A Secular Marriage Law Comes To the Rescue of Indian Muslim Parents

Some Families Are Quietly Subverting the Muslim Personal Law to Provide Inheritance to Their Daughters By Registering Their Marriages Under The Special Marriage Act

Special Marriage Act
Image Courtesy: hindustantimes.com

M. Jaffrey, a retired employee of a reputed public sector establishment in India, decided to register his marriage in 2004 under the Special Marriage Act. His Nikah/Islamic marriage took place way back in 1981. So, what prompted Jaffrey to re-register his marriage after 23 years? And why, as a believing Muslim, did he seek to register his marriage afresh under a secular law? According to Jaffrey, what made him do so was the realization that he was a father to two daughters.

Since he was married under Muslim law, he could not bequeath the entirety of his property to his daughters. Under the Muslim Personal Law, which was put on the statute books in 1937, he could only will one-third of his property to his daughters. In the absence of a will, the daughters would get a share but her uncles and male cousins will also get a share in the said property. For Jaffrey, this was non-negotiable. “My hard-earned money should go to my wife and my daughters; I am very clear on this issue. There is no reason why my brother or my nephew should have a claim on what I have earned. I love my religion and I think it is perfect but I also love my daughters and I would want to see that their future is secure. Moreover, it is not my fault that I don’t have a son. It is all the will of God”.

Muslim parents who only have daughters are increasingly seeing the Special Marriage Act of 1954 as a way out. Recently, a Kerala Muslim couple registered their marriage under the Special Marriage Act for the same reason. A couple of any religious denomination may register their marriage under the Special Marriage Act, without having to change their religions. Also, registering their marriage under this secular act does not make their religious marriage or the Nikah invalid. That’s because the Special Marriage Act supersedes the provisions of Islamic law of inheritance and allows them to bequeath their entire property to their daughters, and not just a fraction of it.

The Islamic law of inheritance gives sons double the share of what daughters receive. This rule complicates matters for Muslim families which only have daughters. In the absence of son(s), a share of the property also goes to other specified male relatives.

The Debate on Muslim Law of Inheritance

Modern Muslim sensibilities, however, want the Muslim law of inheritance to be gender just. Mohammad Irfan, a professional based in Aligarh, says, “I do not expect to see change in the Muslim personal law in my lifetime. Any change in the legal apparatus takes a long time. What is the option before me except to take recourse to the secular law.” Just like Jaffrey, Irfan, 50, father to a lone daughter, is planning to register his marriage under the Special Marriage Act to ensure his property is transferred to his daughter after his demise.   

For some Muslims, though, demanding a change in the Islamic law is like tinkering with the sharia, which is unacceptable. “How can you demand a change in the divine law,” asks Zeeshan Misbahi, a religious scholar and teacher based in Allahabad. “In the absence of a father or a son, the Islamic law makes uncles the protectors of daughters and hence it is only fair that they get a share in his brother’s property. Those who are bypassing this law or demanding changes in it do not understand the objectives of the sharia.”

Not all religious scholars though are on the same page on this issue. Waris Mazhari, who is a Deoband graduate and now teaches Islamic studies at the Delhi-based Hamdard University, argues that law should be in tune with contemporary reality, otherwise it becomes an obstacle to societal progress. “Women make lots of sacrifices and it is because they invest time and energy within the household that men become successful. Our law should evolve to recognize the efforts and contributions of women. Islam was the first religion to give women a share in property. The need of the hour is to honor this spirit and move towards a more equitable distribution of resources between the two genders.”  

Zeeshan disagrees. “The Islamic law is divine that cannot be changed for all times to come. Moreover, if Muslims want to give more share to their daughters, what is stopping them from doing Hiba or gift? Islamic law provides for this option. But it appears that the sole intention of some modern Muslims is to defame Islam, hence they are opting for a secular law like Special Marriage Act.” 

Gift or Will

Though the provision of gift does exist, there is a major difference between the Islamic Hiba and making a will. Saif Mahmood, a lawyer at the Supreme Court, explains, “Bequeathing property by a will is very different from transferring by way of Hiba, which is a gift. By Hiba, the property is transferred in presenti i.e. immediately and the transferor loses ownership in his/her lifetime whereas a will is enforceable only after the death of the person(s) making the will. Hiba is a transfer of property; will is a succession to property.”

This means that those doing Hiba would lose the ownership of the property immediately after the execution of the deed. And since, unlike a will, the Hiba is irrevocable, he or she will be at the mercy of the one who receives the gift. Says Jaffrey, “If tomorrow, due to some problems, I want to take back my gift, then I cannot do it, as it is irreversible. It is better therefore to execute a will, which is only possible for Muslims if they register themselves under the Special Marriage Act.”

Mahmood agrees: “Once the marriage is registered under Special Marriage Act, the Islamic law ceases to apply to the parties. This means that Muslims who register their marriages under the Special Marriage Act can bequeath their properties by way of a will to anyone without any of the restrictions prescribed in the Islamic law. For example, under the Muslim law, only a third can be bequeathed and that too not to the legal heirs as their shares are already prefixed within the Islamic law of inheritance.”

In such a scenario, Muslim couples who only have daughters see merit in registering their marriages under a secular law, while some activists think requisite changes should be brought about in the Muslim law itself.

Zakia Soman, the co-founder of Bhartiya Muslim Mahila Andolan, says that it’s high time that the Muslim law became gender just. “For years now, our organization has been campaigning that sons and daughters should get equal share in their father’s inheritance. The Kerala example tells us that Muslim society is ready for change but the Ulama and their regressive and misogynistic interpretation of Islam is what is keeping Muslims from achieving these reforms. Our reading of Islam tells us that the core of religion is about justice and hence there should be no place for such discriminatory laws in our religion.”

It remains to be seen whether the campaign to formally change the Muslim Personal Law will succeed or not. What is certain, however, is that some Muslims are already quietly subverting it.

A regular contributor to NewAgeIslam.com, Arshad Alam is a writer and researcher on Islam and Muslims in South Asia.

Courtesy: newageislam.com



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