Why Codification Of Muslim personal Law?, By 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.

In all Muslim countries too traditional laws have been amended to bring them closer to Qur’an and sunnah thus giving more rights to women as in the Qur’an. In Turkey too what came to be known as Tanzeemat, was based on different provisions favouring women taken from different schools of Sunni law like Hanafi, Shafi’I, Maliki, Hanbali etc. In India too, the Dissolution of Muslim Marriage of 1939 was based on Maliki School as in Hanfi law a woman has to wait for 90 years if her husband disappears without a trace.

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. Codification can remove these accretions over a period of time and restore original Qur’anic spirit.

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, Shafi’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 Tanzeemat 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 board in maintaining status quo and causing problems to women.

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.

Thus in Qur’an priority is not for number but for justice. However, in Muslim personal law in India spirit of justice is totally lost and number has replaced it. Qur’an laid so much emphasis on justice 1400 years ago and today in 21st century when women are much more educated and aware of their rights, justice has receded into background.

It is interesting to note that some Ulama maintained that one need not even obtain consent of first wife as it is ‘privilege’ of men to marry up to four wives and they even denied that verse on polygamy was revealed after the Battle of Uhud in which more than ten per cent of men were killed and widows and orphans had to be taken care of.

Their ignorance was indeed very shocking as they maintained that polygamy is needed to take care of sexual need of man and if polygamy is not allowed prostitution will flourish. If one wife is undergoing menstruation or is pregnant or has delivered man must have other wives to fulfill his sexual need. This is not mentioned in Qur’an even indirectly and yet these few ulama justified polygamy on these un-Qur’anic grounds.

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.

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.

Though incidence of polygamy is not very high among Muslims in India still some men do marry second wife (rarely four wives as in Hindutva propaganda) 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.

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,

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.

Centre for Study of Society and Secularism