Asghar Ali Engineer

(Secular Perspective Aug. 16-31, 2010)

Uniform Civil Code has been a highly controversial issue in Indian politics. The BJP even made it a part of its Hindutva agenda in mid eighties to reap rich crop of votes of Hindu middle class. For a time it did pay some dividends but not for long. The Hindus themselves understood that if by any chance Uniform Civil Code is enacted they will also lose many privileges over their womenfolk.

For Muslims too it was very delicate issue. Besides being question of identity it also was an issue tempering with an age-old Shari’ah law. The Muslim leadership has made Muslims to believe that no changes can ever be made in a ‘divine’ law and applied same logic to the Shah Bano case, divine law being interfered with and forced government to overturn the Supreme Court judgment in case of Shah Bano with disastrous communal outfall.

Muslim women have been facing many difficult problems in Islamic world in general, and in India in particular, due to rigid attitude of Ulama towards Shari’ah law and as they do not want women to enjoy the rights given them by Qur’an. They think women are intellectually weak and emotionally unstable and hence they should not become independent of man’s control.

This is of course a highly faulty logic but actual issue is that women must be kept under check by men in any case. This medieval attitude has been ‘divinised’ and this is reflected in the way laws were compiled hundreds of years ago when women were neither educated nor active in any public space. They were confined to domestic chores. Now that they are not only getting educated but also becoming very active in public space and discourse some changes have become highly necessary.

It should not come as a surprise that Muslim women in India, despite several odds – poverty and illiteracy among them, are becoming quite active in public life and also increasing number are struggling for access to higher education, at least from lower and upper middle classes which are gradually coming into existence since eighties. The acute communalization and increasing number of communal riots as well as demolition of Babri Masjid, made Muslim women too determined to go for modern education and contribute towards progress of Muslim community in India. Several Muslim women have entered in technical professions unthinkable just a few years ago.

This change has made them acutely aware of their rights and need for change in Muslim personal law as it operates in India today. Several initiatives were taken after demolition of Babri Masjid to draw up a standard Nikahnama so as to empower Muslim women and some men and women even married signing these Nikahnamas. However, this is found to be inadequate. What is needed is proper codification of present Muslim personal law within Islamic framework as has been done in many Muslim countries decades ago.

India is indeed the only country where Muslim Ulama have resisted even codification which helps proper use of Shari’ah laws rather than change them. Our Institution, therefore, took initiative to go for codification in consultation with a cross section of Muslim society – Ulama, intellectuals, lawyers and women activists. A field survey was also done and number of Ulama in several cities were interviewed along with women who suffer due to such misuse of traditional provisions.

Then we held two consultations, one in Delhi in which some Ulama, lawyers and activists from North India participated and one in Mumbai in which local Ulama, and others participated. A questionnaire was also used and result analyzed. With this we arrived at some broad consensus. We would like to put the result shortly in public arena but here in this article we would like to throw light on certain areas of codification that we have worked on.

First of all we have covered area of marriage. Marriage being civil contract in Islam bride’s approval is a must and which must be obtained in presence of two witnesses and conveyed to the Qazi and she would also stipulate the amount of mehr which will not be less than one year’s income of the bridegroom and should preferably be in gold or silver or in bank deposit to avoid inflationary consequences.

There will be no limit for maximum amount depending on bridegroom’s economic status. In case of higher amount of mehr landed property or house in bride’s name should be a preferable option. It would not only avoid inflationary consequences but, on the contrary, would appreciate in price and benefit the bride in long term. As far as possible there should not be deferred payment component mehr muwajjal, and if at all there is, it should be only in gold or property, not in cash in any case.

Also, marriage should be registered and records should be maintained by Qazi concerned and he could charge fee from the bridegroom for registration of marriage. He can club records of few such marriages and get them registered once in a month or once in three months depending on his convenience and time. Registration of marriage will have permanent record and will avoid many disputes. There is no need to oppose it as in no way it is against Shari’ah law.

The question of polygamy is controversial. By broad consensus it was decided that neither it should be abolished right away nor should it be made so loose as to enable anyone to marry another wife according to ones whim. This is the most important area of codification. There should be a marriage council comprising eminent Muslims of known integrity in the town. If a person wishes to take second wife he would serve a notice to his wife and the marriage council stating clearly the reasons why he wishes to take a second wife and furnish necessary documents. He would also prove that he is capable of maintaining both the wives with his given means and that he will fulfill the requirement of justice stipulated by the Qur’an.

Among the conditions for second wife it was agreed that either the first wife should be barren and medically proved and that she gives her consent for taking second wife without any coercion and the Qazi in consultation with marriage council will give first wife to present her case and judge whether she is given free consent or there is any element of coercion involved.

The second condition could be if she is suffering from terminal disease and results in deprivation of husband of fulfilling his sexual needs due to this disease and again this should be medically proved and all documents submitted to the marriage council and the Qazi who would take final decision in consultation with the first wife. Second marriage, as stipulated by the Qur’an (see 4:3 and 4:129) has to be in keeping with principles of rigorous justice and should in no case be treated as privilege of man, much less his right, as it often happens.

DIVORCE

Divorce in India is highly misused area as normally the husband pronounces triple divorce in one sitting in a state of anger and even in a drunken state and it is held to be valid ruining years of marital relations and breaking family. All agree that it is bid’ah (innovation and sin) and still hold it to be valid. The Prophet (PBUH) has strongly denounced this form of divorce which was prevalent in pre-Islamic times.

Moreover, all Muslims do not agree on this form of divorce as Ahl-e-hadis and Shi’ah sects hold such divorce to be invalid. It is also far from Qur’an’s intention to allow unilateral divorce without bringing wife on board. Qur’an, therefore, provides for arbitration (see 4:35) appointing an arbitrator from husband’s side and one from wife’s. Thus when husband wishes to divorce his wife he will serve notice to his wife and request marriage council and the council shall constitute a reconciliation committee.

If all attempts at reconciliation fails it would ask husband to pronounce one divorce and wait for the period of iddah (three months) and if he so wishes and repents, he can take his wife back before iddah period expires or on expiry of iddah period wife will be divorced and if it so happens there will be two witnesses (65:2) and the record for divorce with two witnesses signature will be kept by the Qazi. This is supposed to be the best form of divorce involving no arbitrariness.

A woman also has right to khula from her husband and it is her Qur’anic right (see 2:229) and according to hadith also the Prophet (PBUH) granted Jamila khula’ on grounds that she did not want to live with her husband though he loved her and maintained her with respect and dignity. He only asked Jamila to return the orchard he had given her by way of mehr. This hadith clearly shows that her right to khula is absolute and involving no conditionality. Here no consent of husband is needed for khula’. It is not correct to insist on husband’s consent it would amount to overruling the Prophet (PBUH) himself.

We have covered other areas also like inheritance and others. However, for lack of space we cannot throw much light on this here and deal with it in future article. It will be enough to say if these measures are enacted the personal law would do full justice to women and checkmate all abuses which taking place today.

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Centre for Study of Society and Secularism

Mumbai.

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