WHY CODIFICATION OF MUSLIM PERSONAL LAW
ASGHAR ALI ENGINEER.
Islamic Law or what is called Muslim Personal Law comes under attack not only by Hindutva forces but also is criticized by secular forces who stand for gender equality. The Hindutva forces attack it not for their love for gender justice but out of hostility for Islam. But same cannot be said for secular forces. They find existing Muslim personal law as gender biased in favour of man.
Most of us think that the Muslim personal law as applicable in India today is Shari'ah law. However, it is not so. Those Muslims who defend Muslim personal law as Shari'ah law do not understand the difference between Muslim personal law applicable today and Shari'ah law. In fact it was called Anglo-Mohammedan law before independence but was renamed as Muslim personal law after independence.
The British Government, after it seized power from Mughals, established its own courts, which also heard cases pertaining to Muslim marriage, divorce, inheritance etc. In most of these courts there were either British or non-Muslim judges who did not know Shari'ah law or if even Muslim judges heard these cases, most of them were trained in British laws.
What these judges did was to consult Hidayah, written by Mirghayani, a Hanafi scholar, and translated into English by Mr. Hamilton. Often they also consulted some Maulavi before delivering the judgment. Since the cases were heard in these British courts, the procedural law followed was English law and substantive law was based on Hidayah, it came to be known as Anglo-Mohammedan law.
The judgments in these cases delivered by higher courts became precedents for subsequent cases and thus whole corpus of law came into existence based on these judgments which came to be known as Anglo-Mohammedan law and renamed as Muslim personal law as calling it Anglo-Mohammedan law was now rather embarrassing. Thus to call it Shari'ah law would be a misnomer.
Unfortunately what we Muslims or rather Muslim personal law Board is defending is not divine law but Anglo-Mohammedan law known by another name. It is unjust in many respects to women and we try to rationalize these injustices in the name of Islam. In fact Islamic law has to be based on Qur'an and Sunnah and then alone it could be called Shari'ah law and such law would not tend to be unjust.
If we codify the present Muslim personal law, many shortcomings in the present law can be removed thus making it much more gender just than it is at present. In fact in its original spirit Islamic law in matters of marriage, divorce, inheritance etc. was most progressive, and empowered women as no other law had done before. However, over period of time this original spirit was lost due to then prevailing social ethos and values. And customary laws acquired greater importance over Qur'anic and Prophet's (PBUH) pronouncements.
We are doing this codification precisely for this reason. And our team is meeting noted Ulama and Muftis, Muslim lawyers and Muslim women activists to evaluate their views and problems encountered by them. Our team has recorded their interviews based on properly designed questionnaire prepared in consultation with some experts on Islamic law. It is important to know that we are interviewing Ulama of various schools i.e. Hanafi, Shari'I, Ithna Ashari, Ahl-e-Hadis etc. those who have presence in India.
These views will be very much kept in mind while actual codification is done. And it need not be reiterated that this codification will be based on Islamic framework and nothing outside it so that it is acceptable to all. It will not be based on anything outside Islamic laws. However, codification need not follow only one school of law as in some schools there are provisions more favourable to women, than other schools. Thus partly we may follow what was done in Turkey in framing Tanzimat laws.
It is interesting to note that so far our interviews are very encouraging and many Ulama from Deoband, Lucknow, Aligarh, Azamgarh and other places have fully supported our views about making present Muslim personal law gender-just by bringing it closer to Qur'anic spirit and spirit of Sunnah of the Prophet (PBUH). It was indeed very pleasant surprise to us. They also do not agree with Muslim personal Law Board in maintaining status quo and causing problems to women.
First of all we have covered area of marriage. Marriage being civil contract in Islam bride’s approval is a must and which must be obtained in presence of two witnesses and conveyed to the Qazi and she would also stipulate the amount of mehr which will not be less than one year’s income of the bridegroom and should preferably be in gold or silver or in bank deposit to avoid inflationary consequences.
There will be no limit for maximum amount depending on bridegroom’s economic status. In case of higher amount of mehr landed property or house in bride’s name should be a preferable option. It would not only avoid inflationary consequences but, on the contrary, would appreciate in price and benefit the bride in long term. As far as possible there should not be deferred payment component mehr muwajjal, and if at all there is, it should be only in gold or property, not in cash in any case.
Marriage should be registered and records should be maintained by Qazi concerned and he could charge fee from the bridegroom for registration of marriage. He can club records of few such marriages and get them registered once in a month or once in three months depending on his convenience and time. Registration of marriage will have permanent record and will avoid many disputes. There is no need to oppose it as in no way it is against Shari’ah law.
Most of the Ulama, with some exceptions of course, agreed with us that polygamy cannot be permitted unregulated as Qur'an makes it strictly conditional, on ability of men to do equal justice to his wives as Qur'an clearly states in 4:3 and 4:129 that if justice is not done, one should marry only one. In fact 4:129 is very very emphatic on justice so much so that it says you cannot do justice even if you want and do not leave first wife suspended or neglected.
The question of polygamy is controversial. By broad consensus it was decided that neither it should be abolished right away nor should it be made so loose as to enable anyone to marry another wife according to ones whim. This is the most important area of codification. There should be a marriage council comprising eminent Muslims of known integrity in the town. If a person wishes to take second wife he would serve a notice to his wife and the marriage council stating clearly the reasons why he wishes to take a second wife and furnish necessary documents. He would also prove that he is capable of maintaining both the wives with his given means and that he will fulfill the requirement of justice stipulated by the Qur’an.
Among the conditions for second wife it was agreed that either the first wife should be barren and medically proved and that she gives her consent for taking second wife without any coercion and the Qazi in consultation with marriage council will give first wife to present her case and judge whether she is given free consent or there is any element of coercion involved.
The second condition could be if she is suffering from terminal disease and results in deprivation of husband of fulfilling his sexual needs due to this disease and again this should be medically proved and all documents submitted to the marriage council and the Qazi who would take final decision in consultation with the first wife. Second marriage, as stipulated by the Qur’an (see 4:3 and 4:129) has to be in keeping with principles of rigorous justice and should in no case be treated as privilege of man, much less his right, as it often happens.
Some prominent Ulama from Deoband, Lucknow and Aligarh, to our pleasant surprise, favoured abolition of triple divorce and they were critical of Muslim Personal law Board on its insistence to retain it. One of them pointed out that if triple divorce in one sitting is justified on grounds of 2nd Caliph Hazrat Umar permitting it, why don't they take into account that he later punished those who resorted to it.
These Ulama pointed out that divorce should be pronounced on three different occasions as described in the Qur'an so that reconciliation could be brought about in the meanwhile, if possible. Some even maintained that it should be only thrice in lifetime. All of them agreed that as per Qur'anic requirement prior to divorce arbitration should be attempted failing which divorce procedure may be started (4:35). This verse too emphasizes reconciliation rather than divorce.
Also, triple divorce should be replaced by talaq al-sunnah or Qur'anic form of divorce both are quite fair to women. Even divorce where inevitable has to be fair to women and Qur'an repeatedly exhorts men to either retain her (in marriage) in goodness or leave her (i.e. divorce her) in kindness (2:229). She cannot be thrown out arbitrarily as it is usually done through triple and oral divorce. Law must prevail and proper procedure must be followed as laid down in Qur'an and sunnah. Triple divorce is not in keeping with either of the two,
Though incidence of polygamy is not very high among Muslims in India still some men do marry second wife by either deserting first wife or refusing to divorce her when wife asks for khula'. Thus there is need to regulate polygamy by stipulating strict conditions as required by the Qur'an and no man should be free to take another wife according to his whims. Codification would attempt to lay down such conditions and make it justiciable as per law.
Thus these are two main issues in Muslim personal law, which are causing injustices to Muslim women. If polygamy and triple divorce are properly regulated Islamic personal law will not only come much closer to the Qur'anic spirit but would become much more progressive than what it is today.
A woman also has right to khula from her husband and it is her Qur’anic right (see 2:229) and according to hadith also the Prophet (PBUH) granted Jamila khula’ on grounds that she did not want to live with her husband though he loved her and maintained her with respect and dignity. He only asked Jamila to return the orchard he had given her by way of mehr. Thishadith clearly shows that her right to khula is absolute and involving no conditionality. Here no consent of husband is needed for khula’. It is not correct to insist on husband’s consent it would amount to overruling the Prophet (PBUH) himself.
Rethinking Muslim personal law as prevalent in India is certainly not to violate divine injunctions as often maintained by some people but to bring in much closer to divine injunctions i.e. to infuse in them really divine spirit. Well it may not always be possible to achieve complete unanimity but certainly we will attempt to create a broad consensus around codification so that Muslims women really enjoy equal status as they are entitled to according to Qur'anic injunctions and also in accordance to modern laws.