By Tahir Mahmood
May 06, 2016
‘It is a sensitive matter; initiative must come from the community’. Since my student days, leaders have been using this alibi for not reforming Muslim law. Which section of Muslims do they expect to come forward with an initiative? When Hindu law was reformed and codified between 1955 and 1956, the rulers faced resistance from religious circles but they were firm about leading the community out of its medieval-age traditions.
When the Christian divorce law of 1869 was liberalised by Parliament in 1991, was the proposal not opposed by church leaders? Why, then, this special treatment for the Muslims? Have there been no saner voices among them advocating necessary reforms?
In 1970, eminent jurist Asaf Ali Asghar Fyzee published his monograph Reform of Muslim Personal Law in India suggesting measures for necessary changes in the professedly divine law on polygamy and divorce, and ending with the remark “where the human conscience is moved by rank injustice it is for us to find a solution and to bring our law into line with every other system of jurisprudence, giving justice to those to whom it is denied.” Late Asghar Ali Engineer spent a life time in pressing for necessary legislative reform to ensure justice to those deprived of it in the name of a sacred law.
In 1972, former Chief Justice Mohammad Hidayatullah concluded his introduction to DF Mulla’s book Principles of Mahomedan Law observing that “If the injunctions of the Quran and Hadith are not lost sight of, it is possible to make changes by legislation in a widening area. The lead is coming from the Muslim countries and it is to be hoped that in the course of time the same measures will be introduced in India also.”
Read | Muslim women take on clergy, demand ban on triple talaq, polygamy
In the judgment in the cause celebre known as the Shah Bano case of 1985, Chief Justice YV Chandrachud honoured me by citing from one of my works my “appeal to the Muslim community to display by their conduct a correct understanding of Islamic concepts on marriage and divorce.” When Muslim religious circles demanded supersession of the Shah Bano ruling by legislation and the government seemed to be favourably disposed to it, former Chief Justice Hameedullah Beg (then chairing the minorities commission) advised: “Although we may make some compromises with mulla-led Muslims yet we have to try to lead them out of darkness into light and not allow them to lead us into darkness.”
Women have not been lagging behind. There is a long list, from Lucknow’s Qudsia Aizaz Rasool of the 1960s to Sadia Dehlavi of our times, pressing for social reform to free Muslim women from the shackles of the Indo-Anglican misinterpretation of Islamic law. The Lucknow-based Muslim Women’s Personal Law Board and the Mumbai-based Muslim Mahila Andolan have been highlighting the plight of victims of a distorted view of Muslim law and demanding legislative action.
In the Sarla Mudgal case of 1995, finding that under the shelter of Islamic law on bigamy as popularly misunderstood married non-Muslims were indulging in it after sham conversion to Islam, the Supreme Court applied brakes on the fraudulent practice. Justice RM Sahai spoke of the need to codify Muslim law and advised the government “to entrust the responsibility to law commission which may in consultation with minorities commission examine the matter and bring about the comprehensive legislation in keeping with modern-day concept of human rights for women” Chairing the minorities commission the next year, I reminded the government of the judge’s advice, and repeatedly again in 2007-2009 as the only full-time member of the 18th law commission. Each time I was silenced by the powers that be citing sensitivity of Muslims about their personal law.
Two important matters concerning Muslim law are currently before the Supreme Court — a PIL on gender discrimination in Muslims law registered suo motu, and Shayara Bano’s case challenging constitutional validity of triple Talaq. A large number of Muslim men and women, old and young, have supported favourable decisions by the court.
Do these voices in favour of reform made year after year not qualify to be taken as “initiatives from the community”? What are the custodians of State authority waiting for? Who do they expect to come forward asking for reform — the Deoband seminary, or the All India Muslim Personal Law Board? If so, the Muslims will have to remain content with their caricatured personal law till the Day of Judgment.
Tahir Mahmood is a professor of law, former chair of National Commission for Minorities