“The legislation of the Quran will spread all over the world, because it agrees with the mind, logic and wisdom.” – Leo Tolstoy
One of the most misunderstood concepts in the field of law is Islamic Law. The average man tends to conflate every legal term or even non-legal term related to Islam, into one, haphazard umbrella term. This term is usually referred to as ‘Shariah’ law.
It is important to know and understand the difference between the terminologies that exist in Islamic Jurisprudence to help counter the rising Islamophobic trends afflicting the Muslim community across the world. Islamic law covers all aspects of Muslim life. The objectives of Islamic law is to call for the preservation and protection of life, religion, intellect, property and lineage. Hence, one can find solutions spanning law, politics, family relations, and even extensive deliberations on personal hygiene or purity. Of particular interest in our times is Islamic Family Law (IFL). This is one sphere of Islamic law that remains largely intact with minimum colonial influence, and continues to find application across countries like Turkey and Indonesia. India too, being a Secular Republic Nation, continues to apply Islamic law in personal matters, albeit mediated through secular courts.
IFL in India
The Indian context is a particularly interesting case study of IFL due to the intervention of the governments in matters regarding Muslim women. The Shah Bano judgement passed in the year 1985 triggered heated debate and discussion among Muslim clerics, who later pressured the government into passing legislation in the name of Muslim women. The Muslim Women Act of 1986 was heralded as reformative for the community. The consequence, however, was that Muslim women still turned to Sec.125 of the Criminal Procedure Code, 1973 to get their maintenance rights despite the newly enacted legislation. In 2017, the Shayara Bano judgement, once again catapulted the Muslim woman to the fore of the national debate regarding women’s rights. The judgment led to the culmination of the 2019 legislation, which in essence criminalises the offence of ‘Triple Talaq’ but at the same time, such pronouncement of instantaneous divorce has no bearing on the existing marriage. According to the Census of 2011 statistics, this phenomenon affects only 0.56% of the community.
That being said, the development and application of Islamic law in India requires one to take a cautious approach. Most people are under the impression that the law so applied, i.e., the Shariah Law is pure Islamic law and thus immutable. That however, is not the case at all. The Islamic jurisprudence that is applied in the country today is a consequence of the British Empire’s endeavour to understand and implement a law that would justify their colonization and keep the colonized under control. Thus, men like Warren Hastings, Lord Macaulay, Charles Hamilton, and Neil Bailee endeavoured to devise what can be called as Anglo-Mohammadan law, muddling through abridged and poorly translated versions of Hanafi jurisprudence, which they then attempted to apply to all cases emerging out of a vast country. Macaulay himself once said, ‘…the Shastras and Hadith will become useless once the codification process is complete.’ However, the demand for codification is a very real and genuine one. A codified, simplified and easily accessible Muslim Personal Law will put an end to the use of older precedents based on poor quality translations, and will allow for a smooth legal process.
It is an undisputed fact that family law has always been a tool of social control in every society. One can find an element of social control in Indian law as well, be it the 1986 legislation or the 2019 legislation. The reason being the importance of family and the role it plays in building the society from a fundamental level. Long before Article 16 of the Universal Declaration of Human Rights, Article 23 of the International Convention on Civil and Political Rights and the Convention on the Elimination of All Forms of Discrimination against Women, Islam had already begun to pave the way for recognizing the status of women as an important member of society. Through the divine revelation and later through the historical jurists, IFL has always sought to dignify the institution of marriage and the two parties involved.
In so far as marriage is concerned, IFL thus sets out the rules and obligations of either party. The marital home under Islamic law is considered to be the fundamental building block of society. The Quran states in Chapter 2 Verse 228, “And for women are rights over men similar to those of men over women”, highlighting a balanced relationship between a man and a woman. Furthermore, the Holy Prophet of Islam spoke the following at his Farewell Sermon delivered at Uranah Valley of Mount Arafat “…O people, it is true that you have certain rights concerning your women, but they also have rights over you. Remember that you have taken them as your wives only under Allah’s trust and with His permission.”
Marriage in Islam
That is the status of the institution of marriage in Islam. It is an ideal system should the two parties come together under a divinely obligated contract. I am reminded of a Christian wedding sermon from the movie Four Weddings and a Funeral which perfectly highlights the pursuit of marriage under Islam as well, “…and therefore it is not by any to be enterprised nor taken in hand unadvisedly, lightly, or wantonly, but reverently, discreetly, advisedly, soberly, and in the fear of God.”
It is an interesting point to be made which unfortunately couples are quick to forget, particularly the menfolk when it comes to carrying out the obligations as intended in the Quran. Chapter 65 of the Quran illustrates the divorce process under IFL. It is interesting to note that as one reads the verses, nearly every verse insists ‘fear your lord’ for every step of the way through the process. The Quran further addresses the question of the possible irretrievable breakdown of the marriage, listing down ways to restore the relationship through mediation and appointing arbitrators between the two parties. In general, one would find in the various books of Islamic Jurisprudence, a highly nuanced approach to the marital rights of the husband and wife. The judicial precedents of past Islamic jurists, particularly from the time of the Khulafa Al-Rashideen or the ‘Rightly Guided Caliphs’ have usually been found to favour women rather than men. The most prominent example being that of the second Caliph of Islam, Umar ibn Khattab (RA), a man whose prestige and honour no man since his time has ever come close to emulating. His decision to ‘punish’ the men for trivialising marriages and divorces upon the complaint of the women of that time, continues to set precedence for Islamic jurisprudence even today. The need of the hour is to first decolonise our mind and of course the law. This can be achieved through mastering the Islamic Sciences and the Arabic language.
Let not our community seek justice through the taghut (man-made institutions that violate the sovereignty of Allah) of our times, but rather build an understanding and appreciation of our legacy that establishes principles of natural justice, unlike any 20th-century man-made declaration of rights.
In general, one would find in the various books of Islamic Jurisprudence, a highly nuanced approach to the marital rights of the husband and wife.