By I.A. Rehman
21 January 2016
BY killing a move to raise the marriage age for girls from 16 years to 18, the members of the relevant National Assembly standing committee have proved that they value their subservience to conservative clerics more than their status as people’s representatives.
And once again the Council of Islamic Ideology has succeeded in doing a grave injustice to girls and Islam both because its assertion that Islam bars fixation of minimum age for girls’ marriage is wholly untenable.
The CII’s sickly obsession with keeping the door to child marriage open reminds us of a debate in the Indian Central Legislative Assembly, 87 years ago, on the Hindu Child Marriage Bill. The objective of the bill was to restrict the marriage of minor Hindu girls. Largely through the Quaid-i-Azam’s efforts the measure was made applicable to Muslim girls and it became the Child Marriage Restraint Act in 1929.
The CII must give reasons for rejecting the Quaid’s arguments on child marriage.
The bill was fiercely opposed by the Hindu members of the assembly, and when it was suggested that the measure should apply to Muslim girls too, a majority of the Muslim members strongly opposed it. A measure of the public opposition to the bill can be had from the fact that petitions against it were signed by 72,725 persons while only 10 persons supported the bill.
However, not all Muslim members of the assembly and ulema outside opposed the bill. Maulana Suleman Nadvi and Khawaja Hasan Nizami backed the measure. Two representatives of the Deoband school said legislation on child marriage could be initiated by a Muslim sovereign but not by a foreign government. Some Muslim members changed their position during the debate. For example, Mian Shah Nawaz from Punjab was originally an enthusiastic supporter of the measure but turned against it after being shown a fatwa by 74 ulema.
The Quaid-i-Azam originally thought that child marriage was not a serious problem among Muslims. Subsequent inquiries convinced him that the ‘evil’ of child marriage did exist in the Muslim community and he threw his weight in favour of the bill. What he said in the house merits reproduction in some detail. After describing child marriage as a ‘horrible evil’, Mr Jinnah said:
“Are we precluded from dealing with this evil? Sir, I do not pretend to be an alim, and I am not one. Nor do I pretend to be an authority on theology. But I do know one thing, that during the last 30 years of my fairly active practice in Bombay, I always understood that marriage law had nothing to do with religion as such; that marriage was a contract according to Muhammadan law, pure and simple. Will honourable members point out to me a text of which I am not aware? I repeat that marriage is a contract according to Muhammadan law. Can that be challenged? If anybody contradicts me on that, he has yet to learn the Muhammadan law. But the question is this, whether there is any text which makes it obligatory on Mussalmans that they should get their daughters married before the age of 14. There is no text….
“I cannot believe that there can be a divine sanction for such evil practices as are prevailing, and that we should, for a single minute, give our sanction to the continuance of these evil practices any longer. How can there be such a divine sanction to this cruel, horrible, disgraceful, inhuman practice that is prevailing in India?
“Sir, I am convinced in my mind that there is nothing in the Quran, there is nothing in Islam which prevents us from destroying this evil.”
His explanation for the Muslim scholars’ opposition to the proposed law is quite relevant to the present debate. He said: “When any social reform is suggested which goes to destroy the usages and the practices to which the people are used and upon which they have looked as semi-religious usages and practices, it is always known all over the world that those people who have got deep sentiments, deep convictions, strong opinions, always resent, and they believe that it is destroying the very roots of their social life or religion.”
The people have a right to ask the Council of Islamic Ideology about its reasons for rejecting the Quaid-i-Azam’s arguments on the question of child marriage.
It is also necessary to remind the CII of Allama Iqbal’s speech at the Muslim League’s 1930 annual meeting at Allahabad where he gave the idea of a separate Muslim state in the north-western part of India. One of the justifications for demanding a homeland for the Muslims of India was the need to restore the movement of ideas in the Islamic fiqh that had been frozen for 500 years and also to free it from the stamp of ‘Arab imperialism’.
The people need to know what has been done by the CII to unfreeze Islamic jurisprudence and free it of any imperialistic influence.
The CII should have noticed Article 11 (1) of the Constitution which says that “Slavery is non-existent and forbidden” whereas Islam has not outlawed slavery. Further it may be aware of the arguments advanced by many Islamic scholars to the effect that the Fiqh could change with changes in time and place, that Islam did not approve of any rule that was contrary to the public good and that the Ottoman Islamic Code was partly based on the Swiss law.
What is the CII’s attitude to the Ottoman code, the abolition of slavery in the Constitution, the prohibition of sale of children born of bonded maids, and the principle that whatever is contrary to the public good cannot be Islamic?
The charge of disservice to the people and their belief against the present CII is that in its bid to enforce a retrogressive interpretation of Islam it is relying on the arguments the Muslim scholars adopted during their political decline and ignores Islam’s need to keep abreast of the times.