The old debate about Muslim personal laws has resurfaced, with some voices calling for reforms, and others seeking that these stay unchanged. At the centre of the debate, as has been happening before, are the issues concerning women: especially the issue of divorce, the maintenance prescribed for the divorced woman, polygamy, and the minimum age for Muslims to get married, etc. The recent debate has arisen because the Supreme Court is hearing a petition called “Muslim Women’s Quest for Equality”, and the Jamiat Ulema e Hind, a prominent Muslim outfit, being a party to the case, has deposed that Muslim laws cannot be subjected to any court scrutiny as per the principles laid out in the Indian Constitution, as their spirit flows directly from the Quran.
“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 Part-III of the Constitution (guaranteeing fundamental rights, including right to equality),” says the JUH application filed through advocate Ejaz Maqbool, as reported by the Economic Times on 6 February.
The JUH’s position is supported by the All India Muslim Personal Law Board, a non-government but a prominent Muslim organisation, which has been at the forefront of the debate surrounding the “interpretation of Muslim laws by the judiciary” since the famous Shah Bano case. The board is also expected to ask the SC to make it a party in the aforementioned case.
Kamal Faruqui, member of the executive committee of the board, said that Muslim laws in India, as articulated by the board, have been explained after thorough deliberation with national and international experts of Islamic jurisprudence. “Thus, we do not think there is any need to change that. Albeit, there could be discussion to understand them in a proper light. Take the example of triple talaq (announced in one go), it is only permissible by some schools of thought and not the mandatory one. In addition, the board has come up with a model nikahnama, which stipulates marriage to be a highly deliberated agreement between man and woman. A woman is allowed to discuss all her conditions, including the issue of maintenance in case of divorce, as per this nikahnama. It also makes arbitration by three people mandatory in case of any discord between the husband and his wife. It is actually a remedy against any possible discrimination to women in marital discords. People, and even the government, should try to popularise this instead of raising an unnecessary debate about changing the personal laws of the Muslim community,” said Faruqui.
However, there are sharp critics to the board’s stand on laws regarding women’s issues. “They (the board) are interpreting laws, derived from the Quran and Hadith, in the light of the writings of medieval scholars and thus tend to become archaic in their approach. They have to see the changing context to deliberate on the text of the Muslim laws, especially regarding the treatment of women in society and in family,” said Professor Mohd Ishaque, director of the Zakir Hussain Centre of Islamic Studies, Jamia Millia Islamia.
Prof Ishaque added that the Constitution of India is in coherence of the spirit of Muslim laws and it has to be understood by the conservative clerics of the country.
But Faruqui did not agree: “If Muslim laws have to be interpreted by the judiciary in the light of constitutional principles, then let them be interpreted by the Muslim judges with the help of the opinion of Islamic experts. Or the tradition of qazis should be revived in the country.”
Muslim personal laws have undergone several rounds of changes in Muslim countries like Pakistan, Bangladesh, Turkey, Iran, Sudan, Malaysia, Indonesia, Tunisia, etc. They have been amalgamated to be part of the Constitution in these countries. In many of these countries, even the system of the hasty triple talaq has been abolished. Faruqui, when asked about this, did not respond.
Meanwhile, taking a different stand from Jamiat and the AIMPLB, the Jamaat e Islami Hind, another prominent Muslim outfit, took a progressive stand. Taha Mateen, member of Jamaat’s Kerala chapter, said that the hasty triple talaq is un-Quranic and thus un-Islamic. “The Quran doesn’t permit hasty triple talaqs. Hence, those propagating it are doing a disservice to Islam,” he said. However, he did not comment on polygamy and the minimum age for girls to get married. Muslim personal laws put puberty as the minimum age for a girl to get married.