In response to the Supreme Court's recent suo motu decision to test the legal validity of triple talaq in Muslim personal law, the All India Muslim Personal Law Board (AIMPLB) has said that the country's top court has no jurisdiction to undertake the exercise as the community's personal law was based on the Quran and not on a law enacted by Parliament. The fact however is that 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 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.
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).