Muslim personal law: the concept in India, Pakistan
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Difference in Indian and Pakistani approaches
From the archives of The Times of India 2010
The Indian approach
A Tale of Two Countries
The Shoaib-Ayesha story exposes key differences in the code that governs marriage and divorce among Muslims in India and Pakistan
Mohammed Wajihuddin | TNN
Mumbai: Never mind who ‘cheated’ whom in the Shoaib Malik-Ayesha Siddiqui story, the buck stops at the relevant provisions of the Muslim Personal Law (Shariat) Act, 1937. It has been rarely — and barely — amended in the 90 years since. This, largely because the ulema is opposed to change and regards a modern interpretation of the law as interference.
Mumbai-based scholar Asghar Ali Engineer is one of many who believe that “the cultural basis of the Muslim Personal Law actually lies in the customary laws of the Arab society”. He questions practices such as marrying and divorcing on the phone. These are not mentioned in the Muslim Personal Law and should be declared invalid, says Engineer. He laments Muslim trivialization of “marriage, meesaq-e-ghaliza (strong covenant between two adults)… a qazi can be bribed to distort the rules laid down for a valid nikah and talaq”.
The law’s most controversial elements include the triple talaq and polygamy.
Muslim law flows from the holy Quran: Jamiat-Ulama
The Times of India, Feb 06 2016
Dhananjay Mahapatra
Jamiat to SC: You can't test Muslim divorce law validity Jamiat-Ulama-iHind, the powerful body of Muslim clerics, has said that Muslim personal law flows from the Holy Quran and cannot be subjected to any scrutiny by the Supreme Court based on principles of the Constitution. “Mohammedan law is founded essentially on the Holy Quran and this cannot fall within the purview of the expression `laws in force' as mentioned in Article 13 of the Constitution, and hence its validity cannot be tested on a challenge based on PartIII of the Constitution (guaranteeing fundamental rights, including right to equality),“ the JUH application filed through advocate Ejaz Maqbool said.
The assertion by the body marks a fierce challenge to the intent to extend the principle to gender equality to Muslim women and can open a fresh phase in the debate on whether personal laws based on religion can trump the Constitution. The debate will require the BJP-led government to spell out its stand on the fraught issue.
Last year, while entertaining a petition, a two-judge bench of Justices A R Dave and Adarsh Goel had directed registration of a separate PIL to consider the rights of Muslim women as there was no sa feguard against arbitrary divorce (triple talaq) and second marriage by Muslim men during subsistence of their first marriage. The court had issued notice to the attorney general and National Legal Services Authority (Nalsa).
A bench of Chief Justice T S Thakur and Justices A K Sikri and R Banumathi took up the petition titled `Muslim Women's Quest for Equality' and agreed to make JUH a party to the proceedings and sought responses from the JUH, the AG and Nalsa on the questions posed by the SC in six weeks. All India Muslim Personal Law Board is also expected to request the SC to make it a party in the case.
The JUH also referred to Article 44, which figures as a provision in the Constitution, providing that the state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.
But the JUH said, “Article 44 envisaging UCC is only a directive principle and is not enforceable. This article by implication recognizes the existence of different codes applicable to different religions in matters of personal law and permits their continuance until the state succeeds in its endeavour to secure for all citizens a UCC.“
It said the Muslim Women (Protection of Rights on Divorce) Act, 1986, a legislation brought by the Rajiv Gandhi government to step around the SC directed equality in maintenance for Muslim women in Shah Bano case, provided for the rights of Muslim women in matters of divorce and maintenance.
Indian legal provisions go against the Quran
From the archives of The Times of India 2010
Divorced from the will of God
India’s Muslims live by legal provisions that sharply violate the spirit — and word — of the Holy Quran
Arif Mohammed Khan
The Islamic idea of marriage is best expressed in the following Q u r a n i c verse: “It is He who created you from a single person and made his mate of like nature in order that he might dwell with her (in love). When they are united she bears a light burden and carries it about. When she grows heavy they both pray to God their Lord: ‘If You give us a goodly child we vow we shall be grateful’.” Elsewhere, the Quran says: “They are your garments and you are their garments.”
On the other hand, in Shariat (Islamic law) marriage is described as aqd (contract) and like any other contract, it requires free consent of the contracting parties. The parents or guardians may act as facilitators but the final decision rests with the man and woman who can propose their own terms and conditions to conclude the marriage.
The Quran views marriage as a source of physical and emotional comfort and a means of perpetuating mankind, so it is necessary both partners intend the bond to be for life. However, in cases where living together becomes impossible, the law permits divorce, described as “the most odious among permissible things”.
The Quran lays down the detailed procedure, which is informed by a strategy that encourages reconciliation and prevents family breakup. The Quran says: “When you do divorce women, divorce them at their prescribed periods and count (accurately) their prescribed periods, and fear God. And turn them not out of their houses nor shall they leave except in case they are guilty of some open lewdness. Those are limits set by God: and any who transgresses the limits of God does verily wrong his soul: you know not if perchance Allah will bring about thereafter some new situation.”
The Quranic procedure of divorce provides that the couple continue to live in their matrimonial home during iddat (the three-month cooling-off period) and the option of reunion and remarriage remains available.
In Islamic legal theory, the Quran is accorded the highest status. It is from this that Sharia laws are extracted and construed. It defies reason that Muslim family laws as practised on the Indian subcontinent are mostly in conflict with Quranic provisions.
Some of the legal provisions with respect to marriage and divorce compiled by the All-India Muslim Personal Law Board (AIMPLB) sharply violate the spirit —and word — of the Quran. On the question of parity between husband and wife, Section 117 (3) of the AIMPLB compendium differentiates between Muslims of Arab and non-Arab origin. It provides that “regard shall be had in respect of descent among the Arabs especially Quraysh and those non-Arab families who have preserved their descent. People in the rest of the non-Arab world are mutually equal”. What a travesty of Islamic egalitarianism and equality.
Similarly, in matters of divorce the compendium makes a mockery of the lofty Islamic principle of ‘no compulsion in matters of religion’. The chapter dealing with divorce not only validates instant divorce but Section 5 (b) says: “For the effectiveness of talaq (divorce) it is in principle necessary that the man pronouncing it should be in his senses. This demands that a talaq pronounced in an inebriated condition should not be effective. However if a person has unlawfully consumed an intoxicant by his own liking and habit, his talaq will become effective by way of punishment”.
Sections (6) and (7) are even more ludicrous. Section 6 says: “If a person under compulsion or duress pronounces a talaq it will be valid if it is verbal but not otherwise.” Section 7 says: “A talaq pronounced in hazl i.e. jest also becomes effective.”
There is nothing Islamic about these laws; in fact they smack of pre-Islamic Arab jahiliyya (ignorance), which thrived on class differences and the use of brute force. Is it any wonder then that many hapless women are exploited through fraudulent marriages and then shown the door with an instant divorce? It is futile to talk of reform so long as the authors of these atrocious laws continue to enjoy political patronage.
The writer, a former Union minister, quit the Rajiv Gandhi government over the Shah Bano controversy
POLYGAMY
A provision enshrined in the Quran, though hedged around by many conditions; upheld by the 1937 Muslim Personal Law but grossly misinterpreted and misused.
Those partial to the practice quote a Quranic verse as justification but forget that it was revealed during a great and bloody battle, which left many men dead and large numbers of destitute widows and orphans. The flipside is another verse in the same Quranic chapter, which stresses that no man is ever “able to be fair and just between women even if it is your ardent desire.” Senior cleric Maulana Shoeb Koti says it “proves the Quran lays emphasis on monogamy”.
India, unlike Pakistan, does not have legislation such as the Muslim Family Laws Ordinance, 1961, which proscribes marrying a second time without the first wife’s consent. Supreme Court advocate Saif Mahmood admits the lacunae: “An avowedly secular country like India has failed to give Muslim women what many less secular countries have.”
SC:Polygamy is not integral to Islam
Feb 10 2015
Amit Choudhary
Supreme Court: Art 25 protects faith and not practice
Although Muslims' personal law permits a man to have four wives, the Supreme Court on Monday ruled that a Muslim's fundamental right to profess Islam did not include practising polygamy . “What was protected under Article 25 (right to practise and propagate any religion) was the religious faith and not a practice which may run counter to public order, health or morality . Polygamy was not integral part of religion and monogamy was a reform within the power of the State under Article 25,“ said a bench of Justices T S Thakur and A K Goel.
The bench said that polygamy was not integral to religion and the practice didn't acquire sanction of religion simply because it was permitted. It upheld the UP government's decision to sack an employees on the grounds of misconduct for opting for a second marriage without its prior permission.
The bench noted that the court had upheld the views of Bombay , Gujarat and Allahabad HCs in this regard. It also upheld conduct rules framed in UP Government Servant Conduct Rules, saying they didn't violate Article 25.
In this case, Khursheed Ahmad Khan, employed as irrigation supervisor, had married Anjum Begum while he was still married to Sabina Begum. The sister of his first wife filed a complaint before the National Human Rights Commission, which ordered a police probe. The police submitted its report before the commission confirming the second marriage. The state government initiated proceedings and later removed him from service for failure to take permission for the second marriage as is required under rule 29 of the conduct rules. Khan then approached Allahabad HC, which dismissed his plea.
2015: Stop Muslim polygamy: Gujarat HC
The Times of India, Nov 06 2015
Saeed Khan
Stop Muslim polygamy, says Guj HC in pitch for uniform civil code
The Gujarat HC made a strong pitch for uniform civil code and called for abolition of polygamy in Muslim society. The HC recommended amendment of Muslim personal law saying that in this day and age, polygamy is often driven by selfish motives. Justice JB Pardiwala, adjudicating on a petition of a Muslim man facing bigamy charges under section 494 of the IPC after marrying for a second time without taking his first wife's consent, held that since the second nikah was valid as per Muslim per sonal law, the man could not be prosecuted for bigamy .
Quashing the bigamy charges, Pardiwala called for implementation of uniform civil code by quoting Article 44 if Part IV of the Constitution, which mandates “the state to endeavour to secure for the citizens a uniform civil code throughout the territory“. He said the practice of polygamy and unilateral talaq without wife's consent violates the provisions of the Constitution.
“If the State tolerates this law, it becomes an accomplice in the discrimination of the female, which is illegal under its own laws,“ the judge said. “On the basis of modern progressive thinking, India must shun he practice (of polygamy) and establish a uniform civil code,“ he wrote in his judgment.
“The Quran forbids polygamy if the purpose to marry more than once is self-inter est or sexual desire... It's for he maulvis and Muslim men o ensure that they do not abuse the Quran to justify the heinously patriarchal act of polygamy in self-interest,“ he judge advised.
Quoting from history , Par diwala said when Quran al owed polygamy , it was for a air reason “to protect orphans and their mothers from an exploitative society ... When men use that provision today , hey do it for a selfish reason.“
The Pakistani approach
Omer Farooq Khan | TNN
Polygamy
Islamabad: What do Pakistan prime minister Yousuf Raza Gilani and Punjab chief minister Shahbaz Sharif have in common? Both are believed to have more than one wife. Nabeel Gabol, a Pakistan Peoples Party lawmaker, recently told parliament that roughly 80% of the country’s MNAs (Members of the National Assembly) and senators were much-married men. This, despite Pakistan’s Muslim Family Laws Ordinance of 1961.
Supreme Court barrister Gohar Ali says there has to be a valid reason in order for a Pakistani man to marry a second time. For instance, “suppose a woman cannot become a mother due to medical reasons”. The law requires an arbitration council, headed by a local councillor, to identify the ‘reason’, Ali adds.
But nearly half a century later, polygamy is still practised by isolated tribal communities and the feudal classes which dominate parliament.
Parliamentary sources have given TOI a list of prominent politicians and public figures with more than one wife. The list is long. It names Gilani and Sharif, PPP heavyweight Makhdoom Amin Fahim, Sindh chief minister Syed Qaim Ali Shah, and former federal ministers Yar Muhammed Rindh and Azam Khan Hoti.
It is interesting to note that Samina Khawar Hayat of the PML-N supported the practice of polygamy in the Punjab assembly just a few weeks ago. It was subsequently debated in the National Assembly. Are Pakistan’s politicians soft on polygamy?
D ivorce, iddat, mehr
The 1961 law empowered women by giving them the right to seek a divorce. In practice, qazis follow the old ways. Most Pakistani nikah certificates do not mention this specific clause. The law makes it a crime punishable by prison and a fine for a married Pakistani man to take another wife without the consent of his first wife, says Gohar Ali. “If Shoaib Malik and Sania Mirza had tied the knot before he divorced Ayesha, then, under Section 5 of the family laws, he would have been liable for punishment,” he adds.
The divorce meant Ayesha entered the threemonth iddat period, during which Shoaib has to pay her maintenance. There is a simple, scientific and socially responsible reason for this. If a divorced woman menstruates during the iddat, she is clearly not pregnant and iddat lasts just three months. If she is pregnant, iddat continues till the baby is born.
Pakistani legal experts say that in Ayesha’s case, she claimed a physical relationship with Shoaib and must therefore remain in seclusion during the iddat period. Under the West Pakistan XXXV Act, which came into force in 1964, a woman can sue her husband if he refuses to maintain her without lawful cause. Barrister Gohar says that maintenance varies from case to case under the family law. Citing Shahbaz Sharif ’s divorce from his second wife Aaliya Honey, with whom he lived for just one year from 1993, he says: “The CM had to pay more than $1500 per month, during her period of iddat.” Interestingly, Sharif took writer Tehmina Durrani as his third wife soon after divorcing Aaliya.
Hudood horror
The Hudood Ordinances were enacted in 1979 as part of General Zia’s Islamization process. They cover five areas: zina (non-marital sex) and rape; theft and armed robbery; qazf (or false accusation of zina); prohibited use of alcohol and narcotics, and the procedure for whipping. The ordinances made adultery and rape punishable by stoning. But it became difficult to prove rape because a woman was required to provide four adult male witnesses. Failure to provide proof of the alleged rape placed the woman at risk of prosecution for adultery.
The Women’s Protection Act of 2006, brought by the Pervez Musharraf regime, placed rape laws under the Pakistan Penal Code, based on civil law, rather than Sharia. Police no longer had the right to detain people suspected of having sex outside marriage. Adultery and nonmarital consensual sex was still an offence but judges were henceforth allowed to try rape cases in criminal rather than Islamic courts. It did away with the need for four witnesses to prove rape and allowed conviction on the basis of forensic and circumstantial evidence. However, the Hudood Ordinances continue to be a part of Sharia law in Pakistan.
