Muslim Personal Law: clearing the cobwebs
TAHIR MAHMOOD
THE MUSLIMS of India often misunderstand and therefore misuse their personal law. Their non-Muslim brethren have terrible misgivings about its precepts. Both have to be properly educated.
Never in history has India had a general family law applicable to all inhabitants of the land. In modern India too, in respect of family relations and succession, various religious communities are generally governed by separate laws compendiously called the `personal laws.'
There are now a Hindu law, a Christian law, a Parsi law and a Muslim law — all legally recognised and judicially enforceable. None of these is, of course, exempt from the state's legislative powers and social reform obligations as laid down in the Constitution, in exercise of which these have in fact been already codified and reformed to varying extents.
A separate family law supposed to be `secular and non-religious' has also been enacted as an optional alternative to each of the personal laws. In reality it, however, leans towards Hindu law for which reason it has not found much favour with the other communities.
India does need a comprehensive code of Muslim law. Unfortunately, no one talks of it. People talk of the utopia called a common civil code, without caring to know the rationale and object of the constitutional provision in this respect. This provision, they fail to note, did not prevent the enactment of a separate Hindu code in 1955-56 and the retention of the Christian and Parsi laws of pre-independence era. It cannot, similarly, hamper codification of Muslim law. Senseless advocacy of a common civil code in the context of Muslim law hinders reformation of that law and perpetuates its misuse.
Ideal solution
An Indian code of Muslim law based on an eclectic selection of principles from the various schools of Shariat is the ideal solution to all the contemporary problems of Muslim law. Such codes have already been enacted in many Muslim countries. Among the non-Muslim nations, while the Philippines enacted a code of Muslim law long ago, South Africa is now preparing one, notably with the help of some Indian scholars. A similar exercise could well be taken up in India too.
In the absence of a proper code, Muslim law is suffering from all sorts of ailments. The multiplicity of juristic opinion within Islam, the insistence of various Muslim groups of our age to strictly adhere to particular juristic opinions of ancient times, freedom of every Tom, Dick and Harry today to `interpret' the religious law and, above all, the self-assumed obligation of people in general to `enforce' its dictates as understood by them, have together turned the Muslim law into a babel.
Popular belief in the country regards the Muslim legal system as an archaic law sanctioning degradation of women through their confinement to homes coupled with the freedom of bigamy and whimsical divorce on the part of men. This is indeed not the truth.
True principles of Muslim law are lying buried under the heaps of age-long misinterpretations and widely prevailing misconceptions. These have to be dug out and must replace the present distorted view of the law.
Muslim women's unfettered freedom of choosing a life-partner by their free will, negotiating the terms of a proposed alliance, maintaining their independent identity and rights during marriage, walking out of an irretrievably broken marriage without any hassles, and enjoying unrestricted ownership of all property that comes to their hands by inheritance or otherwise, are some of the salient features of Muslim law.
The true principles of Muslim law remain eclipsed by its extensive misreading over the years. If this system of law has to survive in a pluralistic society like India, its glory has to be restored by reviving those principles in letter and spirit.
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