married women due to desertion. Islamic and secular idioms got inextricably mixed up, whereby dowry got re-framed as un-Islamic (rather than illegal) and Mehr as the “right” of Muslim women!

The real significance of the Nikahnama debate, as such, lies elsewhere: in the space that Muslim women have carved for themselves through this initiative and its role in resuming the traffic between “religious” and “secular” spaces on issues of gender after Shah Bano. By initiating the Nikahnama debate on the grounds of Sharia, Muslim women have been able to enter the male-dominant terrain of the “religious community” and disrupt the stereotype of Muslim women as victims of community patriarchy. In pushing the “Islamic” tradition for reform and succeeding to an extent, they have disrupted the prevailing secular narrative of the unchanging and regressive Islamic tradition. Nikahnama has the possibility for extensive reach not only to popularise correct practices and strictures against bad practices but also to draw the community (especially elders in the form of arbitrators, the Darul Quaza) into such an exercise.

Suneetha Achyuta is at Anveshi Research Centre for Women’s Studies, Hyderabad

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A Ahmed <dr.a.ahmed1948@gmail.com>

to the-moderates

This report is only of theoretical and academic interest. If a model Nikah Nama as suggested in this report is accepted, can anyone say that

 1. Triple Talaq in one sitting becomes void and the divorce does not take place. 2. Can a woman unilaterally take Khula from her husband without the concurrence of her husband as it happens with Talaq? The answers are clearly NO. It is because these Nikah namas are only advisory in nature and not a law; like, say Muslim marriage and dissolution act of 1937 and similar laws which can be interpreted by any court of law. The Mullas, be they from AIMPB or any seminary will keep singing their own tunes as if they are law unto themselves. But the law which the jurisprudence looks at is not their advisories.

 With all the noise made by the Mullahs in shah Bano's case and arm twisting, the agents of the seminaries did on shah Bano and her son, they would not have succeeded, had Rajiv Gandhi not enacted the law in the parliament.

It is time for Muslim lawyers to draw up amendments to the existing acts and have them implemented to bring parity between the rights of husbands and wives. Marital relations and rights of husband and wives are too important to be left to the mullahs.

Is the renowned lawyer on our forum listening?

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Jawad Mohammed <mohammedjawad1962@gmail.com>

to Faiz-ur-Rahman            

Ahmed sahib

You have rightly pointed out the anomalous situation arising out of the Nikahnama. A Muslim marriage is a contract and therefore the Nikahnama would constitute a solemn contract between the parties to the document. However, the question arises that, if the husband, in breach of his undertaking under the contract, pronounces Talaq 3 times, would it not terminate the marriage under the divine law. If the present understanding of the “Shariah” is to be applied, then the divorce would be final and irrevocable. At best, the husband can be penalised for breach of contract.

The same problem arises even upon the codification of the law. If a man pronounces talaq in breach of the law, legally it would be invalid, but from the religious perspective, it would be regarded as a valid termination of marriage. The question of the sanctity of the continuation of the marriage would be brought into question even if the couple reconciles after such pronouncement and the wife may be expected to go through “Halala” to reunite with the husband.

Therefore, how do we reconcile these anomalies arising due to the conflict between the secular code and the religious law? This is a matter which needs broader discussion. Asghar Ali Engineer, in one of his articles, has pointed out that the Muslim Personal Law administered in India is actually not the religious law but Anglo-Mohammedan law as interpreted by the British courts. Maybe we have to rethink our understanding of the Shariah as applied in India. However, I am a little diffident in commenting any further on this subject. Anything I say may be construed wrongly as my religious credentials are in question on this forum.

In so far as the Muslim Women’s (Protection of Rights on Divorce) Act is concerned, it is a thoroughly misunderstood and under-utilised piece of legislation. It confers substantial rights on women. For instance, under the Shariah, if women take Khula from the husband, she has to give up her right for dower and maintenance. Under the Act, however, the husband is obligated to make a reasonable and fair provision for her maintenance and upkeep for her life within three months of the divorce becoming effective, regardless of the form in which the divorce has taken place. If the husband fails to do so, the woman has the right to approach the court for claiming her right. In fact, in my view, this Act places a Muslim woman in a better position than what she would she would have enjoyed under section 125 of the Code of Criminal Procedure.

Jawad

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 Ghulam Mohiyuddin <ghulammohiyuddin@gmail.com>

to Moderates

Religions should stay out of the business of formulating laws. All laws must be man-made. Religions only require that our laws be just, equal, rational and respectful of the dignity of men and women. Laws prescribed in scriptures should be seen as illustrations pertinent to a particular time and a particular place.

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 Maqbool Siraj <maqsiraj@gmail.com>

to the-moderates

On one side our mullahs say that Marriage in Islam is a contract and in another breath they say that a Khula can happen only with the consent of the Husband. I am quoting the mouthpiece of Imarat e Shariia Patna (dt. 21st April, 2014) reply by Abdullah Khalid Mazahari, under the page log 'Deeni Masail' under the caption, "Khula Mein Bhi Shauhar Ki Razamandi Zaroori Hai'. What a poignant reversal of the Islamic law. How can something be a contract when one partner has no right to withdraw?

As said by Ghulam sab, all laws need to be reframed with reference to justice, equity, equality which is basic human, humane and Islamic values. Allah will certainly not be annoyed if we do that.

Most of our debates are on legal terrain. Muslim socio-economic situation in India is such that no one can bind anyone on the basis of legality. Hundreds of families which benefit from our various trusts, endowment and foundation in Bengaluru have women with six to eight children with the father of the household having disappeared. Can you believe that Muslim girls who have done their plus two, are working as housemaid? Can you believe that Muslim girls have been raped by their fathers? Can you believe that a destitute home run by one of our sisters in Bangalore had an inmate who was brought by her Mamoo (maternal uncle) after being raped. Only after a couple of weeks it could be known that she is pregnant. What do you do in such a situation? If you take her to an abortion clinic, administrators are putting her life to risk, and if you dont, the child born will have confused status. Polygyny among Muslim vendors and auto drivers is rampant. Dowry harassment and wife burning has a high incidence. The 55-year old maid servant working in my home was thrown with acid by her muezzin husband. She is mother to nine children; interestingly seven of them were born after she went through the acid attack.

Mere legislation will not work. Even if such irresponsible individuals are regulated by civil laws, they will do what they want and no law will bring them to book.  Muslim education lacks character-building and nurturing of discipline. Even Maulvis treat the women like doormat.

Armchair discussions will certainly not change our lot. We need to raise a society where individuals are responsible for people the marry and sire. They should live at a proper address and work for and from a definite location. During the last 30 years, we raised a network of 22 different institutions for socio-economic amelioration of the lower strata of Muslims. But it seems we have more problems now than when we started.

M. A. Siraj

Bengaluru         

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Dr.Syed Yaseen Hashmi <dr.yaseenhashmi@gmail.com>

 to the-moderates

1) "Religions should stay out of the business of formulating laws.

All laws must be man-made. Religions only require that our laws be just, equal, rational and respectful of the dignity of men and women."

I fully agree with Mr Ghulam Mohiuddin.

2)  " Laws prescribed in scriptures should be seen as illustrations pertinent to a particular  time and a particular place "

It seems Mr Ghulam Mohiuddin's idea of religious scriptures is that the scriptures are not universal and timeless. He and a few others who cannot differentiate between the true spirit of scriptures and their wrong interpretations by imperfect clerics should also  'stay out of the business of formulating laws '

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Asghar Ahmed <asghar1900@gmail.com>

to the-moderates

Dear Dr. Ahmed

 Nikahnamas drafted by most Muslim women's outfits are useless. If AIMPLB is biased in favour of the men, the women's outfits are biased in favour of women. What we need is a Nikahnama that balances the rights of both genders. That is possible only when scholars who are well-versed in the Quran and secular law are given the task. Unfortunately we don't have such people in India. We either have mullahs who know nothing about law-making or sociology, or lawyers who know nothing about Islam. We don't even have mullahs who can work along with legal experts or legal experts who can get along with mullahs. Therefore, I think a gender just Muslim law in India may be centuries away.

 But before that, let us also explore the possibility of incorporating in the proposed Muslim law the right of women to protest in the nude. I suggest this task may be given to Aali Janab Sheikh Jawad al feminist sallamahu and Allama Sheikh Nawed al YouTube rahimahu. These two luminaries can easily "reconcile the anomalies" arising due to the conflict between the Quran and the newly minted civilisational norms that allow women to go topless in public places if and when they "want to."

 And yes, I remember reading many years ago Faiz's article in The Hindu on nikahnama. Could you please post it Faiz? I am not able to locate it as I have forgotten the title.

 Asghar Ahmed <asghar1900@gmail.com>

 to the-moderates

The article by Suneetha Achyuta is a continuation of the debate on a UCC on the Kafila blog. One of the other excellent articles was by Nivedita Menon which was posted some days ago by Mr. Mohiyuddin. In this context I would like to post how a certain Sukla Sen was excoriated by Nivedita Menon for bombastically supporting the BMMA when he had no reason to bring that outfit into the debate.

 I am sure members would love this dialogue. Look at the manner in which this Sukla Sen attributes motives to Nivedita Menon’s article. For more please click on this link:http://kafila.org/2014/10/01/uniform-civil-code-state-of-the-debate-in-2014/

By the way, you can also see the name of a certain jyoti on the thread.

1.      

o        Sukla Sen PERMALINK

October 2, 2014 5:28 PM

Is there any link to the claimed survey? Who carried it out?

        Sukla Sen PERMALINK

October 2, 2014 5:32 PM

“Who” means which specific department or institute?

        Nivedita Menon PERMALINK*

October 2, 2014 8:13 PM

Flavia is referring to “Towards Equality: Report of the Committee on the Status of Women in India” (1974) that cites a Government survey conducted earlier.

2.       aditya PERMALINK

October 2, 2014 4:16 PM

Nivedita, whatever might be the figures, one can also say the problem here is having a law that still allows men to marry more than once, and clearly Muslim personal law has that, as for Hindus marrying more than once, the women does have an option of taking a legal recourse which is denied to a Muslim women. Simply changing a law won’t change everything, we need a lot more women empowerment for everything to be right, however having said that, disbanding a law that still allows a man to marry more than one women legally is necessary

o        Sukla Sen PERMALINK

October 2, 2014 7:09 PM

That, to me, sounds pretty much sensible.

And, the context, that there are some Muslim women’s organisations fighting for reforms in the teeth of quite intimidating difficulties has got to be kept in mind.

As regards the Sangh Brigade, gender justice of course nowhere appears on their mental radar. That goes without saying. They use the issue only to inflame passions to promote their utterly mischievous project.

But that cannot be ground for sidelining the issue per se, on some clever and contrived pretext.

Apart from gender justice, even otherwise this is sure to prove counterproductive.

o        jyoti PERMALINK

November 8, 2014 9:37 AM

i agree with aditya. sorry for coming in late. how can the right to marry more than one woman be supported? and maintaining both (or all) wives is done only by those who can afford it. Among the poor, it’s a myth. as for the first wife –is she going to be satisfied knowing she will be maintained once her husband takes another wife? i have known dirt-poor muslim women who have filed for divorce as soon as their husbands remarried, and been denied one. & this was in shah bano’s time.

3.       Sukla Sen PERMALINK

October 2, 2014 5:25 PM

There are reasons to apprehend that this piece is just a camouflaged attempt to shield and protect gender unjust personal laws, in a radical garb of course.

That there is not a word on the Bharatiya Muslim Mahila Andolan’s nationwide campaign for codification of Muslim personal laws, by no stretch a demand for the UCC, and concomitant banning of polygamy, oral talaq and halala appears to be a clear giveaway.

4.       Yella Ok PERMALINK

October 2, 2014 7:07 PM

Whether there was protest or not against codification and reform, codification and reform happened within Hindu society/law. That is positive. Period. Since the time the law has been passed, Hindu society has accepted law to a large extent and reformed – fact. That further reforms may be needed and law may need to be changed is probably also true. All these are signs of accepting change and being ready for reform. ANy change and reform is a process and that process continues to happen in the Hindu Society.

That the writer has not demanded for ban of polygamy by law for religions other than Hindu religion and instead has blamed Hindu men for having multiple marriages outside of the law only shows the pettiness and bias with which the article is written.

It is because of people like this writer certain sections of society has not been able to fully realize the values of Indian democracy and continue to be mired in dogma that are centuries old and not in tune with the current times. It is like – if a view is pro-Hindu, by Hindu, etc, it should be opposed, even if it is for the benefit of the people, because nothing should be pro-Hindu.

Sad state of mind of the self-styled “progressive” intellectuals

5.       Nivedita Menon PERMALINK*

October 2, 2014 8:07 PM

Sukla, you tone is astounding – “this piece is just a camouflaged attempt to shield and protect gender unjust personal laws, in a radical garb of course.” As feminists, Flavia and I are invested in protecting gender-unjust personal laws! Using the same perverse logic I could say that you are totally Hindu right-wing in your own position. These kind of simplistic polarizations could be avoided at least within the Left, and at least at this moment in history! Do you think there is anything you have to learn at all from the women’s movement debates, or are you always already in a position to talk down and ‘give line’?

I have “nowhere mentioned” the BMMA’s demand for legally ending polygamy just as I have nowhere mentioned large amounts of other information, because I was more interested in making an argument. The BMMA demand falls within the position I have described as “Support for and initiation of attempts to bring about reform within Personal Laws”. Why is this difficult to understand? To you and Aditya I ask – what part of my essay supports polygamy and says it should NOT be legally ended? What I say is this – and listen if you are at all interested – your responses don’t sound like you listen or read very carefully – legally ending polygamy will not necessarily bring about justice for women. What we need is for men to be bound legally to fulfil their obligations to ALL women they are in marriage-like relationships with. It is not only “the wife” who suffers; the other women equally end up being exploited and abandoned. Aditya, the whole point is that Hindu women precisely do not have legal recourse against their husband if he turns out to have been married before, because the second marriage is illegal. Banning polygamy without recognizing that in practice large numbers of Indian men across communities marry more than once, following rituals that make the women believe it is actually a marriage, will only leave all second and third wives bereft of any legal support. Let me reiterate what I said more than once already in the post and in response to comments: the focus needs to shift to gender justice from the community-based polarization framework.

Interesting that from this long essay, the only point that has been taken up again and again by Hindu men coming in aggressively accusing me of gender injustice is “Muslim polygamy”, that favourite stand-by of the Hindu Right.

As for Yella oK – oh, “codification of Hindu law was positive, period”? Of course sir, just as you say sir! Do take a break from the workings of your mighty mind, sir!

o        Sukla Sen PERMALINK

October 3, 2014 12:46 AM

You’ve not mentioned the demands raised by the BMMA – codification of Muslim personal laws with concomitant banning of polygamy, oral Talaq and Halala – not polygamy alone, despite the fact there is nationwide campaign.

And, it’s not even a demand for a common civil code.

The only plausible explanation is that it’s because you want to shield and protect the position taken by the Muslim anti-reformists at the cost of Muslim women.

If you endorse the BMM position, you’ll have to clearly and unambiguously come out on that.

And, don’t tell me that you and Flavia represent all the feminist positions on this issue.

Have you cared to check what the Muslim feminists ask for? What Hasina Khan, for example, is telling?

REPLY

Nivedita Menon PERMALINK*

October 3, 2014 10:40 AM

For the last time Sukla, it should clear to any person with a minimum comprehension ability that I see BMMA’s and other such initiatives as significant and important instances of “reform from within”.

Two I do not claim that Flavia and I represent all feminist voices on the issue. I have in fact outlined the debates within the movement as a whole and the various complicated positions within it. I refer to Flavia and myself only in the context of some feminist responses to Muslim polygamy.

Three, of course there are feminist critiques of Flavia’s position on the BMMA’s demand, in the article that I have cited. But no feminist, including Hasina, would ascribe to Flavia (or myself) what you do – that we are trying to “shield and protect the position taken by the Muslim anti-reformists at the cost of Muslim women.”

Your arrogance and refusal to engage is typical of the Leftist Indian Man. In the women’s movement we are used to arguing vociferously but listening, even as we make sharp criticisms of one another.

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 A Ahmed <dr.a.ahmed1948@gmail.com>

to the-moderates

Jawad Saheb, I agree when you say,

Asghar Ali Engineer, in one of his articles, has pointed out that the Muslim Personal Law administered in India is actually not the religious law but Anglo-Mohammedan law as interpreted by the British courts. Maybe we have to rethink our understanding of the Shariah as applied in India.

Noted Shia scholar Maulana Kalbe Sadiq says uttering triple Talaq in one go among the Shia sect is "invalid” (outlook jan 02 2005)

Why can’t Sunnis too adopt this concept? We may not be experts but we know triple talaq in one sitting was introduced during the period of Caliph Umar though contrary to the guidance of Quran. He may have good reasons to do it during his times but there is no law which says we have be his blind followers.

As far as enriching our knowledge we have scholarly write-ups. Apart from the writings of Asghar Ali Engineer, and the draft code prepared by CSSS and available on the net (www.csss-isla.com/Draft%20Code.pdf),there is an excellent article “Islamic law of divorce” By A. Faizur Rahman for TwoCircles.net, (11 May 2011)

After all this knowledge gaining, if we read a book on Muslim law, we will find different schools of jurisprudence breathing down the neck of common Muslims. The toughest being that of Hanafi School to which most Muslims in India belong. According to a book “Overview of Muslim Law” by Gupta and Sarkar (1983) which I possess, as per Hanafi law, Talaq in jest or by mere slip of tongue is valid! Furthermore, it is toughest for a Muslim woman to obtain dissolution of marriage under the act of 1939, under the Hanifi code. It is therefore advised that women seek separation under Maliki code even though the parties concerned may be Hanafis!!!!! This not a clever idea of a smart lawyer. Even Ashraf Ali Thanvi seems to advocate this. Then where is the genuineness in the law? Why should we go by the various schools and then make false affidavits that we are Malikis even though we may be Hanafis. Are we not fooling ourselves? For that matter why should we ever belong to any school of thought or Mazhab? Is it not enough if we are Muslims? In my opinion the importance to Mazhabs was given by Ottoman Caliphs which is not necessary now , at least in India.

It is unfortunate that many knowledgeable Muslims too   place faith in AIMPLB, in spite of the fact they were unable carry the entire community together because of which very soon after its formation it led to the breakaway of the Shia and women’s group who formed their own boards.

Moreover AIMPLB is a mere NGO. It is not correct to attach so much importance to it. The word “Board” is a misleading one. It sounds like Waqf board or any other governmental agency.

I would place trust in legal experts than in religious scholars to set our house in order since most confusion is created by different schools called Mazhabs which can now be given goodbye to for very good reasons. Modern and contemporary scholars should be our guiding lights instead. 

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Mohammed Jawad <mohammedjawad1962@gmail.com>

to the-moderates

"Moreover AIMPLB is a mere NGO. It is not correct to attach so much importance to it. The word “Board” is a misleading one. It sounds like Waqf board or any other governmental agency.

I would place trust in legal experts than in religious scholars to set our house in order since most confusion is created by different schools called Mazhab which can now be given goodbye to for very good reasons. Modern and contemporary scholars should be our guiding lights instead." 

Absolutely right Ahmed saab. Religious scholars have to be kept out of the process of legislation as no two schools of thought would ever be able to arrive at a consensus. That is the reason why all attempts to codify the Muslim Personal Law have failed in the past.

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A. Faizur Rahman

to Moderates

Muslim Personal Law Board: a paragon of intransigence

A. Faizur Rahman

Wednesday, May 11, 2005

http://www.thehindu.com/2005/05/11/stories/2005051106441100.htm

The most damaging part of the model Nikahnama the tacit approval of triple Talaq in one sitting. Further, the stand that the husband alone enjoys an absolute right to divorce is not just untenable but most unfair and wrong as it goes against the principles of justice and equity — and Islam is founded on these principles. Unless the AIMPLB sheds its medieval attitude, Muslim women will continue to suffer.

IT WAS in July 2004, soon after its Executive Committee meeting in Kanpur, that the All-India Muslim Personal Law Board came in for severe condemnation for refusing to outlaw triple Talaq. It was hoped that, after such criticism, the Board would show some introspective courage to recommend its abolition. Unfortunately, it has once again failed Muslim women. The much-hyped model Nikahnama or marriage contract released at Bhopal on May 1, 2005 has turned out to be a damp squib. In fact, it cannot even be called a `contract' in a legal sense as there is nothing in the document to safeguard the rights of those who opt for it and make it legally binding on them. Apart from requesting the personal details of the bride, groom, witnesses and so on, the Nikahnama simply implores the Quazi performing the Nikah and the marrying parties to follow a set of guidelines that are nothing but mere repetitions of standard Islamic teachings found in the Quran and the sayings of the Prophet.

For example, the Quazi is asked to ensure that the bride and the groom do not fall under the prohibited degrees of marriage on the grounds of Nasab (consanguinity), Raza'ath (fosterage), and Musaharath (affinity). These injunctions have been directly taken from verses 22-24 of chapter 4 of the Quran. Although it has to be conceded that there is nothing wrong in ensuring that the aforementioned conditions are met, what is surprising is the Board's wisdom behind prioritising this issue over more important issues such as triple talaq, particularly when there is no record of violations with regard to the law of prohibited degrees of marriage.

Nevertheless, the most damaging part of the Nikahnama, which amounts to a tacit approval of triple Talaq in one sitting, is given in Section 5 (vii). It advises the groom saying: "Jahan Tak Mumkin Ho Ek Waqt Mein 3 Talaq Dene Se Bachna," meaning: "To the extent possible avoid pronouncing three talaqs at a time.'' The question is: why is the groom not instructed totally to avoid triple talaq?

Interestingly, the model Nikahnama has this to say about Nikah: "Nikah Rasullulah Aur Ambiya Ki Sunnat Hai. Isliye Zaroori Hai Ke Ise Masnoon Tareeqe Par Anjaam Diyajaaye, Aur Tamaam Khilaaf-e-Shara Umoor Se Bachajaay."' This translates as: "Nikah is the tradition of the Prophet and all prophets. Therefore, it is important that it be performed as per the Sunnah, and all acts that are anti-Shariah be eschewed." What has to be noted here is that the Board is quick to moralise in the case of Nikah that all anti-Shariah methods have to be eschewed and only the Sunnah of the Prophet has to be adopted. But when it comes to the issue of Talaq, the phraseology used for Nikah is carefully avoided to legitimise triple talaq.

Another aspect of Muslim personal law that has been left conspicuously untouched by the AIMPLB is the absolute right given to the husband to effect an irrevocable talaq without the intervention of any judicial authority, whereas the wife is required to go through a Qazi to seek Khula (dissolution of her marriage). When asked about this, the AIMPLB secretary, Abdul Rahim Quraishi, explained that since the wife does not have to bear the financial burden of divorce, she cannot have the right to break the marriage contract (report in The Hindu, page 12, May 2, 2005). There is no theological or legal basis for this sophistic reasoning as there is not a single statement in any authentic Islamic text to support this view. According to the Quran, both husband and wife have similar rights by virtue of which they are equal partners in the marriage contract, and therefore neither of them can break the contract unilaterally without being subjected to arbitration proceedings.

This is because divorce being a matter of law affecting the rights of both parties, it cannot be left to the parties themselves to decide. To ensure that no rights have been violated by either party, the intervention of a judge or arbiter becomes absolutely essential. This is the procedure followed in Pakistan under the Muslim Family Law Ordinance of 1961.

Therefore, the stand taken by the AIMPLB that the husband alone enjoys an absolute right to divorce is not just untenable but most unfair and wrong as it goes against the principles of justice and equity — and Islam is founded on these principles. The only conclusion that can be drawn from the intransigence of the Board is that it wants to give precedence to the Hanafi law over the Quran and the Prophetic sayings. It must be understood that bringing Muslim personal law in conformity with the authentic teachings of Islam does not amount to changing the Shariah and therefore unless the AIMPLB sheds its medieval attitude, Muslim women will continue to suffer.

(The writer is an executive committee member of Harmony India, Chennai, an organisation dedicated to communal amity and secularism.)

----

 Mohammed Jawad <mohammedjawad1962@gmail.com>

 to the-moderates

An excellent article Faiz. It aptly highlights the intransigence and the covert agenda of the AIMPLB to perpetuate the inequities inherent in the Anglo-Mohammed Personal law dubiously known as the Shariah. With such bodies holding sway over the community, what hope can we have that any reformation would ever take place?

------

A. Faizur Rahman

 to Moderates

Thanks a lot Jawad. When that article appeared as an op-ed piece in The Hindu, it stirred up an hornet's nest of hate. Some Hanafis of Chennai, mostly rich businessmen, started targeting me. Even today, these guys don't like me. I am not naming anybody. You know most of them.  But let us not give up the struggle Jawad.

FAIZ

-----

 Mohammad Imran <dalibagh@gmail.com>

to Sukla, Jyoti, Moderates, Mohammed, Maqbool, Ghulam

Millions of Muslims who have accepted American citizenship and pled loyalty to American laws have in fact given up on Sharia Laws as they apply to family law and other aspects which contradict State and Federal Laws. Muslims in India should follow their example and copy what is suitable for their situation and ask central government to use its authority to implement those laws. There will be no need for the discussion above. Criminal acts must be treated as criminal in the case of Hindus marrying illegally second and third wives. Women and children do suffer in these cases. It is the duty of the state to provide minimum support after sending the criminal to jail.

 -----

Ghulam Mohiyuddin <ghulammohiyuddin@gmail.com>

 to Moderates

I agree with Faiz Bhai. AIMPLB is a paragon of intransigence.

------

 'Rohini Hensman' via The Moderates

to the-moderates

Totally agree with the devastating critique of the AIMPLB by Faiz.

-----

A. Faizur Rahman

to Moderates

 Thank you Ghulam bhai and Ms. Hensman

FAIZ

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Ghulam Mohiyuddin <ghulammohiyuddin@gmail.com>

to Moderates

Dr. Hasmi says, "It seems Mr Ghulam Mohiuddin's idea of religious scriptures is that the scriptures are not  universal and timeless."

Ziauddin Sardar can answer that better than I can. He said that we can only interpret the Qur'an according to our own contemporary understanding so we also bring our own social and cultural context into play. The contextual analysis of the Qur'an shows that not everything in the Sacred Text is universal – many verses have significance for the time they were revealed. The universal message of the Qur'an can only be derived by examining its concepts and basic themes.

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Sukla Sen <sukla.sen@gmail.com>

to the-moderates

Thanks to Asghar, he has brought the debate to the notice of this list, even if rather unwittingly. (He appears to be intellectually too ossified to comprehend the implications.)

Just to complete the picture a subsequent forwarding note of mine, to the post captioned as "This [false and dangerous] notion has also been internalised by some

Muslim women's groups, who wish to reform the Muslim law along the lines of the Hindu Marriage Act. For instance, a draft prepared by a group, Bharatiya Muslim Mahila Andolan, attempts to ban Muslim polygamy.

"Feminist legal scholar Flavia Agnes has cautioned that attempts to codify the Muslim law to bring in legal monogamy "should not end up subjecting Muslim women to a plight which is similar to that of the 'Hindu second wife'"."

The article below, from which the above extract is cited, is essentially a sequel to another recent article, 'Uniform Civil Code - the women's movement perspective', by Nivedita Menon at

<http://kafila.org/2014/10/01/uniform-civil-code-state-of-the-debate-in-2014/>.

A few points need be highlighted here.

One, the "perspective" in singular is just canard. The "women's movements", NOT "movement", have very many streams having widely divergent *perspectives*. One such perspective (see:

<http://bmmaindia.blogspot.in/2014/06/bmma-releases-its-draft-of-codified.html>and <http://bmmaindia.blogspot.in/2014_06_01_archive.html>), right at the moment, is being forcefully presented and propagated by the

Bharatiya Muslim Mahila Andolan (BMMA). (Rohini Hensman's response to

Menon, at <http://kafila.org/2014/10/08/a-response-to-uniform-civil-code-the-womens-movement-perspective-rohini-hensman/#comment-170510>, represents another.)

The following comment by the present commentator on Menon's article

is, arguably, of some relevance:

"There are reasons to apprehend that this piece is just a camouflaged, attempt to shield and protect gender unjust personal laws, in a radical garb of course.

"That there is not a word on the Bharatiya Muslim Mahila Andolan's nationwide campaign for codification of Muslim personal laws, by no stretch a demand for the UCC, and concomitant banning of polygamy, oral Talaq and Halal appears to be a clear giveaway."

(That he was soon after debarred from commenting on this site, without any explanation or whatever, is yet another story, of some relevance.)

A part of Menon's response, which is of greater relevance here is:

"I have "nowhere mentioned" the BMMA's demand for legally ending polygamy just as I have nowhere mentioned large amounts of other information, because I was more interested in making an argument. The

BMMA demand falls within the position I have described as "Support for and initiation of attempts to bring about reform within Personal Laws"."

While Audrey D'Mello has apparently taken off from where Menon had left off - to deal with the BMMA rather head on; there is a clear and significant shift in the characterisation of the BMMA. From being credited with "attempts to bring about reform within Personal Laws" - which should ordinarily be considered as something, at least vaguely, positive, now we come across open unconcealed hostility. (See the citation above, at the very beginning.)

(Both Menon and D' Mello take recourse to citing Flavia Agnes to legitimise their views.)

***Be that as it may, let us look at the more substantive issues raised here.***

First, the implied suggestion (implied in the claim that the BMMA is demanding something in line with the Hindu Marriage Act - what a perversity!) that the banning of polygyny is a feature exclusive to the Hindu personal law only is utterly false and mischievous. (In fact the Hindu Marriage act was put, at least to an extent, in alignment with the more enlightened practices elsewhere in the teeth of considerable opposition by the Hindu conservatives and the Right wing.) The hard fact is that monogamy is practised the world over in the modern secular societies, with polygyny having been made unlawful.

One doesn't imagine that the women there, or even in India the Hindu women, are dying to get the good old (or rather nauseously stinking?) polygyny back. At the very least, that's not the going perception.

And, far more importantly, if Ms. D'Mello, her mentor and their likes sincerely believe that Muslim women in India are better placed as compared to their Hindu counterparts in so far as the Muslim personal

law allows polygyny and the Hindu personal law criminalises it, ***are they proposing to launch a campaign to get the Hindu personal law amended in order to reincorporate the provision for polygyny as an act of solidarity with Hindu women in India!?***

(***That shows up the utter absurdity of the proposition put forward.***

And, the caption of my post today forwarding the subject article: 'An

Attempt at Positive Reform or Just a Clever Ploy to Undercut BMMA

Campaign for Codification of Muslim Personal Law?'

And, the forwarding note is as under:

It is rather remarkable that the article, reproduced below, does not make even a fleeting mention of the ongoing nationwide rather energetic campaign by the Bharatiya Muslim Mahila Andolan (BMMA) for codification of Muslim personal law, and inter alia, concomitant banning of polygyny, triple Talaq and Halala (see: <http://bmmaindia.blogspot.in/2014/06/bmma-releases-its-draft-of-codified.html> and <http://bmmaindia.blogspot.in/2014_06_01_archive.html>).

The initiative for a "model Nikahnama", in contrast, has for quite a while remained rather dormant, without any sign of early revival.

The key demands by the BMMA:

              Age of marriage for girls to be minimum 18 and minimum

21 for boys

             Total ban on oral, unilateral and triple divorce

             No to polygamous marriage

             Well-laid out Quran-based procedure, Talaak-e-Ahsan for a husband to divorce the wife and vice-versa

             Minimum mehr or dower in consonance with the groom's annual income

             Compulsory registration of marriages

             Maintenance support for wife and children during marriage, separation and divorce

          Rules for custody of children in the event of divorce based on the principle that mother and father are natural guardians of the child

         Responsibilities of the Quazis and Arbitrators have also been laid down

END

Hope that brings out my position on the issue, and various campaigns and counter-campaigns, rather unambiguously.

And, here is a comment on the article under this thread from one directly engaged with the issue:

"(I)t is either sheer ignorance or a deliberate attempt to keep out the agency of Muslim women in codification of muslim law. the debate around nikaahnama is redundant. a nikaahnama howsoever good cannot be a substitute for a law. also a good judgement of HC or SC cannot be a substitute to a law. also no knowledge about muslim women's agency in becoming arbitrators and setting up legal aid centres or Shariah adalats to give space for muslim women to get justice which is otherwise denied to her in a male dominated shariah adalats. A completely outdated article !"

Just to share. Sukla

-----

On 18/11/2014, Asghar Ahmed <asghar1900@gmail.com> wrote:

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Peace Is Doable

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 Sukla Sen <sukla.sen@gmail.com>

to the-moderates

Sorry!

There is a slip.

Pls. read "Just to complete the picture a subsequent forwarding note of mine, to the post captioned as", the opening line of the 2nd para, as "Just to complete the picture a subsequent forwarding note of mine, to the post captioned as 'Gender Justice in Religion Based Personal

Laws':".

-------

Mohammed Jawad <mohammedjawad1962@gmail.com>

 to the-moderates Suklaji

It is surprising how some feminist movements are buying into the arguments of Muslim patriarchs who always point out to cases of Hindu second wives who have no legal status and are "suffering". Can this be a justification to continue with such an archaic practice?

A ban on polygyny would no doubt have some repercussions. Like for instance, as once pointed out by one of the learned members of this forum, someone continuing a sinful liaison with another woman may wish to legitimise it and thus avoid the sin. It may also cause some difficulties for the poor men who are not satisfied with one wife and may need an outlet for their sexual energies when the wife is pregnant or during her periods. Unfortunately, the modern paradigm is that, what men can do, the women can do better. Of course this point was countered with the mother of all arguments: the Quran does not permit polyandry, only polygyny.

What better way to shut the mouths of non-Muslim participants in the debate! How dare you speak on my religious rights! The Quran permits me... period.

And,  ah yes! How can I forget? What if women outnumber the men, such as in a war situation! The poor men have to be charitable and spread their largesse to include more such destitute women in their harem. But what if, as in the case of India, men outnumber the women? Can the women accommodate the men? Of course not. Because the Quran does not permit it.

And so the debate goes on.

I am however glad that you, a designated and certified "extreme atheist", have courageously spoken on this issue notwithstanding the threat that it is a religious issue and you have no business to speak on it - unless ofcourse Tuhan directly permits you in writing. That Tuhan will not do, as the only capable Intellectual non-lawyer who can recommend your case before Tuhan is here on Earth and he does not agree with you.

Jawad

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Sukla Sen <sukla.sen@gmail.com>

to the-moderates

Dear Jawad Saab,

Thanks for your thoughtful intervention.

I've nothing more to add here except that the euphoria over unearthing my comments on this issue elsewhere, on the Kafila site, speaks only

of an abysmal level of incomprehension as the selfsame points were made by me on this site itself, albeit in different words – that apparently explains this abysmal lack of comprehension (by an evidently ossified mind).

Sukla

On 19/11/2014, Mohammed Jawad <mohammedjawad1962@gmail.com> wrote:

 Suklaji

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Subhashini Ali <subhashiniali@gmail.com>

to Moderates

There are always problems with all laws on unequal societies but that cannot undermine their importance. I don't see Hindu or Christian or Sikh women demanding the right to polygamy in order to defend the rights of second or third wives. So why should Muslim women alone have to shoulder this burden. The women who could face injustice because of bigamous husbands have to defend in ways other than legalising bigamy and polygamy and polygyny.  This was done by including a specific clause in the protection against domestic violence act so that precisely such women could also access the benefits of the act. Subhashini ali

------

Dr. Syed Yaseen Hashmi <dr.yaseenhashmi@gmail.com>

to the-moderates

"The contextual analysis of the Qur'an shows that not everything in the Sacred Text is universal – many verses have significance for the time they were revealed.”

First of all I will thank Mr Ghulam Mohiuddin for responding to my objection very politely. This is the right way and should be emulated by others.

Regarding the statement above there is no denial that some of the verses were time bound and for the benefit of the people of the period, like how to talk and behave with The Prophet . It is for His close circle people only. But as for as Dictates, rules and laws are concerned they are timeless. The present topic of women's dress or polygamy polygyny issues etc there are clear guidelines vide verses, they hold value irrespective of time and place. Universality is meant by this. I am not saying that these must also be followed by the followers of all faiths.

"The universal message of the Qur'an can only be derived by examining its concepts and basic themes."

The above statement has the answer for the problems faced by contemporary situations .  As any law or constitution, can only be rightly implemented by seeing the true spirit of the law and the later amendments, the Quraanic commandments also have those provisions .

As in the case of intoxification etc. The wilful misuse rather abuse of these bindings and provision by people who have no reverence of

Quran or fear of God has lead to the present situation, that Islam , Quran and Muslims are treated as the worst in their kind. What with the men treating wives as commodities taking shelter under Talaq provision, the mullahs being gender biased , the wrong interpretation of Jihad  The total overlooking the advice and deeds  of Prophet in human rights and relations so on & so on . But it does not mean one should start loosing faith in Qur-aan itself . The right way will be to do our best to eradicate these vices entered in the communities .

If we could not do this will be like " Nachna Na Jaane Bole Aangan Tedha "   ,

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Ghulam Mohiyuddin <ghulammohiyuddin@gmail.com>

to Moderates

Dr. Hashim says, "as far as Dictates , rules and laws are concerned they are timeless."

If the laws in the Quran are reflective of pre-Islamic Arab laws, they have to be seen as time bound. Only the underlying principles of fairness, equality, reasonableness etc. are timeless.

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Juzar Bandukwala <drbandukwala45@gmail.com>

 to the-moderates

"If the laws in the Quran are reflective of pre-Islamic Arab laws, they have to be seen as time bound. Only the underlying principles of fairness, equality, reasonableness etc. are timeless."

Gulambhai's statement is perfect. I endorse it.

J.S.Bandukwala

 

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Dr.Syed Yaseen Hashmi <dr.yaseenhashmi@gmail.com>

 to the-moderates

May I seek a clarification from Both Mr Ghulam Mohiuddin and Dr Bandukwala , whether it is reflective of or pertaining to pre Islamic

Arab Laws?.  Any laws in Quran will have to be considered as Islamic law and not pre Islamic Arab Laws. If reflective of, they may have been approved by Quean. There may be guidelines which may not have been laws.  In any case Quranic laws are not time bound, if there is any chance of losing validity, there will be mention and provision by Quran for amendments. Accepting Quran as it is, provided correctly interpreted , as their guide to practice is the first condition for Muslims .

------

Ghulam Mohiyuddin <ghulammohiyuddin@gmail.com>

to Moderates

Dr. Hashmi, we should not trap ourselves with rules of our own making that freeze us in 7th century Arabia. Man should always treasure his ability to think and to evolve. God has given man sufficient intelligence to know which precepts are eternal and which precepts are contingent or time-bound.

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 Juzar Bandukwala <drbandukwala45@gmail.com> to the-moderates

Dr. Syed Yaseen Hashmi,

The issue raised by you is best answered with reference to the " Iddah ", a  period of seclusion on a  woman who is divorced or has lost her husband.  In seventh century Arabia such an unfortunate  woman would be  completely secluded , except from her " mehram" to determine the paternity of any child she may be carrying.

Today this Iddah phase has become meaningless with advances in medicine. Yet it is  hell for poor widows or divorcees living  in small rooms, without toilet facilities to be so totally cut off from the outside world for up to 130 days. Among some Jamaat’s, she is prevented from even looking at a mirror or a bird or the sky.

Moreover age is no bar. I have known women in their seventies being subjected to this torture. This is unIslamic.

We have to abandon this practice, for Allah is after all a Fountain of Mercy. He would be severely displeased  that  we are  inflicting  so much brutality  on these unfortunate women, when science can confirm pregnancy so easily..

J.S.Bandukwala

Thu, Nov 20, 2014 at 12:00 PM, Dr. Syed Yaseen Hashmi

 -----

  A. Faizur Rahman

 to Moderates

A small correction Dr. Bandukwala. Iddah is not a period of seclusion. It is illegal to forcibly confine any Muslim woman for even a day in the name of Islam. The Quran and Hadees do not support such an abhorrent notion. The only rule that the Quran lays down is; a widow shall wait for a minimum period of 4 month and 10 days before remarrying.

If any of you die and leave widows behind, they shall wait concerning themselves four months and ten days: When they have fulfilled their term, there is no blame on you if they dispose of themselves in a just and reasonable manner. (2:234)

As can be seen there is nothing in the verse concerning seclusion. Iddah is a period of waiting, and not seclusion.

FAIZ

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 Jawad Mohammed <mohammedjawad1962@gmail.com>

 to Faiz-ur-Rahman

Dear Faiz

I agree with you that there is no compulsory seclusion of widows or divorcees prescribed in the Quran. But what Dr. Bandukwala has pointed out is a reality that exists in many places. The question is how did these practices arise and how did they get recognition as “divine law”?. The whole problem is that, the source of the Muslim Personal law is not the Quran alone but also the Hadith, (including many of doubtful authenticity), and the Ijma of the experts. In addition to all this, there is also the Ango-Mohammedan law as interpreted and applied by the English judges guided and advised by Khazis of dubious knowledge. To the vast majority of Muslims, these other sources of the law are as “divine” as the Quran. It is next to impossible to convince them otherwise.

In my opinion, and I am sure that many members will agree with me, the only option is to embark on an exercise of reinterpretation of the law as now applied in the light of modern concepts of justice, equality and good conscience. In this exercise, it should not only be the religious scholars and Muslim law experts who are involved but also eminent jurists of other religious denominations, human rights activists and feminist organisations.

I agree with Dr. Hashmi sahib to the extent that the universal principles of justice and equality enshrined in the scriptures are immutable. However, in order to keep the scriptures alive and relevant, the actual practices and legal provisions, which were once useful in realising these universal principles, need to be re-looked to suit the changing times and evolving needs of a growing society. The universal principles of justice and equality are immutable but the law applied to realise these principles cannot be static. It has to be dynamic and evolving.

Jawad

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Dr. Syed Yaseen Hashmi <dr.yaseenhashmi@gmail.com>

 to the-moderates

“it is  hell for poor widows or divorcees living  in small rooms, without toilet facilities to be so totally cut off from the outside world for up to 130 days. Among some Jamaat’s, she is prevented from even looking at a mirror or a bird or the sky.

Moreover age is no bar. I have known women in their seventies being subjected to this torture. This is unIslamic."     Dr Badukwala. Dr Badukwala Please see I have specifically mentioned "If correctly interpreted".

First there is no mention in Quran about anything mentioned above

. Your last sentence itself is the reply for your comments. I had even mentioned there may be guidelines and not laws, besides the atrocities imposed above are the man made customs. Still if one insists for men to make laws in preference to Quraanic laws, One can understand what damage it will cause to the followers. There is every possibility of errors if men themselves are allowed to amend

Quraanic laws in a hurry. As Mr Jawad had once commented further exploration can be done within the laws but no amendments to it please.

God has given man sufficient intelligence to know which precepts are eternal and which precepts are contingent or time-bound."   . Mr

Ghulam Mohiuddin

Man is still exploring the marvels of God, on one day a theorem is

presented and the whole world is convinced this is the right one ,only to find fault with and alters after a few days on another scientist's, philosophers ' and inventers theory ,  The noble lariate

Dr Abdul salam when was questioned by one Illustrated weekly jurno as to what is his opinion as a scientist regarding solar system and as a Muslim , which of the opinions you follow . His reply was Science is ever evolving what it says today may change tomarrow , but Qur-aanic inscriptions are eternal.

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 Asghar Ahmed <asghar1900@gmail.com>

to the-moderates

While I agree with Mr. Mohiyuddin that "only the underlying principles of fairness, equality, reasonableness etc. are timeless" this argument cannot be used repeal all laws formulated by the Prophet in the light of the Quran. A law may be slightly modified to suit present conditions. But we do not have the right to do away with the law. For example, a few weeks ago Faiz discussed how the law concerning amputation of a thief's hand can be re-interpreted for the 21st century without violating the spirit of the Quran or the teachings of the Prophet.

 But the problem with some Muslim members of the forum is that they want to completely revamp even the basic principles of the Quran. Let me give you an example. The Quran clearly instructs Muslim women (I am sure Faiz will be able to quote the verse) to cover-up when they go out. But we had Janab Jawad sahib telling us that no one (including the State) can dictate to women as to what they are "allowed" to do with their bodies.

 But the reality, Sirji is: just as an Indian cannot violate the Constitution of India as a citizen, a Muslim man or woman cannot violate the Quran in letter or spirit.

 Of course, the "Muslim" is free to give up the Quran (without being branded an apostate) and do what he or she "wants", just as an Indian is free to give up his Indian citizenship and become a citizen of Cote d'lvoire or go back to the jungle where no law or clothes prevail. But one cannot violate the Constitution and the Quran and remain an Indian or Muslim respectively. If jurist Jawad feels that the verse I quoted above on "modesty" does not prevent Muslim women from going topless in public let him enlighten the forum how it can be interpreted to allow nudity or even semi-nudity. I challenge him!

 In short, my argument is that the spirit of the Quran cannot be undermined in the name of doing away with seventh century Arab laws. Those who do not agree with the Quran may reject it openly instead of masquerading as its followers.

-----

Ghulam Mohiyuddin <ghulammohiyuddin@gmail.com>

 to Moderates

Quran is a guide but men must make their laws based upon contemporary knowledge and current ethos. Religion-based laws such as Manusmriti, Old Testament Laws  and Judaic laws have all been largely replaced by laws made by modern legislators and jurists. If such laws are found to be flawed or unjust they can be amended or replaced by new laws. Laws need not be written in stone.

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 A. Faiz ur Rahman

to Moderates

Dear Jawad

I have no hesitation in agreeing with you that any law has to be dynamic and evolving, not just the Muslim law. A temporally frozen law makes no sense. I also agree with you that there is nothing divine about the "shariah" that is being practiced in Muslim societies today. Most of its provisions directly violate the Quran and authentic hadees. Our aim should be to bring the Muslim law in line with the spirit of the Quranic teachings by eliminating practices such as the seclusion of widows, triple talaq, child marriage, and other similar unIslamic traditions that violate the principles of justice, equity and fairness.

To comment on one of your observations, there is no such thing as "modern concepts of justice, equality and good conscience." These concepts are universal and timeless. For example, the idea of justice in the seventh century Quran is not different from how we understand this concept today. Problems arise when we try to impose some of our untested notions of justice, equality and good conscience on the entire human race.

And insofar as the Muslim law is concerned any person (irrespective of his religion or lack of it) is free to participate in its formulation provided she or he is an internationally known expert on Islam. Human rights activists or feminist organisations who know nothing about the subject obviously cannot be included in the process of law-making.

FAIZ

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Javed Anand <javedanand@gmail.com>

to the-moderates

Dear Faiz,

Asghar saheb refers to something you posted a few backs on the issue of chopping a thief's hands. I have missed it. Would appreciate if you could please re-post or email me the same separately.

cheers.

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A. Faizur Rahman

to Moderates

Dear Javed

I have sent you the email privately. Hope you find it useful.

Warmly

FAIZ

 ------

Jawad Mohammed <mohammedjawad1962@gmail.com>

to Faiz-ur-Rahman

Dear Dr. Hashmi

I have decided to follow your advice and not get provoked by the distortion and falsehood indulged in by Mr. Asghar Ahmed. I pray that his Tuhan grants him the wisdom to distinguish between truth and falsehood and the sagacity to know when he has been completely knocked out.

Jawad

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 Dr. Syed Yaseen Hashmi <dr.yaseenhashmi@gmail.com>

 to the-moderates

"Religion-based laws such as Manusmriti, Old Testament Laws and Judaic laws have all been largely replaced by laws made by modern legislators and jurists. If such laws are found to be flawed or unjust they can be amended."  Mr Ghulam Mohiuddin

Are we talking about laws made through legislature by men for Muslims in the light of Qur-aan or debating what is mentioned in Qur-aan through ' Ayahs " ?

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 Nawed Akhtar <nawedtonki@gmail.com>

 to the-moderates

"The Quran clearly instructs Muslim women (I am sure Faiz will be able to quote the verse) to cover-up when they go out."

It would be nice to see the quote or quotes from Quran about covering up and interpretations as you perceive it Faiz Sb.

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 Ghulam Mohiyuddin <ghulammohiyuddin@gmail.com>

to Moderates

Dr. Hashmi asks, "Are we talking about laws made through legislature by men for Muslims in the light of Quran or debating what is mentioned in Quran through ' Ayahs “?

Both! Quranic laws may be reflective of 7th century Arabian practices, but the principles underlying such Quranic laws have eternal application. Such underlying principles may be very simple in most laws, e.g. "Do the right thing. Be just". Man is equipped to take it up from there.

To post to this group, send email to the-moderates@googlegroups.com.

 -----

 Javed Anand <javedanand@gmail.com>

to the-moderates

Dear Faiz,

Thanks. I did receive the e-mail.

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Dr.Syed Yaseen Hashmi <dr.yaseenhashmi@gmail.com>

to the-moderates

Thanks Ghulam Mohiuddin Sb I wonder then where is the difference between both of us. Iam  satisfied with your clarifiation

-----

Dr. Syed Yaseen Hashmi <dr.yaseenhashmi@gmail.com>

to the-moderates

I welcome Mr Jawad's last mail and thank him for passing the honour to me I. sincerely hope it is only " Hubb-e-Ali" and no " Bugz-e- Ma'a via  intended' as the latter part of the mail tends to suggest .

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Javed Anand <javedanand@gmail.com>

to the-moderates

Dear Faiz,

I have two problems with your response to Jawad where you say that: (1) notions of justice, equality and good conscience are "universal and timeless" and therefore it makes no sense to talk of "modern concepts" concerning the same' (2) "insofar as the Muslim law is concerned any person (irrespective of his religion or lack of it) is free to participate in its formulation provided she or he is an internationally known expert on Islam. Human rights activists or feminist organisations who know nothing about the subject obviously cannot be included in the process of law-making".

1. Principles like justice, equality and good conscience may be eternal but what these principles MEAN do evolve with human evolution. Let me give you a few examples:

i) In your June post on this forum (which you were good enough to email me again on request) you say that chopping off of a thief's may be read literally and could/should be applicable in a welfare state or in case of those holding high office who are in any case well provided for and therefore thievery (corruption, scams) are in no way justified. I strongly disagree. I believe that while thievery (corruption, scams) are crimes deserving of punishment in any society where rule of law prevails the idea of chopping hands as punishment is repugnant to "modern concepts" of crime and punishment which is related to the question of justice.

ii) 14 centuries ago, I could in good conscience (and as a devout Muslim) have kept a dozen slaves on the ground that I treated them well. Today, slavery is an abhorrent idea because it militates against all our present-day notions of justice, equality, good conscience etc.

iii) Not only 14 centuries ago but even today there are many countries where the law provided/provides for the death penalty for certain crimes. Today, well over 100 nation states have outlawed the death penalty, irrespective of the severity of the crime.

2. Who can be engaged in personal law reform? I strongly disagree with your proposition that only experts on Islam (whether Muslims or otherwise) may be involved in the process. Human rights defenders and feminists may not be familiar with the language of the law or on 'what is Islam'. But to ensure that the reforms proposed are consonant with modern-day notions of human rights and gender justice, it is not only desirable but essential that they are an integral part of the process. I believe that it is for similar reasons that in his book ‘Radical Reform’ Tariq Ramadan argue that for such much-needed reform in Islam, it is essential that all sections of society be involved in the process.

------

A. Faizur Rahman

to Moderates

Dear Javed

Will respond next week. I running temperature since last night.

FAIZ

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Dr.Syed Yaseen Hashmi <dr.yaseenhashmi@gmail.com>

 to the-moderates

"Human rights activists or feminist organisations who know nothing about the subject obviously cannot be included in the process of law-making".  Mr Faiz ur Rahman " I strongly disagree with your proposition "   Mr Javed Anand.

The matter pertains to Islamic law making and Mr Javed STRONGLY disagrees to any need of knowledge of the subject matter to be possessed by the members , probably he thinks to be a human rights activist and a feminist is just sufficient to become a Islamic law maker. When Mr

Faiz has only objected to the participation of those activists and feminist "who know nothing about the subject matter" why the disagreement.  . Persons belonging to the above categories with an authoritative knowledge on Islamic matters can be members. A strong objection from a man like Mr Javed has saddened me. The attitude of giving least importance to Islamic laws in respect of human rights and women’s' right presuming and propagating Islam or Islamic laws are unkind and out dated has it seems become favourite past time with many a members.

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Mohammed Jawad <mohammedjawad1962@gmail.com>

to the-moderates

Dear Faiz

I hope it is only the seasonal fever. In my house everyone was down with it. Only I managed to escape, probably thanks to the heat of the debates we have on the Moderates. Wish you a speedy recovery.

Coming to the topic on this thread, I agree with Javed's question as to why we should not have human rights and feminist organisations taking part in the preparation of the draft law. I am looking forward to seeing your answer on this issue.

Best regards

-----

 Shaikh Nizamuddin <sholapuri@gmail.com>

to the-moderates How about Tahir Mehmood. To my understanding he is well versed in both.

Nizam

-----

 Asghar Ahmed <asghar1900@gmail.com>

to the-moderates

Wishing Faiz a speedy recovery!

 ------

 Ghulam Mohiyuddin <ghulammohiyuddin@gmail.com>

to Moderates

Faizbhai, I hope you feel better soon.

 -----

 Javed Anand <javedanand@gmail.com>

to the-moderates

Take care and get well fast, Faiz.

A. Faizur Rahman

 to Moderates

Thank you so much dear Jawad, Javed, Asghar Bhai, and Ghulam bhai for wishing me well. I am feeling much better today, but sapped of energy. Hope to get back to normal in a day or two, Insha’Allah.

What I don't understand is, Jawad and Asghar bhai debate and I get the fever. Interestingly, both debaters "escape unhurt". 

FAIZ

 ----

'Rebecca Kurian' via The Moderates

Get well soon, Faiz.. It must be the usual viral fever that strikes when rains hit..hope you are not having too bad a time..I shall pray for speedy recovery for you!

Rebecca.

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Ghulam Mohiyuddin <ghulammohiyuddin@gmail.com>

to Moderates

Expertise in Islamic law alone is not enough to formulate equitable laws. We also need a lot of common sense and representations of women's groups, liberal groups, reformist groups and intelligentia in general who can question existing laws instead of holding them to be sacred.

 -----

Dr.Syed Yaseen Hashmi <dr.yaseenhashmi@gmail.com>

to the-moderates

Dear Faiz Sb I had recently fallen ill and my experience is fresh hence did not disturb. Hopefully you will regain strength faster than many. Yes I also feel your illness may be due to the heat of the hot debates. There is a saying

Jabke do mooziyon mein ho khat pat

Apne bachne ki fikr kar jhat pat . But your position is that you have to be a Moderator. So

Jab bhi do doston mein ho khat pat tu manaane ki fikr kar jhat pat.

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Jawad Mohammed <mohammedjawad1962@gmail.com>

to Faiz-ur-Rahman

Dear Dr. Hashmi

From what I understand, Javed saab has not said that the job of drafting the law should be entrusted exclusively to human rights and feminist organisations. He only said that they should also be involved in the process along with Islamic scholars, jurists and others. Faiz had suggested that they should be kept out of the process completely. This would not be advisable as they are also stakeholders in the process having had experience in dealing with cases involving violations against the women in the name of religion. The whole problem is, we are refusing to admit to ourselves that the ground realities are very much different from what we imagine they are or what we think they should be. Women are victims of an unjust system. They are exploited in the name of religion and people who are dealing with such cases, viz. lawyers, human rights activists and feminist organisations are aware of these realities. That is why their involvement is necessary.

-----

Jawad Mohammed <mohammedjawad1962@gmail.com>

to Faiz-ur-Rahman

Ha ha ha. Sometimes the referee gets hurt the most.

Jawad

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Javed Anand <javedanand@gmail.com>

to the-moderates

Why don't you understand, Faiz? When so much heat is generated, how can the administrator not catch some of it?!

-----

Rafiq Sait <rs@gatsby.in>

to the-moderates

'A strong objection from a man like Mr Javed has saddened me. The attitude of giving least importance to Islamic laws in respect of human rights and women’s' right presuming and propagating Islam or Islamic laws are unkind and out dated has it seems become favourite past time with many'

 

Well said dr. Sb. It is indeed saddening. Having stood the test of time, and when the faith in question is finding takers the world over, and respect for it is gaining world wide acceptance, we want to distort the holy text because we do not know how to implement the spirit of its message. What medieval times are we talking about? It's medieval times now when the unnatural is finding acceptance. Yes, it's a free world in the confines of your own home. Your freedom ends where my nose begins.

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Asghar Ahmed <asghar1900@gmail.com>

 to the-moderates

Hashmi sab is right. When did Faiz say, "they should be kept out of the process completely"? He only spoke of "the process of law-making" which is totally different from getting feedback from feminists or activists. Looks like some members still do not understand English. Anyway, I am waiting for Faiz's response. Once, again wishing him a speedy recovery. I am sure he has recovered by now.

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Ghulam Muhiyuddin <ghulammohiyuddin@gmail.com>

 to Moderates

I agree with Jawad sb. The legislative process should have a broad range of inputs.

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 Dr.Syed Yaseen Hashmi <dr.yaseenhashmi@gmail.com>

 to the-moderates

Jawad Sb For a mere  representation also you need certain qualifications , let  alone being a part of law making body. You would not have been able to represent your clients until you possessed a law degree to do so. How come you recommend a member who knows nothing about the subject matter except his knowledge or experience of grievances caused by the law? One should have a working knowledge at least of the subject matter and existing law's intricacies, to suggest any thing to modify it. For any routine matter in daily household practice elders will not consult a child even matters related to him/her. But unfortunately when the matter belongs to Islamic law, without batting an eyelid  STRONG objections are made , will it reflect any reverence to the religion you follow

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 A Ahmed <dr.a.ahmed1948@gmail.com>

 to the-moderates

 Thanks to Asghar Saheb for clarifying that inputs can come any source. I am taking  advantage of his suggestion and as a student or rather a self-learner of Islamic teachings wish to put forward a case study to the scholars of this forum in various disciplines including the legal luminaries for their expert opinion.

Khula, a case study

 The new Muslim women act of 1986, defines a divorced woman as one whose divorce has been effected either by Talaq or by Khula. But this act come into effect after a divorce has been granted. Dissolution of marriage itself is something which precedes before a woman can seek relief under the new act.

Dissolution of marriage by the wife or Khula is a process in which the wife goes through an ordeal. Unlike Talaq which a man can unilaterally exercise without much  sense of responsibility, in Khula, according to law, has to be settled by a court or a statutory body which has a power of arbitration.

 What the Quran states in Ch 2 V 229

If ye (judges) do indeed fear that they would be unable to keep the limits ordained by Allah, there is no blame on either of them if she give something for her freedom Yusuf Ali Ch2 V 229

It essentially means is that if a couple cannot get along, the wife too can seek separation by paying some compensation her husband. If both cannot agree to the compensation a court/ arbitrator will decide the compensation. The role of the judges is therefore only to the extent of deciding the compensation, keeping in mind the spirit of the context of revelation which is as follows:

One particular man divorced his wife and then waited for her until the waiting period was about to elapse and then took her back. He then divorced her immediately and said to her: 'By Allah! I will not take you back nor will I ever allow you to marry someone else'

 Azbab al nuzul by Alī  ibn Ahmad al-Wāhidī of verse 2:229

The spirit of the V229 of Ch2 is that a husband cannot have his wife in perpetual bondage by adopting some crooked means.

As per the clerics interpretation of the verse the judges have more say in the matter. E.g Maududi in his explanatory notes on this verse says:

If the husband and the wife agree between themselves on some terms regarding this, the same shall be enforced. But if the case goes to the court, it will first of all try to ascertain whether the wife really dislikes her husband so much that she cannot live with him any longer. Then if the court is satisfied that they cannot live together happily, it shall fix as compensation anything that it considers proper, and the husband shall have to accept that and divorce his wife. The jurists are generally of the opinion that the compensation should not exceed the dower given by the husband.

In other words the judges / Quazis want the wife to convince them that she has very sound reasons to dislike her husband. What cross questioning these qazis will do and how much they will embarrass the wife by asking uncomfortable questions like conjugal relationship etc. is anybody’s guess!

Now coming to our Dissolution of marriage act of 1939, a wife can seek dissolution of marriage on nine different grounds. But one that is based on ground of inability to get along with the husband falls on ground# viii which is as follows:

(viii) that the husband treats her with cruelty, that is to say, ?

(a) Habitually assaults her or makes her life miserable by cruelty of conduct even if such

conduct does not amount to physical ill-treatment, or

(b) associates with women of evil repute or leads an infamous life, or

(c) attempts to force her to lead an immoral life, or

(d) disposes of her property or prevents her exercising her legal rights over it, or

(e) obstructs her in the observance of her religious profession or practice, or

(f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran;

 Here again in the language of the law, the burden of proof lies with the wife.

Clause (a) is so subjective that mental torture cannot be proved at all. Only physical harm can be shown by way of injuries! Does a wife has to wait until cruelty comes to such a pass before she approaches a court of law?

If clause (f) is the reason, the court may have to record the statement of the other wife or wives; after all to assess equitable treatment the court may like to know how the others are treated. Whether the husband has declared having other wives or not is another matter. The judges or lawyers from the husband’s side may ask even more embarrassing questions to ascertain if the husband is equitable in his conjugal relations in respect of all his wives! Today we find it despicable that lawyers even in a rape case may ask embarrassing questions to the victim. Does a wife who is already a victim of her husband deserve all this humiliation? And based on the old meaning of the Arabic word “Zaraba” to mean beating (which I am sure the Quazis or mullahs will not budge one inch) may well argue that if one wife can take beating in her stride why other wives can’t too get an equitable treatment!

In order to make the law more humane, even human right and women activists may suggest just and fair amendments to the law. For one, they may suggest, all Khula cases have to be by women judges. This by itself, on a first approximation, a valid advice in my opinion. Something which clerics and Quazis may not agree at all considering their mind set.

Fair, equitable and clear cut amendments to the law will make a lot of sense, since this forms the reference point for legal counsellors of both parties (and qazis too) to arrive at what may be acceptable to law and come to out of court settlement. It is not necessary that the validity of law should be tested only by filing a lawsuit.

Lastly my suggestion is that the role of Quazis or courts should be only to set a fair compensation to grant Khula and set a wife free from her husband and not to sit in judgement of reasons why she wants a divorce. As precedence, many experts have already suggested that the compensation a wife would pay cannot exceed the Mahar the husband would have agreed to pay.

This settlement should be notwithstanding the right of a divorced woman to make claims from her husband for herself and her dependent children as per provisions of the The Muslim Women (Protection of Rights on Divorce) Act 1986

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Sarwat Ali <ali.sarwat@gmail.com>

 to Moderates

Wishing you a speedy recovery Mr Faiz.

 -----

 Ghulam Muhiyuddin <ghulammohiyuddin@gmail.com>

 If a proposed law is going to affect you, you should have the right to make an input. You do not need a certificate in order to make an input. People with similar views may form a front or an Andolan so that their representatives can try to influence the powers that be.

 -----

Sarwat Ali <ali.sarwat@gmail.com>

 to Moderates

Debarring women to participate in a discussion is against freedom of expression, which is a constitutional right.

 Dr.Syed Yaseen Hashmi <dr.yaseenhashmi@gmail.com>

 to the-moderates

"Human rights activists or feminist organisations who know nothing about the subject obviously cannot be included in the process of law-making"

Mr Ghulam Mohiuddin & others supporting for those " Who know nothing about the  subject"  to be included in the process of law making " may please once again go through the quote above by Mr Faize and tell what is there to "Strongly object " in it. The insistence here is only on knowledge of the subject and not any gender, religion age or any such thing

As for providing inputs none has any objection strong or mild for those even with no certificates. But for participation as law maker or even for representations, yes one needs the thorough knowledge of subject. Every person who is going to be affected of course cannot be included in the process of law making. It is as simple as that. Only with a prediction that the proposed law may affect somebody, if that person is included, will there be any law formulated? . Any law has to be passed through legist ion where public representatives will be there. Insisting to include every and anybody it seems is only for ‘argument for argument sake

'

 Persons with no knowledge of Islam and Islamic law may tend to misunderstand and hence influence the persons who themselves are not clear about the subject and jeopardise the issue. At a time when strategies are planned to tarnish the image if Islam by false information’s and wrong interpretation willllfully, an  effort to support proposals like above may lend support to their cause.

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Jawad Mohammed <mohammedjawad1962@gmail.com>

 to Faiz-ur-Rahman

 Dear Hashmi saab

Jawad Sb For a mere representation also you need certain qualifications

Is experience not sufficient qualification? And how do we presume that women and human rights organisations do not possess the requisite qualification? Take, for example, the BMMA or an organisation called “Roshni” based in Chennai and started by Mrs. Bader Sayeed. Both these organisations have lawyers as members and they have a tremendous amount of experience representing women’s causes and fighting for women’s rights. They have first-hand experience of how the law impacts the day-to-day life of the women. Knowledge alone is not enough. Knowledge coupled with experience is more important. We are seeing many such examples in our midst in everyday life of how people have knowledge but lack either the experience or the wisdom to understand reality. There is no point in involving “knowledgeable” persons living in ivory towers in the process of framing laws. They can only contribute to a limited extent.

For any routine matter in daily household practice elders will notconsult a child even matters related to him/her .

Can a grown-up woman be equated with a child? I don’t want to say anything more except that it is time Muslim men start understanding that women are equally capable of taking independent and wise decisions by themselves. This is where the change is required.

 Asghar Ahmed <asghar1900@gmail.com>

 to the-moderates

Hahahhahaaha

 The big cat is out of the bag now! "Feminists and activists" mean the BMMA and Roshini (never heard of it). The whole idea is to project BMMA as the "true" and only representative of Muslims. What a joke! The BMMA may be a good grass root level organisation but it has no expertise in law-making and it knows very little about 'Islamic law'. This was exposed in the questions I had posed a few months ago on another thread. Does uncle want me to post them again? Anyway, just ask one BIG QUESTION to BMMA: "BMMA, BMMA! who drafted the draf bill that was recently released to the media with such fanfare?"

 The answer to this question will reveal how little the BMMA knows about Islamic law.

 Secondly, not long ago the jurist-e-Azam degraded Muslim women saying that he could defend himself because he was not a Burqa-clad woman!! A few weeks earlier than that Sukla the great had demeaned a certain category of women by calling them "domesticated women".

 Yet today, the feminist says, women are equally capable of taking independent and wise decisions by themselves!! What a joke! What else can you expect from a Man who says women, both Muslim and non-Muslim, can go topless in public? Maybe this is what he calls "the capacity to take independent decisions."

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Dr. Syed Yaseen Hashmi <dr.yaseenhashmi@gmail.com>

 to the-moderates

Nobody has any objection to women's inclusion. Nobody has ever commented the H.R and Women’s organisers do not possess the necessary knowledge. Experience definitely is an additional qualification. The things not mentioned may not be brought to prolong the discussions.

 -----

Asghar Ahmed <asghar1900@gmail.com>

 to the-moderates

Dr. Hashmi Please ignore innocent women like Sarwat Didi. Most of the time she knows not what she is saying. She does not have the guts to condemn the view that women can go topless in public. So lets pity her.

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 Ghulam Mohiyuddin <ghulammohiyuddin@gmail.com>

 to Moderates

Boards making laws must seek as broad a range of opinions as possible.

Boards making laws must have membership which is  representative of the community in that it should have 30% or more women, representatives from different sects and representatives of different shades on the liberal/conservative spectrum. Lawyers, judges, maulanas and academics should be included. 

 -----

 Asghar Ahmed <asghar1900@gmail.com>

to the-moderates

My following questions are yet to be answered.

 1. Who were the Islamic scholars BMMA consulted?

 2. How many of them supported a ban on polygyny?

 3. If 200 consultation meetings were held, why is the BMMA draft mostly based on the Chennai draft created by Faiz , Zaffarullah Khan, Jawad and Saleemuddin?

 4. Ms. Noorjahan agreed with the Chennai draft initially but quietly went back on it. What or who made her remove the conditional polygyny clause she had kept in the Chennai draft?

 5. Can the BMMA be transparent and publish a white paper on how it arrived at its final draft?

 6. How many Muslim women attended BMMA's launch of the draft code across India?

 7. On what basis does BMMA claim to represent all the Muslim women of India?

 8. How many scholars of Islamic law are members of the BMMA?

 9. Is Zakia Soman and expert on Islamic law?

 10. Is Noorjahan an expert on Islamic law

-----

Jawad Mohammed <mohammedjawad1962@gmail.com>

to Faiz-ur-Rahman

Somebody only keeps asking questions but has no guts to answer any.

Can this somebody answer whether he is entitled to practice Shariah in the US?

Can he ask for “conditional polygyny” as a US citizen?

By adopting the secular US laws instead of his own personal law, would somebody cease to be a Muslim?

 -----

Mohammed Jawad <mohammedjawad1962@gmail.com>

to Faiz-ur-Rahman

Dear Ahmed sahib

You have raised some very pertinent questions. I think the eminent Islamic scholars on this forum are best equipped to answer those questions. From a purely legal perspective, I want to say this:

A Muslim marriage is regarded as a sacred contract. A contract is deemed to be between parties placed in an equal bargaining position, arising out of consensus ad idem reached between them and where both have equal rights as regards termination and so on.

In this background, if the husband is entitled to terminate the contract unilaterally without any reference to the wife, then should the wife also not have such a right? However, the way in which the “Shariah” is interpreted by our ulema, it is the practice that, while the man can divorce his wife unilaterally, the wife has to seek his consent if she wants to terminate the marriage by Khula or she has to go to court and prove any of the grounds that you have highlighted under the Dissolution of Muslim Marriages Act, 1939.

When a marriage cannot take place without the wife’s consent, then how is it that the Shariah permits the man to terminate the marriage without her consent?

Can the divine law prescribe such inequality and injustice or is there something wrong in the way the divine law has been understood?

I know that these questions may be regarded as sacrilegious by some. But we are committing a greater sacrilege by perpetrating injustice in the name of the divine law.

Best regards

------

Dr. Syed Yaseen Hashmi <dr.yaseenhashmi@gmail.com>

 to the-moderates

Boards making laws must seek as broad a range of opinions as possible.

 "Boards making laws must have membership which is  representative of the community in that it should have 30% or more women, representatives from different sects and representatives of different shades on the liberal/conservative spectrum. Lawyers, judges, Maulanas and academics should be included. "

 I fully agree with Mr Ghulam Mohiuddin. It is my voice too.

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Mohammed Jawad <mohammedjawad1962@gmail.com>

to the-moderates

My knowledge of Urdu is very limited. But I thought I would share this with the Quran-quoting macho masculinists of this forum with thanks to a dear friend who sent this to me:

"Tum Haiya Aur Shariat Ki Takhazon Ki Baat Karte Ho,

Hum Ne Nange Badnon Ko Malboos e Haiya Dekha Hai,

Dekha Hai Hum Ne Ihraam Mein Lapete Ibleeson Ko,

Hum Ne Kaie Bar Maikhane Mein Khuda Dekha Hai!"

I think the rough translation of it is as follows:

You keep speaking of modesty and the rules of Shariah

I have seen naked bodies wrapped in the cloak of modesty

I have seen many a Satan wrapped in the Ihraam (a cloth worn by Hajis while performing Haj)

And many a time I have seen God (which may be interpreted as goodness) in the tavern.

My friend does not remember the name of the poet. I think the above lines just about sum up what Subhashini Ji had earlier said: what matters is the gaze and the intention.

------

Jawad Mohammed <mohammedjawad1962@gmail.com>

 to Faiz-ur-Rahman

Dear Ahmed sahib

You have raised some very pertinent questions. I think the eminent Islamic scholars on this forum are best equipped to answer those questions. From a purely legal perspective, I want to say this:

A Muslim marriage is regarded as a contract. A contract is deemed to be between parties placed in an equal bargaining position, arising out of consensus ad idem reached between them and where both have equal rights as regards termination and so on.

------

Dr.Syed Yaseen Hashmi <dr.yaseenhashmi@gmail.com>

 to the-moderates

"Can the divine law prescribe such inequality and injustice or is there something wrong in the way the divine law has been understood?"

Mr Jawad

Your question is in two parts. About the first part there should not be any doubt in the mind of a devout Muslim, The answer for it is a definite "NEVER"

As for the second part of your question it is a big "YES”.

As for Khula I second your argument. Woman should have equal opportunity to cancel an agreement to which she is an equal partner.

------

A Ahmed <dr.a.ahmed1948@gmail.com>

to the-moderates

When a marriage cannot take place without the wife’s consent, then how is it that the Shariah permits the man to terminate the marriage without her consent?

Jawad Saheb, I have a different view on your aforesaid observation. Yes, if any  contract between any two individuals (not necessarily a marriage contract) has to come into effect both parties have to give their consent. However, to break the contract if one party backs out it is difficult or impossible to maintain a contract. Therefore, the point I am trying to make is if husband has a right to back out of a marriage contract the wife too should have the same right. This what the Quran says as we read the various English/ Urdu translations. In addition, Quran also says that just as a husband makes certain payment to the wife to break the contract, the wife too can do the same. The understanding of Quran should that if either wife or husband is not satisfied with the compensation the aggrieved party can approach a competent authority to seek justice. Thus the role of judges is only to determine compensation. But the partiality shown by the clerics against the divorced woman is that they even want to sit on judgement on the wife's decision to divorce her husband. On the contrary, they agree to whatever decision a husband takes. It only appears to me that the clerics want a grip over the women folk of our community. How did they bestow upon themselves this authority is what they have to explain. Perhaps they have a good reason say, by way of Ijma or by following opinion of an imam of the earlier centuries which may have had relevance when such opinions were given.

I must admit my limitation of understanding literary Arabic but I try to read as many translations in English and Urdu and if there is unanimity I take the translations as true. There is a web site www.tanzil.net which you may be familiar with which gives 17 different English translations from various scholars and nearly half a dozen Urdu translations by the click of a button along with of course the original Quranic Arabic. It also has over a dozen translations in European, Chinese, Malaysian and Indonesian languages.

-----

A Ahmed <dr.a.ahmed1948@gmail.com>

 to the-moderates

 Any law has to be passed through legislation where public representatives  will be there . Insisting to include every and anybody it seems is only for  'argument for argument sake

Dr Hashmi, With your aforesaid statement you have answered your question as to who is most competent to bring about changes in laws applicable to Muslims ( at least in India)

Take the case of the 1986 Muslim women bill. Do you think all those parliamentarians who said AYE to this bill knew anything about Islamic law? Far from it, even the among Muslim parliamentarians how many would have understood it. The wide variation in the intellectual ability of the Muslim parliamentarians is obvious from the calibre of two Shabuddins we had in the parliament. One an IFS officer and another a perpetual jail bird from Bihar.

And what was the purpose of this bill? It was just to ensure that Muslims do not approach courts through Criminal Procedure code ( as the provision of this 1986 bill states and given below) but only go through the Anglo Mohammedan laws of 1939 which the Muslim lobbyists  believed as the right laws for all the Muslims in India and that they are rightful representatives of all Indian Muslims.

7. Transitional provisions

Every application by a divorced woman under section 125 or under section 127 of the

Code of Criminal Procedure, 1973 pending before a Magistrate on the commencement

of this Act, shall, notwithstanding anything contained in that Code and subject to the provisions of section 5 of this Act, be disposed of by such Magistrate in accordance with the provisions of this Act\\

And they took it up because the government of that time believed it wise to listen to these lobbyists for political reasons. I do not see any Islamic scholarship going into this bill. Do you see it? For one, in this specific bill meant for a woman divorced by her husband would not have the definition of a divorced woman as:

(a) ~divorced woman~ means a Muslim woman who was married according to Muslim law, and has been divorced by, or has obtained divorce from, her husband in accordance with Muslim law;

This is appears to be  a change brought by some one in law ministry who has drafted it.

You may also know that recently there was case of a prominent Muslim woman adopting a child which according to these self appointed guardians of Indian Muslims is a sin. They made some noise but did not have to guts to take it it further since there is no Rajiv Gandhi to listen to them.

 Asghar Ahmed <asghar1900@gmail.com>

 to the-moderates

 Hahahahah. Looks like Jawadji's "dear friends" too are obsessed with "Nange Badan". What a friends' circle you have, Sir ji! I won't be surprised if their wish is;

 Libaas Eejaad Kar Aisa Koi Ai Aql-e-Insaani

Ke Tanposhi Ki Tanposhi Ho Uriyaani Ki Uriyaani!

 And my reply would be:

 Ma'az Allah Vo Kaafir Ada Ka Husn-E-Pinhaani

Ke Ab Khatre Mey Hai Har Ek Musalmaan Ki Musalmaani!

 Batadeti Hain Badh'kar Un Ke Jalwon Ki Faravaani

Ke Ghar Se Be-Hijaabana Nikal Aayee Hai Mughlaani

 Ma'az Allah Janaab-E-Shaikh Ka Yeh Josh-e-Eemani

Samajte Hain NGO Ke Hukm Ko Ayaat-e-Qur'aani

 Zara Hoshiyaar Rehna Behno Is Hubb-e-Uriyaani Se

Na Ludkaade Tumhen Dozakh Mein Yeh Shaitan Ki Naani!

 By not giving the translation I am forcing Jahan Panah to go back to his "dear friend" for the meaning. Let us see if this guy is able to help uncle understand the couplets. Here is a small hint, jawad sab: Uriyaani is not Briyaani. Hahahahahaha

 -----

Asghar Ahmed <asghar1900@gmail.com>

to the-moderates

The questions of Jawad bhaiju cannot be answered for two reasons.

 1. They are totally irrelevant to the subject under discussion.

 2. The condition was bhaiju answer my questions before I answer his. He is yet to answer mine

 But why did bhaiju demean Muslim women by saying that he could defend himself as he was not a Burqa-clad lady? I can re-post his exact quote if he wants.

-----

Mohammed Jawad <mohammedjawad1962@gmail.com>

to the-moderates

 I whole-heartedly agree with you Hashmi saab. If a law prescribes injustice it cannot be from a divine source. This only means that we are wrongly interpreting the law. So how to rectify the situation?

Jawad

--

Dr. Syed Yaseen Hashmi <dr.yaseenhashmi@gmail.com>

 to the-moderates

Dr A Ahmed Sb Thanks for taking pains to draft such a long letter where it was not needed Woh Baat Saare Fasane Mein Jiska Zikr Nahiin= Woh Baat Unko Bahut Nagawar Guzri Hai

.

 it seems you  have overlooked the part of the mail wherein I insisted for the members involved in the process of law making to be possessing thorough knowledge of Islam and Islamic Law to take care of all the objections and expectation of mis-utilisation of law causing injustice to any section covered by this law. Your citation above confirms my stand of essentiality of knowledge.

The legislation reference was only to the extent of public grievances if arise. as was foreseen by some members because every and anybody cannot be a member of law making process.

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Dr. Syed Yaseen Hashmi <dr.yaseenhashmi@gmail.com>

To the-moderates

Jawad Sab!

Welcome to the "Sheir Quoting Club" Hopefully you will soon become independent yourself and may not need any body to lend you “Ash-aar"

 Particularly those who may not help you more. The above quoted

"Ash-aar' are not in your favour . They do not advocate for "

Behayaai'or " Maye Noshi" They only speak of the purverted nature of evil men. though they are addressed to the person insisting for modesty

or being teetotaller.

------

A Ahmed <dr.a.ahmed1948@gmail.com>

to the-moderates

Dr Hashmi, Thanks for your clarification. I got your point.

But yet one point as to who possesses a though understanding of Islam is a big question. It is like my scholar vs your scholar?

e.g To me modernists like Asghar Ali Engineer and our own Faiz Saheb are the enlightened scholars. But for many it may be only Maulana Maududi, Ashraf Ali Thanvi and scholars of older generations. Older four schools of thought, in my opinion, have also lost much of their relevance in framing laws. Their opinions can at best be used privately by individuals to practice Namaaz or take out Zakat or give Qurbani but should not influence the statute books.

I am a strong admirer of Imam Abu Hanifa as I have understood him from his biography. But what we understand as Hanafi Jurisprudence is not what he advocated but it incorporates all modifications his subsequent followers like Abu Yusuf and others have made.

The ground reality is that the choice of scholars or defining those who possess thorough understanding of Islam is also made by the lobbyists who can influence the government.

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A. Faizur Rahman

to Moderates

Dear Dr. Ahmed

The problem in India is that 90% of (Sunni) Muslims belong to the Hanafi School of law/thought. And all major religious institutions are dominated by the Hanafi ulema. Therefore, reform in Islamic law is possible only if the Hanafi Ulema realise that the personal laws they are trying to perpetuate are not in consonance with the spirit of the Quran be it Talaq, unconditional polygyny, law of evidence, gender equality or child marriage.

In one of your emails you were discussing Khula at length. But the word Khula is neither found in the Quran nor the Hadees. It is a Fiqhi term coined much later by the Fuqaha. Insofar as the Quran is concerned it does not talk about a separate procedure of Talaq for women. For how can there be gender specific or gender biased laws in a book that establishes gender justice? The truth is, the divorce law laid down in the Quran for men holds good for the women too.

You have read my essay on divorce wherein I mentioned (citing Quranic evidence) seven requirements a divorce-seeking man has to fulfil before he can be irrevocably separated from his wife by the court. The same requirements will apply to a woman if she happens to be the one seeking divorce. As per the Quranic law, neither the husband nor the wife has any unilateral right to divorce no matter who initiates the divorce proceedings. In other words, divorce in Islam cannot happen without judicial intervention. Once this norm is accepted by all Muslims and established, justice would be done to both genders.

FAIZ

-----

A Ahmed <dr.a.ahmed1948@gmail.com>

to the-moderates

Thanks Faiz Saheb.Your comments are illuminating. As you rightly

Said the word Khula does not occur in Quran. But as Sunni Muslim and trained in Hanafi traditions words like Khula come to me automatically. Some of us like me should unlearn many of the Fiqh stuff and align with Quran to be more objective in our approach.

 -----

 Mohammed Jawad <mohammedjawad1962@gmail.com>

 to the-moderates

Ha ha ha. Why can't you just say that answering those questions would expose your hypocrisy sir Ji? I had asked those questions on another thread and since when did you start insisting on the relevancy factor for asking questions? What was the relevance of the Quran and the Hadith in the context of what Jessica Valenti had written? Admit it sir Ji that I have beaten you at your own game and please be man enough to admit that answering my questions would show your hypocrisy to this forum. You follow the secular laws of US for yourself and sermonise about the Quranic law to Indian Muslims. What hypocrisy!!!!! You know what is the problem with the Muslim community today? It is flooded with hypocrites like you.

Remember that you can discredit me by distorting my statements before a few of the gullible members of this forum. But you cannot answer your own conscience, if at all you have one. Just because you want to hear a few wah wahs from some of the deeply religious members, please do not compromise the larger interests of the community Sirji. I hope wisdom dawns on you.

By the way, you may continue to keep spreading your canards. I don’t think it is worthwhile to even acknowledge your presence on this forum anymore. You may thump your chest and shout hoarse that people are unable to take you on "intellectually". But your pseudo-intellect, lack of courage and intellectual integrity and your hypocrisy and double standards have been thoroughly exposed to the discerning members of this forum. It is demeaning to cross swords with an unworthy opponent who lacks the intellectual integrity to fight fairly. May the Tuhan whom you worship grant you wisdom. I doubt the Allah whom I worship ever will.

Best regards

----

Mohammed Jawad <mohammedjawad1962@gmail.com>

to the-moderates

Dear Ahmed Saab

I am in complete agreement with you and Faiz's email in this regard explains it clearly. I stand corrected.

-----

 Mohammed Jawad <mohammedjawad1962@gmail.com>

 to the-moderates

 "The above quoted

"Ash-aar' are not in your favour . They do not advocate for”

Behayaai' or " Maye Noshi" They only speak of the perverted nature of evil men. though they are addressed to the person insisting for modesty

or being teetotaller."

It seems that you are also convinced by Mr. Asghar Ahmed's canard that I am advocating "behayi" and "maye noshi". So be it. I am sick and tired of clarifying my position. Let the One who judges us all judge me for what I have said and also judge those who have attributed this falsehood to me. I realise that it is a waste of time trying to explain my position to the members of this forum who want to see only what Mr. Asghar Ahmed wants them to see.

Jawad

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Ghulam Muhiyuddin <ghulammohiyuddin@gmail.com>

I appreciate Faiz Bhai’s comment. The simple rule should be that if something is not rational, just, fair, egalitarian and respectful of the dignity of men and women, it is not Islamic, no matter what the source.

------

Javed Anand <javedanand@gmail.com>

Dear Faiz,

Good to see you back and ticking (kicking wont be appropriate in your case!). Have I missed it, or you have not yet responded to my questions? While we are at it, I have a few more questions for which I do not have an answer:

Who decides who is an Islamic expert? What is the criterion? I have no doubt Hanafi ulema with their Khula proviso claim to be Islamic experts as also the Hanbalis etc. If Hanafi experts disagree with Maliki experts etc. then what happens? Yes the idea of justice, equality etc are intrinsic to the Quran and are eternal values, with what notions of justice may generations, centuries, eras, approach the Quran except with their evolving/evolved notions of these values? Else, what's ijtihad (critical reasoning) all about?

Cheers.   

-----

Mrs. Gulnar Khan <gul.fazl@gmail.com>

 to the-moderates

Dear Mr. Jawad, can I pose a straight question to you.

The efforts of feminists and activists to represent women’s causes, and fight for women’s rights, is indeed laudable. No body can object to this noble task.

But how sure you are that these feminist lawyers do not use or rather misuse laws meant to protect women, to threaten and harass innocent young men, and wreck their lives?

Please do not tell me that such cases are exceptions, and negligible compared to the number of women they have saved and rescued; no, Mr. Jawad, let them save a thousand girls, but they have no right to  sacrifice even one innocent man.

 Is it not your own law that states that it is better that 10 guilty persons escape rather than one innocent person suffer?

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A. Faiz ur Rahman

to Moderates

 Dear Javed

I gave a simple rule in my response to Dr. Ahmed. Any Muslim law has to be in consonance with the Quran. Therefore, an expert on Islamic law is the one who is capable of formulating such laws for any given society using Ijtihad. It does not matter if he a Hanafi, Maliki, Sunni, Shia, atheist or agnostic. The only condition is, the law cannot violate the spirit of the Quran or the authentic teachings of the Prophet.

FAIZ

-----

 A. Faiz ur Rahman

to Moderates

Before I answer your other email please go through the following email once again. This was sent you privately also.

FAIZ

----

Dr. Sarwat Ali

You ask, "What would be your answer to the assertion that Islamic schools must condemn stoning and chopping of the hands."

Without a doubt any "Islamic" school that teaches its students about the criminality of adultery or fornication cannot shy away from condemning lapidation (that is, the punishment of stoning to death) because the Quran does not prescribe it for any crime let alone adultery. 

Similarly, schools which teach students that thievery, larceny or financial corruption is a great sin in Islam must also tell them that there is no consensus among Muslim ulema regarding the punishment for these crimes. A glance at various commentaries on verse 5:38 that talks about chopping off of hands would reveal how opinions differ. For example, Mohd Asad in his commentary explains:

One must, however, always bear in mind the principle mentioned at the beginning of this note: namely, the absolute interdependence between man's rights and corresponding duties (including liability to punishment). In a community or state which neglects or is unable to provide complete social security for all its members, the temptation to enrich oneself by illegal means often becomes irresistible - and, consequently, theft cannot and should not be punished as severely as it should be punished in a state in which social security is a reality in the full sense of the word. If the society is unable to fulfil its duties with regard to every one of its members, it has no right to invoke the full sanction of criminal law (hadd) against the individual transgressor, but must confine itself to milder forms of administrative punishment. (It was in correct appreciation of this principle that the great Caliph `Umar waived the hadd of hand-cutting in a period of famine which afflicted Arabia during his reign.) To sum up, one may safely conclude that the cutting-off of a hand in punishment for theft is applicable only within the context of an already-existing, fully functioning social security scheme, and in no other circumstances.

Let me quote the entire verse for the benefit of our members.

[As for] the thief, male or female, cut off their hands (Faqta’u Aidiyahuma) in recompense for what they committed as a deterrent from Allah. And Allah is Exalted in Might and Wise. (5:38)

Most translators render the phrase Faqta'u Aidiyahuma literally as "cut of their hands" when there is a possibility of a metaphorical meaning too. The word Faqta’u comes from the trilateral root qaf-tway-ain which has several meanings including; to cut, to disunite, to separate, to disable, to cut short, to stop, to intercept, to interrupt, and to put an end to. The Lane's Lexicon cites an interesting phrase in this context, Aqta’ul Lisaan, and gives its meaning as "unable to reply". In other words, to make somebody speechless. Those not familiar with Arabic metaphors may get confused into believing that Aqta'ul Lisaan refers to the cutting off of the tongue (Lisaan = tongue). 

Similarly, Faqta'u Aidiyahuma could be translated as "to cut off a person's access or reach so as to render his craftiness to steal completely useless." This would include incarcerating the person to put him out of circulation to stop him from stealing further. For example, a bank manager or bureaucrat or any government official may be stripped of his post and arrested for misappropriating funds apart from being fined and asked to return the stolen amount. This is perhaps what the Quran means when it says in next verse:

But the one who undertakes to reform after his wrongdoing and makes amends, indeed, Allah will turn to him in forgiveness. Indeed, Allah is Forgiving and Merciful (5:39).

An undertaking to reform after making amends would make sense only if the person's hands are not cut off.

But there is also a view that for big scamsters who defraud banks and other institutions of millions of dollars or crores of rupees the phrase faqta'u aidiyahuma should be interpreted literally and their hands cut off. So, Dr. Sarwat Ali if the "Islamic" schools refuse to place before their students the entire debate on the concept of "chopping of the hands" when they teach them verse 5:38 it would amount to misleading the students or, maybe even indoctrinating them.

FAIZ

-----

 A. Faizur Rahman

to Moderates

First, in my June post I did not say that a thief's hand may be chopped off. I was only quoting "a view" (not my view): "But there is also a view that for big scamsters who defraud banks and other institutions of millions of dollars or crores of rupees the phrase faqta'u aidiyahuma should be interpreted literally and their hands cut off."

As for slavery, it was an abhorrent idea in during the Prophet's time. That is why the Prophet under the guidance of the Quran found ways to gradually abolish it. We have already discussed this issue in detail on the forum

Second, I agree with you that all sections of the society must be consulted and a wide range of opinions may elicited before any law is formulated. However, when it comes to the very process of law-making all cannot be included for obvious reasons. The designated experts will analyse the opinions collected and arrive at the desired law which may again be circulated for debate. This is how the Law Commission of India does it. Please read the following from its website: http://www.lawcommissionofindia.nic.in/main.htm#a6

How Does the Commission Function

The Commission's regular staffs consist of about a dozen research personnel of different ranks and varied experiences. A small group of secretarial staff looks after the administration side of the Commission's operations.

Basically the projects undertaken by the Commission are initiated in the Commission's meetings which take place frequently. Priorities are discussed, topics are identified and preparatory work is assigned to each member of the Commission. Depending upon the nature and scope of the topic, different methodologies for collection of data and research are adopted keeping the scope of the proposal for reform in mind.

Discussion at Commission meetings during this period helps not only in articulating the issues and focussing the research, but also evolving a consensus among members of the Commission. What emerges out of this preparatory work in the Commission is usually a working paper outlining the problem and suggesting matters deserving reform. The paper is then sent out for circulation in the public and concerned interest groups with a view to eliciting reactions and suggestions. Usually a carefully prepared questionnaire is also sent with the document.

The Law Commission has been anxious to ensure that the widest section of people is consulted in formulating proposals for law reforms. In this process, partnerships are established with professional bodies and academic institutions. Seminars and workshops are organised in different parts of the country to elicit critical opinion on proposed strategies for reform.

Once the data and informed views are assembled, the Commission's staffs evaluates them and organises the information for appropriate introduction in the report which is written either by the Member-Secretary or one of the Members or the Chairman of the Commission. It is then subjected to close scrutiny by the full Commission in prolonged meetings. Once the Report and summary are finalised, the Commission may decide to prepare a draft amendment or a new bill which may be appended to its report. Thereafter, the final report is forwarded to the Government.

It is obvious that the success of the Commission's work in law reforms is dependent upon its capacity to assemble the widest possible inputs from the public and concerned interest groups. The Commission is constantly on the look out for strategies to accomplish this goal within the limited resources available to it. In this regard the media plays an important role which the Commission proposes to tap more frequently than before.

The Commission welcomes suggestions from any person, institution or organisation on the issues under consideration of the Commission, which may be sent to the Member-Secretary.

 -----

A. Faizur Rahman

to Moderates

I am suggesting that any reform in Muslim law must be carried out by a Law Commission type expert body which will comprise of a handful of highly competent people. For example, this is what the present Law Commission of India looks like. It has a total of just 11 members including 4 part-time members.

The Twentieth Law Commission

The Twentieth Law Commission was constituted through a Government Order with effect from 1st September, 2012. It has a three-year term, ending on 31st August, 2015. The Commission presently comprises of the following:-

Mr. Justice A. P. Shah, Former Chief Justice,

Delhi High Court     Chairman

(w. e. f. 21.11.2013)

Mr. Justice S.N. Kapoor, Former Judge,

Delhi High Court     Member (Full-time)

Ms. Justice Usha Mehra, Former Judge,

Delhi High Court     Member (Full-time)

Prof. (Dr.) Mool Chand Sharma, Former Vice-Chancellor, Central University of Haryana Member (Full-time)

Dr. S. S. Chahar      Member-Secretary

Shri P. K. Malhotra, Law Secretary        Member (Ex-Officio)

Dr. Sanjay Singh, Secretary (Legislative)         Member (Ex-Officio)

Shri R. Venkataramani, Sr. Advocate     Member (Part-time)

Prof. (Dr.) Yogesh Tyagi    Member (Part-time)

Dr. Bijai Narain Mani         Member (Part-time)

Prof. (Dr.) Gurjeet Singh   Member(Part-time)

 

The Commission is empowered to have five part-time Members and/or Consultants depending upon the need and on the Approval of the Government

Source: http://kafila.org/2014/11/17/debating-muslim-law-after-shah-bano-the-model-nikahnama-initiative-suneeta-acharya/

URL:  http://www.newageislam.com/islamic-society/suneetha-achyuta/moderate-muslims-discuss-the-state-of-india-s-muslim-personal-law-after-shah-bano-controversy-with-reference-to-the-model-nikahnama-initiative/d/100275

 

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