PERSONAL LAW
A.G. Noorani on Muslim Personal Law
The National Convention of the All-India Democratic Women's Association (AIDWA) in New Delhi, on December 9 and 10, 1995 which adopted resolutions on uniform civil code whose significance has been little appreciated.
The existence of a separate personal law does not imply the two-nation theory any more than a separate criminal law in Scotland implies the negation of the United Kingdom. It has its own judicial system, criminal and civil law. Even the Bar is separate all in a small island. India's is a plural society of continental dimensions. As an authority, G.W Bartholomew, noted, "It is a common feature of common law jurisdictions in Africa and Asia that systems of personal law apply to various religions and racial communities in respect of certain matters alongside the general common law." India is not the only non-Muslim country to recognize Muslim personal law. So do Sri Lanka, the Philippines and Singapore, to mention a few.
Therein lies the relevance of the resolutions of the Convention of AIDWA. One of them said, "This convention condemns the propaganda of the BJP for an immediate uniform civil code which is directed against the Muslim community. It protests against its hypocritical claim that it is motivated by concern for women's rights, in this case, Muslim women. It is this very political platform which in its earlier incarnation as the Hindu Mahasabha and the Jana Sangh had led the opposition to any reform in Hindu laws leading to an opportunist compromise at the cost of women's equality. Today the BJP rules in many States. it is the largest Opposition party in Parliament but it has not taken a single step to ameliorate the legal inequalities and infirmities faced by Hindu women under Hindu personal laws".
A resolution on "Hindu Laws and Women" said, "The Bharatiya Janata Party's constant critique of Muslim personal law and demand for a uniform civil code has sought to obscure the unequal and discriminatory nature of Hindu personal law. Even a recent pronouncement by the Supreme Court in Sarla Mudgal and others versus Union of India and others states that while Hindus gave up their personal laws after Independence, the Muslims have refused to do so. This is, however, far from reality. Hindu laws, in most key areas, continue to be based on various retrogressive features of old and dharmic Hindu law.
" (AIDWA's) Resolution on “Women and Muslim Personal Law" is extremely well-informed, makes allowances for religious susceptibilities and helps to crystallize the issues. Moreover, it has an added relevance which transcends the specific problem and relates to Muslims' contribution to the secular ideal, generally.
It has often been said, and with justification, that the Sangh Parivar’s insistence on a uniform civil code and the persistent anti-secular policy of the state drove Muslims into a shell, as it were, and made them fearful of any reform. An alienated minority is a conservative minority. But this very consideration imposes on Muslim leaders a duty to enlighten the community about the disgraceful state of what passes for Muslim law in India. It is not Islamic law (the Shariat), but Anglo- Mohammedan law. Opposition to a uniform civil code should be part of an effort for the reform of Muslim law.
AIDWA's Resolution on Muslim personal law is of enormous significance. It rightly points out that there are various schools of the law, each named after a jurist of eminence Hanafi, Maliki, Shafei, Hanbali, Jafari, not to forget the Ahl-e-Hadith who do not consider themselves bound by any of these schools and rely directly on the Koran and the Prophet Mohammad's percepts which constitute the second source of the Shariat, namely, the Hadith. Incidentally, so does reason, ijtihad, besides consensus and analogy.
The Resolution says: "The Holy Koran is considered as the divine revelation by Muslims and is, therefore, sacrosanct. But the interpretation of the Koran and the Hadith is not. The differences in Islamic jurisprudence are because of the differences in the interpretation by the Imams of these schools of thought. Before going any further let us remind ourselves that these Imams were eminent scholars, and devout Muslims. Would anybody ever say that anyone of them is less Islamic than the other?" This is the spirit of the resolution and the point it makes is simple why not spurn the illiberal in the schools and, selecting the liberal features from each, move for reform?
The two major blemishes in the law which deserve to be removed immediately are the triple divorce (talaq) and polygamy at whim. The resolution proceeds to discuss both thoroughly and persuasively and concludes: "We demand that those who speak in the name of community. including the Muslim Personal Law Board, the Wakf Boards and the 'clergy as well as politicians, elected members of the legislatures, should accept: First, we demand an end to the practice of unilateral and arbitrary talaq, in which the consent of the women is not required, holding that it is not Islamic apart from being a violation of human rights. Secondly, we demand an end to polygamy on the grounds mentioned earlier. We also demand reform in the question of custody of children and proper maintenance. These demands can be framed and expanded through discussions."
Four books published last year will help in the discussions. Three of them are by one of India's foremost scholars on Islamic law, Dr. Tahir Mahmood. (Uniform Civil Code: Facts and Fictions, and Statutes of Personal Law in Islamic Countries, both published by India and Islam Research Council. New Delhi... and Statute Law relating to Muslims in India, Institute of Objective Studies, New Delhi). Also relevant is Dr. M. Afzal Wani's book The Islamic Law of Maintenance of Women, Children, Parents and Other Relatives, Qazi Publisher & Distributors, New Delhi.
The work on the law in Islamic countries contains texts of statutes, their history and analyses. It demonstrates the contrast between reform in those countries and stagnation in India. Also included are the laws in some countries, in which Muslims are a minority Myanmar, Mauritius, Spain, Cyprus, the Philippines, Singapore, Tanzania and Kenya.
Tahir Mahmood points out that "As regards polygamy, a verse in the Holy Koran (IV: 3) says that though one could have four wives at a time, one who cannot treat co-wives with equality and justice should rest content with a single wife, adding that this (monogamy) would be better to keep men away from injustice (or to keep the family limited, as per the interpretation of Imam Shafi'i). The permission for polygamy is thus conditional, not absolute, and can therefore be restricted by an agreement or by the law. Accordingly, the Koranic conditions for polygamy have been enforced and, in order to prevent misuse of the law on this subject, further restrictions imposed in a number of Muslim countries." India can and should follow suit.
Muslim divorce law recognizes various forms of divorce talaq (pronounced unilaterally by the man); Khula (pronounced unilaterally by the wife); talaq-e- tafwid (divorce by the wife pursuant to a stipulation in the marriage contract whereby the husband delegated the power of divorce), mubaraa (by mutual consent); and faskh, tafriq or tatliq (judicial divorce).
He adds: The Koran (II: 229) allowed a man to pronounce a talaq revocable during idea (period of seclusion) and leaving room for a fresh marriage after its expiry) only twice in the whole of his life. On the basis of this scriptural rule the jurists had laid down that a third talaq would be final and irrevocable and leave no room even for a remarriage." It was a mandate rule and was abused.
Divorce used to be pronounced freely and revoked, leaving the wife in suspense. Jurists stepped in to declare that the third pronouncement would be irrevocable in order to protect the hapless wife. This was telescoped into one in the triple divorce three pronouncements of the word talaq resulting in an irrevocable divorce. It is known significantly as talaq al-bida, the sinful divorce. Nearly a century ago Justice Batchelor of the Bombay High Court called it "good in law, though Bad in theology". It is this un-Islamic divorce and polygamy, creatures of some jurists and utterly devoid of Koranio sanction, which the Muslim leaders seek to preserve in the name of "Muslim rights", while suppressing the woman's right to divorce" In 1967 the Supreme Court of Pakistan ruled in Khurshid Bibi vs Mohammed Amin, that the wife is entitled to khula, as of right, if she satisfies the court that it will otherwise mean forcing her into a hateful union. An irretrievable breakdown of marriage, regardless, of fault on either side, is good ground for khula or talaq. Section 2(x) of the Dissolution of Muslim Marriage Act, 1939, enables a woman married under Muslim law to obtain a decree for dissolution of her marriage not only on the grounds listed in Section 2 but also "on any other ground which is recognized as valid for the dissolution of marriages under Muslim law". Khula falls squarely within this clause. Why do not our courts enforce it as the Supreme Court of Pakistan did 30 years ago?
As Maulana Abul'ala Maudoodi remarked: "It is a great folly that we have practically withdrawn from our women the right of khula, little caring for the fact that denying them this right, on a footing equal to talaq, is absolutely un-Islamic." This, from the founder of the Jamaat-e-Islami.
But by far the most incisive and authoritative analysis was made by none other than the poet- philosopher Iqbal in the lectures he delivered in 1930 under the auspices of the Madras Muslim Association. They were published under the title Reconstruction of Religious Thoughts in Islam.
He noted: "In view of the intense conservation of the Muslims of India, Indian judges cannot but stick to what are called standard works. The result is that while the people are moving, the law remains stationary". His own position was stated unambiguously. "The claim of the present generation of Muslim liberals to reinterpret the foundational legal principles, in the light of their own experience and the altered conditions of modern life, is, in my option, perfectly justified."
(Source: The Frontline, 23 February, 1996)
Views of Dr. B.R. Ambedkar
2 December, 1948
"I should also like to point out that all that the state is claiming in this matter is power to legislate. There is no obligation upon the state to do away with personal laws. Therefore, no one need be apprehensive of the fact that if the state has the power, the state will immediately proceed to execute or enforce that power in a manner that may be found to be objectionable by the Muslims or by the Christians or by any other community in India."
"We must all remember including members of the Muslim community who have spoken on this subject, though one can appreciate their feelings very well that sovereignty is always limited, no matter even if you assert that it is unlimited, because sovereignty in the exercise of that power must reconcile itself to the sentiments of different communities. No Government can exercise its power in such a manner as to provoke the Muslim community to rise in rebellion. I think it would be a mad government if it does so."
(Source: The Frontline, 23 February, 1996)
