Muslim Personal Law Is Not Divine And Can Be Reformed Or At Best Annulled
By
New Age Islam Staff Writer
25 March
2023
Muslim
Personal Law Is Anti-Islam And Anti- Women.
Main
Points:
1. Muslim
Personal Law resists any reform regarding Muslim women' s rights.
2. Muslim
Personal Law legitimises polygamy and arbitrary divorce.
3. Muslim
Personal Law opposes inheritance rights of Muslim women in agricultural land.
4. Muslim
Personal Law should be annulled like 370.
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ThePrint
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Ibn Khaldun
Bharti analyses the Muslim Personal Law from an Indian perspective. He gives an
historical account of the Muslim Personal Law and its contribution to the
backwardness and victimisation of Muslim women of India. It legitimises
polygamy and instant Talaq and opposes Muslim women 's right to inheritance in
the agricultural land. It supports Muslim women's right to inheritance in the
property which according to sharia is half of the man's share though Shariah
does not bar women from getting an equal share. It should be taken as the issue
of keeping bondwomen.
The Quran
did not abolish the practice of keeping bondwomen but encouraged their gradual
social rehabilitation. Today no sensible Muslim insists on keeping slave women
on the ground that the prophet and his companions and ordinary Muslims kept
bondwomen. The society has progressed and moved forward. In the same way, Islam
granted women share in ancestral property according to the standard of the
period when women were denied any share because in that period, women did not
even ha e the right to live. Therefore, Islam opened the way for women's
equality and the responsibility of the modern day Muslims is to take the reform
forward. Many Muslim countries like Malaysia have reformed their personal law
to accommodate Muslim women in the society on the principle of equality
envisaged in the Quran.
The
advocates of Muslim Personal Law also defend arbitrary divorce whereas in
Bangladesh, Pakistan and other Islamic countries it is not allowed. The couple
need to file an application for divorce in the family court. In India, a Muslim
man is allowed to pronounce verbal instant Talaq or Talaq via email, SMS, etc
or in an inebriated state, in a fit of anger or any other way. This practice
was abolished only by the Supreme Court of India in 2017 and the government
criminalised it through an Act in 2019. The AIMPLB opposed this move calling it
interference with the Muslim Personal Law. After the Act came into force, no
instant Talaq has been reported in India. When women increasingly sought Khula
because instant Talaq was discouraged and criminalised, they opposed the
women's right to Khula. Again, the courts intervened and saved the day for the
women.
The Muslim
Personal Law also legitimises polygamy whereas the Quran allows it on very
strict conditions which are almost impossible to fulfil. In Islamic countries
where polygamy is encouraged, the society faces many social, moral,
psychological and legal problems. Therefore, the author calls Muslim Personal
Law Muslim Privilege Law which grants Muslim men a number of privileges while
depriving women of their genuine rights enshrined in the Quran.
The Uniform
Civil Code is another Achilles' Heel of the defenders of the MPL. They think
that the UCC will deprive them of their religious rights while the reality is
that it will make them an equal citizen of India. The Muslim psyche has been
prepared for the belief that Muslims should be given privileges as a separate
religious community. So being equal seems to be an injustice to them. On the
one hand, they cry hoarse that the UCC will not only violate the rights of the
Muslims but will also violate the rights of other religious and ethnic
communities of India, and on the other only they protest against it. Other
communities, including Christians do not take UCC seriously because they all
know that the UCC will treat all of them equally in all the religious, social
and political matters. In a divergent religious, ethnic and cultural society
like India, implementing a UCC will be a difficult task for the government. The
successive governments have realised this but the Muslims are haunted by the
ghost of the UCC and keep issuing statements protesting against it and warning
the government of its ill effects.
Interestingly,
advocates of MPL never demand implementation of MPL in criminal cases. They do
not demand hand amputation for theft or stoning for adultery or shariah
prescribed punishment for adultery, food adulteration, bribery, corruption and
rioting.
In short,
the author concludes that the Muslim Personal is not only anti-women but also
anti- Islam as it violates the basic principles of Islam. Like 370, it should
be annulled to place Muslim women on equal pedestal with men.
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Reform
Muslim Personal Law Now. It’s Communal, Sectarian, And Anti-Islam
By Ibn
Khaldun Bharati
23 March,
2023
There is
nothing personal about the Muslim Personal Law. It’s communal, in both the
communitarian and the sectarian sense. In fact, it’s not even Islamic, as we will
see. It’s about political pragmatism over constitutional idealism, and about a
community’s right at the cost of liberty, equality and justice for the female
citizen.
The
votaries of Muslim Personal Law have never minced words about its purport. For
them, it’s an issue of Identity. In essence, it’s another Article 370, whose
annulment can’t wait a day longer if the Indian Muslims are to be better
integrated in the national mainstream.
The Uniform
Civil Code (UCC) is opposed not because it will rob the Muslims of their
religion, and make it difficult for them to lead a life of piety according to
the tenets of Islam. UCC is opposed because it will make the Muslims just the
same as other Indians. It will bring in a legal uniformity that will erase the
ideological line of separatism from the communalised consciousness, which views
India as a Federation of Religions.
History
From the
very beginning, separatist politics and gender injustice have been intertwined
like a double helix. Let’s take a brief detour into the history of The Muslim
Personal Law (Shariat) Application Act 1937 to illustrate this point.
The story
began in Punjab when a lady of the powerful Tiwana family, who was not given
any share in the ancestral property as per the local custom, but claimed her
rights under Sharia which sanctioned women a share, albeit half a man’s. To
circumvent it, a bill was passed by the Punjab Legislative Assembly in 1931
that sanctioned the custom of primogeniture (giving succession to the
first-born male child), which deprived women of any share in inheritance.
During debates on the bill, several legislators complained that concessions to
custom deprived Muslim women of their legal right to an inheritance as mandated
under the Sharia.
Hafiz
Abdullah introduced the Muslim Personal Law (Shariat) Bill in the Central
Legislative Assembly in an attempt to achieve at the Centre what his peers had
failed to accomplish in Punjab.
Muhammad
Ali Jinnah saw the Act primarily as an opportunity to craft a unified
pan-Indian Muslim agenda out of the divergent interests of Muslims in different
regions. He recognised that opposition to the original bill in Punjab grew out
of its threat to the region’s rural landlords. Anxious to court this powerful
elite, Jinnah pointed out that, under the provisions of the Government of India
Act of 1935, the new legislation could not cover agricultural land, and also
introduced an amendment that excluded adoption, wills, and legacies.
Thus,
Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, reads:
Application of Personal Law to Muslims—Notwithstanding any custom or usage to
the contrary, in all questions (save questions relating to agricultural land)
regarding intestate succession, special property of females, including personal
property inherited or obtained under contract or gift or any other provision of
Personal Law. marriage, dissolution of marriage, including Talaq, Ila,
Zihar, Lian, Khula and Mubarat, maintenance, dower, guardianship,
gifts, trusts and trust properties, and Waqfs (other than charities and
charitable institutions and charitable and religious endowments) the rule of
decision in cases where the parties are Muslims shall be the Muslim Personal
Law (Shariat).
Anti-Islam
In a
society where agricultural land constituted 99.5% of all property, the Muslim
Personal Law totally deprived the Muslim women of whatever limited rights of
inheritance they were sanctioned by Islam. Thus, the Muslim Personal Law has
been anti-Islam, besides being anti-women.
The Muslim
Personal Law proved to be a double whammy for the Muslim women. First, they
were stripped of Sharia-mandated right to inheritance; and second, it
legitimised practices like polygamy and arbitrary divorce — things that were
frowned upon in the local custom inherited from the Hindu past of the converts.
Politics
of Personal Law
The 1937
Act also decided that any progress towards gender justice in the Muslim society
would be vetoed as an assault on Islam and the Muslim identity. Henceforward,
the basis of Muslim politics would be social regression and
self-marginalisation. No wonder since the Dissolution of Muslim Marriages Act
1939, no legislative steps could be taken for the improvement of the condition
of Muslim women till, after 80 years, and the first time since Independence,
the Narendra Modi government enacted the Muslim Women (Protection of Rights on
Marriage) Act 2019 to make punishable the evil practice of Triple Talaq, which
had been permitted under the Muslim Personal Law till the Supreme Court
outlawed it in 2017. [The Muslim Women (Protection Of Rights On Divorce) Act
1986 was meant to overturn the judgment of the Supreme Court in the Shah Bano
Case, which ordered maintenance for a divorced Muslim woman.]
In
contrast, the Central Legislative Assembly appointed a Hindu Law Committee in
1941, which embarked on a massive project to codify religious laws. These
efforts culminated after Indian Independence in the passage in 1955 and 1956 of
major reforms to Hindu marriage, succession, minority status, guardianship, adoption,
and maintenance.
The
diverging paths of legislative interventions in Muslim and Hindu personal laws
in Independent India has been a result of the deleterious effect which the
symbolism of Muslim Personal Law came to have in Indian political life. It
perverted the nature of Indian secularism. The liberal class equated the
protection of Islam and the religious identity of Muslims with the perpetuation
of this law. Being the symbol of the separate religio-political identity of
Muslims, this law couldn’t be touched. The Muslim Personal Law became the
Muslim Privilege Law. It became a citadel for rallying the separatist forces
which had gone into temporary disarray after partitioning the country. Identity
became the new war cry.
Secular Selfishness
The liberal-secular
class developed a vested interest in the Muslim Personal Law. They needed the
Muslim vote to counter the challenge of Hindu nationalists. So, they granted a
juridical fief to the Ulema and the suited-booted, modern-looking Muslim
intellectuals who perfected the art of using the constitutional language to
camouflage their communal intent. While recognising that Muslim Personal Law
was not gender just, the official secularists, who had pushed the Hindu Code
Bill down the throats of conservative Hindus, prevaricated on the issue of its
reform. They forwarded a disingenuous reasoning: any reform should come from
within the Muslim community. No reform could ever come since the Personal Law
has been a political, and not a religious or social, issue.
Presently,
the biggest resistance to reform in the MPL is anticipated from the
liberal-secular establishment. Having lost their relevance and credibility,
they are counting on Muslim militancy to restore them to power. And, what
better issue to stoke militancy among Muslims than the MPL?
Ideological
Resistance
The Ulema
and other Muslim narrative makers have begun to concede that MPL is not the
same as Sharia, and Sharia itself is not divine, but a man-made law. They
recognise the need to reform MPL to update it according to the contemporary
standards of gender justice. They are aware that many Muslim countries have
reformed their family laws to give women a better deal. But, they say that
countries like Morocco or Malaysia could do so because they are Muslim
countries; whereas India, not being a Muslim country, can’t touch the Sharia.
Though, they don’t say this openly, their reasoning stems from the Darul
Islam—Darul Harb binary. What they actually imply is that the parliament of a
Darul Harb like India can’t legislate in the matters of Sharia.
Why No Sharia
In Criminal Law?
If Sharia,
as encapsulated in MPL, were so essential to the righteous living of Muslims,
one might wonder why they wouldn’t seek the application of the Muslim criminal
law for the Muslim convicts. How about stoning to death for sex outside
wedlock? If they don’t, let’s understand that we are discussing politics, not
religion.
And, since
it is good politics to seek the welfare of citizens, particularly the weaker
sections — women being the weaker lot in every society — Muslim Personal Law
should be reformed to pave the path for Uniform Civil Code.
The
question is, will the government bite the bullet?
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Ibn
Khaldun Bharati is a student of Islam, and looks at Islamic history from an
Indian perspective. He tweets at @IbnKhaldunIndic. Views are personal.
Editor’s
Note: We know the writer well and only allow pseudonyms when we do so.
(Edited
by Prashant)
Source: Reform
Muslim Personal Law Now. It’s Communal, Sectarian, And Anti-Islam
URL: https://newageislam.com/the-war-within-islam/muslim-personal-law-divine-reformed-annulled/d/129403