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Published in the 1-15 Mar 2005 print edition of MG; send me the print edition


Indian Muslims and personal law board

By Asghar Ali Engineer

The Milli Gazette Online

These days Muslim Personal Law Board is in the news as never before. Reason? It has now multiplied into four and now Muslim women themselves have formed two personal law boards of their own. This is big news for media and many Muslims are worried about unity of Muslim Ummah in India. The Personal Law Board itself is maintaining that it is not split but that new boards have come into existence and no member of the existing Board has resigned and formed new board.

Some members of the existing Board have even alleged that ‘some vested interests (mainly political) are behind formation of these boards. Such stand is at best unfair accusation or at worst insulting to those who have formed these boards. It is not only Shiahs who have formed a separate board but also the Barelvis who are Sunni by sect. Also this is not the best way of sorting out grievances. Instead of hurling accusations the wise leaders should try to sort out differences or solve grievances.

As for unity of Ummah it has remained mere rhetoric for centuries. Despite one God, one Messenger and one Book Muslims have remained divided along sectarian lines for last fourteen hundred years. All our Muhaddithun (i.e. those who narrate Prophet’s sayings) have narrated a hadith from the Prophet (PBUH) that my ummah will be divided in 72 sects and that only one sect will be naji (i.e. on the right path). Of course the Qur’anic ideal is of one ummah but there is a condition attached: the ummah will remain united if it remains best of the people (khayrah ummatin). This qualification could not be fulfilled except perhaps by the first generation Muslims and once they ceased to be best of the people they were divided in several sects. Thus we find description of these sects in Baghdadi’s book Al-Farq bayn al-Firaq (Difference between Sects).

Also, it is well known that even in Sunni Islam there are four different schools. Thus differences between Muslims have been there historically and we have lived with these differences. If one Personal Law Board has ceased to represent all Indian Muslims there should not be so much breast beating. Either our ‘Ulama should show wisdom and bring about reconciliation in the best of spirits or if reconciliation is not possible we should learn to live with these differences.
The claim of Muslim Personal Law Board that it was sole representative of all Muslims in India does not bear any scrutiny. It did come into existence in 1972 in response to one Hamid Dalwai’s repeated attacks on Shari’ah law and campaign for uniform civil code. The Government of India had never announced any intention of enacting uniform civil code. Let alone enacting it, it had not even indirectly hinted at such a possibility. Also, Hamid Dalwai had no backing from Muslims. He was backed by communal forces and even today these forces consider uniform civil code as their agenda. 

All secular forces today have disowned uniform civil code as communal forces have adopted it. Even women’s organisations no longer demand UCC as communal forces are demanding it. Thus today there is no threat of Shari’ah law being in any danger. But unfortunately if it is in danger it is from conservative ‘Ulama of the MPLB. They have robbed the Shari’ah law of its dynamism and are perpetrating old formulations arrived at centuries ago. We would like to throw more light on this aspect.

However, first we would like to assert that MPLB does not represent opinion of all Muslims from day one. Let alone any voting it was not constituted even by any broad consensus among opinion makers among Muslims. Few ‘Ulama and Muslim advocates and others got together and decided to constitute the board and later gave representation to other Muslims sect-wise. No opinion of prominent Muslims was sought about its representative character.

It is true that among Muslims in India there is no unanimity about application of Shari’ah law. Not only there are sectarian differences but also polarisation among them on the lines of progressives and conservatives. It is not easy to push through any decision unanimously among 150 million Muslims and differences are bound to arise. Thus MPLB should not claim in the first place that it is representative of cross section of Muslims in India. And the way it has functioned it has represented at best only ultra-conservative sections of Muslims. 

Real protector of any thing is one, which also ensures its healthy growth. One cannot claim to be real protector of something when it begins to stagnate and cause injustices. MPLB has seriously failed in really protecting Sharia’h law by ensuring its healthy growth. It missed great opportunities repeatedly. It always showed its conservative face. The Shah Bano judgement is the best example. It was great opportunity for the Board members to give healthy lead to Indian Muslims by properly interpreting the Qur’anic verse 2:241 which says make provision for the divorcees in goodly manner.

However, the MPLB gave in to ambitious Muslim political leaders who were exploiting the Supreme Court Judgement for their own political ambitions without regard to interests of Muslims in general and Muslim women in particular. It should be remembered that the Qur’anic laws are very progressive and equitable and give women equal status with that of men. It was the first religion in the world which kept interests of divorcees also in view and required men to make provision for his divorced wife since she is usually in helpless situation when divorced. The Qur’an did not mention any period for such provision and left it to the requirements of time. It was opinion of the early jurists that provision be made at least for three months of iddah (waiting before she could remarry after divorce). This opinion could not have been binding as the Qur’anic injunction is.

However, the ‘Ulama in MPLB simply protected the opinion of early Muslim jurists rather than true spirit of Qur’anic injunction i.e. to protect the interests of divorcee and do justice to her. All non-Muslims in general and many Muslim women in particular thought that Islam is unjust to women’s rights. The reality is quite contrary to this. Islam has shown greatest concern for women and their rights. The Qur’anic pronouncements in respect of women are far ahead of time.

If today Muslim women have formed their own board it is because of gross failure of MPLB to meet their demands, which are quite just and within Islamic frame-work. The triple divorce has been causing serious problems to Muslim women. It has nothing Islamic about it. The ‘Ulama themselves maintain that it is sinful form of divorce (talaq al-bid’ah) and one fails to understand why sinful practice should be perpetrated in the name of Shari’ah. The Holy Prophet did not approve of it and Hazrat ‘Umar enforced it in certain circumstances and those circumstances do not obtain at all. Is Prophet’s (PBUH) opinion more sacred than that of Hazrat ‘Umar? And those circumstances also do not obtain under which it was temporarily enforced. It is mere orthodoxy and refusal to change and nothing else. All Muslim countries also have abolished this unjust form of divorce. But our ‘Ulama refuse to take notice of these developments. 

A standard nikahnama was prepared after long deliberations by several Muslim groups and given to MPLB to approve of it. But the Board sat tight on it and dithered time and again and postponed its implementation. And even when it announced its approval it was its watered down version, which hardly benefits Muslim women. Should it then surprise them if Muslim women, tired of Board’s inaction in the matter announced formation of their own Board. However, what is sad is that Muslim women have formed two boards. They should come together and form one board together and include women having proper knowledge of Qur’an and Shari’ah and with ability to creatively interpret the Qur’anic and Shari’ah injunctions to bring about reform and change and to make Shari’ah law more just for women in today’s circumstances.In Islam women have every right not only to recite the Qur’an but also to interpret it. Ijtihad (creative interpretation) is every Muslim’s religious right given proper knowledge and understanding of the text and causes of its revelation. As scholars of Islam know every verse in the Qur’an was revealed in response to some questions in the minds of believers or in response to some major events why then Muslims should not understand the Qur’anic verses in response to their own situation? 

All major modern thinkers of Islam have maintained that ijtihad represents the dynamic principle of Islam and that every generation of Muslims have right to re-think Shari’ah issues in the light of their own experience and wisdom of their own time. However, since power is wielded in Muslim societies by conservatives such thinkers were either persecuted or totally ignored. Even great thinkers like Muhammad Abduh of Egypt met with the same fate. 

It is high time for the Indian ‘Ulama, particularly those associated with MPLB to shed bit of their conservatism and ensure healthy growth of Shari’ah law in secular India. In fact, given proper spirit and commitment, Islamic law can become model for UCC. Qur’anic law is most modern in its approach to women’s rights. Its very spirit was killed by social conservatism and stagnation. Even Sir Syed and Iqbal, though proponent of change, did not assert themselves in view of social conservatism of Indian ‘Ulama. Sir Syed requested Maulavi Mumtaz Ali Khan not to publish his Huquq al-Niswan (Rights of Women) in view of such conservatism. But the Maulavi did and it is a model book even today. The Maulavi was great scholar of Islam in his own right.

If MPLB does not learn any lesson from these developments, it will have itself to be blamed. Instead of blaming vested interests it should seriously reflect on its own policies and help infuse dynamic spirit in the Shari’ah law. Least it can do is to codify Muslim personal law with the help of progressive lawyers. They should take initiative which Maulana Ashraf Thanvi took in codifying certain aspects of Muslim law in 1939 and got Dissolution of Muslim Marriage Act. 

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