Tunisian women gather to celebrate Women’s Day on Aug. 13 in Tunis. On the same day, the country’s president announced the review of a law requiring that a man receive twice the share of an inheritance as a woman.
Anadolu Agency/Getty Images

The contrast between the ulema in India and in Tunisia could not be greater. While in India they are finding it difficult to digest even the declaration of instant triple talaq as invalid, their counterpart in Tunisia are miles ahead on the road to reform.

On August 22, the Supreme Court by a 3:2 majority decision “set aside” the practice of instant triple talaq among Indian Muslims on the ground that it was “un-Quranic”/“un-Constitutional”.  In response, Maulana Mehmood Madni, general secretary of the Jamiatul ulema-e-Hind, has invited contempt of court and has virtually incited Muslims to continue with the now prohibited practice.

No matter what the Supreme Court might rule, instant triple talaq remains valid in Islam, Madni has argued. In Tunisia, on the other hand, talaq (divorce) has been prohibited except through the courts since the passage of the Code of Personal Status, 1956. The same Code also banned polygamy unconditionally.

Now, barely a week before the SC verdict in India, on the occasion of Tunisia’s National Women’s Day (August 13), the country’s 90-year-old President, Beji Caid Essebsi has announced the creation of a committee to look into proposals including women marrying non-Muslim men, as well as equal inheritance rights for women.

The declaration is astounding for more than one reason. Given that the 2014 Constitution of Tunisia declares Islam as the religion of the country imagine its head of state proposing a reform that a vast majority of Muslims across the globe would consider to be contrary to the explicit injunctions of the Quran. From the perspective of the Indian ulema this is nothing short of heresy.

Even more astonishing is the fact that Tunisia’s Islamic scholars at Diwan al-Ifta have backed the move. According to them, Essebsi’s proposals “support the status of women and guarantee and implement the principle of equality between men and women in the rights and duties called for by Islam, as well as the international conventions ratified by the Tunisian state”.

Prima facie, the Quranic verses are unambiguous on both the issue of equal inheritance rights and the right of Muslim women to marry non-Muslim men.
On inheritance:

“Allah charges you in regard with your children: a son’s share is equal to the share of two daughters; if the [children] are [only] daughters and two or more, their share is two thirds of the legacy, and if there is only one daughter, her share is half [of the legacy]; and each of the parents inherit one-sixth of the legacy if the deceased had children, and if the deceased had no children and the parents are the only heirs, the mother inherits one-third; if the deceased had brothers, the mother inherits one-sixth; [all this is] after executing the will and settling the debts of the deceased… This is Allah’s injunction; surely Allah is All-knowing, All-wise.” (4:11).

As an Islamic portal sums it up, sons inherit twice that of daughters, brothers twice that of sisters, and husbands inherit twice that of wives, except regarding the father and mother of the deceased: if they are living at the time of their child’s death, each equally receives one sixth of the deceased’s legacy.

On Muslims marrying non-Muslims:

A Quranic verse clearly prohibits both Muslim men and women from marrying infidels or polytheists: “Do not marry unbelieving women (idolaters), until they believe… Nor marry (your girls) to unbelievers until they believe… (2:221)

Another Quranic verse makes it lawful for Muslim men to marry Jewish and Christian women: “(Lawful unto you in marriage) are (not only) chaste women who are believers, but chaste women among the People of the Book, revealed before your time (5:5).

But there is no corresponding Quranic verse which says anything about Muslim women marrying Jewish or Christian men. This is interpreted by the orthodoxy to mean that Muslim women are only permitted to marry Muslim men.

Not surprisingly, Egypt’s Al Azhar University – among the oldest and most renowned centres of Islamic learning – has reacted sharply to the proposal mooted by the Tunisian President.

A statement issued by Al Azhar stated that the Quranic texts discussing inheritance leave no room for alternative interpretations. “These teachings leave no space for uninformed analyses or theories that contradict Islamic edicts. It provokes Muslims that hold onto their religion with a firm hand and shakes the stable foundation of the Muslim community.”

Abbas Shouman, the deputy head of Al-Azhar, expressed his institution’s discontent, saying that Essebsi’s decision does away with religion rather than renewing it. He denounced the clerics supporting Tunisia’s line of thought as “unscholarly,” accusing them of being ignorant of the blatancy of certain Islamic rulings “that do not allow for independent reasoning and do not change with time or space.”

For Shouman, Muslim women marrying non-Muslim men defies the purpose of marriage in Islam.

Tunisia’s ruling Nidaa Tounis was quick to rebuff Al Azhar. “Essebi’s proposals are of interest to the Tunisian community only, and no one has the right to engage in this debate,” Burhan Besis, an official from the ruling party said.

More interesting in an interview to the Egyptian Al-Watan newspaper a Tunisian mufti endorsed the Tunisian president’s remarks and defended them on the basis that “God’s ruling on earthly matters” could and should be reinterpreted to stay relevant.

Islamic feminist Omaima Abou Bakr notes that discussing equality in inheritance or marriage of Muslim women to non-Muslim men “is not against Islam, but rather against the classic interpretations of Islam.” In support of her contention, she points out that  “there have been contemporary readings of Islam that discuss these issues and offer new progressive readings and solutions outside the scope of scholars and clerics.”

She cites the recent writings of Tariq Ramadan, a professor of contemporary Islamic studies in the Faculty of Oriental Studies at Oxford’s St Antony’s College and Khaled Aboul Fadl, the chair of the Islamic Studies Program at the University of California. The progressive readings and solutions, however, are anathema to the orthodoxy at Al Azhar and to the ulema in India.

Meanwhile, Tunisia’s Islamists are finding themselves in a Catch-22 situation. The country’s Is­lamist Ennahda party has traditionally drawn its support from the country’s rural areas and working-class urban belts around the main cities. In recent years, especially after the ‘Arab Spring’, the party has been trying hard to expand their reach in urban areas and elite constituencies.

The drive to win new adherents has forced the Ennahda to take increasingly “modern” positions on gender issues, among other things. That is why it has had to come around to voicing support the over six-decade-old ban on polygamy. More recently it has endorsed a new law to check violence against women.

But now the Women’s Day proposal of the President has put the party in a real bind. By supporting the “modernists” the Ennahda stands to lose its traditional base. Opposing it will mean a major setback vis-à-vis the new constituency it has been working hard to cultivate.

The 2014 Tunisian Constitution has a novel provision that while Islam would be the religion of the country, Tunisia would remain a civil state. In the issue of reform of family laws in Muslim-majority countries, the Code of Personal Status is seen as “a beacon and a source of hope for other women’s movements and governments”.
 

The post Tunisian Ulema March ‘Ahead’ of the Qu’ran: Endorse Muslim Women’s Right to Equal Inheritance, Marrying non-Muslims appeared first on SabrangIndia.

One of the religious deliberation sessions. Photo: Dr Nur Rofiah. (Images courtesy openDemocracy)

Can women interpret Islamic law? This question would have been a ‘no-brainer’ to a Muslim from Damascus in the 12th century, when women served as renowned teachers of the Islamic tradition, and the opinions of women jurists on questions of Islamic law carried weight comparable to that of male jurists.Yet, if one asks a Muslim today: have you ever asked a woman for an interpretation of Islamic law?, the answer from Dakar to Dhaka, from Sarajevo to Cape Town, from Jakarta to Ann Arbor will usually be “no”.

Women are not asked to interpret Islamic law, and few expect them to do so. Very often, this is because women are not sufficiently trained for this work. If they are, they tend to be consulted only on so-called ‘women’s issues’ such as child rearing, a wife’s duties towards her husband and towards others in the family, household organisation, and hygiene.

In recent years, however, Muslims in different parts of the world have started to address gender imbalances in juristic expertise. In India, Turkey and Morocco, programs have been set up to train women as muftis (jurists who can issue fatwas or expert legal opinions). Judicial bureaucracies in Malaysia and the Palestinian Authority have begun to hire female judges in their sharia courts.

Recently, Indonesian organisations also joined forces to convene the Muslim world’s first congress of ulama perempuan: women Islamic scholars.

This historic event, held in late April in Cirebon, West Java, was nothing short of a breakthrough in terms of re-establishing the long-lost juristic authority of women to produce Islamic legal recommendations and rulings. It concluded with the issuance of three historic fatwas – against sexual violence, child marriage, and environmental degradation exacerbating gender inequality.  
Between us, we have studied Islamic authority and gender for decades. We interviewed several of the women scholars, as well as some of the male attendees, involved in the event to learn more about it and the deliberations process. We have also been able to analyse some of the copious explanatory material issued by the congress.

It was nothing short of a breakthrough in terms of re-establishing women's juristic authority

Women’s juristic authority was squarely on the agenda. Such authority can manifest itself in Islam in several ways including by leading prayer, reciting the Qur’an, delivering a sermon, transmitting a hadith (a saying of the prophet). The pinnacle of this authority is the ability to interpret Islamic sources to make recommendations of behaviour in the here and now.

Also read: How Muslim women clerics are increasingly challenging traditional narratives.

In most contemporary Muslim societies, this is exercised in two main ways. The first is by issuing fatwas. These are legal recommendations based typically on interpretations of the Qur’an and hadith. (Different sects in Islam regard different hadiths as authentic, and therefore the specific source material differs from sect to sect.)

A person trained to issue a fatwa is called a mufti, with the feminine form in Arabic muftiya. Fatwas are only recommendations and they are not binding. But they can carry great weight. In some countries, policy makers take fatwas of leading Islamic authorities into account when, for example, considering reforms to family law, inheritance, Islamic finance or food and medicines regulations.  

The second way this authority is exercised is by serving as a judge in an Islamic court. This requires deep engagement and expertise interpreting religious sources, and the needed erudition and experience can take decades of study and training to acquire.

In Indonesia, for instance, family courts for the Muslim majority apply Islamic law (non-Muslims are subject to civil family law). Since the 1950s, judges for these courts have been trained in the country’s Islamic state institutes.

Although female judges of Islamic law were unheard of at the time – and remain a minority – admission to these institutes was not restricted to men. And so women also completed this advanced training and, from the 1960s, some have been appointed judges in Indonesia’s Islamic courts.
 

Women ulama visit the Indonesian minister of religious affairs before the congress. Photo: Dr Nur Rofiah.

In 1970, Sudan also appointed women as judges in courts applying what’s known as “non-codified” Islamic law (under which judges must interpret original sources, as there is no codified text issued by the state, like a statute or book of law).However, it would take another 35 years before women would be appointed to Islamic courts in other countries. Malaysia did so in 2005, the Palestinian Authority in 2009, and Israel just a few months ago appointed the first woman judge to its Islamic courts.

The congress in Indonesia aimed to raise awareness about these developments and strengthen local initiatives to promote women’s juristic authority in Islam. Importantly, it showed that it’s not only women who stand behind this struggle. Male scholars, while a minority, were also among the speakers and attendees.

It’s not only women who stand behind this struggle. Male scholars were also at the congress.

It’s not only women who stand behind this struggle. Male scholars were also at the congress.  At the congress’s core was “musyawarah keagamaan” (religious deliberation) to formulate fatwas. In many Muslim countries fatwas are associated with individual Islamic leaders, but Indonesia has a long tradition of fatwas issued by Islamic institutions’ ‘fatwa commissions.’

The women ulama at the congress issued three fatwas. This in itself was historic as fatwa issuing has long been monopolised by male clerics. (There are, for example, only seven women ulama out of 67 members of the fatwa commission of Majelis Ulama Indonesia (MUI) – a prominent Islamic organisation, set up by the government in the 1970s).

The first fatwa issued focused on sexual violence. It emphasises that such violence including within marriage (marital rape) is forbidden under Islamic law (haram). It also distinguishes zina (adultery and fornication) from rape. It emphasises that victims must receive psychological, physical and social support – not punishment.

The second fatwa concerns child marriage. It says these practices bring harm (mudarat) to society. The ulama’s accompanying commentary calls for raising the Indonesian legal marriage age for girls from 16 to 18 years. Importantly, as most child marriages are not registered with the state in the first place, the fatwa also tells ordinary Muslims and imams that it is obligatory (wajib) to prevent them.   

The third fatwa links environmental destruction and social inequality. It describes environmental degradation for economic gain as haram and says it has in recent decades in Indonesia exacerbated economic disparity with women the most affected. It notes how drought, for example, adds to the burdens of rural women typically responsible for preparing food and fetching water.

Participants told us that deliberations on this fatwa also touched on issues of land and forest governance, and how deforestation affects women in particular. It demanded that the Indonesian government should impose strict punishments on perpetrators of environmental destruction. Among other things, the discussion noted illegal deforestation campaigns in Indonesia to make space for vast palm oil plantations.

Like the best judges in any society, the women ulama are also experts in diverse contemporary issues.

The women ulama based their religious interpretations on four sources: the verses of the Qur’an, hadith, aqwal ‘ulama (views of religious scholars), and the Indonesian constitution. They used a methodology called “unrestricted reasoning” (istidlal), with stated aims to maximise maslaha (public interest) and reduce mudarat (harm) to arrive at rulings.

The three fatwas show that women ulama also have the ability and the expertise in Islamic sources to formulate these recommendations. They also show that the ulama perempuan do not restrict themselves to the Qur’an, hadith, other classical Islamic texts, and talking about the past. Like the best judges in any society, they are also experts in diverse contemporary issues.

Indeed, Nur Rofi’ah, an expert in Qur’anic and gender studies who took part in the congress, told us that it produced more than fatwas, which usually consist of only a few pages of argumentation.

The congress considered a larger range of sources during its deliberations, including evidence of conditions and challenges faced by women. It also produced far longer and more in-depth textual explanations.

Some Indonesian gender rights activists, and Indonesian fatwa committees themselves, use the term sikap keagamaan (religious views) for recommendations that come out of this more complex deliberation process and outcome.

But whether one calls these fatwas or sikap keagamaan, their significance was clear: This congress was a historic step towards reestablishing the long-lost juristic authority of women to produce Islamic legal recommendations and rulings.

Dr. Mirjam Künkler is senior research fellow at the Swedish Collegium for Advanced Study and author of Democracy and Islam in Indonesia, (Columbia University Press, 2013). She has recently published a special journal issue on female Islamic authority in southeast Asia, in the Asian Studies Review 40, 4 (December 2016).

This article was first published on openDemocracy.
 

The post A fatwa against sexual violence: the story of a historic world congress of female Islamic scholars appeared first on SabrangIndia.

Photo credit: AFP

Among the gravest threats facing humankind today is extremism resulting from erroneous interpretations of religious teachings. Almost every religion has some teachings or the other that if not understood and practiced in the right manner can have disastrous effects, at both the individual as well as collective level. For instance, many religions underscore the need to protect society from anti-social elements, call for eradicating injustice, advocate establishing justice, and sanction self-defence in exceptional circumstances.

All of these things are part of our basic human duties. But if ignorance and immorality leads some people to develop distorted and deviant perspectives about these issues, it can easily lead to violent conflict in society. If this happens, religious teachings that were meant for promoting goodness and human welfare come to be used as a means to foment violence and destruction.

In this regard, Islam is faced with a particular predicament—of being viewed through a distorted lens by both those who claim to follow it as well as others. That it is misunderstood by others is not as surprising as the fact that it is misunderstood by many of those who claim to be its adherents, who are themselves destroying the religious and cultural bases of the tradition that they say they follow. These people are projecting their own religious teachings as a grave threat to the world.

The source of this distorted understanding of Islam is the intellectual crisis that Muslims have fallen prey to over the last three or four centuries. Several factors are responsible for this crisis, and unless these are properly understood, no meaningful efforts can be made to help Muslims come out of the morass in which they find themselves and to turn Muslim  thought back in the right direction. 

In part, the intellectual crisis of present-day Muslims can be traced to the suppression of the movement of Islamic rationalism by the traditionalist, orthodox Ulema in the early centuries of Islam. In the conflict between reason (Aql) and text (Nass), the suppression of reason played a major role in the ensuing intellectual stagnation of Muslims.

In part, the intellectual crisis of present-day Muslims can be traced to the suppression of the movement of Islamic rationalism by the traditionalist, orthodox Ulema in the early centuries of Islam. In the conflict between reason (Aql) and text (Nass), the suppression of reason played a major role in the ensuing intellectual stagnation of Muslims.

A second factor for this intellectual crisis of Muslims was the supposed closing of the ‘doors’ of Ijtihad’, creative reflection on and application of Islamic teachings in new contexts, in the 4th century AH following the establishment of the various schools of Islamic jurisprudence (fiqh). Who closed these ‘doors’ and when is a separate issue, but the fact is that, for all practical purposes, meaningful Ijtihad did come an end and its ‘doors’ remain closed till this very day.

A third factor for the present-day intellectual crisis of Muslims is the inability of Muslim leaders to understand the social political challenges that have emerged as a result of various socio-cultural processes. This, and a desperate clinging to the past, meant that Muslims were unable to relate intellectually with the present. Related to this is the fact that in seeking to preserve their intellectual heritage in the face of modernity, they uncritically continued to hold fast on to even those aspects of that heritage that were not a part of Islam as such, but, rather, reflected the influence of particular historical and socio-cultural contexts in which that heritage emerged.
Because of all of these inter-related factors, Muslim thought has strayed far off from the straight path.

The greatest need of the ‘Muslim world’ today is the reconstruction of Islamic thought so that Muslims can appropriately relate to contemporary socio-political demands. The poet-philosopher Muhammad Iqbal (d. 1938) attempted to do precisely this through his monumental work, The Reconstruction of Religious Thought in Islam (1930), but the book failed to have any noticeable impact on the traditional ulema class, even though they counted themselves among Iqbal’s greatest admirers. While they were all praise for his poetry, they rebutted this serious academic work of his that raised many questions about traditional Muslim religious thought.

With regard to the renewal and reconstruction of Islamic thought, one dimension that needs particular attention is Muslim political theory. This urgently needs to be re-looked at. Aspects of this political theory that have now become irrelevant, and, more than this, have turned into a threat to the world of today, must be completely renounced so that the younger generation of Muslims can be protected from falling prey to deviant thinking and thus going astray.

Controversial and completely un-Islamic notions such as the global political hegemony of Islam, offensive jihad, considering other people’s lack of faith in Islam as a sufficient cause to wage war against them, and regarding war, not peace, to be the basis of relations with people of other faiths regrettably remain deeply entrenched in some Muslim quarters despite the fact that they can in no way be proven from the Quran and the practice of the Prophet Muhammad (peace be upon him).

These notions fuel conflictual relations with people of other faiths. Islamic scholars must clarify that these notions have actually no Islamic legitimacy at all, contrary to what radical extremists claim. The enormous confusion in Islamic circles about these issues has resulted, on the one hand, in great misunderstandings about Islam among non-Muslims, and, on the other hand, has facilitated the emergence and rapid spread of extremism and radicalism among a section of Muslims.

The major share of the blame for the enormous misunderstandings about Islam that abound today, particularly with regard to the issues mentioned above, lies with the traditionalist Ulema, and, more than them, the Islamists or votaries of a politics-centric interpretation of Islam, who dream of imposing and enforcing their particular interpretation or version of the Shariah and establishing global what they regard as Islamic political dominance—or, in other words, their own rule.

The traditionalist ulema are mired in stagnation, while the Islamists are a victim of literalism. These two classes seek to establish the political theology that emerged in the Middle Ages, when Muslims enjoyed political dominance in large parts of the world, word for word, without making any changes in it. The only difference between the two is that the former gives stress to ‘patience’ and ‘waiting’ as a means to realise its dream of establishing this political ideology, while the latter is driven by a frenzied zeal to revive the past political glory of Muslims at any cost and without any delay. Because of this, the image of Islam is being terribly stained and in such a way as has never happened before. All across the world, there is a rapid escalation of hate for Muslims, and, moreover, Muslims themselves are killing each other.

While much has been written on various other aspects of Muslim jurisprudence, very little work has been done on an issue of immense contemporary import—Islamic political jurisprudence. Because this issue has not received the attention that it deserves, there is a huge vacuum in Islamic political theology, which is being taken advantage of by radical Islamists, who falsely claim to speak for Islam.

 In this regard, it is truly lamentable that the mindset of traditional ulema is such that they are not interested in taking up the task of addressing this vacuum, although this work of rethinking Islamic political theory is something that they would be more effective in doing because of the great influence that they have on general Muslim thinking. On the other hand, there are relatively few modernist Islamic scholars who can combine both traditional wisdom and modern perspectives and fill this enormous gap. One hopes that this issue will receive the attention that it so sorely deserves.

Today’s world is a closely interlinked ‘global village’. A saying of the Prophet Muhammad: “All God’s creatures are His family’’ reflects this reality, and we all, Muslims and everyone else, have to learn to live together in harmony, like members of one large, well-knit family. It is for each one of us to try to unite this family, through love, not to divide it, through hate. There is a very urgent need today for interfaith dialogue on a vast scale in order to promote mutual understanding, which is simply indispensable for peaceful coexistence at every level.

In this way, the external nearness between religious communities across the world that has come about through new communications technologies can evolve into an authentic, inner nearness. Today, this is the most urgent task for those who have true love for Islam to undertake and another major responsibility for Islamic scholars, besides other Muslims.

A graduate of the Dar ul-Ulum Deoband, Waris Mazhari did a PhD from the Department of Islamic Studies, Jamia Millia Islamia, where he is currently teaching.

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Whichever way you look at it – in simple human terms, rationally, constitutionally or theologically – the dogged refusal of the bulk of the ulema in India and the All India Muslim Personal Law Board (AIMPLB) to call for an end to the Muslim male right to triple talaq (instant divorce) defies comprehension.

In human terms, in terms of any notion of gender justice, the unilateral, arbitrary and whimsical right of a Muslim male to divorce his wife in an instant – a letter, telegram, telephone, telex, fax even an SMS would do – cannot be described as anything but inhuman and anti-women.

In rational terms it defies any definition of justice or equity. Triple talaq cannot but be unconstitutional because it is so blatantly unjust, unfair, arbitrary and discriminatory.

Even theologically, it is difficult to digest the position long held by the ulema and until recently accepted by the courts: "Though bad in theology (haram, sinful), triple talaq is good in law".

What this means in simple terms is that the moment a Muslim male utters talaq, talaq, talaq, his wife becomes unlawful to him, even if he has uttered those words under coercion, in a fit of rage or in a drunken state and regrets his utterance the very next moment. The only way out for the couple to resume their marital relation, the ulema say, is through halala: the woman must marry someone else, consummate the marriage, get the second husband to divorce her and then remarry the first husband.

It is repeatedly claimed, not by Muslims alone but also by many non-Muslim scholars, that justice and equality are the key social message of Islam. How can the practice of triple talaq be squared with any notion of justice or equity? It is not known if the ulema or the AIMPLB have ever asked themselves this question, and, if so, what their answer is.

It is repeatedly claimed, not by Muslims alone but also by many non-Muslim scholars, that justice and equality are the key social message of Islam. How can the practice of triple talaq be squared with any notion of justice or equity? It is not known if the ulema or the AIMPLB have ever asked themselves this question, and, if so, what their answer is.

Not all the ulema and not all members of the Board accept triple talaq as lawful. Besides, the triple talaq practice is today unlawful in an overwhelming majority of Muslim countries, even though Islam is declared to be the State religion.

For the first time since its inception in 1972, the AIMPLB resolved in its meeting of July 4, 2004 to take some concrete, if highly inadequate, steps to give justice to Muslim women. The Board resolved:

(1) To launch a nation-wide campaign to create awareness in the Muslim community that the prevalent practice of triple talaq was wrongful and to educate them on the Islamic way of divorce.

(2) To prepare and popularise a model nikahnama that both husband and wife be asked to sign at the time of marriage, committing themselves to not seeking a divorce except in the correct Islamic way as spelt out in the model nikahnama.

(3) To ensure that Muslim women get a share in agricultural property.

(4) To establish Darul Qaza (Islamic courts) in different parts of the country to settle marital disputes and to strive for constitutional status to these courts (so that its orders become legally enforceable).

The Board has fallen between two stools. These resolutions have left the Muslim fundamentalists aghast at the very thought that the AIMPLB is contemplating the unthinkable: bringing any change in Muslim Personal Law.

On the other hand, the proposed measures have not impressed women’s groups and other secular organisations in the least. And this is so for several reasons.

So long as you keep reiterating the position that triple talaq is good in law but bad in theology, what would be the efficacy of any campaign against it, even assuming (and this is a very big assumption) the Board has the machinery to run a nation-wide campaign and the mechanisms to ensure its success. As for a model nikahnama, the same Board has been sitting on a model nikahnama suggested by some of its own members for ten years. How many more decades before an approved nikahnama goes into mass circulation? How do you create mass opinion in its favour?

No less objectionable is the fourth resolution, asking for a religious body to be integrated as part of the judicial apparatus in a secular State. How can any secular State grant such legitimacy to any religious organisation? How would anyone react to the demand for a Hindu Dharam Sansad as an integral part of the courts’ set up in India?

The only saving grace in these four resolutions is the one concerning restoration of Muslim women’s right to agricultural property. It is a welcome development for more than one reason. In demanding fresh legislation to ensure Muslim women’s rights to agricultural property (a right that has been denied to them since 1937 with the connivance of the ulema), the Board will nullify the oft-repeated though baseless claim that any change in Muslim Personal Law is interference in God-given laws.

Even as there is endless debate over whether those concerned with gender justice should engage with or ignore the Board, victims of triple talaq (Muslim women) have kept knocking at the doors of constitutional courts in search of justice. And surprisingly, though neither the media nor the Muslim masses have awakened to its implications, a big, big change is evident here.

It is clear from a spate of judgements by the high courts and even a division bench of the Supreme Court since 1998 that the upper echelon of the judiciary is no longer willing to buy the "bad in theology, good in law" line of the ulema. There now seems to be a near consensus among them that unless it is for a reasonable cause and is preceded by efforts at reconciliation, talaq is un-Islamic and unlawful.

What this could mean for a victim of arbitrary talaq is best understood from a brief recount of the September 18, 2002 judgement of a division bench of the Supreme Court comprising Justice RC Lahoti (now Chief Justice of India) and Justice P. Venkatarama Reddi in the case of Shamim Ara v. State of UP and another, (2002) 7 SCC 518.

Shamim Ara from Allahabad got married to Abrar Ahmed in 1968. In 1979, she filed an application before a family court seeking maintenance from her husband under Section 125, CrPC, on the ground that he had deserted her.

In 1990, the husband filed a written statement to claim he had divorced her in 1987 and so she was not entitled to any maintenance. Accepting the husband’s contention that she had already been divorced, the family court, in its judgement in 1993, dismissed the wife’s plea for maintenance.
On her appeal, the high court (Allahabad) held that the communication of talaq stood completed in 1990 with the filing of the written statement by the husband.

But on September 18, 2002, the Supreme Court ruled that "neither the marriage between the parties stands dissolved on December 5, 1990 nor does the liability of the husband to pay maintenance come to an end on that day. The husband shall continue to remain liable for payment of maintenance until the obligation comes to an end in accordance with law."

The judges held that the mere plea of a husband of having divorced his wife sometime in the past was of no use as, "There are no reasons substantiated in justification of talaq and no plea of proof that any effort at reconciliation preceded the talaq".

The courts of secular India are the only hope for the countless victims of triple talaq.

Archived from Communalism Combat, July 2004 Year 10   No. 99, Cover Story 1
 

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The question of Muslim personal law has become not only a question of Muslim identity but also a question with deeper political implications. The Muslim leadership doggedly resists any reform in certain aspects of the law particularly pertaining to marriage and divorce and the Hindu communal leadership would not accept anything short of complete abolition of personal law pertaining to Muslims. As a result the Muslim women face problems and in some cases pretty serious ones.

The Muslim leadership resists any change on the ground that Muslim personal law is divine and no one can tamper with divine law and the Hindu communalists maintain that there should be one law for one country. Both positions are fundamentally flawed. The Muslim personal law is not divine in the sense the Quranic injunctions are. Firstly, Shariah is based on human interpretations of divine injunctions and is an endeavour to understand divine will and it is for this reason that there are several interpretations of Quranic verses and four different schools in Sunni Islam itself – Hanafi, Shafii, Maliki and Hanbali, besides Zahiri and Shiah schools like Ithna Ashari and Ismaili.

These different schools of Shariah law came into existence as a result of different human interpretations and to that extent there is always a scope for new and creative interpretations in keeping with changed circumstances. A noted Islamic scholar and historian Muhammad Mujib who was also vice-chancellor of Jamiah Milliah Islamiah had described shariah as a human approach to the divine will. It is quite an apt description of the evolution of the Shariah laws.

The Shariah law had been quite dynamic even during the Mughal period. The Fatawa Alamgiri, set of fatwas obtained during Aurangzebs period on various questions pertaining to Shariah are far more dynamic and liberal to women than the Muslim personal law enacted by the British.

And, besides new creative interpretations there is tremendous scope for what is called borrowing from another school if one’s own school is creating problem. This practice was followed in Turkey during the Ottoman period in as early as nineteenth century. This method was also followed in drafting the Dissolution of Muslim Marriages Act, 1939. When Muslim women found it problematic to wait for 90 years if their husbands were missing according to the Hanafi School, the ulama, in order to overcome this difficulty, borrowed the rule from the Maliki School which allows the woman to wait only for a period of four years.

According to this [1939] Act, a Muslim woman can obtain decree for dissolution of her marriage on as much as eight grounds including disappearance of her husband for four years, neglect to pay maintenance by her husband for more than two years, if the husband has been sentenced for a period exceeding seven years, or if the husband is found impotent or insane or suffering from virulent venereal disease etc. This enactment immensely benefited many Muslim women who were unable to get relief within the Hanafi law.

It is important to note that the Muslim personal law is a British enactment and is being followed by Indian courts by virtue of this enactment and not because it is divine law. The British rulers had their own agenda and made personal laws totally static by this enactment. The Shariah law had been quite dynamic even during the Mughal period. The Fatawa Alamgiri, set of fatwas obtained during Aurangzebs period on various questions pertaining to Shariah are far more dynamic and liberal to women than the Muslim personal law enacted by the British. Even the provision for maintenance to women is much more progressive and if followed, could have avoided the Shah Bano movement.

The British themselves called the enactment, not shariah law, but significantly called it Anglo-Mohammedan Law which itself is indicative of the fact that it was a secular enactment by a secular government. Also, it must be noted that the British applied the western notion of Justice, equity and good conscience to all personal laws which itself is alien to the concept of Shariah law which Muslims consider as divine. The Shariah law is supposed to be inherently just and there is no question of any external notion of justice, equity and good conscience. This single phrase allowed, says Scout Kugle, a USA scholar, massive invasion of British juristic authority, despite caveat that English law itself was not to be introduced.

A Muslim Qadi was well aware of these differences, conflicting precedents, rulings and deductions and thus ruled in a particular case in the best interest of the victim. However, such benefits were not available to the victim, particularly women in matters of marriage, divorce or maintenance, as after the British enactment of the Anglo-Mohammedan Law, the British judges began to treat law as quite static and went more by the precedents than by consideration of relieving the victims of suffering.

In this connection it is also important to understand that before the British the Shariah law was administered by well qualified Qadis who had properly imbibed the spirit of Islamic laws. They not only used to be thorough scholars of shariah and knew provisions of other schools of law and applied those provisions if justice so demanded. But the British judges, and following them other Indian judges, pronounced judgements in keeping with the letter of the law and followed them mechanically from Hanafi School based on Hedaya, a translation of compilation of Hanafi law by [Charles] Hamilton.

It is also important to note that the Qadis decided the cases by themselves and were not bound to follow their predecessors. However, the British and subsequently Indian judges decided cases on precedence rather than on the merit or situation of the case itself. The decision of one Qadi, in other words, did not bind the other Qadi. They followed the juristic principle of ikhtilaf, i.e., mutual co-existence of differences in interpretation to give benefit to the victim. They always filled the space between legal rhetoric and social reality with interpretation in favour of the sufferer.

As Aziz al-Azmeh points out in his 'Islams and Modernisms' the shariah is a nominal umbrella of a variety of different things and is by no means univocal. The majority of its rulings do not have the finality attributed to them by modern studies. With few exceptions, Islamic law is a body of differences and of general rulings… they (Islamic legal elaborations in addition to governmental statutes) adduce a multiplicity of conflicting precedents, rulings, deductions, all of which are considered equally legitimate.

A Muslim Qadi was well aware of these differences, conflicting precedents, rulings and deductions and thus ruled in a particular case in the best interest of the victim. However, such benefits were not available to the victim, particularly women in matters of marriage, divorce or maintenance, as after the British enactment of the Anglo-Mohammedan Law, the British judges began to treat law as quite static and went more by the precedents than by consideration of relieving the victims of suffering.

The 2nd caliph Umar enforced it in the third year of his reign to combat its misuse by some unscrupulous elements. But in certain schools of Sunni Islam it became a part of shariah because of the rulings given by some noted jurists in its favour and today it is considered a part of divine law which it is not. Triple divorce, it must be noted, is not universally accepted by all schools of Sunni law, let alone Shias and Ismailis.

The Muslim leaders need to understand this today and work sincerely for much needed reforms in Muslim personal law particularly in matters of marriage, divorce and maintenance. They should not treat the enactment by secular government as divine and static. They should also note, as pointed out above, the cases are decided not by the Qadis but by secular judges. The secular judges, as is obvious, cannot follow the spirit of Islamic law but the law as laid down by the enactment. Unfortunately it is commonly believed by the Muslims that the personal law as enacted in India is divine. There is urgent need to remove this misconception and pave the way for necessary reforms within the Islamic framework.

It is also necessary to understand that the Caliphs also issued certain injunctions from time to time known in the shariah terminology as tazir which were necessitated by developing situation and these injunctions too, though not divine, became integral part of Shariah over a period of time. The triple divorce in one sitting, for example, was not practiced during the holy prophet’s time, during the first caliph Hazrat Abubakr’s time, nor during first two years of second caliph Hazrat Umar’s time.

The 2nd caliph Umar enforced it in the third year of his reign to combat its misuse by some unscrupulous elements. But in certain schools of Sunni Islam it became a part of shariah because of the rulings given by some noted jurists in its favour and today it is considered a part of divine law which it is not. Triple divorce, it must be noted, is not universally accepted by all schools of Sunni law, let alone Shias and Ismailis.

The great theologian of 14th century Imam Ibn Taymiyyah decisively rejected it and considered it as against the principles of Islam. He wrote extensively refuting the practice.

Ahl-e-Hadis, among Sunni Muslims also reject it and question its validity. However, it has become an integral part of Muslim personal law in India as most of the Muslims are Hanafis and Hanafi school accepts its validity. There are Shafii Muslims in South, particularly in Tamilnadu and Kerala and Shafii school also permits it. But today this form of divorce is causing suffering to many Muslim women and it needs to be reformed.

The ulama should take initiative as they did in 1939 and got the Dissolution of Muslim Marriage Act. An alim of the stature of Maulana Ashraf Thanvi had then taken the initiative in getting this provision enacted to relieve suffering of many Muslim women who had to wait for inordinately long period according to the Hanafi Law in case their husbands were missing.

Such an initiative is urgently needed today to relieve Muslim women of suffering due to triple divorce too. In fact, the Muslim personal law as it operates today in India needs to be thoroughly overhauled and compiled properly. The British enactment cannot be perpetuated forever under the misconception of divinity. As it results in injustices to women it loses its Islamic character. As far as Islam is concerned justice is the central value. One cannot think of Islamic value-system without justice.
 
No doubt it is a Herculean task to undertake compilation of Muslim personal law and very difficult to evolve consensus but nevertheless it is highly necessary. One will have to borrow provisions from different schools of law to evolve a just compilation. And, as pointed out above, this practice is not alien to Islam. In fact it was resorted to from time to time to serve the ends of justice and give benefit of provisions of other schools to the suffering women. The precedent of Dissolution of Muslim Marriage Act, 1939 is also there to follow.

Unfortunately the ulama, particularly the Muslim Personal Law Board has adopted a very rigid stance on the question of reform. Their usual argument is that it will open floodgates of change and interference from government. This is not a sound logic in any case. Justice is far more important than imaginary fear. The ulama took initiative in 1939 and it did not open floodgates of reform or interference. It did, on the other hand, immense good to hundreds of suffering Muslim women. No law can remain static over a long period of time without causing suffering to those for whom it is meant.

If the Quranic provisions of marriage and divorce are enforced it would do immense good to Muslim women. The Quran neither permits easy divorce nor unrestricted polygamy. It is true these verses pertaining to marriage and divorce have been differently interpreted. The ulama will have to evolve a consensus around the interpretations best suited to the rights of women. Many Muslim countries have done it already and just because Muslims are in minority in India the ulama should not deter the process of reform and change within the Islamic framework. They should remember that Muslim women are also a minority within Muslim minority and they also need justice.

(This article by the late Islamic scholar Asghar Ali Engineer was first published in November 1999 by the group, Women Living Under Muslim Laws (WLUML).
 

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