Could polygamy, arbitrary and unilateral divorce, denial of alimony, and only half a man’s share for a woman in inheritance be morally justified?
These and many related issues are kosher under the Muslim Personal Law (Shariat) Application Act 1937 in India.
It is a matter of embarrassment that the family life of Indian Muslims is governed by an uncodified law. The Muslim Personal Law (MPL) is not a code but a declaratory law that tells courts to decide cases on the basis of opinions of the school of jurisprudence the litigant parties belong to. Herein lies a profound anomaly. The courts are asked to administer a law that is unwritten, undefined, uncodified, and beyond their jurisdiction.
Therefore, there is a pressing need for the codification and reform of the MPL — an imperative both to meet the ends of gender justice and fulfil the promise made in Article 44 of the Constitution regarding a Uniform Civil Code for all Indians. Moreover, there is a pending constitutional discrepancy to be resolved. Article 13 renders void all such laws that have been in force before the adoption of the Constitution but are inconsistent with Fundamental Rights. The MPL, due to its bias against women, is inconsistent with Article 15 that inter alia prohibits discrimination on grounds of sex.
The anti-women MPL puts India in a tight spot as a signatory to the Convention on Elimination of All Forms of Discrimination Against Women (CEDAW), which it ratified in 1993.
The MPL deals with matters such as marriage, divorce, succession, inheritance and related subjects. Almost every area needs reform to bring these laws up to date with the contemporary sensibilities about gender justice. It must begin with the recognition of the Muslim woman as a whole individual with the same and equal rights as any man. And there are several reasons why such laws must be reassessed and viewed within the ambit of a codified personal law.
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Marriage
Marriage is not about rituals. It is a declaration that two people have decided to live together as wife and husband. Whatever the ritual of solemnisation, a marriage should be registered.
Polygamy
Polygamy should be outlawed. Many Muslim-majority countries have already placed such restrictions on polygamy so as to make it an unviable option.
Indian Muslims are a monogamous community. The incidence of polygamy among them is almost as low as among the Hindus. It is considered as abhorrent among Muslims as any other community in India. Therefore, to keep it on the statute in the name of religious right is political and ideological intransigence. The relevant verse of the Quran (4:3) is about providing a home to orphans and those who lost their families in a war-torn society. It’s not a blanket licence for polygamy. It’s easier to interpret the verses of the Quran in favour of monogamy than polygamy.
Divorce
Much like marriage, divorce should be made a judicial process. It can’t be arbitrary and unilateral. Marriage has notionally been a judicial process among Muslims. The maulvi who solemnises the nikah is known as a qazi, which used to be a judicial position. Readers may recall the adage: “Miyan biwi raazi to kya karega qazi (If the bride and groom are willing, what can the qazi do?)”
Furthermore, khula, or divorce by the wife with the assent of the husband, is already an ersatz judicial process in which the ulema decide on the woman’s petition for divorce. It is a juristic innovation that has no sanction from the Quran.
There is also the Dissolution of Muslim Marriages Act 1939, under which a law court decides on a woman’s petition for divorce. This law has an interesting history. In the early 20th century, women in bad marriages, unable to divorce their husbands, started to renounce Islam in order to render the marriage void. This law was enacted to stop the exodus of women from Islam. It also specified that even if a Muslim woman renounced the faith, her marriage would remain intact. However, if a man did the same, his marriage would be void. Such double standards!
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After divorce
Alimony should be judicially determined as per the civilised norms of the contemporary world. The same goes for the custody of children. The status of a divorced mother should be of a full parent and not merely of a wet nurse.
Nikah Halala
Nikah halala is an outrageous stipulation under which if a divorced couple wants to remarry, the woman has to marry another man, consummate the marriage, and then divorce him to be eligible to remarry her former husband. This legal monstrosity has been a result of the misogynistic misinterpretation and misapplication of verse 2:230 of the Quran. Halala should be abolished and made a criminal offence.
Minimum age
The minimum age for marriage in Muslims should be brought at par with other Indian communities. In January this year, a Punjab and Haryana High Court judgment held that Muslim girls become legally competent to marry after attaining puberty at the age of 15. The conflict between what is permitted under the MPL and what is prohibited under the secular laws (POCSO Act, Prohibition of Child Marriage Act)led to a sad situation in Assam as well. The statewide crackdown saw several men getting arrested for marrying girls under the age of 18.
Inheritance
Currently, some Muslim couples, particularly those who have only daughters, have started to register their marriages under the Special Marriage Act 1954 to avoid the inheritance rules under the Muslim Personal Law, which denies such Quran-sanctioned rights to women. When a Muslim contracts his marriage under this Act, he ceases to be a Muslim for purposes of inheritance. Accordingly, after death, their properties do not devolve under the Muslim law of inheritance and their inheritance is governed by the provisions of the Indian Succession Act 1925.
The Quranic rules of inheritance (verses 4:7-12) pertain to the structure of the family in 7th-century Arabia, which was composed of clans and tribes that followed nomadic norms. Twelve categories of heirs share a decedent’s property. Today’s family structures are way different. So, the law of inheritance should reflect the requirements of modern nuclear families. Relations that are mentioned in the Quran as heirs are no longer a part of thefamily. They live their separate lives with no binding responsibility toward the decedent’s wife and children. Therefore, they shouldn’t have a share in his property either. The law should be reformed to make the wife, husband, and children one another’s heirs, with an equal share for women.
Muslims should also be empowered to create wills and dictate the inheritance of their property as they wish. The Quran doesn’t mention wills, and therefore, the stipulation that one can’t will more than 1/3rd of their property has no Quranic basis. Another law to replace this handicap could be made with equal theological felicity.
Another part of the inheritance law that needs urgent reform is the inhuman practice of denying a child their father’s share in the grandfather’s property if the father predeceases the grandfather. Interestingly, the grandparents would have a share in the property of the grandchild if the latter were to die. The grandparents would also have a share in their deceased child’s property, but when they died, the grandchild wouldn’t have a share even in that part of the property which was originally his father’s. By the way, such deprivation of grandchildren, though an established part of Islamic law, has no sanction in the Quran. In fact, verses 4:8-10 could very easily be interpreted to guarantee the share of orphans in the grandparent’s property. But the pre-Islamic Arabian culture, where such orphans were made into slaves of their uncles, influenced jurists in the interpretation of the Quran. The name of Prophet Muhammad’s grandfather, Abdul Muttalib, literally the slave of Muttalib (his uncle), has a tale to tell.
Adoption
Adoption is disallowed under the Muslim Personal Law. But the Quran actually says in verse 33:5 that anadopted child’s biological lineage and identity should not be erased. Today, many childless Muslim couples want to adopt children who would look after them in old age and inherit their property. But their kith and kin, living their separate lives, wouldn’t let them bequeath property to the adopted child. A new adoption law is needed for Muslims.
As we can see, much of the Islamic law in India has no basis in the Quran and reflects the customs of a bygone age. New laws should reflect today’s life and its sensibility.
Ibn Khaldun Bharati is a student of Islam, and looks at Islamic history from an Indian perspective. He tweets at @IbnKhaldunIndic. Views are personal.
Editor’s Note: We know the writer well and only allow pseudonyms when we do so.
(Edited by Humra Laeeq)