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Muslim personal law

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Purushottama Bilimoria
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Chapter Title Muslim Personal Law

Copyright Year 2013
Copyright Holder Springer Science+Business Media B.V.
Corresponding Author Family Name Bilimoria
Particle
Given Name Purushottama
Suffix
Division/Department Letters and Science, School of
Historical and Philosophical Studies
Organization/University University of California
Street 231 Evans Hall #2922
City Berkeley
State CA
Postcode 94720
Country USA
Phone 610-3351366
Fax 510-642-4607
Email pbilimoria@berkeley.edu
Email pb1@unimelb.edu.au
Email p.bilimoria@unimelb.edu.au
Author Family Name Sharma
Particle
Given Name Renuka
Suffix
Division/Department Formerly Research Associate, Monash
Asia Institute
Organization/University Monash University
City Clayton
State VIC
Country Australia
Email amy.rayner@me.com
Email empathy249@gmail.com
Email abhijit.baroi@springer.com
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1
M

2 Muslim Personal Law Islam and Muslims in India 27

3 Purushottama Bilimoria1 and Renuka Sharma2 India’s population is brimming at around 1.22 billion. 28
1
Au1 4 Letters and Science, School of Historical and Each year it adds a population from new births 29

5 Philosophical Studies, University of California, and migration equivalent to the size of Australia’s 30

6 Berkeley, CA, USA population, that is, some 20 million. The majority of 31
2
7 Formerly Research Associate, Monash Asia Institute, India’s population is Hindus; Muslims comprise 32

8 Monash University, Clayton, VIC, Australia 13.4 %, Christians count for over 2.3 %, and the rest are 33

Sikhs [431], Jains, Buddhists, Parsis (Zoroastrians), 34

nonreligious secularists, and tribal and indigenous 35

9 Synonyms people (not counted under Hindu), with 0.5 % being 36

itinerant or resettled refugees from nearby countries 37

10 Constitution; India; Islamic law; Religious rights; Rule (such as Tibet, Burma, Sri Lanka, and Bangladesh). 38

11 of law; Self-determination; Shah Bano; Shari ‘at; With the advent of Islam to India, in several waves 39

12 Women since circa seventh century, and largely with the 40

Mughals, came Muhammadan or Islamic law based 41

on the sharı̄‘a ([1, 2], [127]). When Islamic law or 42

13 Definition Sharia is modified to be in harmony with extant local 43

laws (in this case mostly Hindu-dharmaśāstric codes), 44

14 The article examines the development of the legalism it came to be known as “Muslim law” [3]; during the 45

15 of Personal law and provisions of community rights British period, when the law “private” to the Muslim 46

16 for disparate communities in modern India and the community is further modified to conform to English 47

17 role of religion and communal politics in their common law, it comes to be known as Muslim 48

18 perpetuation. The case study undertaken here is Personal law or even Anglo-Muhammadan law [3–5]. 49

19 specifically the Muslim community’s constitutionally

20 sanctioned Personal law (MPL). MPL has not been
21 without criticisms both from outside and within the Muslim Family Law 50

22 community, particularly in respect of gendered

23 disadvantages that arise within the provisions So what scholars generally call Muslim family law 51

24 safeguarding the practices, which cover marriage, [6, 7], in India, falls under Personal law [4, 8], which 52

25 divorce, alimony, inheritance, custody, succession, covers matters pertaining to marriage, divorce, 53

26 adoption, and so forth. inheritance, succession, adoption, maintenance, 54

guardianship, and custody of children. This law 55

extends to general areas of religion, giving sanction 56

for specific cultural and religious practices; control of 57

A. Sharma (ed.), Encyclopedia of Indian Religions, DOI 10.1007/978-94-007-1989-7,

# Springer Science+Business Media B.V. 2013
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M 2 Muslim Personal Law

58 religious institutions, like places of worship; or out for perpetuating a bifurcated system of justice and 104

59 community education facilities, including minority social-legal dispensations in the name of minority 105

60 languages. Hence, Personal law regimes – be they of rights [16, 17]. It argues that there is no compulsion 106

61 Hindus, Christians, Jains, or Sikhs – underpin the within the provisions of the secular Constitution for the 107

62 autonomy of certain “cultural rights” specific to these country to submit to the belated call for a uniform 108

63 communities, which the secular state and other com- civil law sometimes referred to as “common civil 109

64 munity groups are not supposed to meddle with [9]. code” [6, 8]. Some blame the British colonialists for 110

65 Indeed, in a growing multicultural, multilocational the mess, with its parallel in the Partition, even after the 111

66 milieu and legal pluralism, these signs of greater creation of a separate nation for the Muslims. So it is 112

67 autonomy, marks of distinctive self-identity, and asked, why should the Personal law system continue in 113

68 sensitivity toward their own moral heritage on the the “secular democratic socialist republic” that India 114

69 part of disparate cultural groups are indeed welcome is committed to being or becoming? [11] This is 115

70 moves. where the debate has more or less stalemated at the 116

71 But some people argue that Personal law comes present time. 117

72 at a huge price and that, for starters, it encourages An important aspect in understanding the present 118

73 proliferation, hence conflict and contradiction between circumstances lies in the colonial period and how the 119

74 different laws on the same set of practices, hence Europeans, especially the British who assumed full 120

75 leading to arbitrariness, relativism, and eventually an sovereignty over much of the subcontinent, dealt with 121

76 epidemic of Personal laws [10]. Second, there is no this situation. Since landing in 1772 the British 122

77 way of checking and redressing certain discriminatory remained bewildered by the heterogeneous native 123

78 practices within particular communities against mem- “culture of law,” governed by the power of custom, 124

Au2 79 bers of their own kind [11]. Third, the very idea of rather than regulatory authority secured in the “Rule 125

80 traditional “law,” as kanun, hukm, and dharma, is of Law” with the declared consistency, clarity, 126
˙
81 vague, nontransparent, and slippery between textual certainty, and finality of statues, like “Black Letter 127

82 roots, customary norms, normative practices, and Law,” within its judicial, legislative, and bureaucratic 128

83 imported regulations. Of course, often it is a matter machinery [2, 18]. 129

84 of perspective or relative judgment: the members First, the British separated out judicial punishment 130

85 themselves may not feel they are being marginalized, for actions that were likely to cause public harm from 131

86 victimized, or compromised in terms of fair and just other kinds of sanctions and misdemeanors in private 132

87 outcomes in enclosed practices, such as in the case of conduct, which the community could manage them- 133

88 marriage, divorce, and maintenance entitlements, selves. This led to enactments like the Code of Civil 134

89 decided by the terms of Personal law enjoyed by Procedure (1859), the Penal Code (1861), and the Code 135

90 that community [12, 13]. Nevertheless, since these of Criminal Procedure (1861). They are considered 136

91 are differentially inscribed for different communities “common” inasmuch as these cover public space or 137

92 under separate Personal law provisions, they public morality; they are intended to cut across race, 138

93 have come increasingly into conflict with civil, penal, caste, religion, and community divides. These codes 139

94 and criminal procedure codes governing the public with some amendments have remained on Indian stat- 140

95 space [14, 15]. ute books, echoing eighteenth-century British ideas of 141

Common law, and they are resistant to local/traditional 142

divergences [4, 19]. 143

96 Conflict with British Common Law But the separation did not work, as the division 144

of public and personal (in the communally marked 145

97 Furthermore, with the rise of strong religious and “private” sense) was too arbitrary, creating confusions 146

98 sectarian sentiments, particularly among the northern and ambivalence about whether textual, i.e., scriptural- 147

99 middle-class Hindus, this issue has assumed immense religious, should prevail over customary rules, and in 148

100 public importance, drawing clerics, community advo- which precise cases? Hindus remained dissatisfied 149

101 cates, postcolonial writers, and feminist critics into the with overreliance here on purely abstracted coded 150

102 fray. In the aftermath, one moral community has laws that no one probably had ever practiced. So the 151

103 responded with a sense of horror, as it feels singled hybrid-colonial laws for the communities’ respective 152
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Muslim Personal Law 3 M

153 codes based on “universal principles of the science vague and undefined in terms of what a modern 199

154 of legislation,” Anglo-Hindu law, for example, were nation-state takes law to be with its more pragmatic if 200

155 challenged by Indian legislators and judges [9]. not secular nuance; nor did much specific codification 201

on the thorny areas within Personal law actually take 202

place, nor was any uniformity across the plethora of 203

156 Structure of Muslim Personal Law Islamic sects achieved [10, 15]. The Shari‘at Act was 204

based on interpolated hukms, as duties and obligations, 205

˙
157 It is important here to note that for Muslim Personal and not on “rights” of the individual. In fact, the rights 206

158 law, the colonialists continued largely the Hanafi fiqh discourse was eschewed or bypassed altogether [13, 207

159 or legal school (which many Indian Sunni Muslims 22]. Even so, the Shari‘at Act did make some progress. 208

160 follow). It is said that Muslim law in India has signs It recognized inheritance of family property for 209

161 of being among the oldest continuing form of Muslim women, which was not allowed under customary law. 210

162 law, which has not been eroded by excessive reforms, The Indian Muslim League and Muslim women’s 211

163 secularization, or civil interference [20]. And being organizations backed this act, since this was seen as 212

164 Hanafi it is comparatively more liberal and in principle a progressive and pro-women move [8]. 213

165 amenable than the comparatively more literalist

166 Hanbali school, upon which Pakistan’s Hudood
167 Ordinances are based [19]. In any case, critics all Post-Independent Imbroglios 214

168 along have argued that the Personal law system as

169 reinvented by the British in India has been “bogus” Then came the Independence in 1947–1948. While 215

170 (Derrett [9]), at best “hybrid” (Galanther [9]), and at drafting the Constitution, there was heated debate 216

171 worse, an “egregious blunder” (Gandhi [9]), a queer over the fate of the Personal law system. Strong argu- 217

172 mix of Indian and Western traditional moralism ments were made to bring Personal law in line with 218

173 (Nandy [9]), that hardly reflect the coordinates of the secular practices and civil procedure. Most signifi- 219

174 lived culture, i.e., they are far from being normative. cantly, it was argued by the Constituent Assembly’s 220

175 For instance, the Indian Divorce Act 1869 put leader for the “Dalits” (the so-called untouchables), Dr. 221

176 a ceiling on the maintenance amount to be given to Bhimrao Ramji Ambedkar [104], that religions should 222

177 the estranged wife. The Registration of Mohammedan not intrude into processes of secular law. But there was 223

178 Marriages and Divorces Act 1876 made registration of dissension, especially from staunch Hindu and Muslim 224

179 Muslim marriages, nikah-nama, voluntary or good communities. Gandhi was mute as he was cleaning up 225

180 enough if records are kept with the qādı̄ (judge) in the blood from aftermath of the Partition violence. 226
˙
181 the masjid or mosque precinct [16, 21]. There was also the question of diversity of Indian 227

182 Though there were positive outcomes as well, such culture. Nehru surmised that circumstances were unfa- 228

183 as blocking alienation of land by individual claimants vorable at that time for the adoption of common civil 229

184 to what is otherwise a collective or clan title, rightful law [5, 9]. The Constitution on January 26, 1950, 230

185 inheritance of property, and share for the widow, major shelved the idea of uniform civil code and instead 231

186 difficulties were never quite ironed out [11]. Even gave sanction to the Shari ‘at Act, 1937, as the 232

187 Muslim judges argued with their British counterparts prevailing Muslim Personal law. Over this hung the 233

188 on the correct interpretation of Qur’ānic or al-hadı̄th shadow of two rather autonomous parts within the 234
˙
189 principles and application of the hybrid Anglo-Muslim Constitution. Articles 14–18 of the Fundamental Rights 235

190 law. Muslim leaders in the 1930s demanded (India’s Bill of Rights) section vouch to guarantee: 236

191 codification of their laws. This in turn led to the

All citizens’ equality before the law, prohibition of 237
192 Shari‘at Act 1937, recognizing that Muslims preferred
discrimination on grounds of religion, race, caste, sex or 238
193 to be governed by their own Sharia or canon law of place of birth, equality of opportunity in matters 239
194 Islam as interpreted by their imam and ulamā (learned) of employment (Art 14–18); [as well as] the right of 240

195 and legal experts (faqihs) who extrapolate hukm or minorities to conserve their culture, language and script 241
˙ and to establish educational institutions of their choice; 242
196 legal codes and injunctions from the extensive sunnah.
plus the right to freedom of conscience and free profes- 243
197 Henceforth this law would apply univocally to all sion, practice and propagation of religion (Art 25–28). 244
198 Muslims [4]. But just what is Sharia has remained
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245 This section is followed by Directive Social Princi- (Cr PC), and not by the civil laws that govern the 290

246 ples, which under Article 44 not insignificantly states: rights and obligations of the parties belonging to 291

particular religions, like the Hindu Adoption and 292

247 Uniform Civil Code for the citizens – the state shall
248 endeavor to secure for the citizens a uniform civil code
Maintenance Act, the Shari‘at Act 1937, or the Parsi 293

249 throughout the territory of India. Marriage and Divorce Act 1936. 294

• Neglect of a spouse’s need, and of their offspring, 295

250 This quiddity aside, there have been very few acts cannot be denied in law – what difference does 296

251 that have addressed issues of freedom of conscience, religious affiliation make [9, 21]? 297

252 equality of the citizens before law, or discrimination on In any event, the judges conceded that the Personal 298

253 grounds of religion, caste, sex, age, and region that law of the parties should not be supplanted, especially 299

254 might continue or be implicit in Personal law provi- if the Constitution did protect interests of such reli- 300

255 sions, especially within Muslim and Christian commu- gious groups or classes in certain restricted matters. 301

256 nities. In contrast to Hindu law (after the Hindu Code What the court was arguing for was simply a deliber- 302

257 Bills 1956–1957), Muslim Personal law has not been ative and transformative interpretation of a customary 303

258 reformed to that extent [13, 15, 23]. practice which would be consistent with current ethical 304

and moral thinking, and it would also respect certain 305

other provisions and rights made accessible to the 306

259 The Shah Bano Case citizen in the Constitution (especially in respect of 307

the cited articles). By doing this though, the courts 308

260 An example of the kind of issues that continue to stepped on the boots of the Muslim religious leaders, 309

261 bedevil the community, mostly around practices of the ulamā in daring to interpret the Islamic scriptural 310

262 marriage, divorce, maintenance, and custody of chil- sources; this caused furor in the Muslim community 311

263 dren, may be apposite. In Islam, marriage is not con- ([17, 21], p. 232). The All-India Muslim Personal Law 312

264 sidered a sacrosanct union as in Christianity or Board (MPLB) placated the then Prime Minister, Rajiv 313

265 Hinduism (“sanctified by the fire and gods”) but Gandhi, to reprimand the judges, nullify the SC judg- 314

266 a social contract. Marriage is treated as a dissoluble ment, and protect “divine Islamic principles.” Rajiv 315

267 union. But the harrowing social problem was brought Gandhi, cognizant of the electoral liability in alienat- 316

268 out most tellingly with the Shah Bano case, in ing the Muslim patriarchy, pushed through “The Mus- 317

269 1985–1986, when the Supreme Court upheld the lim Women (Protection of Rights on Divorce) Act,” 318

270 divorced wife’s original complaint under S 125 of Cr reinstating the legitimacy of Muslim Personal law 319

271 PC (1861, ratified in 1970) to receive alimony from the under the Shari‘at Act. It decreed that section 125 320

272 former husband, who in his defense had argued that of the Cr PC does not apply to the divorced Muslim 321

273 under Muslim law his duty was only to pay minimal women, thereby striking down the SC judgment and 322

274 maintenance during the iddat or “waiting period” the obiter dicta wisdom. Nevertheless, the so-called 323

275 (roughly the wife’s three menstrual cycles) [21]. Muslim Women Act has been challenged as 324

276 Neither the “criminalization” nor Justice violating the right to gender equality and being ultra 325

277 Chandrachud’s obiter dicta attempt to interpret Islamic virus; it is still pending for consideration by the 326

278 law, especially the Qur’ān’s apparent conformity with Supreme Court. 327

279 the secular predilection, were really the intent; rather, Krishna Iyer, the eminent judge on the bench in 328

280 the judgment was a safe cover under which a previously similar case in Kerala that came before 329

281 the judiciary could fire a salvo at the state to get its the High Court, made this pertinent observation: 330

282 act together in respect of the Directive Principles

283 and to send a clear message to the aggrieved At present, we are a distance away from a common Civil 331
Code for all religions, since first things first; let us tackle 332
284 community [8, 17, 21]. the job of modernizing the Islamic law first, preserving its 333
285 Feminist critics interpreted the judgment as genius and great principles but approximating the law to 334
286 underlining the following concerns [10, 24]: the general system and eventually enriching the latter in 335

287 • A destitute wife’s claim to maintenance after many respects [9]. 336

288 divorce is a moral claim, not a religious claim; it

289 is governed by the Code of Criminal Procedure
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Muslim Personal Law 5 M

337 Hence, codification of Personal law is the first step provisions for similar conduct as well. The judgment 386

338 and that too only at the initiative of the concerned concluded: 387

339 community. The affected community has to ask for

Handicaps should be removed only under rule of law to 388
340 legislation after all the arguments for and against in
enliven the trinity of justice, equality and liberty with 389
341 consistency with Constitutional rights, human rights dignity of person. The basic structure permeates equality 390
342 agenda, and gender concerns have been placed before of status and opportunity. The personal laws conferring 391

343 the community, precisely by highlighting grievances inferior status on women are anathema to equality. 392
Personal laws are not derived from the Constitution but 393
344 and suffering brought to the public by affected
from religion scriptures. The laws thus derived must be 394
345 members and representatives of their own community consistent with the rights. Right to equality is 395
346 [8, 16]. a fundamental right. Parliament, therefore, has enacted 396

347 The MPLB has agreed to pressures from within Section 14 to remove pre-existing disabilities fastened on 397
the Hindu female limiting her right to property without 398
348 Muslim women’s activist groups [22, 24] to codify
full ownership thereof. The discrimination is sought to be 399
349 matrimonial contracts (nikah, with details about remedied by Section 14 (1) enlarging the scope of 400
350 exactly the amount and extent transactions and acquisition of the property by a Hindu female appending 401

351 exchanges, mahr, dower, ancestral property rights, an explanation with it [15, 23, 25]. 402

352 proper record keeping, minimum age restraints to

353 protect minors from being given away in marriage,
354 etc.) and issue injunctions toward more reasonable
355 maintenance provisions, custodial rights of estranged References 403

356 mothers over their children, and so on. This is a sign of

1. Robinson F (2001) Islam and Muslim history in South Asia. 404
357 reform from within, which indeed is consistent with Oxford University Press, New Delhi 405
358 the Shah Bano dicta that the Muslim community 2. Vikor KS (2005) Between god and the Sultan a history of 406

359 should assume the onus and responsibility of Islamic law. Oxford University Press, New York/Delhi 407
3. Hidayatulla M, Hidayatullah A (2006) Mulla’s principles of 408
360 transforming from within their Personal law. However,
Mahomedan law, 19th edn. LexisNexis Butterworths, 409
361 the MPLB initially could not come to a consensus over London/Kuala Lumpur 410
362 four draft proposals that came before them and only 4. Bhattacharjee AM (1994) Muslim law and the constitution 411

363 recently stamped a guarded approval; but its imple- (India). Eastern Law Books, Calcutta/New Delhi 412
5. Mahmood T (1980) Muslim law of India 413 Au3
364 mentation has been far from effective, especially in
6. Mallat C, Connors J (eds) (1990) Islamic family law. 414
365 nonliterate regions in all corners of the nation and its Graham & Trotman (Kluwer), London/Dordrecht 415
366 territories. 7. Pearl D, Menski WF (1998) Muslim family law, 3rd edn. 416

367 The Supreme Court and state High Courts have Sweet & Maxwell, London 417
8. Asghar Ali Engineer (2001) Islam, women and gender 418
368 taken certain bold initiatives in other related cases to
justice. Gyan Publishing House, New Delhi 419
369 make a strong argument for questioning Personal law 9. Bilimoria P (1997) Personal law – legal origins and consti- 420
370 under jurisprudential wisdom and in the terms of tutional issues: debates over uniform civil codes in modern 421

371 human rights, natural rights, and India’s commitment India. J Dharma 22(4):483–522 422
10. Narain V (2001) Gender and community: Muslim 423
372 to UN Declaration, its Charters and Treaties, which
women’s rights in India. University of Toronto Press, 424
373 emphasize elimination of discrimination of all kinds, Toronto/Buffalo/London 425
374 particularly against women, children, and the disad- 11. Parashar A (1992) Women and family law reform in India: 426

375 vantaged [12]. These observations may be concluded uniform civil code and gender equality. Sage, London/New 427
Delhi 428
376 with an anecdote. There was a case brought against
12. An-Na‘im A (1996) Toward an Islamic reformation 429
377 a Hindu idol in a temple who was alleged to have civil liberties, human rights, and international law. Syracuse 430
378 sanctified the bigamous liaisons of a Hindu man (on University Press, Syracuse 431

379 a par with Muslim men who are exempted under the 13. Nasir JJ. The status of women under Islamic law and under 432 Au4
modern Islamic legislation. Graham and Trotman, London 433
380 erstwhile Penal Code for bigamy with consequences
14. An-Na‘im AA (ed) (2002) Islamic family law in 434
381 for the first wife’s entitlement to property). By logic of a changing world a global resource book. Zed Books, 435
382 parity, the appeal to human rights on all manner of London/New York 436

383 entitlements to protect the disfranchisement and 15. Menski WF et al (1990) The reform of Islamic family law 437 Au5
and a uniform civil code for India. In: Chibli Mallatand Jane 438
384 exploitation of women under, in this instance, Hindu
Connors (eds), pp 253–295 439
385 Personal law would extend to Muslim Personal law
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M 6 Muslim Personal Law

440 16. Khan MW (1995) Women in Islamic Shari’ah’. Al-Risala 22. Dietrich G (1992) Reflections on the women’s movement in 455
441 Books, The Islamic Centre, New Delhi India: religion, ecology and development. Horizon India 456
442 17. Noorani AG (ed) (2003) The Muslims of India. Oxford Books, New Delhi 457
443 University Press, Delhi 23. Sachar Report (2006) On status of Indian Muslims 458
444 18. Asghar Ali Engineer (1999) The Qur’an, women and (Summary/December) on social, economic and educational 459
445 modern society. Sterling Publishers, New Delhi status of the Muslim community of India. Summarised by 460
446 19. MushirUl-Haq (2007) Islam in secular India. In: Donohue Dr. Syed ZafarMahmood. The Milli Gazette, Delhi 461
447 JJ, Esposito JL (eds) Islam in transition Muslim perspec- 24. National Commission for Women. Report by Syeda 462
448 tives, 2nd edn. Oxford University Press, New York, Saiyidainh Hameed voice of the voiceless: status of Muslim 463
449 pp 133–134 women in India (no date – will try to find on internet) 464
450 20. Serajuddin AM (2001) Shari’a law and society: tradition and 25. Bilimoria P, Sharma R (2000) ‘Muslim personal law in 465
451 change in South Asia. Oxford University Press, Pakistan India: past legacies and current voices from the ground’: 466
452 21. Gani HA (1988) Reform of Muslim personal law. The Shah summary of report and contents online. Emory University, 467
453 Bano controversy and the Muslim women (Protection of Atlanta. www.law.emory.edu/IFL/cases/India, pp 1–30 468
454 Rights on Divorce) Act 1986. Deep and Deep, New Delhi
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