Arshad Alam, New Age Islam
petition seeking invalidation of polygamy and Nikah Halala, the All
India Muslim Personal Law Board sought to implead itself and argued that the petition
be rejected. We shall come to the grounds on which the Board wants the petition
to be quashed.
there can be ulterior motives behind the petition. Also, since the petitioner
is not from within the community, questions can be raised as to why the said
petitioner is not campaigning for women’s rights within his own community,
which are also highly unequal.
is equally pertinent to ask as to who the AIMPLB is to represent the
‘interests’ of Muslim community. Why does the Board feel that it is its duty to
represent Indian Muslims? Has the Muslim community ever elected them to this
responsible position? Do they even have the mandate to speak on behalf of
Muslim community which constitutes a diverse array of opinions and even religious
orientations? Do they have the right to speak on behalf of thousands of Muslim
women and men who want to reform such personal law within their community?
Certainly not. Then why is that the highest court of this country entertains
them as if they are the custodians of Indian Muslims?
is making two separate sets of objections to the current petition. Firstly, it
is arguing that practices like polygamy and Nikah Halala are ‘cultural’
practices and as such they need to be protected because the constitution of
India invests heavily on maintaining religious and cultural diversity. This is
a clever piece of argument, but, as with many organizations quoting the
constitution these days, does not sound convincing. Certainly the constitution
does talk of maintaining religious, cultural and linguistic diversity. However,
the constitution also talks of fundamental rights. When the AIMPLB talks of
rights, it always talks of the rights of community, not that of the individual.
The constitution on the other hand, talks of balancing the rights of the
community with the individual.
the worldview of the AIMPLB, individual rights certainly do not exist. So if a
Muslim woman objects to the practice of Nikah Halala, then she will be
asked to shut up because the rights of the community (personal laws) are more
important than her individual rights as a woman and as a citizen of this
country. This is certainly a delicate legal balance but for those women who are
trying to change the existing balance of power within the community, the answer
has been clear since many years: till the time individual rights do not get
primacy over community rights, no real reforms will happen within the
community. The value of diversity certainly needs to be lauded but should this
necessarily trump the rights of individual women?
also be pointed out that AIMPLB is conflating religion with culture. For
convenience, it can be argued that all Muslims follow the same religion. But
then we all know that there are fundamental difference in terms of theology and
even the idea of the prophetic mission within Muslims themselves.
These differences are not just textual and
polemical, but get into our very relationship towards fellow Muslims. If the
religion itself is not monolithic, then how can culture be one and the same for
all Indian Muslims? This is certainly a myth propagated by the AIMPLB wherein
they are trying to argue that all Muslims follow the same culture. This is
sociological nonsense. But then trying to fuse religion and culture is perhaps
a bigger nonsense.
In making practices like Nikah Halala
and polygamy a cultural issue, they are in fact arguing that all Muslims
indulge in such practices. Nothing can be farther from truth and in arguing so,
the Board is caricaturing Muslims as backward and regressive people. This
certainly creates a perception that most Muslim indulge in such practices. The
reality, on the other hand is that instances of polygamy are more within the
Hindu community. Thanks to Muslim custodians like AIMPLB, we do not need right
wing Hindus to paint us as regressive and uncivilized people. The Board is
doing this task remarkably well.
argument which the AIMPLB is making is that the state has no business in
pronouncing judgments on matters of personal law. It has argued that personal
laws do not fall within the definition of ‘law ‘because personal laws are based
on scriptural sources, and as such they do not derive their legitimacy from
secular legal jurisprudence. This is actually the repeat of the argument made
during the Shah Bano affair.It seems that the Board has not learnt any lessons.
If it is argued that Indian Muslims will not be governed by state’s secular
laws, then this certainly will antagonise other communities who have to follow
the state law in both secular and religious matters. This kind of Muslim
exceptionalism has already proved to be counter- productive to the larger cause
of Muslims in India.
also be pointed out that in matters of criminal law, the AIMPLB has no issue in
accepting the secular law. But when it comes to issues wherein women and their
rights are concerned, then they want primacy of religious laws over secular
laws. This duplicity must be called out. But more importantly, what also needs
to be said is that Muslim personal law is not divine and certainly only a small
portion of it can be traced back to the scriptures. In large measure, the
Sharia is man-made and has evolved through centuries of rational application of
human mind. If the Sharia is indeed divine, one fails to understand how so many
Muslim countries have been modifying it from time to time.
It needs to
be said unequivocally that the practice of Nikah Halala is abhorrent.
Muslim women and men have been raising their voices against this practice since
many decades now. There are documented cases of how women have been subjugated
through this practice, not just in India but even in the South Asian Muslim
communities abroad. Similarly, Muslim women have been fighting against the
practice of polygamy. Way back in the early 20thcentury, the All India Muslim
Women’s Conference, drafted a model Nikahnama and inserted therein a clause
that if the husband takes another wife, then the extant marriage will be
immediately annulled. More recently, the Bhartiya Muslim Mahila Andolan, has
been organizing Muslim women and amplifying the hitherto suppressed voices of
Muslim women. A sensitive Muslim organization would have listened to these
voices and would have become the beacon of reform. However, we should not have
any hopes of this kind from the AIMPLB.
Alam is a columnist with NewAgeIslam.com
New Age Islam, Islam Online, Islamic Website, African Muslim News, Arab World News, South Asia News, Indian Muslim News, World Muslim News, Women in Islam, Islamic Feminism, Arab Women, Women In Arab, Islamophobia in America, Muslim Women in West, Islam Women and Feminism
business of Halala is strictly forbidden in Haram in all schools of Islamic
allowed with the condititon of justice but not compulsory. That Something is
Jaaiz does not mean Waajib, as Jaaiz and Waajib both are two different things. In
Jaaiz matters, you have an option either to do or not to do but in compulsory
acts you are duty bound to do otherwise you will be a sinner. So in the case of
polygamy, we see that the Quran allows polygamy with the condition of justice
but does not make it compulsory.