Introduction
Muslim law in India generally means:
“that part of Islamic civil law which is applied to Muslims as a personal law”[1].
The term personal law has wide scope and covers marriage and its dissolution,
family rights and obligations, testamentary and intestate successions, personal
property, religious and charitable endowments and pre-emption. Sharia law,
locally described as Muslim Personal Law, governs the above and like matters
relating to Muslim community in India.[2]
Islamic Personal Law in India is governed by the provisions of Muslim Personal
Law (Shariat) Application Act, 1937. The major portion of Muslim Law in India
remains without codification. To some extent, Muslim Personal Law has been
supplemented with and modified by the state Legislature and the Courts.
Judiciary has also played an important role in the interpretation of Muslim Law
as per the sources of Muslim Law. In this paper, an attempt has been made to
reinterpret the Muslim personal Laws in accordance with the changes in the
society on accounts of public interest at large.
The relevance of Muslim
Law in the contemporary world
The importance of Muslim law can be
estimated from the fact that it is applicable to some 15 crore Muslims in
India, 12 crore in Pakistan, 13 crore in Bangladesh. Muslims in some 20
countries of Asia, Africa and Europe, follow Muslim Law. In other words, one
sixth of the total human population is following Islam. If there is anything
which is considered as the characteristic and foundation of to that religion,
it is Shariah, or Muslim Law.
Islamic law gradually spread with expansion of the Ottoman
Empire in Asia, Africa and Europe and under the influence of the Delhi Sultan
and Mughal in the Indian Subcontinent.
“By the end of the medieval ages, Islamic legal system stood
stress and strains of political vicissitudes and socio-economic upheavals in
several parts of the world. The repercussions of the two World Wars, the fall
of the Ottoman empire and abolition of the Caliphate in Turkey, colonial
expansion Great of Britain and France, emergence of small sovereign states in
West Asia resulting into the growth of nationalism, the rise of communism in
Central Asia and some parts of Europe ceded by the Ottoman rulers, the social
reform movements in Egypt, Indonesia and Iran, independence and partition of
the Indian subcontinent and numerous other events of history led to
revolutionary changes in the jurisdiction and scope of the traditional law of
Islam.”[3]
Muslim personal law, as we understand
it, is originally based upon and derived from the principles and injunctions
enshrined in the Quran and Sunnah. It is clearly this character of Muslim
personal law which distinguishes it from the secular laws and at the same time
from the personal laws of the other religious communities. The Personal laws of
other communities are largely based on the customs and traditions which can be
changed depending upon the changes in human wisdom and custom. On the other
hand, the Quran and Sunnah, on which the Muslim personal law is based, are
unalterable.
The Muslim personal law does not
contain only the injunctions of Quran and Sunnah, but it also includes the
applications, to one’s own circumstances, of the principles articulated
therein. The Quran does not give specific instructions applicable to each
cross-road of social life. It gives specific rules where it deems that the
situations have some important ingredients of everlasting character, which is
undoubtedly based on the enduring human nature.
The Muslim Personal Law
and Reform
Reform of personal law nearly always poses a serious problem
for any government particularly if religion plays a part. In our country for
various reasons, reform of Islamic personal law has been difficult at the best
of time it has become non-existent, although there is strong public opinion
that the progressive ideas in keeping with the march of time should find a
place in the social life of Muslims. Today the doctrine of Taqlid seems to grip
Islamic jurisprudence. The Munir commission in Pakistan, for instance, was told
by the president of Jamiat Ualam that there was no need for reform as there was
no question for which an appropriate could not be found in Quran and hadith.
One should remember the hadith which was asked by the Prophet Mohammad (PBUH)
TO Mouadh bi Jabal when he was appointed the Chief Justice of Yemen.
Fortunately the desire to reform has proved stronger than
resistance to it. Opposing to Taqlid and incitement to Ijtihad has been the
chief motivating force. Even in 13th century Imam ibn Taymiyya (
d.1283 ), a hanbali scholar claimed the right to individual Ijtihad. Mohammad
Abduh, an Egyptian reformer, (1849-1950) and his master Jalaluddin Afghani
(1839-1897) opposed Taqlid and claimed to investigate the source of law and to
think themselves. In India, Ameer Ali, Iqbal and even our founder Sir Syed
Ahmed khan opposed Taqlid and claimed the right of independent thinking.[4]
The attributes of Islam lend to this religion built-in
flexibility and its inherent quality of applicability to different times and
places. Hence, Muslim personal law, in so far as the applications of these
principles, values and ideals in a particular time is concerned, is certainly
open to reconsideration, revision; provided that the roots are not ignored,
circumvented, or indirectly undermined. In so far as the law is based on
specific rules of conduct, i.e., on the crystal clear textual injunctions, it
cannot be changed.
In addition to this, it should also be emphasized that the
Islamic law stands for enforcements, by legal injunctions, of the socio-ethical
objectives of an Islamic society. To judge the provisions of Islamic law
divorced from these objectives is not only unscientific, but also
self-defeating. These are the very essence of Muslim religious life, and to
destroy these laws is tantamount to destroying the religious life.
Why Muslim community resents any change
in its personal law and scoffs all attempts directed to invite its attention to
a crying need of the time. The answer to this question is not simple as the
misconceptions are arising from the two different factors. First, there is
tendency to denigrate the Islamic Shariah as a whole while criticizing the
Muslim personal law as enforced in India. It should be kept in mind that the
Muslim personal law as enforced in this country exhibits, in several aspects, a
failure to understand the true Islamic law. Thus, the shortcomings in Muslim
personal law as enforced in this country does not mean defect in Islamic legal
injunctions as such. Moreover, a very little comparative study of Shariah and
modern law has been made to substantiate the claim that the provisions of the
former are out of tune with modern ideas of justice and equality. Secondly,
some of those who have been crying for change in Muslim Personal law are not
genuinely interested in the welfare of the community as such. They have
invariably proved that their chief target is the destruction of the very fabric
of cultural existence of Muslims and, to that end, they most of the time
pretend as true secularists and well-wishers of the Muslims by citing
artificial or fanciful injustices arising from the Muslim personal law.
In a secular democracy it is
necessary to inspire confidence among the people, to convince them of the need
of change, if any, and to reckon with their sentiments duly. Sadly enough, that
process has never been initiated in India, as the Muslims are concerned. The
groups of pseudo-intellectuals of the Muslim community are like a rudderless
boat. It is, therefore, important to inspire confidence among the Muslims by
talking to them through those whom they really recognize as their leaders.
Against the backdrop of the claim of
inflexibility of Muslim Law, it is interesting to note the following
observations of A.A.A. Faizee-
I do revere the great interpreters of Islam, but I crave their indulgence
if I cannot share their beliefs, for belief is at bottom a matter of individual
conscience. I cannot agree that they are the keepers of my conscience. It is
the duty of the scholars of each age to interpret the faith of Islam in their
own times.[5]
In the pioneering research work in
the Family Law Reform in the Muslim World, Justice Tahir Mahmood enumerates the
countries; these are Turkey, Albania, Tanzania, Zanjibar, Kenya, Philippines
and Soviet Union. Those which have reformed it are Turkey under ottoman Empire,
Labanon, Egypt, Sudan, Jordan, Syria, Tunisia, Morocco, Brunei, Iran, Iraq,
Pakistan, Malaysia and Indonesia (countries with Muslim majority), Cyprus,
Israel, Singapore, Ceylon and India.[6]
What shall we do now?
1.
There
is a core of Muslim personal law which will never be changed. This is
irreducible minimum is provided by the express injunctions enshrined In Quran
and sunnah. Of course, in this limited sphere also, whenever the texts permit
their reinterpretation and adaptation in accordance with the new socio-economic
circumstances, it is allowed.
2.
All
alterations in present Muslim personal law have to be within the framework of
the general principles of Islam, its values and ideals. Elaboration and reinterpretation
of
Islamic legal rules in accordance
with new experiences are permissible.
3.
Changes
in Muslim personal law should be made only on account of genuine needs and
grievances, if any. It must be assured that these needs are real and not
originating from one’s cherished ideas about progress and modernism.
4.
There
are numerous schools of Islamic Fiqh. The solutions to problems that have
necessitated a change in the Muslim personal law, as applied in India, should
first be sought within the schools of Islamic legal thought. Such a search may
lead to abandonment of some hanafi
provisions dominant in India, or their partial modifications, or a judicious
combination of the principles of various schools. Most of the Muslim countries
have adopted this method of development of their personal law. A different
method of reform should be adopted only in regard to those problems which
cannot be solved by this method.
5.
The only natural, intelligent and democratic way
to bring about the required changes is that the Ulama and experts in modern
sciences drawn from the Muslim community should sit together and thrash out the
relevant issues. Any consensus that emerges out of such joint deliberations of
the ulama and modern lawyers should be acceptable.
Conclusion
The Muslim personal law is a part of
Islamic religion, based upon its enduring and everlasting values. Its
distinctive nature must be sympathetically understood and appreciated. It is
however amply clear that reform is not impossible. If the injunctions of Quran
and Hadith are before us, it is possible to make changes by legislation in a
widening area. The latter-day writers like Ameer Ali, Iqbal and reformers like
Abduh maintained the possibility of reform. The lead is coming from the Muslim
countries and it is to be hoped that in course of time the same measures will
be introduced in India too.
[1]
Ahmed Aquil, Mohammedan Law, (2000) Central Law Agency, Allahabad. At 3.
[2]
Fyzee.
[4]
Mulla, Principles of Mohammadan Law, revised byProf. Iqbal Ali Khan, p.30-31
edi. 21st,Pub. Lexis Nexis.
[5]
Faizee in A modern Approach to Islam (1963)
as cited by justice Mahmood in his A.A.A
Faizee,s case in the Muhammadan Law of India, Pakistan and Bangladesh (2nd
edn., 2005 Oxford university Press, New Delhi) at pp. 7-8.
[6]
Tahir Mahmood, Family Law Reform in the
Muslim World, ILI (1972) at p. 3
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