Dossier 27: Reforming Muslim personal laws in India: The Fyzee formula
Publication Author:Yoginder Sikand
number of pages:93
It is increasingly being recognised by those concerned with the problems of Muslim women that the focus of reformist efforts must be directed at suitable changes within the broad framework of the MPL, as opposed to the scrapping of the MPL altogether and its replacement by a Uniform Civil Code (UCC). This is because the MPL has, for various reasons, come to be seen by large sections of the Muslim community as a legal guarantee of their separate community identity. Rightly or wrongly, they fear that a UCC would result in the ultimate absorption of the Muslims into the amorphous Hindu fold. The vigorous support for a UCC by the Hindutva brigade has added to the suspicions of the Muslims of the real intent of the demand for a common civil code. That the Hindutva insistence on a UCC is entirely hypocritical, and is simply a ruse to engage in their favourite pastime of Muslim bashing, is clearly evident from the opposition of leading Hindutva spokesmen to the reform of Hindu law in the early 1950s and from their vigorous support for the Manusmriti, the Bible of Brahminism, as the legal code for all Hindus.
Muslim advocates for reform within the MPL do not, unfortunately, generally get the attention that they deserve. For large sections of the press, they defy the stereotypical image of Muslims as unrepentant obscurantists, and thus are not seen as making ‘good’ news. For the diehard conservatives among the ulema, they are nothing less than devious traitors and enemies of the faith, plotting to subvert it from within. Yet, today, Muslim men and women who insist on the need to reform the MPL are increasingly asserting their right to articulate their own perspectives on and of Islam. In doing so, they challenge the monopoly claimed by the traditional ulema to define what is Islamically normative. They insist that Islam has no priesthood, which is what the class of ulema has been effectively reduced to, arguing, instead, that every Muslim, man and woman, who possesses adequate knowledge of Islam has the authority and the right to interpret it for himself or herself.
In raising the question of reforms in the MPL, reformists question the reduction of Islam simply to issues of law and jurisprudence, or, in short, the Shari’a. They point out that the Qur’an is primarily a book of the spirit, a guide to ethical action, and not simply a bundle of dos and don’ts. In this way they critique the tendency of many conservative ulema to equate Islam with Shari’a. In doing so seek to resurrect the original meaning and significance of Shari’a as ‘path’ or ‘road’, stressing, therefore, that it denotes a means to an end—justice, equality, morality and submission to God’s will—rather than an end in itself. Reformists go even beyond, by making a crucial distinction between Shari’a, as a divinely-ordained path, on the one hand, and the corpus of fiqh or Islamic jurisprudence, on the other, which they rightly point out to be, to a great extent, a result of human effort and a result, in large measure, of developments after the death of the Prophet. They claim that while the Shari’a is divine and immutable, the rules of fiqh, being historical constructions, may change over time in order to reflect the underlying ethical impulse of the Qur’an.
The demand for the reform of MPL had been voiced in pre-independence India by several modernist Muslim scholars, and the issue gained further momentum after 1947. Perhaps the most noted of recent Muslim advocates of legal reform was the late Asaf Ali Fyzee (1899-1981). A Gujarati Isma’ili Shi’a, Fyzee was educated at Cambridge and was an internationally known expert on Islamic law. He served as India’s ambassador to Egypt and was also the Vice-Chancellor of Kashmir University. He authored numerous books on Islam, and for his multifarious achievements was given India’s most prestigious civilian award, the Padma Bhushan, in 1962. Fyzee wrote extensively on the issue of reforms in the MPL. His case for changes in the MPL is neatly summarised in a small booklet that he wrote in 1971, titled ‘The Reform of Muslim Personal Law in India’. More than three decades later, his views continue to resonate in discussions about the MPL and its future.
Fyzee believed that there was an urgent need for reform in the MPL in order to address the question of gender justice. He argued that justice was the underlying principle of the Shari’a. Consequently, if any laws that claimed to be Islamic failed to provide justice they could be considered to be in contravention of the Shari’a, and, therefore, of God’s will as well. He stressed that certain laws that form part of the MPL do indeed violate this principle, particularly on some matters related to women. Hence, in order to uphold the principle of justice, they needed to be changed. Aware that this proposal would be stiffly opposed by large sections of the conservative ulema, he claimed that legal reform in this sphere would not be tantamount to changing the Shari’a, and nor would it violate the principle of freedom of religion guaranteed by the Indian Constitution. This was because, he argued, the Shari’a and fiqh were two distinct, but related, entities, although most ulema tended to take them as synonymous.
To buttress this claim Fyzee pointed out that the MPL, as it exists today, cannot be regarded as Shari’a pure and simple.
In his words, the MPL in India is, “a discrete body of law and custom, varying considerably from the rules of the Shari’a as expounded in the classical texts.” Hence, reforms in the MPL, he argued, need not necessarily be seen as interfering in or modifying the Shari’a. He pointed out that the MPL, earlier known as Anglo-Mohammedan Law, was itself a product of the interaction between traditional Islamic jurisprudence and the British colonial legal system, and was, therefore, not equivalent to the Shari’a itself. In preparing the principles and details of Anglo-Mohammedan Law, colonial jurists drew heavily on British notions of equity and justice, in the process modifying traditional fiqh in several important respects. Thus, the British did away with Islamic criminal law and even with certain traditional laws relating to personal affairs. The traditional fiqh rule that required that the judge adjudicating a case between two Muslims himself be a Muslim was scrapped; slavery, upheld by the traditional jurisprudents, was abolished; the law laying down death for adultery and apostasy was replaced; and drinking alcohol and eating pork were no longer recognised as cognisable offences.
After 1947, legal reform continued apace, although haltingly. Thus, under the Special Marriage Act of 1954, a Muslim could legally marry a non-Muslim without one partner changing his or her religion. Such a marriage had to be monogamous. Children born from such a marriage children would be considered legitimate and would have inheritance rights. Under the same act, an existing nikah between two Muslims could be turned into a civil marriage by registration, and a Muslim man married under this law could now bequeath a larger share of inheritance to his wife and children than was permissible under traditional fiqh laws. By registering a marriage under this act, a Muslim did not cease to be a Muslim in other respects, and would be governed by his or her own personal law in all other matters.
All this clearly suggested, Fyzee pointed out, that it was incorrect to argue that further reforms of the MPL would be tantamount to tampering with the Shari’a, because the MPL was not to be regarded as synonymous with the Shari’a in all respects. Further, he argued, it must be recognised that, “in every age and in every country, the Shari’a has been the subject of constant study, examination, and exposition, and these expositions being human and imperfect, and relate to time and circumstance, vary from country to country and age to age.” Hence, he added, “it is submitted that it is futile to argue that where a certain rule of law, as applied by the Courts in India, needs a change, we are interfering with an immutable rule of divine law.”
Given the inequities inherent in some rules of traditional fiqh, and in certain provisions in the MPL that impinge on Muslim women’s rights, Fyzee proposed radical legal reform, which he saw would guarantee gender and, at the same time, retain the MPL. In his book he suggested that the Indian Parliament pass a new law, which he termed ‘The Muslim Personal Law [Miscellaneous Provisions] Act’, which would modify the existing MPL. In order that the proposed legislation be accepted by the Muslims, he suggested that measures for legal reform base themselves on rules accepted by one school of Islamic law (mazhab) or the other in order to uphold the principles of justice and equity. This measure would also help open up each school to possibility of borrowing from other Muslim schools, and would, in this way, help promote a measure of intra-Muslim ecumenism. Thus, he suggested that the proposed act lay down that, “where a Muslim is governed by a particular school of law and a decision according to that school would be against justice, equity and good conscience, the Court shall have the discretion to apply a rule drawn from any of the other schools of Islamic law, Sunnite as well as Shi’ite.”
Fyzee saw legal reform through inter-mazhab eclecticism as crucial for addressing the genuine concerns of Muslim women, while at the same time fulfilling the need for such reform to be seen as Islamically acceptable. This was particularly crucial in meeting the need for reform in the procedure for divorce. Three talaqs uttered by a husband in one sitting, even under compulsion or under the influence of alcohol, are considered to be a binding divorce according to most Hanafi Sunnis, who form the vast majority of the Muslims in India. However, this rule is not accepted by several other mazhabs, such as the Shafi’is and the Ahl-i Hadith among the Sunnis, and the Ithna Asharis and Musta’lian Isma’ilis or Bohras, among the Shi’as. Given this, Fyzee suggested that the courts apply the more liberal rule drawn from the Shafi’i, Ahl-i Hadith or Shi’a schools in a case involving triple talaq in one sitting, even if the parties to the dispute were both Hanafi Sunnis.
Further on the matter of triple talaq in one sitting, Fyzee pointed out that it was widely recognised, even by the Hanafi ulema themselves, that this method of divorce was not looked upon favourably by the Prophet Muhammad himself. He noted that because it was a later innovation, it had been termed as talaq-i bida’at (bida’at refers to any sort of innovation from the path of the Prophet). Hence, he insisted, outlawing the practice of triple talaq in one sitting would actually be fully in accordance with God’s will, rather than being a gross violation of it. When such a talaq is pronounced, he wrote, the matter should immediately be referred to a Court of Conciliation, which may try to bring the parties together, failing which the Court would allow the husband to give a single talaq, according to the practice recommended by the jurists called talaq al-sunna, or talaq in accordance with the practice of the Prophet. If it was proved that a triple talaq had been pronounced by the husband on the wife, the court, he suggested, should declare the said talaq to be void, and should refer the matter to itself for further hearing. After hearing both parties and their witnesses, the court should declare either that a reconciliation had taken place (in which case no further proceedings would take place), or that, for valid reasons submitted by the husband, he was empowered to pronounce a single talaq according to the sunna method. After such a declaration pronounced by the husband in the Court of Conciliation, the conciliators should lay down the conditions for such divorce, including payment of dower and compensation to the divorced wife in the form of alimony. In making such an order the court should take into consideration the financial position and social status of the husband and wife and other such circumstances as may seem to it just and proper.
Another issue that Fyzee insisted needed to be urgently addressed was polygamy, which the MPL, as it exists today, allows for. In line with many modernist Muslims, Fyzee believed that polygamy was actually discouraged by Islam, which limited the number of wives a man could have at a time to four, this being a major reform of pre-Islamic practice that laid down no such limit. Further, he stressed, the Qur’an allows for a man to marry more than one wife only if he can treat them equally, but elsewhere adds that this is not possible. In other words, Fyzee wrote, the Qur’an actually seeks to do away with polygamy rather than sanction or encourage it, contrary to what many conservative ulema claim. Given this, he insisted, there was no reason why polygamy should not be outlawed or at least severely restricted, being allowed only under certain special circumstances as laid down in law.
In order to protect the interests of the first wife in the event of her husband taking a second wife, Fyzee suggested that an agreement be entered into at the time of the first marriage stating precisely the rights of the first wife. In the absence of such an agreement, the matter must be referred to a Court of Conciliation before a second marriage could take place. If such a marriage took place without such conciliation proceedings, the erring husband should be punishable by the criminal law and the wife entitled to seek divorce. Further, Fyzee wrote, in taking a second wife it was imperative that the husband seek his first wife’s prior consent. At the same time, if the court, after review of the evidence, felt that in taking a second wife the husband had been guilty of such conduct as to make it inequitable for the court to compel the first wife to live with him, it would refuse relief. The onus would be on the husband who took a second wife to explain his action and prove that his taking a second wife involved no cruelty or insult to the first. Failing this, Fyzee suggested, the court would presume that the action of the husband in taking a second wife involved cruelty to the first, and it would be inequitable for the court to compel her against her wishes to live with such a husband. Hence, Fyzee went on to insist, the taking of a second wife could not be said to be a ‘fundamental right’ of a Muslim husband.
After spelling out in detail his various proposals for the reform of the MPL, Fyzee concluded that the most viable way to promote the reform process was through what he called ‘permissive laws’ and ‘specific amendments’ of the MPL, rather than by seeking to impose a UCC on the Muslims. The latter course, he noted, would be stiffly opposed by many, if not most, Muslims, who might construe it as interference in their religious affairs. Fyzee’s point is well-taken, and it is obvious that the best course to adopt at present is to encourage reform within the MPL itself, instead of replacing it, by taking advantage of the flexibility and diverse understandings of Islamic jurisprudence as well as by evoking the Qur’anic precept of justice. Sections of the traditional ulema may undoubtedly be expected to vociferously rant and rave against even such reforms. The future of reforms within the MPL does not depend solely on the ulema, however. The receptivity of ordinary Muslims to reform proposals also crucially depends on the overall political climate of the country, particularly on Hindu-Muslim relations. Quite obviously, heightened communal antagonisms, which the Hindutva brigade has so heavily invested in, works to discourage any openness to the possibility of reforms as Muslims come to see themselves, their traditions and their faith under attack. It is only in a climate of reasonably harmonious inter-communal relations that voices such as Fyzee’s can receive a willing ear among common Muslims, who then, in turn, would be able to pressurise the ulema to heed their advice.
This paper is reprinted with permission from the author.