Muslim Personal Law and Uniform Civil Code
By Zafarul-Islam Khan, The Milli Gazette Online
Published Online: Nov 09, 2016
A debate is raging in the country about triple talaq, Muslim personal law and uniform civil code amid widespread ignorance about the reality of these issues.
Shariat (Divine Law) and Fiqh (jurisprudence) are being mixed up. They are two different things. Shariat is the set of eternal basic beliefs based on divine revelation. These are permanent and unchangeable while Fiqh is human understanding, interpretation and codification of those beliefs and much of fiqh is the reasoning and understanding of the compilers who lived centuries ago. While Shariat is one, Fiqhs are many. Most prominent are the four Sunni (Hanafi, Shafi’i, Maliki and Hanbali) and one Shi’i (Ja’afari) fiqh. Although the basics of Fiqh were laid down by their founders in late Omayad and early Abbasid period, that is some 13-14 centuries ago, later scholars kept revising these opinions until late Middle Ages when the doors of Ijtihad (independent reasoning) were announced to be closed by scholars fearing interference by corrupt local rulers and foreign colonial powers. Though we now find some signs of ijtihad in some Arab and Muslim countries but here in the Indo-Pak subcontinent, especially in India, any ijtihad remains a taboo.
Contrary to the belief that Shariat is divine and permanent, the legal system of Muslim personal law prevailing in India is based on the Shariat Application Act passed by the British colonial rulers in 1937. Before the advent of the British colonial rule, Shariat in its totality was applied to the Muslim subject while non-Muslim were free to follow their personal laws. The British enforced their criminal laws and allowed Muslims and others to follow their personal laws that do not affect other communities. Thus the Shariat Act 1937 allows Muslim to follow their fiqh in a number of fields like including inheritance, marriage, dissolution of marriage through talaq, ila, zihar, lian, khula or mubaraat, maintenance, mehr, guardianship, gifts, trust and wakfs etc). But these rules too were framed by the British judges according to their understanding of Islam. Thus, the Muslim personal law applicable in India is a British law based on Indian British courts judgments which were compiled by many legal scholars like the Principles of Mahomedan Law compiled in 1906 by Dinshah Fardunji Mulla, a Parsi.
At least since the time of the Shah Bano controversy, AIMBLB has been asked to produce a comprehensive compendium of Muslim personal laws but it has failed to produce one. There has been a persistent demand from government, judiciary and public for such a compendium. To be fair, AIMPLB did publish a small book which is not sufficient and does not do justice to all the Muslim schools of jurisprudence found in India.
The current discussion has been triggered by a sou motto case in the Supreme Court and clubbing of some cases of triple talaq, that is a Muslim husband’s right to pronounce irrevocable talaq or divorce by uttering thrice the words “I give you talaq, I give you talaq, I give you talaq” in one sitting. According to the Hanafi school of jurisprudence, this is irrevocable and final after which a couple ceases to be husband and wife and the only way for them to marry again is after Halalah, that is if the divorced woman marries another person who either divorces her or dies. In that case only, the first husband can remarry his erstwhile wife. This is talaq-e bida’at, that an innovation which is not appreciated in Islam. Somehow from the time of the second caliph ‘Umar, this version of talaq (thrice, in one sitting) was allowed although he also punished such a person by lashing him 40 times.
It is clearly against the Quranic injunction that talaq is to be pronounced only twice (Baqarah, 2:229) over a period of time. The Quran lays down a system of divorce starting with efforts at reconciliation within the family then within the society and later by announcing one talaq, followed by a second talaq a month later and then after the passage of a another month the talaq would be final if the husband does not retract it. The husband is ordered not to expel the wife from their house and if talaq becomes final to send her off in an honourable way and to give her a proper gift. It is an ideal way of ending an honourable association. But in India, common Muslims have come to think that the pronouncement of talaq thrice is the only way of pronouncing talaq. This is patently wrong and is, in fact, bid’at, that is an innovation in a religious matter. Our ulama have failed to educate the masses that this is not the ideal way of pronouncing talaq. They have failed to inform the public as well as the judiciary that this is not the only way of pronouncing talaq in Islam. There is an elaborate procedure and time-table. Also, it is a fact that certain schools of jurisprudence, like Ahl-e Hadees and Ithna ‘Ashari Shi’a in India, do not accept triple talaq in one sitting as three. Instead, they count it as only one after which the husband can revoke it and continue to live with his wife. Our scholars have to take into consideration Hazrat Aisha’s hadith which says that talaq is invalid if pronounced in a condition of “ighlaq” (when a person is not in control of himself like extreme rage, sleep, intoxication or insanity). Our scholars should also tell the masses, especially women, that they can insert any reasonable consideration they want in the marriage contract including talaq-e tafwid (i.e., transferring the right of divorce to the would-be wife). Likewise, a would-be wife can impose condition that she will not cook or that she will take up a job, or she will live in separate quarters, etc.
The present Hindutva-led government at the centre is trying to use this debate to impose a Uniform Civil Code (UCC). It is said that UCC is required by the Constitution itself as a direction principle. We do not deny this but we would like to make it clear that Uniform Civil Code is only one among 16 Articles covering many more Directive Principles of the Constitution. Many of them are of greater concern to the general public. These Articles enjoin upon the State to promote the welfare of the people in a social order in which social, economic and political justice shall inform all institutions of national life, to secure for all citizens adequate means of livelihood, to ensure that citizens are not forced to enter unsuitable vocations such as prostitution, begging and drug peddling, to provide for universal legal aid to those who cannot represent themselves because of economic disabilities, to provide for unemployment benefits, to provide for humane conditions of work, to ensure participation of workers in the management of undertakings etc., etc.
Above all, two of the Directive Principles are especially emphasized upon by the Constitution. Article 45 reads: “The State shall endeavour to provide within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of 14 years”. This is the only Article in the Directive Principles wherein a time limit has been prescribed, yet it took fifty years, instead of ten, for the Government of India to convert this most desirable, universally appreciated, and eminently necessary Directive Principle into the 93rd Constitutional Amendment. But even today free and compulsory education for a majority of Indian children is a dream. Similarly, Article 47, enjoins the enactment of a law to bring about universal prohibition. Instead of prohibition, we find that our governments are promoters of alcoholism because selling alcohol enriches the national exchequer.
The framers of the Indian Constitution had clearly affirmed that Article 44 was only in the nature of an enabling clause. Dr. Ambedkar said in the Constituent Assembly, winding up the debate on the subject: “All that the State is claiming in this matter is a power to legislate. There is no obligation upon the State to do away with personal laws. Therefore, no one need be apprehensive of the fact that if the State has the power, the State will immediately proceed to execute or enforce that power in a manner that may be found to be objectionable by the Muslims or by the Christians or by any other community in India …. Sovereignty is always limited, no matter even if you assert that it is unlimited, because sovereignty in the exercise of that power must reconcile itself to the sentiments of different communities. No Government can exercise its powers in such manner as to provoke the Muslim community to rise in rebellion. I think it would be a mad government if it did so”.
It has been the consistent line of all government of Independent India that no changes will be made in the Muslim personal laws without the permission of the Muslim community. The present government cannot change this oft-stated policy.
Then there are some 200-300 personal laws in the country according to the former law minister Mr Moily. It is not an issue of the Muslim community alone. Our demand is that instead of raking up such issues with an eye on elections, the Union government should come out with a draft of the proposed Uniform Civil Code. Only then will we be able to say to what extent it is acceptable or unacceptable. An RSS ideologue has spilled the beans of the Sangh plans (M.G. Vaidya, “The price of personal law,” Indian Express, 1 Nov., 2016) that if Muslims want their personal law they will have to relinquish their political rights. In any case, it is a much larger issue which concerns many communities and groups, including Hindus, in the country and Muslims must not over-react to it. The current noise is being made to polarize the voters in view of the forthcoming elections in a number of states across India.
This will appear in the next MG print edition. It is an expanded version of the author's intervention in Anhad/Aidwa symposium on UCC at the Constitution Club, New Delhi on 2 November, 2016. The author is an Islamic scholar who has studied in Al-Azhar, Cairo, and has a PhD in Islamic Studies from Manchester Uni.