Muslim Family Law in the Modern World
By Grace Mubashir, New Age Islam
28 June 2022
Major Countries In The Arab World That Adhere To Such
Classical Family Law Are Saudi Arabia, Yemen, Bahrain, Kuwait, And The Seven
Trucial States
Main Points:
1.
Countries that still
follow the old family law of Islam without any change. These laws are still not
codified here.
2.
Countries where the
law, which was passed by the legislature instead of abandoning all Islamic
family law, is in force. These laws apply to all citizens, regardless of
religion.
3.
Countries that have
amended the existing Islamic Family Law in their respective areas with the new
legislation. These reforms have been made by adopting certain provisions in
other branches of Islamic law or by imposing some restrictions on some of its
existing provisions.
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Here we are talking about countries where family laws are
regulated according to Islamic Sharia.
.
Muslim countries that follow Islamic family law can be
divided as follows.
1. Countries that still follow the old family law of Islam
without any change. These laws are still not codified here.
2. Countries where the law, which was passed by the
legislature instead of abandoning all Islamic family law, is in force. These
laws apply to all citizens, regardless of religion.
3. Countries that have amended the existing Islamic Family
Law in their respective areas with the new legislation. These reforms have been
made by adopting certain provisions in other branches of Islamic law or by
imposing some restrictions on some of its existing provisions.
The present state of Muslim family law in the above three
countries can be summarized as follows:
Countries That Follow Traditional Family Law
In many countries where Islam is the national religion or
the main religion, the non-codified traditional laws of the respective areas
are still followed without any change. The major countries in the Arab world
that adhere to such classical family law are Saudi Arabia, Yemen, Bahrain,
Kuwait, and the seven Trucial States (the Arab states that were at peace with the
British government).
According to the constitution of Saudi Arabia, all the laws
must be in accordance with the Qur'an, the Sunnah, and the procedure adopted by
the Prophet's followers. Therefore, the country has a traditional legal system
according to the 'Hambali' branch of Islamic law.
In Yemen, the family law of the Sayyid branch of Islam (Shia
influenced) is followed. An attempt a few years ago to reform its principles
was not successful. Muslims in the People's Republic of South Yemen follow the
classical family law of the Shafi'i or Hanafi sect. They are still not codified
(this was prior to merging of two Yemen in 1991). Kuwait is still the center of
classical family law. The people are generally of Maliki sect.
In addition to the aforementioned Arab states, there are two
other Islamic countries in Asia that follow common Islamic law, namely
Afghanistan and the Maldives. According to the Constitution of Afghanistan, the
religion of the nation is Islam; Religious ceremonies in the state are performed
according to the 'Hanafi' doctrine. No modifications have been made to it. The
whole of Maldives Sultanate is Muslim. There 'Shafi' family law matters.
In Chad, Gambia, Guinea, Mali, Mauritania, Niger, Senegal
and Somalia, where Islam is predominant in Africa, there has been no
legislation to reform the existing Islamic family law. Elsewhere in Nigeria,
the rules of family ownership are the same as in the case of family and
succession.
If we move from countries where Islam is important to parts
of Asia, Europe and Africa where Muslim minorities live, we can see many
countries where the principles of the old Islamic family law still exist.
In Thailand, some amendments to the ancient family law have
only affected the majority of Buddhists. Thai Muslims are exempt from this.
They followed the old 'Shafi' family law. This is the situation of the Muslim
minority in Burma.
Under the obligation embodied in the treaty between Greece
and Yugoslavia in Europe, all necessary steps must be taken to uphold the
principle that "for Muslims, family law and the status of the individual
should be determined by the Muslim system." Thus, in Greece, wherever the
Ottoman Empire left in 1913, the usual Islamic law was enforced by the Muftis
(Muslim judges). In such cases, Yugoslav Muslims also practice Islamic law in
accordance with certain national laws.
In Africa, in Ethiopia, Ghana, the Gold Coast, Uganda, and
Sierra Leone, Muslim citizens respect the same classical Islamic family law as
the local interpretation. One more thing is noteworthy here. Many of the
aforementioned countries have secular constitutions where the old Islamic law
is still preserved. Some governments in those countries are driven by communist
ideology.
Countries That Follow Secular Family Laws
In a few countries, Muslims follow the same general rules of
government as citizens of other religions in family law and succession. In
these countries, Islamic family law is being systematically abandoned. Most of
these revolutions have taken place in recent times which have a significant
impact on the religious life of the citizens. In some countries, the outside
world has little knowledge of the family law applicable to Muslim citizens.
Muslim citizens have a majority in only two countries where
Islamic law has been completely abandoned. These countries are Turkey and
Albania. After the collapse of the Ottoman Empire, some of these civil laws
were adopted, based on Western law. The model of the Turkish Civil Code of 1926
is the Swiss Civil Code of 1912. Some things have just changed in line with
Islamic principles. However, with the exception of inheritance, the Turkish
Civil Code does not conflict so seriously with Islamic law in family law. No
information is available on the nature and origin of the Albanian Civil Code of
1928.
Zanzibar, a component of Tanzania, is predominantly Muslim;
there has recently been a marriage law passed that applies to all religions.
Similarly, in Kenya, where Muslims are a minority, a new marriage law has been
enacted that applies equally to all citizens. As a result, the old Muslim
marriage law has been replaced by a new one in these countries. Elsewhere,
Islamic tradition continues to apply to Muslim citizens. However, the new
marriage laws in the two countries are not contrary to the basic tenets of
Islamic family law.
The Muslim minorities in the Philippines and the Soviet
Union enforce secular family laws that apply equally to all others. Under the
Republic Act No. 394 of 1949, Filipino Muslims were granted a leave of absence.
Accordingly, arrangements were made to maintain the local 'Shafi' family law
for a period of twenty years. In the six Central Asian republics of the Soviet
Union, Islamic law was gradually abandoned in the decade following the 1917
Bolshevik Revolution.
Countries That Have Amended Islamic Family Law
The countries in the third category mentioned above have
recently made amendments to the old Islamic family laws. These include
fundamental, statutory, or both laws.
The fundamental law reforms made in these countries should
be described as reforms in the local Muslim branch of law. This is because what
has been done there is not a complete overhaul of Muslim law. The usual way of
doing this is to adopt and enforce other Muslim laws that are not prevalent in
a particular country. Elections are held on the basis of principles and legal
opinions of other branches of Muslim law. The newly adopted family laws in
these countries will be based on any one or more legal concepts within the
framework of Islam. Sometimes two or more comments are added.
Turkey was the first country to make such amendments to
Islamic family law. One such amendment was the Ottoman Law on Family Rights of
1917; this law is now applicable to Muslims in Lebanon. Between 1920 and 1940,
Egypt undertook several legislative reforms. The way to do this was as
mentioned earlier. The 'Hanafi' - 'Shafi' family rules were amended to suit the
local Muslims. Other countries that have implemented such reforms are: Sudan,
Jordan, Syria, Tunisia, Morocco, Algeria, Iraq, Iran and Pakistan. It is
noteworthy that all these countries are Islamic states.
In a country where Muslims are a minority, it is only in
India that a part of the Muslim Family Law - that is, the right of a woman to
obtain a divorce through the courts - has been amended by legislation.
However, the Muslim minorities in Israel and Cyprus observe
some important changes in the Islamic Family Code; these are adapted from other
countries. The Ottoman Family Law of 1917 (passed in Turkey) was adopted by the
Muslims of Lebanon as mentioned above. This is the same code that has been
adopted by the Muslim minority in Israel. In Cyprus, the Muslim Law on Marriage
and Divorce was codified in 1951. It was modeled on the Turkish Civil Code of
1926 on the same subject.
In most of the above countries, the reform has been achieved
by partially amending the fundamental law. On the contrary, many parts of the
family law (e.g. divorce by husband) have been amended to include some
restrictions. The fundamentals are retained. This has been done by empowering
the courts, quasi-court bodies and administrative departments to have access to
family matters. For example, all the new reforms in Pakistan are thus
regulatory in nature.
In five countries in South and East Asia, the Muslim Family
Law has not been fundamentally amended, but it has not been left unaddressed.
In three of these countries, the majority are Muslims -- Brunei, Malaysia and
Indonesia; They are a minority in the other two countries, namely Singapore and
Ceylon. Extensive laws have been enacted to enforce Muslim family law
throughout this country. These generally do not affect the fundamental
principles of family law in force locally. However, the law contains a number
of restrictions to prevent misuse of provisions such as polygamy and divorce.
The scope of the two types of legal reforms, fundamental and
regulatory, varies from country to country. In Lebanon, Jordan, Algeria, Iran,
Malaysia, Brunei, Indonesia and Ceylon, only marriages, divorces and related
matters have been reformed. None of the Islamic traditions of inheritance,
whether by will or by will, have been changed in these countries. In contrast,
Egypt has two separate laws regarding charity and will. Some provisions of
these laws have been slightly amended in Sudan and Syria. Parts of the will law
in Iraq have also been revised. In Tunisia and Morocco, the 'Maliki' principles
of trust and will are almost completely codified; at the same time, some
principles that are not in that branch have been adopted.
Only one reform has been made in India; it is about the
right of a Muslim woman to get a divorce through the courts. Of the reforms
made in Pakistan, only one section, implemented in 1961, deals with
unconditional succession. The rest is about marriage and divorce. An ordinance
passed in Singapore in 1961 touches on matters of succession in addition to
Muslim marriage and divorce. Of the reforms made in Pakistan, only one section,
implemented in 1961, deals with unconditional succession. The rest is about marriage
and divorce. An ordinance passed in Singapore in 1961 touches on issues of
succession, in addition to Muslim marriage and divorce.
The impact of the Muslim family law reforms in the above 20
countries mentioned above was felt in other parts of the world as well. There
has been a long-running debate over whether it is possible to reform areas that
touch indigenous Muslims under the Muslim Personal Law (Shariat) Application
Act, 1937, which was passed in India in 1937.
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A regular columnist for NewAgeIslam.com, Grace Mubashir
is a journalism student at IIMC, Delhi
URL: https://newageislam.com/islamic-society/muslim-family-law-modern-world/d/127344
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