Most of us think that the Muslim personal law as applicable
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
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
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
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
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. This hadith
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.