The All India Muslim Personal Law Board, which has been striving to defend the Muslim Personal Law against the threat of delegitimisation and pressure for its replacement by a common civil code, sought and received from successive Governments the assurance of non-interference with the Muslim Personal Law unless there was a demand from within the Muslim community.
During 1985–86, the Board launched a campaign against the Chandrachud judgement in the Shah Bano case, which ignored political assurance, legislative history and the provisions of the Cr.P.C. [Section 127(3)(b) and (c)] and brought Muslim divorcees within the purview of Section 125 as "ex-wife". The Board succeeded in having this nullified by the Muslim Women (Protection of Rights on Divorce) Act, 1986. The Act proved to be an example of both the success and the failure of the Board, its strength and weakness.
Despite its flaws, contradictions and weaknesses, the Act is a legal landmark. It was the first Act related to Muslim Personal Law enacted by the Indian Parliament since Independence and on the demand of the community. It established beyond doubt the principle of legislative supremacy of Parliament and the acceptance by the Muslim community—both the elite and the masses—of its legislative authority in matters related exclusively to Muslims. Thus, it created a precedent and opened the door for future legislation in this field while determining the essential condition that the substantive provisions of any such legislation must be in accordance with the Shariat and enjoy the consensus of the Ulema.
The Act itself, however, was so flawed that Muslim MPs, particularly the present writer, Mr. Ebrahim Sulaiman Sait, Mr. G. M. Banatwalla and Mr. S. S. Owaisi, proposed numerous amendments to improve it and bring it fully into line with the Shariat. Many amendments were withdrawn, many were lost in voice vote, but taken together, they placed on record that the Muslim community was not satisfied with the Bill and that, while it did not oppose the Bill, it reserved its right to press for its modification at the appropriate time. Subsequently, the Board did place a whole spectrum of amendments before the Government, but they were not seriously followed up and the matter is still hanging. The mistake lay in the Board leaving it to the Government to draft the Bill and then accepting the flawed Bill, despite reservations and protests by some members, including the present writer.
Not unexpectedly, contradictory interpretations have been made by different High Courts of various provisions. The Constitutional Bench of the Supreme Court recently heard in the consolidated case. Perhaps the forthcoming judgement may underline the urgent need for amending the Act. One hopes that the Board will be better prepared and more determined to take up the cause of the Shariat.
But the very constitutionality of the Muslim Personal Law, uncodified as it is, has been challenged in many High Courts. All such cases were consolidated and were also recently heard by the Supreme Court. One hopes that, in view of the multiplicity of personal laws in the country, the existence of the Shariat Act, 1937, the impossibility of formulating a common civil code, the guarantee of Freedom of Conscience and Religion in the Constitution, and the close and inseverable relationship between religion and personal law in the case of all major religious communities in the country, the Supreme Court will endorse the constitutional validity of the Muslim Personal Law.
Notwithstanding this, the time has come for the Board to consider the question of involving State authority for legal mitigation of the social consequences of some prevalent practices in the Muslim community, particularly polygamy and triple divorce, and to formulate a clear stand on the question of codification within the framework of the Shariat.
The Board knows that its campaign of social reform has not taken off and that, given the paucity of human and material resources, it is not in a position to launch a campaign of such intensity that it will break the hold of age-old customs on the generally conservative Muslim society in India, which, because of its minority status, is ever apprehensive of an assault on its religious identity and naturally tends to be more orthodox as compared to Muslims in Muslim States.
The apprehension is real because, in fact, many of those who plead for reform in Muslim society on grounds of gender justice are anxious either to de-Islamise the Muslim community or to absorb it into the Hindu fold. All of them think that the only way to achieve their goal of destroying or deforming Islamic identity is to detach the Muslims, and particularly the Muslim women, from the Shariat, i.e., the Holy Quran and the Traditions of the Holy Prophet.
The frequency of polygamy among Muslims is about the same as among the Hindus. Yet Muslims are alone identified with it. No one speaks of polygamy among the STs, SCs and even many Hindu castes; no one mentions polyandry rampant in many regions. Similarly, everyone—from a Marxist to a Sanghi—sheds crocodile tears over the "plight of the poor Muslim woman." That for every Muslim woman in distress, there must be at least 7 Non Muslim women in similar circumstances are ignored. No one speaks for them. Female foeticide, dowry burning sati and, suicides by daughters due to parents' lack of resources to "pay" for husbands are rampant in Hindu society. Many are forced into brothels or end up leading a life of religiously sanctioned prostitution. All these are shrugged off. These sympathisers of Muslim women are silent when the latter are raped and butchered and burnt in communal riots or when their near and dear ones become targets of atrocities.
Similarly, everyone speaks for the poor Muslim divorcee when her former husband refuses to maintain her for life. Yet there are many times more Hindu women whom their husbands do not support or abandon! There is no anxiety to raise the maximum of Rs. 500 under the Cr.P.C., which is pitifully inadequate for maintenance.
And no one is prepared to understand that marriage in Islam is essentially a civil contract between a man and a woman and that once the contract is terminated, there can be no lingering claims of one party over the other and that there is no concept of life-long alimony in Islam.
But all these issues are projected, sometimes even by well-meaning friends. The impact is to vilify Islam and to bring down the community in the eyes of the non-Muslims.
Granting the malafides of many critics and pseudo-sympathisers, the Muslim society cannot claim perfection; it cannot be anyone's case that Muslim women have not been suppressed, exploited and even oppressed by men in a man-dominated society, to ensure their dominance over women. It is thus imperative that gender imbalance and injustice and viciousness and degradation arising therefrom are remedied by the Muslim society. And they can, and should, be, by recourse to Islam, to the Shariat, to the Holy Quran, interpreted in the light of the Traditions and crystallised in the form of a Muslim Code.
Progressive Muslims, including many enlightened Ulema, believe that through reinterpretation, a modern Fiq'h, preserving the essential and relevant core and the best applicable provisions of the various Schools, can be formulated which would meet the demand of the age and the circumstances of the society, without in any way infringing upon the holy texts. This is the unfinished agenda of the Board, which it must courageously take in hand, without any further delay, taking into account the experience in many Muslim states (other than Turkey and Tunisia which have thrown the baby out with the bath water and have ignored the Shariat). Through this scheme of things, the troublesome questions of polygamy, instantaneous divorce and maintenance of divorcees can be tackled.
So, on one hand, the Board, duly rejuvenated by inflow of fresh blood from the ranks of the younger Ulema and the non-Ulema (of various specializations, law, sociology, politics, economics, communication etc.), have to keep up their struggle against the imposition of a common civil law, in the name of "cultural uniformity" or "constitutional purity", and should apply themselves at various levels to the promotion of education among Muslim women and instruction of the community in Islamic norms of family life, i.e., women's rights in Islam, anti-Islamic vicious social customs like fixation of Mehr at a very low level and its eventual non-payment; whimsical and arbitrary exercise of the right of divorce by husbands without recourse to the procedure laid down in the Holy Quran, and contraction of more than one marriage without any rhyme or reason and without the manifest ability to do justice to and maintain all the wives.
In this context, the failure of the 14th Session of the Board held in Bangalore on 28–29 October, 2000 to deliver what had been promised despite massive build-up by the media makes it imperative to adopt a new approach.
The insiders knew all along that the battle for social reform is long and arduous, and that no change can take place overnight and that it was not only a question of formation of a positive consensus within the community but of reconciliation among various sects and also of neutralising the pressures from the dominant forces of conservatism.
The skirmish over the formulation of a standard Nikahnama has led to a stalemate and the draft Nikahnama has been referred back to the Drafting Committee for reconsideration in the light of the observations made on the floor. Some observations were on the expected lines; but some apprehensions expressed specially by some women members of the Board must be taken note of. Given male dominance in the Muslim Indian society, the woman is an unequal, weaker party in the Nikah, which is essentially a civil agreement; so it is difficult for Muslim women to find suitable husbands, as it is, and the insertion of too many conditions in the Nikahnama will aggravate the difficulty; this would be contrary to the Board's purpose, namely to protect the interest of the women. So the Board should pause and rethink. There were, however, others who thought that the draft Nikahnama did not go far enough. The Board, in any case, has no legal power; the Nikahnama, even if promulgated, will have only moral authority and social conservatism would have neutralised its application.
But the most important task, beyond the formulation of a standard Nikah Nama or the intensification of the social reform campaign, is the Codification of Muslim Personal Law.
This is not a task which can be fulfilled overnight, or by a small coterie. The Board should, in my view, adopt a 10-year plan, with a deadline for each phase, appoint a Collegium of Scholars who should, among themselves, represent all the important Schools of Islamic fiqh as well as all relevant branches of contemporary knowledge.
One is compelled to take note of the fact that while the Board has limited resources, over the years it has overstretched itself and taken upon itself added responsibilities which have no direct relation to the object and purpose of its establishment. At the Bangalore Session most of the available time was devoted to RSS Chief Sudarshan's call for Hinduisation of Islam and Christianity, the progress of the National Commission for the Review of the Functioning of the Constitution, Joshi's programme of Saffronisation of education, the vilification of and assault on Muslim educational institutions, not to speak of the Babari Masjid cases. The Bangalore Declaration could have been adopted by any national Muslim organization, the JIH, JUH, AIMMM or the AIMC. Little time was devoted to the key issues of Nikahnama and Social Reform. The Board has to concentrate on its prime objectives or run the risk of losing its identity and raison d'être.
The experience shows that the Board needs to combine vision with authority. The society is crying for reform. Reform, to be viable, must be both within the framework of the Shariat and engage State authority.
In the age of democracy, Muslim Indians cannot become politically dominant in India when they form only 12.5% of the population, but they have the potential to organize themselves and their affairs in a manner that can present them as an admirable model for the rest of the Indian people to emulate. If in their personal conduct, in their family life, in their collective life, and in their interaction with the larger Indian society, they are seen as exemplars of integrity, compassion and justice.
In the administration of criminal law, justice being a prerogative of the State, the Shariat cannot be applied. However, in civil matters, through proper application of the Shariat, the Muslim society can achieve a degree of inner harmony.
which would make it the cynosure of all eyes, indeed the Khair-ul-Umma, as the Holy Quran proclaims its raison d'être.
The Board has not only to take a long-term overview and carve out a path through the exuberant accretion of the ages to the shining light of Islam to guide the family life of the community, but instead of tinkering over various aspects of social reform, take up formulation of a Muslim Code and then seek its enforcement through an Act of Parliament.
1st December 2000
