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Islamic Sharia Laws (11 Jan 2013 NewAgeIslam.Com)



Towards A Progressive Interpretation Of Islam

 

By A. Faizur Rahman

Jan 11 2013

The Delhi court judge who rejected bail to a maulvi in a forcible marriage case was right in saying that there is no blanket sanction for polygamy in the Koran

In a significant judgment pronounced last month (in State vs. Nadeem Khan case) Delhi’s Additional Sessions Judge Dr. Kamini Lau called upon religious heads, priests and maulvis “to ensure that the religious texts are progressively interpreted and to confirm that it is only those beneficial practices which are in the best interest of all sections of humanity which are encouraged and observed.” She was dismissing the anticipatory bail application of a Maulvi accused of forcibly marrying a young Muslim girl to an already married man who raped her soon after the Nikah. The judge’s remarks, which form part of her eloquent 14-page order, were in response to the maulvi’s defence that there was nothing illegal about his performing the Nikah because the Shariah permitted a Muslim man to have four wives at a time.

The importance of Dr. Lau’s order lies in her scholarly refutation of the medieval belief that polygyny enjoys blanket sanction in Islam. Citing Muslim scriptures the judge avers that “polygamy is neither mandatory nor encouraged but merely permitted. The Koran’s conditional endorsement of polygamy stresses that self-interest or sexual desire should not be the reason for entering into a polygamous marriage” because the original purpose of allowing this practice was “to protect the social and financial standing of the widows and orphans in their community.”

HISTORICAL CONTEXT

Dr. Lau is absolutely right in her analysis. Indeed, except conditional polygyny, the Koran frowns upon all types of non-monogamous relationships within in and outside marriage. Significantly, polygyny itself finds mention just once (4:3) in the entire Koran. Yet Muslim men have abused it over centuries without appreciating the spirit behind its exceptional sanction, which is clearly contextualised in the historical conditions of the time when a large number of women were widowed and children orphaned as Muslims suffered heavy casualties in defending the nascent Islamic community in Medina. Even a simple reading of verses 4: 2, 3 and 127 will show that it was under such circumstances that the Koran allowed conditional polygyny to protect orphans and their mothers from an exploitative society.

Verse 4:2 warns caretakers against devouring the assets of orphans either by merging them with their own, or substituting their “worthless properties for the good ones” of the orphans. And, if the caretakers “fear that they may not be able to do justice” to the interests of the orphans in isolation, the next verse allows them to marry their widowed mothers — on the condition that the new family would be dealt justly on a par with the existing one. For those who are not up to it, the instruction of the Koran was: “Then [marry] only one.”

The sanctity of taking care of widows and their children is further emphasised in 4:127: “And remember what has been rehearsed unto you in the Book [in 4:2 and 3] concerning the orphans of women to whom you give not what is prescribed, and yet whom you desire to marry...” This proves that verse 4:3 is not a hedonistic license to marry several women.

Furthermore, the Koran idyllically describes the marital couple as “spousal mates” created to find “quiet of mind” (7:189) and “to dwell in tranquillity” (30:21) in the companionship of each other. In fact, verse 7:189, which traces the origin of man to a single cell (nafsan waahida), refers to the wife in the singular as zaujaha, thereby emphasising monogamy. Thus, in the Koranic conception, marriage is the emotional bonding of two minds which cannot be achieved simultaneously with more than one woman.

RESTRICTED IN MANY COUNTRIES

For this reason polygyny is severely restricted in many Muslim countries and totally banned in Tunisia and Turkey, a fact pointed out by Dr. Lau in support of her judgment. In Pakistan for instance, Sec. 6 of the Muslim Family Laws Ordinance, 1961 states that no man, during the subsistence of an existing marriage, can contract another marriage without the permission in writing of the Arbitration Council — a body consisting of representatives of each of the parties to a matter dealt with under the Ordinance — which would grant the sanction applied for after satisfying itself that the proposed marriage is necessary and just.

The Indian Muslim community is perhaps the only Islamic society in the world where utter confusion prevails insofar as the proper definition of Shariah is concerned. Judge Lau brings this up saying, “… in democratic India, it is time to clear certain misconceptions and misgivings regarding Islam. Merely because the Muhammadan Personnel Law does not stand codified, it does not in any manner entitle a violator/ accused to get away with an interpretation which suits his convenience.” Once again she has hit the nail on the head. One fails to understand why the Muslim clerics have always sought to straitjacket the time-transcending polysemic phraseology of the Koran and restrict its meaning to outdated medieval hermeneutics. It is no wonder that a verse in the Koran (25:30) visualises Prophet Muhammad as complaining to God on the Day of Judgment that after his demise his followers had circumscribed the comprehensive message of the Koran.

In this context, one is reminded of the valiant attempt made by the great 14th century jurist Abu Ishaq al-Shatibi of Muslim Spain who in his celebrated legal treatise al-Muwafaqaat fi usool al-Shariah developed the concept of Maslaha (public good) as an essential element of his doctrine Maqaasid al-Shariah (Goals of the Shariah) which he formulated to make Islamic law adaptable to social change. Shatibi argued that an inductive analysis of the injunctions of the Koran and the teachings of the Prophet would reveal that Maslaha is the universal principle that permeates Islam because, the divine intent behind societal sharaa’i (laws) is the masaalih (benefits, good) of the people, both immediate and future. Therefore, any law that does not have Maslaha as its basis cannot be attributed to the Lawgiver.

Surprisingly, even a staunch traditionalist like Ibn al-Qayyim agreed with Shatibi. In his I’laam al-muwaqqi’in he wrote: “The Shariah is all justice, kindness, masaalih and hikma [wisdom]. Hence, any rule that departs from justice to injustice…from Maslaha to Mafsada is not part of Shariah…” It can, therefore, be stated with a fair amount of certainty that the stagnation of Islamic law in India is a result of ignoring the relevance of public interest in lawmaking. It is time Muslim theologians realised that any interpretation of Islam that is amoral, unfair and inconsistent with principles of natural justice and social ethics, cannot claim to represent the Divine Will, and therefore, does not deserve to be epitomised as the Shariah.

A. Faizur Rahman is secretary general of the Islamic Forum for the Promotion of Moderate Thought.

Source: http://www.thehindu.com/opinion/op-ed/towards-a-progressive-interpretation-of-islam/article4295248.ece

URL: http://www.newageislam.com/islamic-sharia-laws/a-faizur-rahman/towards-a-progressive-interpretation-of-islam/d/9963

 




TOTAL COMMENTS:-   11


  • Yunus Sb. and Nezami Sb.,

    If you allow exceptions, people will always abuse them. If a man wants to remarry, first divorce the first wife, making fair divorce settlement for her. As Hats Off implies, men should not give themselves any rights that women do not have.

    Quran's preference for monogamy is quite clear. We should take God's intent to fruition, which is easier to do now than it was in 7th century Arabia. Strict literalism gives joy only to the enemies of Islam, because it makes it easier for them to attack Islam!


    By Ghulam Mohiyuddin - 1/12/2013 12:08:27 PM



  • Mr. Hats off: Please say something appreciable.  But perhaps it is too much to expect from a person of fractured mentality who is unable to stick to the issue at hand.

    Here the point of discussion is whether we can ban or abolish a Qur’anic rule or not. Janab Mohammad Younus Sb has given a befitting solution to the contentious issue. You are free to permit women of your clan to have three husbands or five husbands like Daroupadi had. I have no objection, ok. All, men or women of any religion, are free to practice anything, no one can object, but just give an advice within the limit.


    By Raihan Nezami - 1/12/2013 11:08:35 AM



  • Dear Gholam Mohiudin sahab, I think what you imply is that we should ban polygamy as a social norm, but leave the scope for a man to take a second wife - rather than a mistress in an exceptional circumstances (a wife is mentally deranged of example) with the explicit permission of a court of law. This echos the following concluding recommendation of my referenced article:  "It is time for the Muslim jurists and doctors of law to shed their patriarchal notions and reform the Classical Sharia Law of Islam to preventing a man from taking a second wife except under legally justifiable circumstances, even if the existing wife gives her consent – for a Muslim woman cannot break the law of the Qur’an, without due grounds." 
    By muhammad yunus - 1/12/2013 9:10:20 AM



  • mr raihan nizami wants to jealously guard against any dilution of the "rights" of polygamy for *males*. very very conveniently (for the man, that is) this god has casually granted the right to multiple sexual congresses, while the same god seems to have decided against granting the same previlege to women. whether they they are fond of multiple partnership, is an issue that did not bother the god.

    would he be devastated if it turns out that females have as much rights for poly-marriage as men have?

    in any case, this obsession with sex is what really messes up a fine thing as religion. if only men would decouple (pun intended) sex and women from religion, the discourse would soar and swoop and glide and glissade.

    but it is not to be so.

    religion is obsessed with sex but is uncomfortable with women.

    By hats off! - 1/12/2013 8:27:22 AM



  • Dear Rational: Please don't mind, there is one correction in your post, "year" is wrongly used, it should be "ear" in that place, thanks!
    By Raihan Nezami - 1/12/2013 7:46:16 AM



  • Really some commentators are acting like God. God whispered into their year that this verse is no more valid.
    By rational - 1/12/2013 6:41:45 AM



  • Mr. Mohiyuddin Sb: Sir, How did you come to know? “Allah had allowed polygamy in order not to impose a sudden major shift in Arab life and it should be abolished after 1400 years”. Please enrich my knowledge. Then you say, “We have had 1400 years to adjust to the idea of monogamy”, means it is enough time. Do you take responsibility that no urgency or need for second marriage will occur now in Muslim society after 2012?  You are speaking in such a way as if you or I (Nauz Billah)  had written this verse  and we will decide now as there is no need, so it should be banned. Sir I again request you to check your first statement please. It has a Godly accent; we should avoid speaking dictating some term or tenets that is beyond human’s capacity on behalf of Allah the Almighty.
    By Raihan Nezami - 1/12/2013 3:15:39 AM



  • Nezami Sb, the Quran favors monogamy but allowed polygamy in order not to impose a sudden major shift in Arab life. We have had 1400 years to adjust to the idea of monogamy.
    By Ghulam Mohiyuddin - 1/12/2013 12:08:28 AM



  • Mohiyuddin Sb: How can we ban polygamy if Allah the almighty has allowed it although in dire need with full justice and sharing of responsibily in case of injustice by the husband?
    By Raihan Nezami - 1/11/2013 8:27:51 PM



  • Good article. We too should ban polygamy just as it was done in Turkey and Tunisia.
    By Ghulam Mohiyuddin - 1/11/2013 11:37:11 AM



  • Delhi’s Additional Sessions Judge Dr. Kamini Lau deserves praise and recognition for understanding the message of the Qur'an far better than the vast majority of Muslim ulama. Her views regarding Islam's restriction of polygamy is completely consistent with what is expounded in a recently published duly approved and authenticated exegetic work as extracted referenced below: 

    “These Qur’anic illustrations clearly show that the Qur’an espouses a monogamous society as a social norm. This view was propounded as early as the third century of Islam and is shared by many eminent Islamic scholars, notably Yusuf Ali,12 and Ameer Ali.13 Muhammad Asad and Husayn Haykal refer to the conditional clause of the verse 4:3 and observe that such plural marriages are allowed only in ‘exceptional circumstances.”

    Ref. Ch. 31.2. ‘The Qur’an recommends monogamy as social norm’, Essential Message of Islam, Muhammad Yunus and Ashfaque Ullah Syed, Amana Publications, USA 2009.

    Assuming that the learned judge is a Hindu, her interpretation of the Qur’anic message on a very crucial issue relating to each and every Muslim woman of India – who can be raped by a man – even her father-in-law (case of Imrana) and then asked to marry the rapist to avoid social stigma or even face punishment. No wonder the faith of Islam is petrified as argued in the following referenced article:

    http://newageislam.com/the-war-within-islam/muhammad-yunus,-new-age-islam/the-twin-growing-menace--petrifaction-and-radicalization-in-islam-and-islamophobia-–-are-they-interconnected?-how-best-they-can-be-diffused?-an-sos-to-the-muslim-intelligentsia,-leadership-and-ulama!/d/8686.

    The following article drawn on the above referenced book may also be referred on the Qur’anic recommendation on monogamy as a social norm:

      The Qur’an Prescribes Monogamy, the Social Norm for Humanity

    Ref: http://www.newageislam.com/islamic-sharia-laws/the-qur’an-prescribes-monogamy,-the-social-norm-for-humanity/d/6172


    By muhammad yunus - 1/11/2013 11:32:38 AM



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