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Rigidity of ulema
Publication Date : 06-07-2012
A few days ago we had organised a discussion on codification of Muslim personal law in a way that could be acceptable to all the sects of Islam in India. We did so in consultation with the ulema, Muslim intellectuals, lawyers and women activists.
Also, this codification is strictly within the framework of the Sharia — that is the Quran and Sunnah. We had a few consultations before we finalised certain proposals and we had also kept in view the codification done in many Muslim countries like Pakistan, Jordan, Egypt and others.
Our draft codified law addresses the question of misuse of polygamy, triple talaq (divorce), inheritance, custody of children etc. The orthodox ulema, who have constituted the Indian Muslim Personal Law Board (MPLB) since the 1970s, hardly do anything to stop misuse of these provisions, with the result that a large number of Muslim women suffer; they are arbitrarily divorced, their lives and those of their children ruined forever. Many men, taking advantage of the provision for polygamy, leave their first wife and marry another. Under unregulated Muslim personal law today khula cannot take place without the consent of the husband.
Our proposed codification is chiefly meant to stop such abuses and restore the law’s focus on justice and gender equality.
Though we have finalised proposals we, by no means, consider it perfect and so have kept it open for consultation and further perfection.
We organised one such consultation at Lucknow, which is a centre of Islamic learning, and invited ulema from Nadwatul Ulama and Farangi Mahal, two great seats of Islamic learning in India, besides other ulema, intellectuals and women activists.
Though we are aware that it is by no means easy to get such proposals accepted by orthodox ulema or the Muslim Personal Law Board, we continue to discuss with them and persuade them to accept these proposals in the interest of the Islamic spirit and justice to women. We also wish to have dialogue with the MPLB, preferably its chief Maulana Rabe Hasani. In this consultation we requested that the MPLB should depute some representative to have at least preliminary discussion with us.
A maulana was deputed and from Farangi Mahal its chief Maulana Irfan Siddiqui himself came.
The consultation was a great disappointment and proved how rigid our ulema are. One of the reasons why Islam appears to be so rigid to non-Muslims and rationalist Muslims is chiefly because of this attitude. Right at the beginning the maulana from Nadwa said we were undertaking very "dangerous" work.
He also alleged we were trying to change the meaning of the Quran. I asked him to first go through the proposals and then point out why they are "dangerous" and how they amount to changing the meaning. We again reiterated that our proposals are strictly within the framework of the Quran and Sunnah; all we are doing is regulating and preventing the misuse of polygamy, triple divorce, etc.
We have proposed, for example, that a man should not be allowed to marry another wife unless he is permitted to do so by the marriage council (or Sharia court) presided by a qazi and his first wife after thorough inquiry, which could include the need for a second wife and his capacity to do justice.
Both the Quranic verses on polygamy (4:3 and 4:129) stress justice, not numbers, and justice is primary in the Islamic value system. The maulana then said it is Hindus who marry more than one wife more often than Muslims. I told him we are here discussing Muslim personal law and not Hindu law or violation of Hindu law. We must understand the maqasid al-sharia (intentions of the Sharia) and should not go by formal law as formulated by early jurists. In fact, early jurists also had kept justice in mind and even tried to define justice, but soon the concept began to be misused by men and justice became quite secondary.
Similarly, triple divorce in one sitting is not mentioned in the Quran and the holy book has clearly prescribed the method also and requires two witnesses at the time of divorce (65:1-3), and yet among Hanafi Muslims triple divorce in one sitting has become the only form of divorce in India.
The Quran also makes provision for arbitration before divorce (4:35), which is also avoided today. Thus the Quran becomes secondary when it comes to men’s domination.
The maulana asked that if he proved the Prophet (PBUH) had allowed triple divorce would I accept it. I said surely I would and asked him to quote the source. He could not and then I quoted the hadith in which the Prophet had strongly denounced triple divorce. The maulana had no reply but again he said very few Muslims divorce their wives. One alim even said none of us present here had divorced his wife. I said we are not going by numbers but quality and intent of law, not how many Muslims divorce their wives.
I know of several Muslim women whose lives have been ruined because of triple divorce.The maulana, when rendered speechless, adopted tactics of munazarah (debate) in which the matter is twisted rather than giving a solid reply. He at last left in a huff rather than giving any constructive suggestion.
I was very much pained that our religious leaders are so rigid and have lost the true spirit of Islamic legislation.
The writer is an Islamic scholar who also heads the Centre for Study of Society & Secularism, Mumbai.