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Islamic Sharia Laws (16 Apr 2009 NewAgeIslam.Com)



India’s Muslim Personal Law is not Shari’ah law

 

WHY CODIFICATION OF MUSLIM PERSONAL LAW?

 

By Asghar Ali Engineer

(Secular Perspective April 16-30, 2009)

 

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, Mumbai: - 400 055, E-mail: csss@mtnl.net.in

URL:  http://www.newageislam.com/islamic-sharia-laws/india’s-muslim-personal-law-is-not-shari’ah-law/d/1334

 

 

 

 




TOTAL COMMENTS:-   19


  • Date:   Thu, 23 Apr 2009 13:28:23 +0530 [01:28:23 PM IST]
    From:  KHALEELUR RAHMAN
    To:  Kasim sait``, N Mohamed
    Cc:  Sultan Shahin Editor@NewAgeIslam.com

    Subject:   Re: A thought-provoking article by Dr. Asghar Ali Engineer

    Dear all,
     
    Even 1400 years ago the Prophet (Sal-am) set an example by living with a single wife, Hazrat Khathija (RA) for 25 years and proclaiming that monogamy is the rule and polygyny is permissible only under certain unavoidable circumstances. Both Muslim men and women have to understand Islamic principles based on situations and act wisely without bringing any disrepute to the community.. We should shun selfishness and materialism.
     
    Dr. Asghar Ali Engineer sahib's article explains it well.
     
    VMK


    By KHALEELUR RAHMAN -



  • Date:     Wed, 22 Apr 2009 06:26:27 -0700 [06:56:27 PM IST]

    From:   N Mohamed

    To:       Sultan Shahin editor@NewAgeIslam.com

    Subject: A thought-provoking article by Dr. Asghar Ali Engineer

     

    I want to highlight a practical problem.  If anyone is interested in clarifying me, please reply. 

     

    1) When one wife is pregnant and if she undergo operation like that kind, which makes a man unable to have sex with her for 5 or 6 months, Asghar Ali engineer says, it is not the reason to choose second marraige.  My question is, a man opts for second marriage if he is sexually not satisfied with a single woman.  Can such a man be peaceful without having sex for this 5 or 6 months?  It is right that many men can wait for 5 or 6 months, my concern is not all men can do that.  Can anyone guarantee me, all men won’t do any haraam for the 5 or 6 months- he may not go to prostitutes, even seeing BF like that type or just staring a strange women ?  Or do Islam "accepts" seeing a strange women or watching a BF when one cant have sex for so many months with his wife?

     

    2) A man marries a woman.  But there are lot of problems between them.  The wife wants husband to be "under" her.  When this didnt happen, she neglects her husband, goes to her maternity home and never come back.  Now the husband approach jamaath for divorce.  The jamaath is not giving divorce.  Now he is separated for more than a year, can he marry another woman or not?  Also the wife is in the intention to "punish" her husband.  Is it wrong for such a man to marry another woman?

     

    3) In the battle of uhud, almost 70 sahabis died, which is 10% of the total Muslims IN WAR FARE.  Even before that, polygamy was a practice.  So how can we say that Islam permitted polygamy bcause there were many causalities?  Islam only put a regulation for polygamy and I still believe that it don’t stop any men, who really can look at their wives equally.  Also since this is a matter of desire and requirement of men, the permission from first wife for second wife is NOT required.  My neighbour married a woman, doctors clearly told she can’t have a baby.  Even in this situation, my neighbour’s wife don’t allow her husband to marry another woman, even though the husband has promised and is capable of looking both wives equally.  So we can’t say that all women would accept practical problems with their married life and allow their husband to marry second wife.

     

    Regards

    Mohamed


    By N Mohamed -



  • Date:     Tue, 21 Apr 2009 11:01:05 -0700 [04/21/2009 11:31:05 PM IST]

    From:   zaffarullah khan

    To:       Faizur Rahman

    Cc:       Sultan Shahin editor@NewAgeIslam.com

    Subject: A thought-provoking article by Dr. Asghar Ali Engineer

     

    Mr. Ghulam Muhammed's Concept of law is incorrect.

    It is incumbent upon the person making an assertion to substantiate it. It would be improper for a person to make wild and unfounded allegations and expect the other to deny it and should the person contemptously ingnore the tirade, to consider the statements tacitly proved.

     

    Adverting to the points in issue, Mr.Ghulam Muhammed has not met any one of the points raised but has sought to lower the image of the original author.Mr. Ghulam Muhammed's vituperative expressions show him in bad light.

     

    Zaffarullah Khan


    By Zaffarullah Khan -



  • Date:     Tue, 21 Apr 2009 18:07:08 +0530 [06:07:08 PM IST]

    From:   Faizur Rahman

    To:       Ghulam Muhammed

    Cc: Sultan Shahin editor@NewAgeIslam.com

    Subject:: A thought-provoking article by Dr. Asghar Ali Engineer

     

    Ghulam Muhammed has once again exposed his ignorance by not addressing the issues discussed in the article. His monomaniacal obsession with the personality of Dr. Asghar Ali Engineer is difficult is understand. (Are you by any chance a Bohra Ghulam?) By the way flaunting one's knowledge is not a shameful act. Flaunting ignorance is.

     

    In fact, Ghulam's hatred for Dr. Engineer has blinded him to the fact that the examples given by him to prove his point go against him. Let us see.

     

    Ghulam said: "Varun says the tape is doctored and wants EC to disprove him. EC Chief contends, it is for him to prove that the tape is doctored."

     

    By the same logic it can be said, Ghulam says, Dr. Engineer is state funded and calls him names and wants the good doctor to disprove him. But we all say it is for Ghulam to prove his charges and not Dr. Engineer.

     

    But more importantly, just as EC took suo moto action against Varun, and Mayawati put him under NSA, Ghulam too deserves the highest Islamic punishment for slander if he does not withdraw his statement and apologise.

     

    Finally, I once again request the members of the forum to voice their differences if any insofar as the points discussed in an article are concerned. We have no right to personally attack a writer. Frankly, we don’t want holier-than-thou angels on this forum.

     

    FAIZ


    By Faizur Rahman -



  • From: seyed pasha

    To:   Kasim sait

    Cc:    Sultan Shahin Editor@NewAgeIslam.com

    Sent: Tuesday, April 21, 2009 3:23 PM

    Subject: Re: Fw: A thought-provoking article by Dr. Asghar Ali Engineer

     

    ASSK. I concur with the views expressed by brother v.m.khaleelur rahman saheb. I too corresponded with the learned doctor, who, to my surprise, informed me that wordings which are or which appear to be controversial are 'off the record viz., not in the written judgment. Let us apply for a copy of the judgment check up and then decide whether we should file a revision petition seeking deletion of the words which hurt our sentiments.

    S.M.Pasha


    By S.M.Pasha -



  • Date:     Tue, 21 Apr 2009 11:44:44 +0530 [11:44:44 AM IST]

    From:   Ghulam Muhammed

    To:       Faizur Rahman

    Cc:     Sultan Shahin Editor@NewAgeIslam.com

     

    If I am plaintiff and had filed my affidavit, the next step in law is for the defendant to plead, guilty or not guilty. If you are flaunting your knowledge about legalities and Sharia, you are wrong on both counts.

     

    If Engineer accepts that my charges are correct and that he operates a Think Tank, whose funding is provided by different institutions, who push and dictate their agenda. In that case, I do not have to prove anything. Only when he pleads not guilty, I will have to give proof. And heaven knows how much I have on him.

     

    Case History: Varun case. EC Chief on the basis of his speech tape, starts actions. Varun says the tape is doctored and wants EC to disprove him. EC Chief contends, it is for him to prove that the tape is doctored. In an interview with Barkha Dutt, EC Chief not only stresses the point but adds that in fact the tape carries much more than the media has shown.

     

    My comment too will follow that I have much more on Engineer than what I have said.

     

    About Quranic dictum, our Prophet has first made an assertion, which was not accepted by others. Only then, the Kafirs are asked to produce evidence.

     

    The next stage therefore is for Engineer, to reply.

     

    Ghulam Muhammed, Mumbai 

     

    On Mon, Apr 20, 2009 at 1:54 PM, Faizur Rahman wrote:

    Mr. Ghulam Muhammed's assertion asking Dr. Engineer to deny his charges is unacceptable, even mischievous. The burden of proof is always on the plaintiff, not the defendant. I am sure Mr. Ghulam Muhammed would have heard about the Quranic dictum HAATU BURHAANUKUM INKUNTUM SAADIQEEN , which translates as, PRODUCE YOUR EVIDENCE IF YOU ARE TRUTHFUL.  Therefore, the only option before him is to apologise to Dr. Engineer.

     

    Faizur Rahman


    By Ghulam Muhammed -



  • Date:   Tue, 21 Apr 2009 13:09:33 +0530 [01:09:33 PM IST]
    From:  Kasim sait
    To:          Ghulam Muhammed
    Cc:  Sultan Shahin Editor@NewAgeIslam.com

    Subject:   Re: Fw: A thought-provoking article by Dr. Asghar Ali Engineer

    Khalilur Rahman is on the dot when he says that the main issues raised by Asghar Ali Engineer need to be discussed. Unsubstantiated mudslinging without counter arguments only exposes the hollowness and lack of depth of the counter arguments if any, which are not being advanced, may be due to their hollowness.
     
    Kasim


    By Kasim sait -



  • Date:     Tue, 21 Apr 2009 12:59:49 +0530 [12:59:49 PM IST]

    From:   KHALEELUR RAHMAN

    To:       Ghulam Muhammed

    Cc:        Sultan Shahin editor@NewAgeIslam.com

    Subject:: Fw: A thought-provoking article by Dr. Asghar Ali Engineer

     

    Dear all,

     

    Assalamu Alaikum

     

    Where has gone the main issue?

     

    The question is if the article of Mr. Asghar Ali Engineer is acceptable or not, We should refrain from personal attacks.

     

    I would just like to say that the way Mr. Engineer explains is in accordance with the Quran and Sunnah. If anybody has any reservation, let him explain it and it is perfectly in order. Why bury the main issue and attack the writer as a brother has done.

     

    This forum is for discussion of issues before us and not to criticise each other.

     

    VMK


    By KHALEELUR RAHMAN -



  • Date:     Mon, 20 Apr 2009 10:21:52 +0530 [10:21:52 AM IST]

    From:   Ghulam Muhammed

    To:       KHALEELUR RAHMAN

    Cc:       Sultan Shahin Editor@NewAgeIslam.com

     

    Justice Katju's private explanations are no match for the words that have gone into Supreme Court records and may in future be used by others with lesser commitment to neutrality in religious matters to the detriment of justice at large.

     

    If he is really sincere and regrets having made some 'extra-judicial' remarks, without full realization of the impact of his side remarks, he should find a way to correct the record wiping out his uncalled for observation on current affairs of Indian Muslims...

     

    Dr. Tahir Mahmood's efforts at diffusing the matter are appreciated, but he himself is too irreverent in such matters to be considered by the community as an unbiased intermediary. Besides, the results are too short of what would satisfy hurt feelings all around the country.

     

    Ghulam Muhammed, Mumbai


    By Ghulam Muhammed -



  • Date:     Mon, 20 Apr 2009 13:54:25 +0530 [01:54:25 PM IST]

    From:   Faizur Rahman

    To:       Ghulam Muhammed

    Cc:           Sultan Shahin Editor@NewAgeIslam.com

     

    Mr. Ghulam Muhammed's assertion asking Dr. Engineer to deny his charges is unacceptable, even mischievous. The burden of proof is always on the plaintiff, not the defendant.

     I am sure Mr. Ghulam Muhammed would have heard about the Quranic dictum HAATU BURHAANUKUM INKUNTUM SAADIQEEN , which translates as, PRODUCE YOUR EVIDENCE IF YOU ARE TRUTHFUL.  Therefore, the only option before him is to apologise to Dr. Engineer.

     Faizur Rahman


    By Faizur Rahman -



  • Date:   Mon, 20 Apr 2009 10:40:45 +0530 [10:40:45 AM IST]
    From:  Ghulam Muhammed <>
    To:  Faizur Rahman
    Cc:  Sultan Shahin Editor@NewAgeIslam.com

    Subject:   Re: Fw: A thought-provoking article by Dr. Asghar Ali Engineer

     

    You have right to demand proof of my allegations over Engineer's long record. The easiest way to get a proof one way or another is for Engineer to deny my charges.

     

    Ghulam Muhammed, Mumbai


    By Ghulam Muhammed -



  • I respect Islam and Islamic obligation by heart: Justice KatjuSubmitted by admin4 on 4 April 2009 - 7:32pm.

    By Manzar Bilal, TwoCircles.net,

    Patna: In a scenario where Muslim leaders are expressing their anger on objectionable remark on beard and burqa by Justice Markandeya Katju, the member of Law Commission of India, Professor Tahir Mahmood and his son Saif Mahmood, advocate of the Supreme Court, met Mr. Katju and informed him about restlessness among Muslim community created by his comment and asked him to explain the matter properly before the people.

    Professor Tahir said that though the controversial words are not in written judgment but to end the restiveness of the community an explanation was necessary from Mr. Katju.

    In the 2-hour meeting, Justice Katju produced copies of many of his judgment as proofs before Tahir Mahmood, he said that as a judge he always defended rights of minority communities especially Muslims. He expressed his regret that his words were misunderstood.

    Mr. Katju assured Mr. Tahir Mahmood that he respects by heart Islam and Islamic obligations and will protect constitutional rights of Muslims in future too.

    Mr. Tahir Mahmood requested Mr. Katju to release a statement about this matter and also appealed to Muslims to end this controversy.


    By V.M. Khaleelur Rahman -



  • My reference to Justice Katju merely pointed to his fear of Talinanisation out of which he might allow, I surmised, 80 lashes specifically for Islamic fundamentalists who violate Islamic laws. I am no votary of Talibani Shariat in India or anywhere else. While I had no issue with is judgement as such, I did object to the fact that Justice Katju confuses beards and burqas with the onset of Talibanisation, though these are part of the Islamic cultural milieu and while many of us including this writer would want Muslims to not consider beards and burqas as necessary symbols of Islam, there is no getting away from the fact that many moderate, liberal and enlightened Muslims too grow beards and don burqas and that these cannot be considered a symbol of Talibanisation. While his judgement was unexceptionable, Justice Katju had no business talking about creeping Talibanisation in that particular judgement.

    For my views on the issue of Justice Katju’s judgement, please go to:

    Should Muslims convert their beards into another existential issue?

    www.NewAgeIslam.Com/NewAgeIslamArticleDetail.aspx?ArticleID=1290

    But please don’t let my reference to Justice Katju deflect us from the issue: Should people ascribe base motives to others whose arguments they cannot counter? I am most pained by the way Mr. Ghulam Mohammed has tried to run down one of the most respected Islamic scholars of the country.

    Sultan Shahin


    By Sultan Shahin -



  • Date:     Sun, 19 Apr 2009 20:00:35 +0530 [08:00:35 PM IST]

    From:   KHALEELUR RAHMAN

    Subject:             Re: Fw: A thought-provoking article by Dr. Asghar Ali Engineer

     

    Sultan Shahin is not right in bringing Hon'ble Justice Mr. Katju to this affair. His judgement safe-guarding the rights of a minority institution was right. Not only the judge but even Muslims abhor "Talibanisation" in any form. Another name for it is "Hindutva". Ours is a secular and democratic country. Let it be so for the betterment of all.

     

    The judge was not against the beard at all.

     

    The codification issue that Dr. Asghar Ali Engineer talks about is sometime different. On that we have no dispute with him at all. He is perhaps one of the best representatives of the Muslim community. Let us support him.

     

    Our country needs no lashes laws. Even the ulema are of the same opinion. Let us have secular approaches.

     

    V. M. Khaleelur Rahman


    By KHALEELUR RAHMAN -



  • Date:     Sun, 19 Apr 2009 07:16:48 -0700 [07:46:48 PM IST]

    From:   zaffarullah khan

    Subject: A thought-provoking article by Dr. Asghar Ali Engineer

     

    Dr. Asgar Ali Engineer has presented a well researched article. It is well within the rights of Mr. Ghulam Mohammed either to agree or disagree but definitely not within his rights to cast aspersions on an individual with whom one may disagree.

    Mr. Ghulam Mohammed has not met any of the points raised by Dr. Engineer on an intellectual plane but has chosen to run down Dr. Engineer as a person. It would be my humble suggestion that this forum be a medium for the exchange of views and not to vent ones bile against another.

     

    Zaffarullah Khan


    By zaffarullah khan -



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