Theory and Practice of Muslim State in India c10.s2: 6.2. Muslim Personal Law
Theory and Practice of Muslim State in India c10.s2
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6.2. Muslim Personal Law
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Muslims constantly harp on their personal law. India is a land of many religions and followers of all these religions have their own religious or personal conventions or rules relating to marriage, divorce, adoption, inheritance, wills etc. Therefore it is realised that there should be some sort of uniformity in the civil laws of the land so that no community is discriminated against or favoured by the state in the eyes of the law. Moreover, for the progress of the Indian society as a whole, it is necessary to have a common civil code for all citizens. For example, as per the Indian Penal Code a Hindu or Parsi or Christian husband can be convicted for bigamy. But Muslims are excluded from this law because polygamy is recognised as a valid institution amongst their community. Thus while bigamy is a penal offence, Muslims enjoy exclusion from it. Apart from polygamy, another core issue is the divorce system (triple *talaq* or otherwise) among the Muslims. Hindus and Christians cannot secure divorce so easily. It has been constantly said that there was no reason why the Muslim community was not given the benefit of social reforms regarding bigamy and divorce. Two of the more important features of a uniform civil law of course would be a ban on polygamy and instant *talaq*. This will not only give greater security to Muslim women, but also prevent irresponsible Hindu males from embracing Islam just to be able to marry more than one woman. Polygamy and instant *talaq* are both sanctioned by the Shariat law. Both are loaded in favour of Muslim men. Muslim women are sufferers.
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*Woman in Islam* "Men have preeminence above women because God has made them superior to the latter. Also men spend their money... Good wives are obedient to men... Those who disobey you, first advise them politely to behave themselves. If they do not improve, stop sleeping with them. If even then they do not improve, beat them up...," says the Quran.¹⁰ The Quran also imposes elaborate veil on women. Momins are instructed to tell their wives and daughters to cover themselves with veil when going out.¹¹ "Enjoin believing women to keep their eyes low, to preserve their chastity, to cover their adornments, to draw their veils over their bosoms and not to reveal their finery."¹² Women were primarily meant to procreate, to produce Muslims. "Your wives are as a tilth unto you. So approach your tilth when and how you will" - by ploughing, sowing and raising crops, says the Quran. Or, "Your women are your field - go unto them as you will."¹³ Woman in Islam is not regarded as a person but as a field. Her husband cultivates it and reaps the harvest, for the harvest belongs to the proprietor. She is nothing but her husband's domain. Women could be beaten up for disloyalty and sexual non-comformity.¹⁴
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No wonder, with such freedom on the part of men and such restrictions on the part of women, believers took to marrying freely from the very beginning of Islam. It is common knowledge that in Islam a man can marry four wives and possess numberless concubines. According to a tradition of Abu Abbas, the Prophet had said: "in my Ummah, he is the best who has the largest number of wives." Umar, the second Caliph (581-644 CE) had already married four times before the Hijra; in Medina he married five more times, the last when he was sixty. Umar said: "Prevent women from learning to write; say no to their capricious ways... Adopt positions opposite those of women. There is great merit in such opposition." At 57 Umar married Umm Kulsum, daughter of Ali and Fatima. Ali (600-661) was the Prophet's cousin and the fourth Caliph. He said: "The entire woman is an evil and what is worse is that it is a necessary evil... You should never ask a woman her advice because her advice is worthless. Hide them so that they cannot see other men." Islam was the first to impose the elaborate veil on women. Other *ahadis* advised likewise. In many of these women are depicted as fitna (evil). The Prophet said that "After me I will not leave any greater *fitna* for men than women". Women are *naqis-ul-aql* and *naqis-ul-* *din*. They are found in hell in large numbers. Men will be destroyed on account of women.¹⁵
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In short, there was a spate of marriages, flood of divorces, lot of restrictions and damaging diatribes against women among the faithful. Ali's son, al-Hasan, the brother of al-Husain of the Karbala fame, had won a highly individual title for himself: "the great divorcer." He died at the age of forty-five and he had by that time succeeded in making and unmaking no less than one hundred marriages. Al-Hasan had twenty children, fifteen sons and five daughters, from whom are descended one section of the great Saiyyads.¹⁶ It is well known that polygamy and jihad helped Muslim expansion and colonization. "No wonder that in the annals of history, Muslim imperialism probably endured the longest."¹⁷
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This was a great achievement of Islam. But it also resulted in damnation of half of the Muslim population, that of Muslim women, droves of whom had been obtained in Jihad. They were declared to be inferior to men in every way. They were to be freely beaten. "Wife-beating was perhaps already there, but Islam brought to it a heavenly sanction."¹⁸ Testimony of two women was considered equal to that of one man. In matters of sex man's desire was all that mattered. Captured women were like slaves or concubines or "what your right hand possesses". They were meant for amusement of Muslim men. Women could be married at will and divorced at will. No explanation was needed for divorcing a woman. "Islam has always considered women as creatures inferior in every way: physically, intellectually, and morally. This negative vision is divinely sanctioned in the Koran, corroborated by the hadiths and perpetuated by the commentaries of the theologians, the custodians of Muslim dogma and ignorance."¹⁹ In short, polygamy is a crucial point of Muslim Personal law.
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*Stir for Muslim Women's Liberation*
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It is noteworthy that a debate is going on among the Muslims themselves about having a second look at the Shariat laws regarding women and divorce, alimony and maintenance. But it is a low key controversy. For, the Prophet's revelations are final. The laws have been issued. Other societies adopt new laws as the need arises, as traditions change. This is not possible in Islam. "Islamic laws on marriage and divorce are not just social legislations... They are revealed truths, Allah's commands. To seek to change them is... rebellion against God." All that a Muslim can do is to 'reinterpret' the Prophet's decrees - by itself not an easy task. For example, Zafar Jung's article "Islamic law needs to be revised", ends by saying that the change should be in the spirit of the pristine purity of Islam. Abdul Moghni (Patna) reacting to Zafar Jung's article says: "It can be improved upon only by authentic Islamic scholars and accredited institutions rather than by the so-called secularists who are ignorant of Islam and its laws."²⁰ "Consequently and as usual, all debate ends where it begins - everything is to be thought and done within the permissible limits of Islam."
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The debate has not remained confined to men alone. Farida Rahman, an active feminist, jurist and a member of parliament of the Bangladesh Nationalist Party, demanding women's share in property said: "I do not advocate that the holy Koran should be rewritten but I do demand that there be equal rights for men and women and that is why 1 would circumvent the laws laid down in the Koran in this particular case." For this remark Bangladesh fundamentalist leader Maulana Fazlul Huq Amini demanded her death - "Farida Rahman being a Muslim must be hanged for speaking against the holy Koran."²¹ A fatwa has been issued against her for demanding equality between men and women. Farida Rahman is safe(?) outside Islamic Bangladesh as she has sought refuge in Sweden. Riffat Hassan is also safe outside Pakistan. Born and brought up in Lahore, Riffat presently is a professor of religious studies in the United States. According to her the activities of Muslim fundamentalist groups throughout the world and especially in Afghanistan, Iran, Egypt, Sudan and Bangladesh have strengthened the view that Islam cannot coexist with liberal attitudes. Riffat Hasan is out to demolish the stereotype of a partriarchal Islam. Her struggle is against fundamentalists especially in Muslim majority states who are "working overtime to make Muslim women faceless and nameless".²²
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The demand that "Farida Rahman being a Muslim must be hanged for speaking against the holy Koran", is in keeping with the Islamic tradition. But Farida Rahman rightly raises her voice against the attempt to humiliate and ridicule Muslim women and make them helpless and faceless. Two examples of this attitude may be cited. A news item from Dhaka says that "A radical Muslim priest has offered love and marriage to Bangladesh's most controversial feminist writer, Taslima Nasreen, in order to bring her to the faith". "She will be my third wife," said Mr. Rahim Baksh, an Islamic cleric in Cox's Bazar town in southeastern Bangladesh.²³ Another: "One of the most pathetic stories told during a recent video magazine programme on the triple *talaq* controversy was that of a middle aged Muslim woman who recounted how a group of mullahs laughed at her when she took her complaint about her marriage to them. She felt so helpless, she said, in a room full of bearded clerics - all men, of course - laughing at her plight and making it abundantly clear that she was living in a man's world where her grievances against her husband would bring no relief."²⁴ it is clear that the iron law of the fundamentalists still has the community in its grip, preventing the articulation of any views or the adoption of any behaviour which carry a hint of non-conformism. Since all Muslims, including the liberals, seem resigned to let the bigots rule the roost, it only helps their opponents to buttress the case against their closer assimilation in Indian society. Any possibility of a successful rebellion against the medieval concepts is out of the question in the Islamic countries, but not totally unfeasible in an open polity like India's. But the initiative has to come from within the Muslim community, declare secularist political parties.
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In a free country like India, Muslim women sometimes speak out. A few days ago a group of Muslim women took out a procession in Mumbai. They were protesting against polygamy and triple *talaq* as practised by Muslim men. Their delegation also met the Chief Minister Mr. Manohar Joshi. Working women stated that sometimes when they returned home late from workplace, their husbands pronounced *talaq* and in a moment they were rendered homeless and helpless. For a woman's right of inheritance is illusory. The concept of alimony is unknown is Islam, and the Quran sanctions maintenance for the customary period of *iddat*.²⁵ Manohar Joshi promised to look into their problems sympathetically. What followed was published as a news item in *The Times of India*, Mumbai, dated 30 April 1997. "The Samajwadi Party has protested against chief minister Manohar Joshi's, assertion that his government would introduce a uniform civil code in Maharashtra... Samajwadi Party spokesman Nasir Jamal said here on Tuesday that Mr. Joshi's statement had 'created a feeling of insecurity among the Muslim masses'. 'Several Muslim organisations are planning to come together and jointly oppose any move to impose a uniform code,' he added. Mr. Jamal appealed to the Shiv Sena-Bharatiya Janata Party government not to 'tamper with Muslim religious laws'.²⁶ So even a talk of reform creates a feeling of insecurity among the Muslims. A similar attempt of Kerala *talaq* victims to fight against polygamy through their newly formed forum 'Nisha' (Nisa in Arabic means women) and the movement called 'Makkal Samaram' (stir by children for share in fathers' property) are also facing rough weather from the orthodox section of the Muslim community.²⁷
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The remedy for most of such problems lies in having a common civil code for all citizens. This was realised by the framers of the Constitution of India. Article 44 of the Constitution says: "The state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India." Many a time aggrieved parties (like divorced Muslim women) have approached the courts for redressal and many a time the Supreme Court has asked the government to explain the steps it has taken for securing uniformity in the personal laws, particularly those of the Muslims, leading to the enactment of a common civil code for all Indians.
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Many Muslims in India, both liberal and orthodox, are engaged in a debate on the merits of prohibition of polygamy and triple *talaq* and many other matters like adoption and inheritance and the desirability of having a common civil code. But since the demand for a uniform civil code comes from the Hindu forums also, it is resisted by Muslims in general and mullahs in particular. Muslims are generally allergic to the advocacy by Hindus of a common civil code. They consider it an interference of non-Muslims in the personal laws of Islam. That is why Nasir Jamal appealed particularly to "Shiv Sena-Bharatiya Janata Party government not to tamper with Muslim religious laws". Any innovation or change is taboo in Islam because it is believed that the best code of laws for "all humanity and for all time" has already been sent by God fourteen hundred years ago and any suggestion for change is not only irrelevant but also "creates a feeling of insecurity among Muslims". Some Hindus in anger say: "Let them go to hell; let them stew in their own juice." But Indian society cannot progress if the condition of only some women (Hindu) improves through reform while the Muslim women are left out. If the society has to progress it has to progress as whole; there has to be a uniform civil code for all. The Bharatiya Janata Party wants enactment of a common civil code. The Congress Party opposes it. This is party politics, a basic of democracy. That is how Nasir Jamal's contention in Mumbai gets support from the Congress. Mr. Gurudas Kamat, a member of the interim committee overseeing the affairs of the Mumbai unit of the Congress, said that "the Congress would vehemently oppose any move to bring in the code. According to him the Sena was trying to create fear in the minds of the minorities in the state." It is well known that the Hindu secularists help Muslim fundamentalists in keeping the banner of instant *talaq* and polygamy flying. "Union government has already expressed its helplessness in enacting a common Uniform Civil Code (UCC ), applicable to all the religious communities. It feels that such a legislation would be against its policy not to interfere with the personal laws of minority communities... The government maintains that until the initiative for change comes from the community, it cannot interfere with its personal laws."²⁸ The problem of enactment of a uniform civil code has become a grinding stone placed round the neck of the country. The political parties, the Parliament and state legislatures, the judiciary - from lower courts to the Supreme Court -, the intelligentsia, the media, the ulema have all got involved with it in one way or the other, but there seems to be no way out. It is true that a few Muslim women seek relief from law courts,²⁹ but naturally not all the aggrieved parties can take their problems to the courts all the time. The courts themselves are handicapped because of variance of religious laws of so many faiths and ask the government what steps are being taken to implement the provision of the Constitution "to secure for the citizens uniform civil code throughout the territory of India".
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It is necessary to admit that social reforms are not easy to effect. The more things change the more they remain the same. There is inevitability of gradualness in the field of social reform. In the West the Christians have moved a little faster, or so it appears. They have both the will to change and the determination to move forward. Hindus possess the will but change but little. They are aware of the evils in their society and pass laws to remove them. Laws have been enacted against untouchability, against child marriage, against demanding dowry, against begging, against child labour, against employment of children in hazardous industries, and in a dozen other areas. This shows the zeal of the Hindus in establishing a better social order. But in actual fact little change in these fields has come about, if things have not actually deteriorated. Some "progressive" Muslims sometimes talk of change with regard to rules of polygamy, divorce, adoption, inheritance etc. But other equally "progressive" Muslims oppose any such move. (The indoctrinated, poor and uneducated Muslims of course have no opinion to offer.) So they do the next best thing - defend everything Islamic. In place of improving the lot of their women, they assert that the status of women in Islam is the best, that their divorce rules are the best, and that their education in madrasas is correct and complete. They claim that their social rules enacted fourteen hundred years ago in the desert land of Arabia in the camel age are good in all countries for all times. If there is any suggestion from outside, they consider it an interference in their Personal Law.
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As has been discussed in detail earlier, Islam has little to do with democracy. It does not concede equal status to Muslims and non-Muslims. In a Muslim state non-Muslims do not enjoy human rights as defined in modem times. Muslim religious and political leaders repeatedly claims that the Shariat laws and fatwas of Muftis have greater sanctity for Muslims than provisions of the Indian Constitution.
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Although this attitude in many ways comes in the way of Muslims joining India's national mainstream, it does not debar them from enjoying the advantages flowing from Indian democracy. The Constitution of India provides for special consideration to the minorities and Muslims take full advantage of this situation. Besides, democracy is based on elections. Muslim voters take advantage of such a situation and minorityism flourishes in India through the assistance of some 'secularist' politicians and betrayal by some intellectuals. All political parties in India run after Muslim votes. This turns Indian democracy into politics of minorityism and vote banks, and helps the Muslims to remain a state within the state - with their own personal laws - and the absence of a uniform civil code keeps the torch of Muslim separatism burning. Still the condition of Muslim women in India is better than that in many Islamic countries for reasons more than one. For one, there is lot of Hindu influence on Muslim culture. *Purdah-less* Muslim women are a common sight. For another, Indian judiciary comes to the rescue of oppressed Muslim women in matters of maintenance and alimony.
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In many parts of the Middle East women have been increasingly abused for not covering their hair, for going to beaches or for travelling in public transport simply because there was no provision in them for segregating the men from the women. Women working in the public sector were also threatened with death if they did not give up their jobs.
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According to the findings of the Amnesty International recorded in their latest report, "Women in the Middle East: Human rights under attack", in several Middle East countries women face imprisonment, cruel punishments and even death under the law which is discriminatory and heavily loaded against women. Consequently, from being prosecuted for the clothes they wear or do not wear, women can be locked up for driving a car even.
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In Saudi Arabia, driving by women has been banned through legislation. The Iranian law, in turn, states that a women should be buried upto her chest for sexual offences while specifying the type of stones that should be used. According to article 104 of the Penal Code which refers to adultery, "In the punishment of stoning to death, the stones should not be too large so that the person dies on being hit by one or two of them; they should not be too small either so that they could not be defined as stones."30
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While in Iran, both men and women face sentences of flogging and stoning to death for sexual offences for *hudud* offences such as adultery, according to the Amnesty report a large number of women have been executed by being stoned to death. Such executions are of common occurrence. Three men and women were stoned to death in October 1997.31 However, men who kill for the sake of honour are let free. In Iran women also risk arrest and flogging if they fail to obey the dress code. The law provides for 74 lashes for violating the "dress law". Women of course do not observe purdah with women. In women's clubs (Hijab clubs), they can play games, swim, and practice athletics under women coaches, but all Islamic laws are applicable to them. They cannot, according to the Constitution, become presidents, judges or religious leaders. Men can divorce at will. "Women cannot travel without *the written permission* (emphasis added) of their husbands or fathers, and a woman's testimony in court carries just half the weight of man's."³²
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In Sudan women have been flogged for dressing in the ways that infringe the military Government's law on public morality. The Amnesty International has recorded that a woman living in Omdurman was fined and sentenced to 35 lashes because she was wearing trousers. Another woman a student at Khartoum University who was wearing a blouse and skirt was lashed 25 times for the offence.
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As Muzaffar Hussain writes, "In Algeria the fanatics are out to brutally subjugate women who have some experience of women's liberty since the French connection. If a Muslim woman is seen without *purdah* or uncovered hair she is shot dead. If a Muslim woman continues in her old attire of the French colonial days of skirt and blouse, her bare legs are exposed to a fusillade of stones and before long she falls a cripple. In 1993-94 according to the official reports about 300 women were killed for various reasons." On March 6, when the rest of the world was celebrating Women's Day, in the very capital city of Algeria 16 women were mowed down for having seen a dramatic performance in a theatre. According to the information available with the UN there are fifty-five million refugees in the world; about forty million of them are Muslims. When a person has to leave his home and hearth and take to an unending road the most severe hardships come to the lot of women. In the world 17,500,00 Muslim women with their 75,00,000 children are roaming in search of shelter. The petrodollar rich Arab and other countries that swear by their Islamic faith have no time to think about them.³³ Algeria, Morocco and Tunisia are considered progressive nations of North Africa. The position of women in other Islamic countries is not better if not worse. Fatima Mernissi, Professor of Sociology, Mohammad V University in Rabat, Morocco, in her book *Islam and Democracy - Fear of the Modern World*, dates "the powerlessness of women to the advent of Islam."³⁴ Still, and as usual, it is claimed that "by comparison, women in Islam were in a much better and more protected position".³⁵ This is true of India but not Islamic countries.
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Indian 'secularist' politicians join the "minorities" in opposing a common civil code with a view to please the Muslims to garner their votes. They find many other ways for the same reason. One such gesture is the government's granting subsidy on Hajj pilgrimage.