Codification Of Islamic Personal Law In India With Respect To Marriage And Divorce - Obstacles And Strategies
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CODIFICATION OF ISLAMIC PERSONAL LAW IN INDIA
WITH RESPECT TO MARRIAGE AND DIVORCE: OBSTACLES AND STRATEGIES Nayana G, Govt Law College, TVM, University of Kerala Introduction. The jurisprudential framework that acknowledges the co-existence of many legal systems is referred to as legal pluralism. Throughout its history, India has consistently preserved the principle of legal pluralism by acknowledging the personal laws of every faith. This is because India is known as the "torchbearer" of unity in diversity. All of the personal laws in India are required to comply with the touchstone of constitutional morality, which is the Constitution of India, which serves as the "grundnorm. " A significant number of personal laws, on the other hand, are discriminatory and violate the Right to Equality as outlined in article 15.
In accordance with Article 44 of our constitution, the Uniform Civil Code (hence referred to as the "UCC") is envisioned as a Directive Principle that constitutes a positive responsibility on the individual state1. Laws have been passed in India to address the concerns of Muslim women, primarily concerning marriage, divorce, maintenance, and inheritance. These laws have been created in response to the concerns of Muslim women. At the level of the community or society, however, these laws do not provide them with much assistance in their pursuit of justice. It has been demonstrated that the laws that are crafted specifically for Muslim women do not adequately protect their rights and are not helpful in assisting them in achieving the status that is granted to them in the Quran.
Despite the fact that there is no personal law that has been codified, Muslim women in India continue to face discrimination and inequality at the hands of the government2. 1 Shalina A. Chibber, Charting a New Path Toward Equality in India: From Religious Personal Laws to a Uniform Civil Code, 83 ILJ 695, 707-708 (2008).
2 RASHEED, Q. S., & SHARMA, A. K. (2016). Muslim Women’s Rights in India
Codified Personal Laws Needed. Economic and Political Weekly, 51(37), 22–25. http://www.jstor.org/stable/44003703 ISSUES OF UNCODIFIED ISLAMIC PERSONAL LAW.
1. MARRIAGE AND MARITAL RIGHTS.
A. Nature of marriage.
The institution of nikah, often known as marriage, is widely regarded as the most important aspect of Mohamadan family law. Marriage is the means by which paternity of children may be determined, as well as the mechanism by which relationships and affinities can be tracked. There are signs in this area of Muhammadan law that demonstrate that the family as a social unit originated among the Arabs out of the broader unit of tribes. The Muhammadan family is built on the patriarchal principle, and there are also indications that show that the family was the first social unit to be established. Among the Arabs who lived before the advent of Islam, the legal standing of a woman was far too unstable to have played a significant role in the formation of their thoughts regarding family life.
There was a strong emphasis placed on the tribal concept within their social structure, and families were considered to be several subdivisions of tribes. The tribal structure was effectively transformed into the family system as a result of the severe enforcement of the institution of marriage in social life by the Islamic faith. Marriage, according to the law of Muhammad, is a contract that is made for the goal of legalizing sexual intercourse and the propagation of children. The rights and responsibilities that are shared between the married individuals themselves, as well as between each of them and the children that are born from the marriage, are included in this. In accordance with Muhammadan law, marriage is not considered a sacrament but rather a legal contract.
Each and every one of the rights and obligations that it establishes come into existence instantly and are not contingent on any condition previous, such as the payment of dowry by a husband to his wife. Even although a marriage between two Muslims is a contract, it is not a regular contract but rather a sacred commitment.
2. Marriage Age and Guardianship.
Puberty & majority There is no minimum or maximum age requirement for being married, according to either the Quran or the Hadith. The entire body of law pertaining to this topic is founded on the Ijtihad, which is the legal law-making of subsequent years. They established that in order for a man
or woman to get married, they must have reached the age of bulugh, which is considered to be puberty, which is considered to be when a person reaches the age of fifteen. Contradictory claims could be recognized in extraordinary circumstances; however, a girl less than nine years old or a boy younger than twelve years old would not be eligible for consideration. All of these prescriptions were based on the degrees of physical and mental development that were prevalent during that time period, as well as on known cases that occurred within the culture of that era. These were not intended to be obligatory legal laws that were to be observed until the Day of Judgment, and they could not have been.
In our current era, the age of "puberty" may be considered to be synonymous with the age of majority under the laws of the nation; this would not be in violation of any of the obligatory principles that are outlined in Muslim regulations. The marriage of minors According to Muslim law, guardians of juvenile girls and boys have the right to provide permission for their marriage. This authority can only be exercised in extraordinary circumstances and is intended solely for the benefit of the ward. This authority is not intended to grant guardians the unconstrained or arbitrary right to force a marriage on a minor; rather, it is founded on the assumption that the guardians will conduct themselves in a manner that is primarily in the best interest of the minor.
Under Muslim law, marriage-guardianship is considered to be a holy trust, which establishes a relationship of fiduciary responsibility between the guardian and the ward. In reality, its objective is not to promote or assist the marriage of a minor, but rather to eliminate the possibility of the minor marrying against his or her own best interests. The protectors of marriage Under no circumstances are those under the age of 18 permitted to enter into a marriage of their own free decision [without the consent of their guardian]. Within the framework of Hanafi law, there is a meticulously crafted and extensive list of relatives who would take turns acting as the guardian for the purpose of marriage: one after the other.
On the basis of the consideration of which of these relatives can be expected to behave in a more rational manner without being overly emotional in response to the wishes of the minor, the following relatives are included on the list: the father or grandfather, the brother, the paternal uncle or his son, the granduncle or his son, the mother, the paternal or maternal grandmother, the maternal grandfather, the sister, the paternal aunt, and the maternal uncle and aunt. With the provision that the order of marriage guardianship cannot be skipped and that no distant guardian can act out of turn, the law imposes an additional check on the individuals who are under the age of majority with regard to the topic of marriage.
Both the Shafei school of Sunni law and the Shia law significantly complicate matters for minors by requiring that only the parent or grandpa of a minor girl or boy be able to give their consent to the marriage of the minor. According to the Khoja Ismaili law, the solemnization of a marriage is forbidden "unless both the boy and the girl have reached the age of marriageable age in accordance with the laws of India. " The possibility of reaching puberty In order to strike a balance between the authority that guardians are granted by Muslim law to arrange marriages for their wards in the benefit of the wards, the law also grants the wards the freedom to reject such marriages once they reach the age of majority. When the minor reaches the age of majority, they have the ability to exercise what is known as khiyar-ul-bulugh, which is the option of puberty.
This allows them to walk out of the marriage that was arranged by the lawful guardian. This liberty is subject to the conditions that it should not be unreasonably delayed without a legal excuse, that it should be exercised prior to the willful consummation of marriage, and that it should involve some religious or legal official or body to ensure that it is being exercised in a manner that is both proper and constitutional. These conditions are imposed by the law in order to prevent the misuse of this liberty and to allow it to serve its intended purpose. Upon reaching puberty, a juvenile who has been contracted or consented to for a marriage by any guardian has the option to repudiate the marriage. This choice is available to the minor. A term for this phenomenon is the option of puberty.
If a Mohammadan female is given in marriage by her father or her father's father and not by any other guardian, then this option of puberty could not be utilized in accordance with the indigenous Mohammadan Law.
In the instance of a minor girl whose marriage was arranged by her father or grandfather, the Dissolution of Muslim Marriage Act of 1939 removed all limits on the option of puberty. This was done in order to ensure that the girl might experience puberty. For a contrary view see Peer Muhammad v State of M. P And by s. 2(vit) of the Act a wife is entitled to the dissolution of her marriage if she proves the following facts, namely, • The marriage has not been consummated, • the marriage took place before she reached the age of fifteen, • and she has renounced her marriage before she reached the age of eighteen. In Sk. Shaib Ali v Jinnatan Nahar , Restitution of conjugal rights was the complaint that was brought by the husband in the lawsuit. During the argument, the wife said that she had chosen to go through with her puberty.
According to the standard practice, her father was the one who arranged for her to be married. Although the Dissolution of Muslim Marriage Act is applicable to lawsuits seeking the dissolution of a marriage between a Muslim husband and a Muslim wife, it cannot be used as a defense in lawsuits seeking the return of conjugal rights, according to the decision. The defense would not be successful because, according to the textual Mohammadan Law, a girl is not permitted to exercise the option of puberty if she has been given in marriage by either her father or her grandpa. Despite the woman's declaration that she is no longer married, the Allahabad High Court has also decided that the relationship between the husband and wife continues to exist in the absence of a decision from a civil court that is competent.
In addition, she is unable to mount a defense against a claim for restitution of conjugal rights by arguing that she had renounced the marriage but had not yet submitted a petition to the appropriate court for a declaration of dissolution of marriage3. In the event that a man has the right to reject the marriage by option of puberty, this right does not exist until the male has ratified the marriage, either explicitly or implicitly, through ways such as the payment of dower or through cohabitation. The only guardians for marriage that are recognized by Shia law are the father or paternal grandfather, regardless of how high they are, as well as brothers and other male relations on
3 Javed Hussain v Khatiza Begum, AIR 1984 (NOC)179( AII)
the father's side. According to Shia law, a marriage that is brought about by a person other than a father or grandfather is completely ineffective until it is ratified by the minor upon reaching the age of majority. Utilization of Indian legal systems The Majority intervene of 1875, which was revised in 1999, typically exempts from its purview the ability to intervene in situations pertaining to marriage, dower, divorce, and adoption. It is important to note that this provision is now to be understood in accordance with the law concerning weddings between minors. Under the Child Marriage Restraint Act of 1929, which was subject to periodic amendments, the minimum age for marriage was set at 18 years old for girls and 21 years old for boys individually.
It was a criminal law that established penalties for offenses related to weddings that violated these boundaries, but it did not impact the legal validity of marriages that were in violation of these limits. Muslims were subject to the Act in the same manner as any other community, and it was completely relevant to them. The Act of 1929 has been superseded by the Prohibition of Child Marriages Act of 2006, which includes a variety of regulations that are of both a civil and a penal nature. In addition, this Act sets down penalties that are more severe than those that were imposed by the previous Act of 1929 for offenses that pertain to the marriage of girls and boys who are younger than 18 and
21 years of age, respectively. In accordance with the Act, a marriage between a minor is not
null and void, unless the marriage takes place in contravention of a court injunction that prohibits it. However, any marriage that takes place between a girl who is under the age of 18 or a male who is under the age of 21 is voidable at the discretion of either party, and the option can be exercised in either scenario at any point within the first two years after reaching the age of majority. The Act is fully applicable to the Muslims notwithstanding the contrary rules of the uncodified Muslim law. This has been affirmed by the courts4. 4 Mohd. Nihal v State 2008 (4) Crimes (HL) 650 Del; Abdul Khadar v K. Pechiammal [Madras, decided on 3 March 2015].
Polygamy law and Practice. The Mohammadan law recognizes monogamy as the preferred ideal but permits a man to have up to four wives simultaneously, provided he treats them with equality and justice. A Muslim may have up to four wives simultaneously, but no more than that. If an individual marries a fifth wife while already having four, the marriage is not considered void, but rather irregular.
A Mohammedan woman is not permitted to have multiple husbands simultaneously. A marriage to a woman whose husband is alive and has not been divorced is considered void. The status of law in this subcontinent is intriguing. Monogamy is generally adhered to by Hindu and Muslim females; however, Muslim males in India may disregard this rule, whereas in Pakistan and Bangladesh, such actions are subject to penalties. In India, monogamy is mandated for Hindu males; however, in Pakistan and Bangladesh, indigenous Hindu law permits a Hindu male to have multiple wives simultaneously without legal repercussions. Two cases from Kerala addressing the impropriety of allowing Muslim males in India to engage in polygamy stated, "A keen perception of the new frontiers of Indian Law hinted at in Art. 44, Constitution of India is now necessary on the part of the Parliament and the judicature.
" The National Committee on the Status of Women (1971-74) reported that, although there is a general acknowledgment of the need to reform Muslim Law and polygamy has been prohibited in many countries, the Government of India has not pursued this reform, citing public opinion in the country as a barrier to change. Neglecting the interests of Muslim women constitutes a denial of equality and social justice; thus, there can be no compromise on the fundamental policy of monogamy as a rule for all communities in India5. As held in a Bombay case, however, polygamy for males and monogamy for females do not discriminate against women on the ground of sex only and is not violative of Art. 15(1), Constitution of India6. POTENTIAL NEED FOR REFORM.
In comparison to other personal laws The seventy-seven-year-old Dissolution of Muslim Marriages Act requires amendments. The
5 Status of women in India, The Indian Council of Social science Research, 41 (1975)
6 State of Bombay V Narashu Appa Maali, AIR 1952 Bom 84.
grounds for divorce as stipulated in the Act should align closely with those established in other matrimonial statutes in India. A precedent exists from a similar exercise conducted in 2001 concerning the old Indian Divorce Act of 1869. Christians, until this matter is resolved, may find that the courts, in applying this Act, could potentially incorporate certain grounds for divorce from other laws not explicitly mentioned in Clause (ix) of Section 2 of this Act. Puberty options The option of puberty for girls married during their minority by their guardians is a component of Muslim marriage law, rather than divorce law. It was incorrectly categorized as a basis for divorce in Clause (vii) of Section 2 of the Act of 1939. The provision of Muslim law aimed at eradicating child marriage is equitable; therefore, it is recommended that this provision be removed from the Act.
A Muslim girl who marries during her minority has the option to annul the marriage upon reaching adulthood, as provided by the Prohibition of Child Marriages Act 2006, which offers superior provisions compared to those of 1939. Polygamy refers to the practice of marrying multiple spouses simultaneously. It is a form of marriage that can take various cultural and legal forms across different societies. Under traditional Muslim law, polygamy is permitted; however, Clause (viii) (f) of Section 2 of the 1939 Acts provides that all wives of a polygamist husband may seek judicial divorce if he does not treat them equitably. The allowance of polygamy for Muslim men in India necessitates an amendment to this provision of the Act.
Bigamy by a husband should constitute a valid ground for the dissolution of marriage under Section 2, applicable to the first wife and to the second wife if the existence of the first marriage was not disclosed prior to their marriage. Potential extension for men The 1939 Act possesses significant potential to eliminate the detrimental practice of unilateral talak by mandating its compulsory application to husbands as well. This necessitates minimal verbal modifications to the Act. This action, while extreme, warrants careful consideration. The Muslim Women (Protection of Rights on Divorce) Act, 1986 Establishes legal provisions aimed at safeguarding the rights of Muslim women in the context of divorce.
In India, women's rights to maintenance originate from two primary sources: the personal law relevant to their specific community and the Criminal Procedure Code (CrPC) of 1974, which applies universally to all Indians regardless of religion (Dube 2005). According to Muslim personal law, a divorced Muslim woman is responsible for maintenance during the iddat period, which lasts for three months after the divorce. Additionally, she receives the mehr (dower) amount established at the time of marriage. The husband has no additional financial obligations to his wife. Under Section 125 of the Crc, a woman is entitled to maintenance from her ex-husband until remarriage. Shah Bano, a 60year-old woman from Bhopal, initiated legal proceedings to obtain maintenance from her husband following their divorce after 43 years of marriage. The Madhya Pradesh High Court issued a ruling in her favor.
Mohammad Khan, the former husband of Shah Bano, appealed to the Supreme Court of India, asserting that Muslim personal law does not mandate lifetime maintenance for ex-wives. The Supreme Court rejected his appeal and affirmed the maintenance order pursuant to Section 125 of the CIPC. Members of the Muslim community expressed discontent with the Supreme Court's ruling, and in response to pressure from Muslim orthodoxy, the Congress party, then in power, expedited the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986. The legislation seeks to safeguard the rights of Muslim women who have experienced divorce from their husbands and to address related matters (Act No XXV of 1986). The implementation of the Muslim Women's Act exacerbated the plight of Muslim women and offered no alleviation of their circumstances.
It excluded Muslim men from the scope of Section 125 of the Criminal Procedure Code. A husband is obligated to provide maintenance to his wife during her iddat period. The responsibility for her maintenance subsequently transfers to her relatives and the state waqf board. Section 4(1) of the act stipulates that a magistrate may order the relatives of a divorced woman, who has not remarried and is unable to support herself after the iddat period, to provide reasonable and fair maintenance. This maintenance should consider the standard of living she experienced during her marriage and the financial capacity of those relatives who would inherit her property upon her death.
Section 4(2) of the act stipulates that if a divorced woman lacks relatives or if her relatives are unable to provide sufficient financial support, the magistrate may instruct the state waqf board to provide maintenance to the divorced woman.
The bill faced criticism from individuals who perceived it as a regression for Muslim women. Initially, it rendered women susceptible and reliant on family members. Furthermore, the corruption, insolvency, and mismanagement of the waqf boards complicate the determination of their capacity to provide sufficient support to impoverished divorcees, as the operations of the wakfs boards remain unclear. The act initiated a nationwide discourse on Muslim personal law and led to the mobilization of diverse Muslim women's organizations at both local and national levels. Numerous Muslim organizations have emerged to address the entitlements of Muslim women within marriage, aiming to promote and protect their interests. Codification of Personal Law Muslim personal law has not been subjected to any legislative changes since independence.
There are hardly any efforts made to codify personal laws as has been done in other Muslim countries. In India, the move has always been resisted on three grounds: that personal laws are based on Shariat which is divine and therefore unalterable; it is impossible to assimilate the four schools of Islamic jurisprudence in codification and, Muslims take the codification as the first step towards enacting a Uniform Civil Code (ucc) Solanki (2011: 268) argues that "Muslim Personal Law in postcolonial India is based on local custom, Islamic laws and precepts, customary laws made by sect-based organizations, statelaw enactments, and judicial precedent. " Therefore, Muslim personal law as practised today is not completely in compliance with the Shariat as a result of which certain aspects of it are unjust to Muslim women7.
In 2011, Shaista Amber, President of the All India Muslim Women's Personal Law Board (AIMWPLB), advocated for the codification of Muslim personal law. She wrote a letter to the President of India at the time, Pratibha Patil, requesting the enactment of a law to secure shariat rights for Muslim women. The Bharatiya Muslim Mahila Andolan (BMMA) initiated a comparable effort advocating for the codification of Muslim family law. In 2014, the organization published a draft entitled "The Muslim Marriage and Divorce Act," which addressed matters related to the legal age of marriage and proposed a complete prohibition of
7 RASHEED, Q. S., & SHARMA, A. K. (2016). Muslim Women’s Rights in India
Codified Personal Laws Needed. Economic and Political Weekly, 51(37), 22–25. http://www. jstor. org/stable/44003703 polygamy, as well as oral, unilateral, and triple divorce. The draft was distributed to the National Commission for Women, the National Human Rights Commission, the National Minorities Commission, and additional stakeholders. In 2015, BMMA co-founders Noorjehan Safia Niaz and Zakia Soman submitted a letter to Prime Minister Narendra Modi requesting the codification of personal law in accordance with their prepared draft. The letter asserts that certain orthodox and patriarchal males have dominated the discourse on the rights of Muslim women and have obstructed any efforts toward reform in Muslim personal law. The rights of Muslim women, both in terms of their Quranic entitlements and their status as equal citizens of India, have been systematically denied.
The research involved a primary sample of 4,710 Muslim women across 10 states. The letter stated, "Justice for Indian Muslim women can be facilitated through amendments to the Shariat Application Act, 1937, and the Dissolution of Muslim Marriages Act, 1939, or through the enactment of a new Muslim personal law" (BMMA 2015).
The call for a codified personal law represents a preliminary measure in the pursuit of gender justice and equality for Muslim women in India. Multiple interpretations of Muslim personal laws exist, and without codification and parliamentary approval, Muslim women will persistently face inequality in family matters. The prior legislation did not affect substantial improvements in the lives of Muslim women. However, the codification of Muslim Personal Law, grounded in Islamic principles, would enhance women's rights as assured by the Quran and hadiths. OBSTACLES FOR CODIFICATION.
1 NATURE OF SHARIAH
IS SHARIAH IMMUTABLE?
The main objection to changes in Muslim law is the conception among the common Muslim that Shariah law is divine and immutable as to change for any reform. Muslims, being in minority in India, are sensitive and very keen to maintain their religious and cultural freedom and identities. The common Muslim believes that Muslim personal law as presently applicable in India is a veritable code of personal status and succession, revealed by the Almighty Lawgiver in the same way as the Quran and the inspired traditions were received by the Prophet from Heaven.
According to the popular beliefs cherished by the Muslim community, this revealed (or at least inspired) personal law is superb and cannot be alleged to be suffering from any shortcomings or inadequacies. It is the belief of the Muslim that Islam offers a complete blue print for life for all times and cannot be changed. It is also believed that the temporal laws are based on religious doctrine and hence, law and religion are inter-woven and cannot the segregated. Muslim leadership doggedly resists any personal law is divine and no one can tamper with divine law. For Muslims, the personal law has also become a matter of religious identity. They do not welcome any interference from the government or legislators in their personal law as it is deemed to be undue interference in their religious matters8.
The evolution of Shariah law has been an incessant process over the centuries after the death of Holy Prophet. Early scholars of law who founded the various schools of Shariah like Imam Hambali, Imam Malik, Imam Abu Hanifa and Imam Shafei were unlikely to have thought that their opinions would become final and binding on future generations of Muslims. However, later generations followed these scholars of law blindly and mechanically as if their opinion was divine. Today, ordinary Muslims following these scholars and Ulema belonging to these schools do consider opinions expressed by these scholars of law as final and consider it as a sin to challenge the finality their opinion. But all great Islamic thinkers have maintained that their opinions cannot be treated as final9.
Despite the claim that the divine origin of Shariah precludes the right of the secular Indian State to legislate upon Muslim law, Muslim religious leaders conceded to the State, the right to modify Shariah through the Muslim Women (Protection of Rights on Divorce) Act 1986. The Act introduced obligations on the Wakf Board and family members which were not imposed by Shariah and to that extent modified the rules of Shariah and overruled the theory of its immutability10. Shariah law is not a body of static laws, but a corpus of dynamic laws creatively responding to changing times.
The advocates of immutability of the Shariah fail to realize that shariah 8 Asghar Ali Engineer, 'Bombay High Court Judgment - A Landmark Judgment of talak, secular perspective, July 16-31 (2002) 9 Asghar Ali Engineer, Islam, Islamic World and Gender Justice', Institute of Islamic Asghar Ali Engineer, 'Islam, Women and Gender justice, Journal of Dharma, Vol. 29 No. 2, April/June (2002).
10 Dr. KAUSER EDAPPAGATH, DIVORCE AND GENDER EQUITY IN MUSLIM PERSONAL LAW OF
INDIA, 156 (2014) consists of two elements, spiritual or religious and secular or temporal. Mr. Asgar Ali Engineer would classify the same as divine and human11. The Apostle of God has himself recognized this distinction. He was again and again reiterating that he was but a man, a messenger of a God. He said "I am no more than a man but when I enjoin anything respecting religion, receive it; and when I order anything affairs of the world, I am nothing more than a man"12.
The five basic concepts Islamic religion are 1. Khalima: which enjoys on every Muslim to believe in the unity of God and prophetic character of Muhammed. 2. Namaz or prayer – five times a day 3. Fasting during the month of Ramadan 4. Zakkath or charity to the poor. 5. Hajj, i. e pilgrimage to the holy city of Mecca for those who can afford. All those five dogmas relate to the spiritual and none to temporal aspects. All these five dogmas relate to spiritual and none to temporal aspects. The above five spiritual concepts are fundamental which cannot be touched or allowed to be touched.
The Law of Crimes, Law of Evidence, Law of Contract, Law of Property, Law of Marriage Dower and Divorce, Law of Succession (Testate and Intestate), Law of Adoption, and Law of Minority and Guardianship are secular matters or activities linked to religious practice as defined in Article 25(2) (a) of the Constitution of India. These areas are subject to change and have indeed undergone modifications. In India, the Islamic law governing crimes, evidence, and contractual property has been replaced by the Indian Penal Code, the Code of Criminal Procedure, the Indian Evidence Act, the Indian Contract Act, the Code of Civil Procedure, and the Transfer of Property Act, with exceptions for gifts and similar matters. The Islamic Law
11 Asghar Ali Engineer, ‘ Islam, Women and Gender Justice”, Journal of Dharma’, Vol 29, 2, (2002)
12 Kashi Prasad Saxena, Muslim Law as Administered in India, 4th edn. at 7-8, quoted in S A Kader, Muslim Law of Marriage and Succession in India Eastern Law House, Calcutta, 1998, at 92. of inheritance underwent significant changes approximately one hundred and fifty years ago due to the Caste Disabilities Removal Act of 1850, which nullified the Islamic law concerning deprivation. Conduct of Government Servants Rules against bigamy apply universally across all sections, regardless of religious affiliation. The Prohibition of Child Marriage Act, 2006 criminalizes the marriage of males under 21 years and females under 18 years, whereas Islamic law considers puberty as the age of marital competency. The Dissolution of Muslim Marriage Act, 1939, has significantly impacted Shariah by granting Muslim women the right to initiate divorce proceedings under specific conditions.
The notion of the Shariah's immutability in secular matters is flawed and indefensible. Equating Muslim personal law in India with the Qur'an or the Hadith is inaccurate. This law's principles clearly exhibit a greater human element than a divine one. Not all of these laws are explicitly stated in the Quran or in the Sahih Sitta, the six authentic collections of Traditions. In India, the principles of Muslim personal law are primarily derived from the interpretations of revealed texts by ancient jurist-theologians from the few prevalent schools of Islamic law. Specific provisions of the Indian Muslim personal law were, in fact, established in their current form by the Indian legislatures and courts. The Muslim personal law currently in effect in India is not entirely a divine law, as historical evidence indicates.
Regardless of its origin and source, its principles lack uniformity and excellence. The proliferation of various schools of Muslim law in India, coupled with the adherence of their adherents to the exclusive doctrines of their respective schools, suggests that the principles governing 'Muslim Personal Law' in India cannot be equated with the divinely revealed tenets of Islam. The principal components are derived from the judgments and perspectives of specific Muslim jurists, who existed in various historical epochs and social contexts. To advocate for the preservation of the existing Muslim personal law in India equates to endorsing the maintenance of specific legal inflexibilities, social inequities, unwarranted disparities, and unwelcome adversities.
“ Believing that the Quran provides comprehensive guidelines for the Muslim way of life does not preclude the necessity for ongoing human endeavors to comprehend, interpret, deduce, or induce various interpretations based on the overarching principles of the relevant divine texts and authentic Sunnah, which may align with the divine wisdom inherent in its revelation. . Conservatism of Ulemas While Islam has no official clergy, in India there is a socially recognized class of religious leaders referred to as ulemas. They are formally recognized by various religious bodies and organization. These bodies represent a multitude of theological backgrounds and include ordinary community religious figures with little or no formal juristic or theological backgrounds and credentials. These informal judicial bodies are made up mostly of male scholars, imams and ulema.
Although the decisions of these bodies are theoretically binding on the conscience of Muslims, their competence to apply Muslim Law is often questionable, since their members frequently lack accredited legal training. The main advocates of the plea of immutability' are none other than ulemas. Ashgar Ali Engineer rightly pointed out that there are two main obstacles for any change in Muslim personal law in respect of Muslim women, 1) conservatism of some ulemas, and 2) political competition for leadership of Muslims. If one set of Ulema gives in to progressive change, their leadership is immediately threatened by more conservative Ulema. The Ulema are greatly influenced by the patriarchal values of the society they live in, rather than Quranic values. The Imrana case is a typical example.
It has attracted media attention because of the fatwa issued by Darul 'Ulum, Deoband and also by village panchayath. Imrana, the wife of a rickshaw driver from Musafar Nagar District in Uttar Pradesh, was raped by her father-in-law, Ali Muhammed. Ali Muhammed was convicted, and the act of rape has been established. The ulema, before the Court verdict came, had doubted the allegations against her father-in-law and said that it was property dispute and that she was making false allegations against the father-in-law to take revenge. However, they said, if she had indeed been raped, she should divorce her husband and marry another man as she had sexual intercourse with the father of her husband. The ulema were not concerned about fact that she was raped and it was not consensual sex. One should have all the sympathy for her and punishment ought to have been given to her father-in-law.
Instead, our ulema punished her. They also failed to take in to account the fact that she has five children from her husband and one of her daughters had attained marriageable age13. Islam lacks an organized church and does not foresee a hierarchical clergy. It considers a direct relationship between the adherent and the divine. Consequently, although religious experts are esteemed for their academic contributions, their perspectives lack religious endorsement or
13 Asghar Ali Engineeer, ‘women’s plight in Muslim Society’ secular perspective, I, 1-15 (2006)
holiness. In a constitutional democracy, only the courts possess the authority to establish legal principles regarding any issue, whether religious or secular, and such fatwas lack legal enforceability. It is regrettable that a faith devoid of intermediaries between humanity and the Divine, which acknowledges no priesthood or designated sanctity to mediate between individuals and their Creator, where each soul ascends to its Maker without the mediation of clergy or hierophants, where no ritual is requisite to draw the troubled heart closer to its solace, where every individual serves as their own priest, and where no person is superior to another, is currently suffering under the oppressive mandates of the ecclesiastical hierarchy. The fundamental cause of this is the ignorance and illiteracy prevalent among the Muslim populace.
The inflexible and traditional stance of the ulemas against any reform has led to the continuation of warped and mangled Muslim personal rules. DIVERSITY WITHIN ISLAMIC JURISPRUDENCE: MULTIPLE SCHOOLS OF THOUGHT.
If a man is not willing or able to make a khula agreement, the wife has no other recourse than to go to the court and ask a judge to dissolve the marriage over his protests. This takes the form that the judge puts himself in the man's place and performs a triple irreversible talaq in his place. All schools permit this in one form or another, but the conditions under which they allow it vary widely. The Hanafi School is the most restrictive, putting as it does great emphasis on wording and formalities. They actually only accept an 'annulment' (faskh or fasad) by a judge, not divorce per se: That is, he may only dissolve the marriage if the original contract contained some formal errors or was not fulfilled, so that he can declare the contract invalid. 33 But there are not many causes that can lead to this.
One possible stratagem is to refer to the sexual intercourse which is a right for both spouses in any marriage. The wife may petition for annulment if the husband is not able to fulfil this duty that is in case of permanent impotence. But this will need to be proved, in practice only through the husband admitting to this weakness. The Shafei and Hanbali schools take a more lenient position. They are also fairly restrictive, but accept more conditions that may allow a court to dissolve an established marriage. They consider the husband's prolonged absence a cause for faskh, divorce through annulment, if he has not provided for the wife's economic maintenance. Thus for example if he has left the country and he either did not leave any provisions for her, or the money ran out while he was away and he cannot be located.
The Hanafi rules do not allow a marriage to be dissolved on this basis, because it is only the husband himself who can pronounce the talaq or accept a khula". The Shafei School, however, accepts that the court may dissolve such a marriage so that the woman gains the freedom to remarry and thus secure the survival of herself and her children. The Hanafi court has often accepted that this is a real weakness in their law, which has led to unacceptable hardship for women who through no fault of their own have lost their only realistic provider. When Hanafi and Shäfii judges have worked in the same court, this has on occasion made them come to a tacit understanding: If such a case came before a Hanafi judge he would often excuse himself and let such cases go before his Shafii colleague.
The latter could then dissolve the marriage according to his school and the Hanafi judge would later accept this decision on the basis of reciprocal acceptance of verdicts made by the other schools. The Maliki court has both in theory and in practice gone far beyond the other two, by accepting that a judge may take the place of a husband even when he is present and available, and by accepting a general term of 'damage' (darar) as a basis for such judicial divorce. The damage to the wife that can lead to divorce may be of various kinds: physical (a husband mistreating his wife, for example, is a clear basis for divorce); economic (the husband does not fulfil his duties to provide for the family); or even 'mental'. Thus the classical Maliki rules may if the judge so decides, go very far in the direction of a modern conception of judicial divorce for 'incompatibility'.
The judge has a very wide latitude for personal discretion in how he sees each case, so there may have been considerable variance in how these rules were applied, although the basic rules were the same. Studies made of divorce cases in different regions over the last three centuries show, however, that judges appear surprisingly often to listen to the wife more than the husband. The rules are clearly heavily weighted in favour of the husband, with his unlimited access to talaq. But it would appear that judges, at least to some extent, realize this imbalance and try to compensate by letting the wife be considered more credible in the individual cases that come before them, giving her the benefit of the judgment as far as that can be done within the framework of the laws regulations14. REFORMS IN OTHER COUNTRIES.
The process of change within the Muslim world has not been linear. The countries where Islam is the State or the predominant religion (particularly in the Arab world), have continued to preserve the uncodified Muslim Law as locally followed. At the other end, countries like Turkey, Albania have opted for a complete abandonment of traditional Islamic family law and replaced it with secular systems. Lebanon and Israel have incorporated the provisions of the Turkish Family Code and have made them applicable to the Muslim populations15. In numerous Muslim nations, husbands retain the authority to terminate a marriage without legal intervention. Nevertheless, numerous countries have implemented measures to govern this activity. The practice of "triple talaq" has been either completely prohibited or changed.
In Egypt, Iraq, Jordan, Kuwait, Morocco, North Yemen, the Philippines, Sudan, and Syria, judicial reforms now regard a singular triple pronouncement of talaq as equivalent to a single reversible divorce. While men have the entitlement to pronounce three divorces throughout their lifetime, a simultaneous utterance of triple talaq is legally recognized as a singular divorce and remains subject to retraction. In Iraq, Jordan, and Syria, a husband seeking a talaq is encouraged, but not mandated, to consult the court; if he does seek court intervention, the court will make every effort to prevent the divorce before ultimately allowing it. If an individual does not attend court for talaq, he must register the talaq with the court or municipal registry after its pronouncement, which will ensure that the talaq is legally effective and cannot be contested.
In Afghanistan, Algeria, and Tunisia, a husband can initiate talaq only with court authorization or intervention, which must first attempt reconciliation directly or through arbitrators; only upon failure to reconcile may talaq be permitted. In Lebanon, a talaq must be reported to the court by the husband who has declared it within three days, whereas in Egypt, it must be officially registered with civil authorities within seven days16 .
14 KNUT S VIKOR, BETWEEN GOD AND THE SULTAN, A HISTORY OF ISLAMIC LAW, 313-315(2005)
15 TAHIR MAHMOOD, STATUTES OF PERSONAL LAW IN ISLAMIC COUNTRIES, 2-4,(2nd edn, 1995)
16 ibid
The laws in Kuwait, Morocco and North Yemen prohibit bigamy for a man who cannot do equal justice to more than one wife, while those in Jordan, Lebanon and Syria provide that if a man does If a man has two wives, he must treat them with equitable justice according to Quranic law and may not cohabit with them in the same residence without their approval. In India, Bangladesh, and Pakistan, the unequal treatment of co-wives constitutes grounds for divorce. In Turkey, bigamy is entirely outlawed, and a bigamous marriage is subject to annulment unless the first marriage is dissolved after its solemnization. In Tunisia, bigamy is also prohibited, and any bigamous marriage is rendered void and subject to penalties.
Consequently, the determination of whether an individual meets the Quranic criteria for bigamy, previously left to personal discretion by ancient Muslim jurists, is now entrusted to the courts or other authorities in several Muslim nations. In Tunisia and Turkey, the State has effectively decreed that, given the inability of individuals to meet the stipulated standards under contemporary socioeconomic circumstances, bigamy is entirely prohibited17. In Bangladesh, the Muslim Family Laws Ordinance 1961 abolished triple talaq in one sitting and made provision to initiate divorce in talaq Ahsan mode. It has also allowed a woman to initiate divorce by khula if she has the delegated authority of Talaq i-Tafweez.
In Thailand, as per the Royal Act concerning the Administration of Islamic Organization, in 1997, the application for talaq must be first presented to the local imam in his or her residence. After the imam has received the application, the applicant must present the application form at the Islamic Religious Committee Council. The Committee will then ask the couple to present themselves before the committee accompanied by the imam. The Committee will endeavor to effect reconciliation. If the Committee is satisfied that the marriage has irretrievably broken down, the Committee will ask the husband to pronounce talaq. STRATEGY TO CODIFICATION: THE UNIFORM CIVIL CODE PLEA Some think that the most effective solution to mitigate male dominance and gender bias in divorce under Muslim Personal Law in India is the establishment of a Uniform Civil Code.
The framers of the Indian Constitution instituted Article 44, which mandates that the state shall
17 ibid
strive to ensure a Uniform Civil Code for all citizens in India. India has a Uniform Civil Code that encompasses nearly all facets of human relationships. A comprehensive criminal code is enforced nationwide. The sole province not governed by any common civil law pertains to marriage, divorce, and succession. The Supreme Court of India has consistently affirmed the imperative of a Uniform Civil Code to safeguard the marginalized and foster national unity and solidarity. The Supreme Court has consistently emphasized the necessity of establishing a Uniform Civil Code in alignment with the obligatory stipulations of the Constitution. In the renowned Shah Bano case, the five-judge panel of the Supreme Court stated the following: It is profoundly regrettable that Article 44 of the constitution has remained unenforced.
It stipulates that 'The State must strive to ensure a consistent civil code for all citizens across the territory of India'. No evidence exists of any governmental measures to establish a uniform civil code for the nation. A conviction appears to have emerged that the Muslim community should spearhead the reform of its personal law. A unified civil code will promote national unification by eliminating conflicting loyalty to ideologically disparate legislation. No community is expected to undertake significant compromises about the subject. The state is responsible for ensuring a consistent civil code for its inhabitants and undoubtedly possesses the legislative authority to accomplish this. The lawyer in the case remarked, somewhat audibly, that legislative competence is one matter; we acknowledge the challenges of uniting individuals of all religions and beliefs on a same platform.
However, a commencement must occur for the Constitution to possess any significance. Ultimately, the courts must adopt the role of the reformer, as it is intolerable for sensitive individuals to endure such evident injustice18. Dr Tahir Mahmood is also of the same view. He states that: “A community accustomed for generations to significant diversities within its distinct laws of personal status and succession may genuinely struggle to transition overnight to a unified civil code applicable to all Indians, regardless of caste and creed. Consequently, as an accommodation to the customs and sentiments of the Muslim community, the initial action that can be undertaken promptly is a gradual codification of Muslim personal law. Given that a
18 ibid
significant majority of Muslims remain fervently devoted to their Islamic law, such a concession may be seen justifiable19. Conclusion The discrimination that occurs between individuals of different religions and the gender-based differentiation that is made by personal laws is beyond reasonable comprehension. It claims that post-constitutional codification of customary personal law is subject to the constitutional obligation under Part-III, notwithstanding the fact that the Supreme Court subsisting overruled the ruling in the future. As a result, the entire discussion revolves around the idea of subjecting personal laws to basic rights. It would be beneficial for us to investigate the origins of personal laws, specifically those instances in which customs were acknowledged by the courts as a significant source of development in the area of customary personal laws.
We need to ask ourselves why, if conventions and usages are deemed to be "law" according to Article 13(1), then personal laws are not also recognized to be "law. " Furthermore, according to the straightforward interpretation of Articles 25- 28, the freedom of religion is subject to fundamental rights. If this is the case, then how is it possible for personal laws to be regarded as absolute and outside the scope of fundamental rights? Even the people who drafted the Constitution wanted to control matters such as inheritance, succession, divorce, adoption, and other such matters. The evidence for this may be found in Entry-
5 of List-III and Article 44 of the DPSP. Furthermore, personal laws are not specifically mentioned
as "laws" in Article 13(1) of the Constitution. But after reading the articles of the Constitution, one could make the case that such personal laws are implied in the Constitution themselves. Because of this, individuals are in possession of fundamental rights. In accordance with the Constitution, the act of the government to not codify other personal laws constitutes a violation of the equality clause. These personal laws unfairly discriminate against individuals, particularly women, and are therefore unreasonable. As an illustration, the authority to grant divorce outside of the court system is a manifestation of gender prejudice in Muslim personal laws. It is necessary to make a separation between social issues and religious affairs in order to facilitate the implementation of reforms that are secular in nature.
It is for this reason that the qualification of "essential religious practice" is so important. In addition to this, it has the ability to guarantee gender equality and equality in terms of religion in the multifaceted nature of Indian culture. 19 Tahir Mahmood, Islamic Law, 81 (1972)cited in Rajkumari Agarwala, 'Uniform Civil Code: A Formula Not A Solution' in Tahir Mahmood (ed) ,FAMILY LAW AND SOCIAL CHANGE, N M TRIPATHI, 121,(1975)