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Books and Documents

Islamic Sharia Laws

The Quran did not ban the consumption of alcohol in one go. Rather, this commandment was a gradual one, which passed through several stages. This point, and the statement of Ayesha mentioned above, well illustrates the principle of gradualism in seeking to establish the shariah. This principle is also clearly evident from the fact that when the son of the Caliph Umar Ibn Abdul Aziz asked him why he did not openly and directly crush strife and oppression and immediately impose shariah rules in this regard, he replied, ‘Son! Do not be in a hurry because God condemned the consumption of alcohol twice in the Quran and [only] on the third occasion declared it forbidden. I fear that if I try to make people follow the right path fully they might abandon the true path, leading to terrible strife.’

Another important Islamic principle that must be kept in mind when seeking to establish the shariah is that of properly choosing priorities. This is to say, one should be clear as to which issues need to be taken up and worked on first and which later. This principle is well illustrated in the life of the Prophet. Thus, in Mecca he focused only on inviting people to Islam and on spiritually nurturing his disciples. When some of his followers wanted to go to the Ka‘abah to pray, he advised them against it because, he said, the Muslims were still small in number. When he shifted to Medina, the Prophet focused all his energies on peaceful missionary work and on the moral, intellectual and spiritual training of new converts to Islam so that a community of Muslims could be formed qualified to fulfill the personal and collective responsibilities required of them by Islam. In this way, the Prophet exemplified the principle of setting priorities in his effort to establish the shariah.--Maulana Waris Mazhari

A Fatwa That Stirred Muslims
Asghar Ali Engineer

The Qur’an, which is the primary source of shari’ah, does not refer to hijab (veil) for ordinary women at all. On the other hand, it advises women not to display her zeenah(adornments) publicly (24:31) but refrains from defining what constitutes zeenah or adornment. It has been defined by various commentators depending on their cultural environment. Qur’an does not even say whether they should cover their heads, let alone faces. It says, on the other hand “except what appears thereof” leaving space for interpretation. There is near agreement among commentators that face and two hands should remain open.  However, it advises women to cover their breasts. -- Asghar Ali Engineer

So why is the practice of child marriage sanctioned in Muslim countries? Unfortunately, ultra-conservative religious authorities justify this old tribal custom by citing the Prophet Muhammad's marriage to Aisha. They allege Aisha was nine years old when the prophet married her. But they focus conveniently on selected Islamic texts to support their opinions, while ignoring vast number of other texts and historical information, which suggests Aisha was much older, putting her age of marriage at 19. Child marriage is against Islam as the Qur'an is clear that intellectual maturity is the basis for deciding age of marriage, and not puberty, as suggested by these clerics.

Whatever one's view on the prophet's marriage, no faith can claim moral superiority since child marriages have been practised in various cultures and societies across the world at one time or another. In modern times, though, marrying children is no longer acceptable and no excuse should be used to justify this. -- Shaista Gohir

Also See:

DID SAYYIDA AYESHA (ra) MARRY MUHAMMAD (P.B.U.H), THE PROPHET OF ISLAM, AT AGE 6?

http://www.newageislam.com/NewAgeIslamArticleDetail.aspx?ArticleID=817

Justifying child abuse in the name of Shariah

http://www.newageislam.com/NewAgeIslamArticleDetail.aspx?ArticleID=1390

Tabri, in his History of Prophets and Kings, has narrated a case of adultery involving Mughira bin Shuba, the governor of Basra during the time of Caliph Umar and a young widow called umm Jamil. Sometime in AD 639, four Basra residents filed a complaint with the Caliph accusing the governor of adultery. What provided substance to the accusation was the fact that Mughira was a much married man, who would have to divorce one of his wives to take a new one in order to stay within the prescribed limit of four wives. -- By Arif M. Khan

 

‘Sometimes, the killing of a human shield (tatarus) is permissible […] and this is when the benefit of this action is certain and complete, when it is not possible to attack the aggressor without attacking the human shield, and also when [the benefit of this action] is absolute with regard to the entire community […] Our ulema are unanimous on the legitimacy of this matter, provided that these conditions are met […]’

The stringent conditions that Imam Qurtubi has laid down for the permissibility of killing human shields if this becomes unavoidable in order to take on the aggressor do not appear to apply in the case of present-day fidayeen attacks. However, in defence of such attacks, some scholars and others claim that they are permissible because they are resorted to for noble aims. In response, one can argue that this claim is an obvious contradiction of the fiqh rule:  ‘No aim, no matter how lofty, can justify the use of any wrongful means’ (al-ghayatu la tubarrirul wasilah). -- Maulana Waris Mazhari

Arif M Khan explains the judicial system of Caliph Umar Ibn Khattab and the care that was taken in pronouncing justice and fatwa. He also laments the fact that now unknown persons claiming to be religious scholars issue sundry fatwas that arouse only derision and ridicule.

Mumbai-based scholar Asghar Ali Engineer is one of many who believe that “the cultural basis of the Muslim Personal Law actually lies in the customary laws of the Arab society”. He questions practices such as marrying and divorcing on the phone. These are not mentioned in the Muslim Personal Law and should be declared invalid, says Engineer. He laments Muslim trivialization of “marriage, meesaq-e-ghaliza (strong covenant between two adults)... a qazi can be bribed to distort the rules laid down for a valid nikah and talaq”. ...

Triple talaq: Not mentioned in the Quran; an innovation. Most ulema agree that Allah considers talaq the most reprehensible of all that is allowed to man.....

Polygamy: A provision enshrined in the Quran, though hedged around by many conditions; upheld by the 1937 Muslim Personal Law but grossly misinterpreted and misused. 

 Those partial to the practice quote a Quranic verse as justification but forget that it was revealed during a great and bloody battle, which left many men dead and large numbers of destitute widows and orphans. The flipside is another verse in the same Quranic chapter, which stresses that no man is ever “able to be fair and just between women even if it is your ardent desire.” Senior cleric Maulana Shoeb Koti says it “proves the Quran lays emphasis on monogamy”. -- Mohammad Wajihuddin

Photo: Sania Mirza and Shoaib Malik

 

The AIMPLB’s attack of the Supreme Court’s judgement only highlights the plight of poor Muslim women and the urgent need to address this. The National Commission for Women given its 17-year-old history has done precious little to help these women. Those in the celebrity cocktail issues circuit haven’t had any ‘spontaneous’ emotional outbursts at the heart-rending situation of Shabana Bano. Perhaps Shabana Bano’s ‘crime’ of being unable to bring in the dowry demanded by her husband’s family isn’t chic enough in the secularist and women’s liberation quarters. To be fair, a lone article in the Indian Express welcomed the Supreme Court’s judgement. But that article didn’t delve into the fundamentals, something everybody wants to avoid. Sandeep B

This barbaric scene belongs in the Dark Ages, but pictures emerged today of a group of Islamic militants who forced villagers to watch as they stoned a man to death for adultery. Mohamed Abukar Ibrahim, a 48-year-old, was buried in a hole up to his chest and pelted with rocks until he died. The group responsible, Hizbul Islam, also shot dead a man they claimed was a murderer. But the verdict was so shocking that it prompted a gun battle between rivals within the group that left three militants dead, witnesses said. The executions took place yesterday in Afgoye, some 20 miles south-west of the capital of Mogadishu.

Photo: Begging for his life Mohamed Ibrahim appeals to Islamic militants not to carry out the execution as he is buried in the ground as his villagers are forced to watch

Although Malaysia has long prided itself on being a role model of a "moderate" majority-Muslim nation, politicians have taken to brandishing their conservative and punishment-focused Islamic credentials to attract the votes of Muslims drawn to "purer" leaders. Many Muslims are afraid to challenge the Islamists for fear of being labelled as anti-Islamic or ignorant of Islamic tenets. "This is definitely not the Malaysia I grew up in, which was far more relaxed and tolerant. This has really been a political development over the last decade or so where political parties have used Islam in order to win the Muslim vote," Marina Mahathir, a writer and a blogger, told me by e-mail. -- Mona Eltahawy

Shariah Asia Spread Appeases Islamists, Risks Rights
Daniel Ten Kate and Ranjeetha Pakiam

Since Aceh first introduced a limited Shariah law in 2003, at least half of Indonesia’s 32 provinces have enacted their own variations, including some that apply to non-Muslims, according to Santa Ana, California-based Compass Direct News, a Christian organization that monitors religious discrimination. Attitudes among Indonesian Muslims have hardened with the spread of Islamic courts, surveys show. A 2006 poll by the Indonesian Survey Institute found 48 percent of 1,173 respondents believed fornicators should be stoned, up from 39 percent in 2001. Thirty-eight percent said thieves should have their hands cut off, from 29 percent five years earlier. The margin of error was 3 percent. In Malaysia’s northern state of Kelantan, where the Pan- Malaysian Islamic Party has held power for the past 19 years, the capital city of Kota Bharu has no movie theatre. -- Daniel Ten Kate and Ranjeetha Pakiam

 

Muslims alone cannot be left to choose between the civil law and an outdated version of their personal law with all its distortions and misinterpretations intact. Turning the principles of Muslim law into a legislative enactment will, of course, be no novelty. Such an exercise has already been undertaken in a score of Muslim countries in West Asia and North Africa. (Non-Muslim countries too: look at the Philippines Code of Muslim Law 1977.) There is no justification for India lagging behind; especially since those countries’ efforts have made the job easier for India. Muslim law can be codified here simply by making an eclectic choice from amongst the statutory provisions of those countries in conformity with Indian social conditions. -- Tahir Mahmood

Bigotry and religious sectarianism are the inevitable products of the betrayal of the mass anti-imperialist movement that convulsed British India during the first half of the 20th Century by the Indian National Congress and the Muslim League and the creation in 1947, under the tutelage of the British of imperialism, of twin independent bourgeois states—an expressly Muslim Pakistan and a predominantly Hindu India. The immediate result of partition was an orgy of communal violence in which up to two million people died and more than 12 million were uprooted from their homes. Virtually all Hindus and Sikhs fled the western half of the bifurcated Pakistani state, while millions of Muslims from north India sought refuge in Pakistan. Christians, by contrast, did not leave Pakistan in large numbers, and thus subsequently became the country’s largest religious minority. -- Ali Ismail

“Muslim men are obligatorily required to pay Zakat Al Fitr for themselves and dependants such as their wives, children and servants. Failing to give Zakat is a big sin, and one shall also miss a valuable opportunity to have his or her fasting fully rectified and purified of minor mistakes,” he pointed out. He said that Zakat Al Fitr may be given in food or money, as convenient for the poor. “During the Holy Prophet’s time, Zakat Al Fitr was given in food; an average of Saa (2.5-3.5kg) of barley, date, raisin, dried yoghurt, or later wheat or rice, because these were common foods in Madinah and its surroundings, and currency was rarely used. The Holy Prophet’s companion, Moaz Ibn Jabal, and righteous Caliph Omar Ibn Abdulaziz (May Allah be pleased with them) later accepted Zakat Al Fitr in cloth,” he stated.  “Now, the situation is quite different. Many scholars, including Imam Abu Hanifa, agreed that Zakat Al Fitr may be given in money and that differs from time to time as per the value of currency,” he said, noting that Zakat Al Fitr has been set this year as Dh25. However people have the option to pay more. -- Ahmed Shaaban

 

School has violated constitutional guarantee: student “Sporting beard is an indispensable part of Islam” A Bench consisting of Justices B.N. Agrawal and G.S. Singhvi stayed the dismissal order passed by the Nirmala Convent Higher Secondary School, a government-recognised minority institution, on an appeal by the student, Mohammad Salim. Earlier, on March 30, a Bench headed by Justice Markandey Katju rejected the student’s petition orally observing that secularism could not be overstretched and that “Talibanisation” of the country could not be permitted. Salim sought review of the plea stating the observations on “Talibanisation” caused incalculable damage to the country’s image and the judiciary, besides, hurting Muslim sentiments

 

One cannot agree more with the observation of the Law Commission in its 277th report that "traditional understanding of Muslim law on bigamy is gravely faulty and conflicts with true Islamic law in letter and spirit". Based on this understanding the commission has rightly proposed insertion of a new clause in Hindu law to ensure that the provision for bigamy in Muslim law is not taken advantage of by non-Muslims who, allured by this law, resort to sham conversion. But what defies logic is that if the Muslim law on bigamy as practised in India is faulty and conflicts with true Islamic law, then who is more in need to be saved from its consequences few non-Muslims who mischievously try to abuse this faulty provision or the Muslim community which, according to Maulana Maudoodi, has suffered so much that in each family one or the other person's life has been ruined by it? ….. What does it mean? Does the commission hold that someone born Muslim can misuse "true Islamic law" with impunity and the newly-converted cannot? It is a travesty of not only the principle of equality but also of the morality of any Law Commission. If the Law Commission genuinely believes that the "traditional understanding of Muslim law on bigamy is gravely faulty and conflicts with true Islamic law" then it had the moral and legal duty to make recommendations to revisit the law and leave the question of religious sensitivity to the government to handle. How the Law Commission can hold that it aims to prevent misuse of a certain law only by one section of society and not by others is baffling. -- Arif Mohammed Khan

 

Polygamy is banned in Tunisia, Turkey and Lebanon (for some sects) while it is severely restricted in others. Pakistan permits second marriage under certain conditions but only after following specified procedures that include convincing the Union Council that the husband has the prior consent of his current wife. In Malaysia, a man may marry again only with consent from a Shariah Court. In Indonesia, women who are public servants are prohibited from becoming a second wife. In addition to following regular permission procedures, a male government servant must obtain the permission of his superiors before marrying a second wife. Formal court procedures are obligatory for second marriages in Bangladesh, Singapore and Philippines. -- Javed Anand

 

The true Islamic law on bigamy is gravely misunderstood, indeed by Muslims and non-Muslims alike. Both wrongly believe that it gives married men an unfettered right to marry again, which is nothing short of caricaturing a noble legal provision. Unrestricted bigamy was rampant in Arab society, which Islam had tried to contain by allowing it within carefully defined limits and subjecting it to strict discipline. Bigamy was permitted subject to a precondition that the man must be capable of treating his co-wives absolutely equally in every aspect of conjugal rights. Also, noting that treating co-wives with complete equality would be no easy job, the Holy Book had added an advisory: "Monogamy would keep you away from doing injustice." The Prophet had added to it a deterrent warning: "A bigamist failing to treat his wives equally will be torn apart on the Day of Judgement. -- Tahir Mahmood

A Muslim man will never be sentenced to be flogged for wearing pants, just as a Muslim Imam will never be tried for blasphemy no matter how many ugly things he says about Hinduism, Christianity, Judaism or Buddhism. Blasphemy is a charge that is meaningful only in relation to the doctrine that is at the heart of Islamic law that is Islam itself.

Islamic law is law made by Muslim men for the benefit of Muslim men, and the detriment of everyone else. It is the product of an inherently unequal system, designed to perpetuate that system.

Islam does not recognize human equality. It is premised on human inequality. Women cannot be subject to the same laws as men, just as Mohammed was not subject to the same laws as men. Indeed the Koran records that Mohammed explicitly had the law rewritten on his behalf when he desired something, such as Zaynab, who happened to be married to his adopted son. A minor matter for the Prophet. The Koran also limited the number of permissible wives to four. This did not stop Mohammed from marrying as many as fifteen women. Muslims do not see the contradiction in any of this, because there is no premise of equality under Islamic law. You are only as "equal" as your spiritual standing within the Ummah permits. -- Sultan Knish

Muslim Personal Law is not tantamount to shari’a

Secondly, as the great Indian jurist A. A. A. Fyzee explained in 1963, MPL is not tantamount to shari’a because so many dimensions of law from the colonial period on, including criminal law and the all-important law of precedent and procedure, are secularly defined. In a headline-grabbing alleged rape by her father-in-law of a poor Muslim country woman named Imrana two years back, there was considerable discussion of MPL, even an ill-informed denunciation of it in The New York Times by the acclaimed writer Salman Rushdie, though MPL was in no way at all involved. What was at stake was a fatwa (advising the woman to sever her current marriage), which was completely ignored. --   Barbara Metcalf, Professor of History and Director of the Centre for South Asian Studies at the University of Michigan.

 

Sharia aims at establishing social justice

In today’s world, the imposition of jizya on non-Muslims is absolutely wrong and indefensible. In today’s world in every country, people, no matter what their religion, pay the same sets of necessary taxes to the state. As citizens of their respective states they are expected to abide by the same sets of duties. Hence, it is absolutely absurd to impose jizya on any community. Today, the whole world can be said to be an ‘abode of agreement’, or, in Arabic, dar ul-ahad. All the nations of the world are bound together by this agreement. Leading Deobandi scholars such as Maulana Anwar Shah Kashmiri and Maulana Ashraf Ali Thanwi had made this declaration decades ago. The majority of the ulema today also uphold this view. This is why jizya is not imposed on non-Muslims in any Muslim-majority country in the world. No Muslim country today enforces jizya as a law. …

 The aims of the Islamic shariah include the establishment of social justice, freedom for all social groups, equality, prosperity and peace. In the early Islamic period, the shariah, when it was properly upheld by sincere rulers, served as a refuge for both Muslims and others. Sadly, in our times, the issue of the shariah has been so horrendously exploited that those who cynically manipulate it for their ends have caused torment and strife not just for non-Muslims but also for many Muslims themselves. Inhuman, immoral and patently anti-Islamic acts have been sought to be given sanction in the name of the shariah, causing the Islamic spirit to be almost totally submerged and lost. Not surprisingly, this has caused even many Muslims to be opposed to any moves in the name of the enforcement of this un-Islamic brand of so-called shariah. -- Maulana Waris Mazhari (Translated from Urdu by Yoginder Sikand)

Hazrat Ayesha was 19, not 9 when she married the Prophet

Marriage in Islam is a civil contract, meesaaq (4:21), and as such it can be finalized only between persons who are intellectually and physically mature enough to understand and fulfil the responsibilities of such a contract. This can be further understood from the verse; “And test the orphans until they reach the age of nikah (marriage), and if you find in them rushdh (maturity of intellect) release their property to them.”(4:6). The Quran makes intellectual maturity (which always falls beyond the age of puberty) the basis to arrive at the age of marriage. This is also in conformity with the Quranic description of marriage as emotional bonding between two mutually compatible persons through which they seek “to dwell in tranquillity” (see 7:189 and 30:21) in the companionship of each other which is not possible if either of the spouses is mentally undeveloped. -- A. Faizur Rahman

That  Hazrat Umar  [ the second pious caliph] used to order the public flogging  of the person pronouncing  triple divorce in a single say is beyond  all dispute but nobody has  so far provided  a convincing reply regarding  the continuation of this practice  when its deterrent aspect has become a thing of past. It is also not so that providing deterrence in such matters is the prerogative of Islamic states only. Had an initiative to that effect come from those who derive the force of triple divorce from Hazrat Umar, the Govt., while passing the Muslim Women (Protection of Rights on Divorce) Act, 1986, would have willingly incorporated into it, a provision for punishment, whether by fine or imprisonment of those dissolute husbands who indulge in this abominable practice. Such a step on the one hand could go a long way in setting right the distortions in the whole concept of divorce and on the other could save the government from the criticism of those who sometimes rightly deplore the predicament of Muslim women. -- M.K. Sherwani

Classical Sunni Muslim political thought, which continues to inspire the bulk of the traditional clerics or ulema, is based on the notion of a pious ruler or amir who rules according to the rules of the shariah. He is to be assisted by a council or shura, consisting of pious men learned in the shariah. However, he is not bound by their advice, for, because of his presumed superiority in terms of piety and knowledge of Islam, he is assumed to know best. It is this fatal assumption that is the Achilles heel of traditional Muslim political theory, for, more often than not, the amir does not turn out to be the saintly personage that he is expected to be. There being no effective check on his powers, by the general public or even by the shura--in contrast to what the Quran would appear to demand -- he very often turns into a dictator, who, as Muslim history amply illustrates, can easily twist Islamic injunctions suitably to legitimize acts of tyranny directed at Muslims as well as others….

As this timely statement by important Indian Islamic scholars denouncing the atrocities of the Taliban committed on the Sikhs in the name of the shariah suggests, the shariah, which forms the basis of the vision of an Islamic society and polity, is itself subjected to diverse, indeed often mutually-opposed, interpretations. If for Sufi Muhammad and his tribe it is a harsh penal code that is to be forced down unwilling throats, to drag people to heaven against their will, as it were, to their Muslim critics, such as these Indian scholars, it is quite the contrary. Being open to multiple interpretations, the shariah is thus the object of heated contestation among Muslims themselves, and has been so ever since the demise of the Prophet. The task before socially engaged Muslims is to craft a contextually relevant understanding of this ambiguous concept so as to wrest it from cynical manipulation by the likes of the Taliban. This internal debate has been going on for centuries, but Muslims who wish to rescue their faith from peddlers of terror like Sufi Muhammad need to make their voices heard even louder today. -- Yoginder Sikand

Fouad Dahaba, an MP and Islamic speaker, said that he was willing to intervene to help for conciliation. He stressed that, although the concept of claiming execution is present in Islam, pardon is urged. “The Holy Quran says, ‘The recompense for an injury is an injury equal thereto (in degree): but if a person forgives and makes reconciliation, his reward is due from Allah.”  Dahaba added that Yemeni society tends to make women responsible for all the mistakes in the country: “Calling for death to women when men are pardoned is an indication of foolish traditions.” Barman said there is gender-based discrimination when it comes to dispensing the death penalty in Yemen. He cited a number of cases in which the family forced the children to ask for their mother’s death, when the total opposite would have happened, had it come to the father. Tribal pressure in seeking the death penalty for women can limit the chances of pardon. Barman added: “I am sure that, if Aisha were the father, she would have been pardoned.” -- Kawkab Al-Thaibani

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