If it is to regain the confidence of the community, the All India Muslim Personal Law Board must shed its medieval hangover and reinvent itself

The present turmoil in the All India Muslim Personal Law Board (AIMPLB) and the leadership vacuum faced by the community is disturbing. It appears that the Muslim Personal Law Board has, by and large, failed to rid itself of a medieval hangover. If the Board is to survive the present crisis and regain the confidence of the community, it will have to reinvent itself according to the needs of the times. To begin with, the Board should adopt a more flexible attitude towards changes in Muslim Personal Law.

To worsen matters, splinter groups are taking advantage of the situation for their own narrow agendas instead of preserving the larger interests of the community. It seems that they are playing into the hands of those who wish to malign the community. A couplet by the great thinker and poet Sir Mohammed Iqbal is rather apt here: "Firqa bandi hai kahin aur kahin zatain hain/ Kya zamane main panapne ki yahi batein hain?" (It is factions at one place; divisions into caste at another; In these times are these the ways to progress and to prosper?)

Pragmatism demands that a process of creating awareness and spreading education could only evolve such changes gradually. These changes can’t be superficially imposed. They need to be preceded by change in societal mindsets, improvement in educational and economic conditions of the community.

With regard to demands such as allowing women to pray in mosques, we must bear in mind that already in most Muslim countries women are allowed to pray in mosques. In fact, in Islam’s holiest cities of Mecca and Medina, women pray in mosques. However, at this point one should ensure that raising these demands does not distract attention from the larger issues faced by the community.

As for the issue of family planning, it must be stressed that it is in no way against Islam. On the contrary, Muslim countries like Iran and Indonesia are cited as examples in international circles for their revolutionary strides in the field of family planning. Unfortunately, some sections of the media have linked the Muslim community or Islam to population growth. Contentious issues like family planning cannot be dealt with in isolation from the backward economic and educational status of the community in India. Even the status of Muslim women cannot be detached from the plight of their community. To improve the present condition of the community, a more holistic and constructive approach is needed.

It is important to note here that even after more than half a century of independence the country’s largest minority is still languishing at the bottom of the educational, economic and social ladder. It is a well-documented fact illustrated by the Gopal Singh report on minorities in India that Muslims lag behind even the Scheduled Castes, Scheduled Tribes and the neo-Buddhists. The deplorable condition of India’s Muslims not only speaks volumes about the government’s apathy towards the community (using the community merely as a vote bank), but is also a sad reflection on the lack of vision in the community’s so-called leadership. Allah says in the Holy Koran, Sura Ar-Ra’d, Verse 11, "He will not change the fate of the community until the community has tried to change its fate itself."

It would not be wrong to say that the community’s leadership has failed the community. Perhaps Muslims need a visionary like the 19th century reformer Sir Syed Ahmad Khan to lead them today.

Education in the Muslim community needs to be addressed on a war footing. The Board ought to be at the forefront, playing a proactive role in the field of education and creating awareness. Un-Islamic practices like dowry, which have crept into Muslim society, should also be systematically confronted.

Contrary to popular belief, Islam lays the utmost emphasis on acquiring education, not only religious but also worldly. In fact, the first revealed word of the Koran was iqra, which means ‘read’. About knowledge, the Koran states in Sura 35, Verse 28, "Those truly fear Allah, among His servants, who have knowledge."

Many of the Prophet’s Hadiths emphasise the attainment of knowledge not only for Muslim men but also women. One Hadith states, "Seeking knowledge is a duty of every Muslim, man or woman" while another says, "Seek knowledge from the cradle to the grave". Two Hadiths are revolutionary as far as women’s empowerment and education is concerned – One states that "The father, if he educates his daughter well, will enter Paradise" (The World Bank Report, July 9, 1993:25). The other states, "Mother is a school. If she is educated, then a whole people are educated".

However, it is rather unfortunate that so far these Hadiths, far ahead of their times, are not given much emphasis. Never do such progressive Hadiths figure in a religious discourse.

It is rather ironical that the Muslim community lags appallingly behind in the field of education. It appears that the ignorance of the Muslim masses is bliss, not only for the political parties to manipulate them as vote banks but also for the clerics who want to retain their hold over the community. In fact, lack of education is one of the root causes of the plethora of ills faced by the Muslim community today.

In order to develop a scientific temper and to produce thinking individuals, madrassa modernisation is the need of the hour. Besides modernisation of the madrassa curricula, top priority should be given to making changes in the teaching methodology in madrassas. Outdated methods of learning by rote should be done away with.

A more flexible attitude towards change in Muslim Personal Law

As far as making changes in Muslim Personal Law is concerned, the fact that almost all Muslim countries have made radical changes in their personal laws clearly suggests that the same changes can also be brought about in India. The existing provisions of Muslim Personal Law were formulated during British rule and are in no way sacrosanct. In fact, this colonial enactment is laden with several loopholes and discrepancies often at variance with the letter and spirit of Islam.

The very existence of four different schools of Islamic jurisprudence bears ample testimony to the fact that Muslim personal laws are based on human interpretations of divine injunctions. In fact, the Shariah or Muslim Personal Law is in no way fixed but is dynamic and can be reinterpreted according to the exigencies of the times. In Islamic jurisprudence there are established techniques sanctioned in this regard. One such technique is Takhayyur, which prescribes the exercise of eclectic choice from amongst similar legal principles of different schools of Muslim law. Takhayyur has become the basis for reforms in family laws in many Muslim countries.

The current set of personal laws is not properly codified, which is why they are not easily comprehensible and there are ambiguities galore. This is one of the reasons for their abuse by those with vested interests. Hence, codification of the entire gamut of Muslim personal laws should be given high priority.

As practised in India, instantaneous triple talaq should be immediately abolished. The abuse of this form of talaq is responsible for scores of women being rendered destitute. The victims of this abuse are mostly uneducated women belonging to the lower economic strata. They are often forced to enter into the flesh trade, become bar girls or work as domestic help, and sometimes compelled to even sell their children.

Triple talaq is also known as talaq-e-bidat where the word ‘bidat’ itself means undesirable or forbidden invocation. Moreover, it is only the Hanafi school of Islamic jurisprudence that upholds this practice.

Simultaneous triple talaq is not sanctioned by the Koran and was never practised in the days of Prophet Muhammad. As noted Islamic scholar Ameer Ali puts it in his book The Spirit of Islam: "Reforms of Muhammad market a new departure in the history of eastern legislation. He restrained the power of divorce possessed by the husbands, he gave women the right of obtaining a separation on reasonable grounds and towards the end of his life, he went so far as to practically forbid its exercise by the men without the intervention of arbiters or a judge."

According to the Koran, talaq can be invoked over a period of three months and not simultaneously. India is perhaps the only country in which triple talaq is still widely practised. Almost all Muslim countries, including Pakistan, Indonesia, Malaysia, Bangladesh and Morocco have done away with this abhorrent practice.

As per the existing Muslim personal laws in India, there is a definite gender bias, reflected in the fact that a man (of sound mind) can divorce his wife on whimsical grounds without even taking recourse to the courts. On the contrary, in order to seek divorce, Muslim women are supposed to move the court (as per the Dissolution of Muslim Marriages Act, 1939). In Muslim counties like Turkey, Iran, etc., both men and women have similar divorce rights. Even in countries like Pakistan and Bangladesh, divorce is not reduced to a whimsical matter. The Muslim Family Law Ordinance 1961 in Pakistan made all contracts such as marriage and divorce much more stringent, and legal, by the setting up of an arbitration council. Divorce is only granted through the arbitration council.

Twenty-eight-year-old Nafisa is running from pillar to post in order to secure a divorce, all in vain. This is because her drug addict husband, who tortures her, is deriving sadistic pleasure from denying her a divorce. Sadly, no cleric has come to her rescue. Nafisa is just one of the scores of hapless victims who are denied the right to seek unilateral divorce. Ironically, this grave injustice is perpetuated in the name of Islam, although Islam was the first and probably the only religion to give women the revolutionary right to unilateral divorce, known as talaq-e-tafviz. This kind of talaq is supposed to be delegated in the nikahnama (marriage contract) by the husband to the wife. My grandmother was fortunate to have this right incorporated in her nikahnama more than half a century ago.

The model nikahnama formulated by the Muslim Personal Law Board should have specifically incorporated the right to talaq-e-tafviz. It is a pity that leave alone talaq-e-tafviz, the model nikahnama does not even have a provision for khula (a form of divorce that gives women the right to divorce but where the women have to forgo maintenance). Despite repeated suggestions for the inclusion of talaq-e-tafviz by Begum Nasim Iqtidar Ali, the lone woman member of the executive of the AIMPLB, she lamented, "It is rather disheartening that the model nikahnama released in the meeting to the Board on December 25, 2004 did not have a provision for talaq-e-tafviz or even khula."

The real question that arises is, when Islam has given women widespread rights, who are the clerics to deny these to them? Chauvinistic clerics have no right to play with the destinies of scores of helpless women – by distorting the provisions of Islam they will be denying them adl (justice), which is central to the spirit of Islam. Denying women their rights, gender injustice, is nothing but oppression of women in the name of the religion that came to liberate them. To quote a former president of the Board and noted Islamic scholar, the late Maulana Ali Main, "There is substantial difference between Islam as a religion and as it is practised by the Muslims. Whereas there is no religion which accords as much rights to women as Islam, Muslims do not practise the tenets of Islam, in fact they extract from it only that which is convenient or useful in maintaining superiority over women. It is not the teachings of Islam which are lacking in any way but it is the interpretation or ignorance of Muslims."

The holy Prophet’s farewell message to his followers was a complete charter of human rights delivered more than 1,500 years ago: "O people fear Allah concerning women. Verily you have taken them on the security of Allah and have made their persons lawful unto you by words of Allah! Verily you have certain rights over your women and your women have certain rights over you."

As former Prime Minister Mahathir Mohamad of Malaysia said in his famous inaugural address at the Organisation of the Islamic Conference session of 2003: "Islam is not just for the seventh century AD. Islam is for all times. And times have changed. Whether we like it or not, we have to change, not by changing our religion but by applying its teachings in the context of a world that is radically different from that of the first century of the Hijrah. Islam is not wrong but the interpretations of our scholars, who are not prophets even though they may be very learned, can be wrong. We have a need to go back to the fundamental teachings of Islam to find out whether we are indeed believing in and practising the Islam that Prophet Muhammad preached. It cannot be that we are practising the correct and true Islam when our beliefs are so different from one another."

(Huma Hasan is an Aligarh-based research scholar in human rights, [email protected]).