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There's Nothing Inherently Un-Islamic About Changing Muslim Personal Law

14/04/2016 8:03 AM IST | Updated 15/07/2016 8:26 AM IST
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A Muslim woman reads the Quran (Koran).The Quran is the central religious text of Islam, which Muslims believe to be a revelation from God.

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In India, the controversy over Muslim Personal Law appears, disappears and reappears. By registering a suo motu writ petition recently on the issue of Muslim women's divorce, the Supreme Court has once again stirred up a real hornet's nest of opposition and criticism from religious bodies (echoed in Urdu publications and social networking sites). It goes without saying that talaq is quite the signature feature of Muslim Personal Law. The way the whole mechanism of talaq has been conceived, interpreted and enforced makes it obvious that it has only been a male prerogative. A man can easily pronounce divorce unilaterally, extrajudicially and automatically by simply pronouncing the word talaq thrice in one go, either to or with clear reference to his wife.

The Shariah is not a static object. The evidence against the immutability of the Shariah is present in the Dissolution of Muslim Marriage Act 1937 itself.

The outcry is coming from the expected quarters, with the All India Muslim Personal Law Board (AIMPLB) at the helm of affairs. As soon as a reform to Muslim Personal Law is suggested, the board takes it upon itself to launch a campaign to 'enlighten' the masses in this regard and resist any attempt at alteration--even if the change is slight and within the bounds of Islamic jurisprudence. This stance by the 'religious elites' naturally sends a ripple in the Muslim community, especially when it is portrayed as an intervention in the 'sacred' realm of personal law. The 'custodians' of the community have made it clear that personal law is premised on a divine principle and that nobody is allowed to change even an iota of it. Slogans like 'Islam in danger', 'personal law is our right' make the rounds, whipping up the passions of the faithful. This paves the way for further homogenizing the community, and thus perpetuating and reinforcing the hegemony of the religious elite.

The board is emphasizing that the Shariah is based on the Quran and Hadith. However, it also needs to be borne in mind that the Shariah is not a static and an ossified object. The evidence against the immutability of the Shariah is present in the Dissolution of Muslim Marriage Act 1937 itself. For instance, this Act has the provision that if the whereabouts of a woman's husband is not known for four years then she is "entitled to obtain a decree for the dissolution of her marriage". Before this Act was promulgated, the waiting period for "half-widows" to remarry was one hundred or more years! In other words, she could not remarry if her husband disappeared.

One cannot be allowed to use Islamophobia as an excuse to resist initiatives to bring about reform in Muslim society.

The board has also asserted that personal law is a "cultural issue" and rooted in Islam, and hence beyond the jurisdiction of law. However, one should never be allowed to take resort to cultural relativism to commit the crime of injustice, and in this case render women in a subordinate position as well as deny them their rights. Islamophobia is also being brought up every now and then. It goes without saying that Islamophobia persists; however, evoking it in this particular case stretches credulity to its limit. One cannot be allowed to use Islamophobia as an excuse to resist initiatives to bring about reform in Muslim society.

Since the AIMPLB presents itself as a mouthpiece for Indian Muslims, perhaps it should take into account the voices of Muslim women and activists who have been struggling for the rights of their sisters. For an idea of what women have to say about divorce, polygamy, mehr, age of marriage, and a few other things, one needs to go through the report titled "Seeking Justice Within Family" brought out by the Bhartiya Muslim Mahila Andolan (BMMA). These are genuine concerns of Muslim women who have been at the receiving end of the law for much too long. The grievances which are being articulated are not 'conspiracies' for dismantling the community from within. 'Threat to Islam' is only a figment of the imagination. These are genuine voices of concerns from people for whom religion has become an instrument of injustice.

Since the AIMPLB presents itself as a mouthpiece for Indian Muslims, perhaps it should take into account the voices of Muslim women and activists...

The idea of social justice calls for questioning, challenging and breaking hierarchies. You cannot ask for for human rights by denying the same to others. Unequal equations and asymmetrical relations are not in sync with the times.

Even if one takes a cue from the Constitution, which is being referred to by the AIMPLB again and again, which says that there ought not to be discrimination on the basis of religion, I think it holds equally true that religion should not be the basis of discrimination. Breaking hierarchies is necessary for the empowerment of the marginalized and dispossessed; it also paves the way for democracy. Moreover, if we want empowerment of the community and internal democratization, then this would necessarily require strengthening the 'minority within minority'.

These religious organizations and their spokespersons who often speak on behalf of the community should be honest enough to accept that the personal law is problematic when it comes to dealing with the issues of women, and particularly the asymmetric power equations that structure the relationship between the two genders. Moreover, these religious bodies should learn to properly address the criticism of the Muslim women's organizations and squarely come up with answers that stand to reason and logic. Their hiding behind the hullaballoo attests to their incapacity to come to grips with the issue of gender justice.

These religious bodies should learn to properly address the criticism of the Muslim women's organizations and squarely come up with answers that stand to reason and logic.

It needs to be reiterated here that the Shariah is a social construct that came into existence at a particular point in time, echoing the values of those times. That was then, this is now. Our times call for a reinterpretation that incorporates the notion of gender equality.

Even if these religious bodies baulk at modern ideas of gender justice, they could at least study a few models present in the contemporary Muslim world for ushering in changes. The Mudawana--the new Islamic Family Law--of Morocco is a case in point. This new law got introduced in Morocco in 2003. It has done away with the male's unilateral repudiation of marriage, and has also endowed women with the right to divorce. Moreover, there is no legal place for verbal divorce anymore. Both the spouses have been assigned the joint responsibility of the family. It has also incorporated gender-sensitive terminologies besides a good deal of other changes. Incidentally, all these changes have references from the scriptures. Consideration of Mudawana, and people implementing it in their lives, as un-Islamic, or an act of apostasy, would be an untenable proposition! I firmly believe that 'personal is political'; therefore, Muslim Personal Law should see a thorough change.

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