There has been no dialogue between the traditionalists and the modernists on the question of reforms in the Muslim Personal Law. A significant step in bringing the two together, is reflected in the efforts of the Islamic Fiqh Academy.

Reform in Muslim Personal Law is a hotly debated issue in India today. Many traditional ‘ulama are averse to any change in the law as it exists. They see it as divinely revealed, as an integral part of the shari’ah. Hence, they consider changes in the law as tantamount to interfering with the shari’ah, as replacing divinely ordained rules with laws made by mere humans. On the other hand, some Muslim modernists have been consistently critiquing aspects of the Muslim Personal Law as it exists in India today, particularly those that are seen as militating against gender justice. They argue that they do not actually represent the spirit of the shari’ah, but, rather, a deviation from it. Not surprisingly, they are roundly condemned by the traditionalist ‘ulama, who claim the sole prerogative to interpret the shari’ah. In short, the ongoing debates within the Muslim community itself on Muslim Personal Law points to the fact that precisely what the shari’ah mandates on a range of particular issues is a matter of considerable contestation.

Because there is hardly any meeting ground between them, there has been little dialogue between the traditionalists and the modernists on the question of reforms in Muslim Personal Law. A significant step in bringing the two together, however, is reflected in the efforts of the New Delhi-based Islamic Fiqh Academy. Established in 1989, the Academy has organised a number of conferences to discuss issues of contemporary concern from an Islamic perspective. Although it is dominated by traditionalist ‘ulama, a number of modern educated Muslim scholars are also associated with it. The input of the latter is reflected in some of the decisions taken by the Academy, which represent a willingness to rethink traditional fiqh or jurisprudential prescriptions in the light of modern conditions. The Academy’s efforts to re-evaluate or further develop some aspects of traditional Islamic jurisprudence also owes, in part, to the recognition on the part of some ‘ulama that certain provisions of Muslim Personal Law, as it exists in India today, may not be fully in accordance with both modern demands as well as the spirit of gender justice which is mandated by the shari’ah. This is evident from a booklet recently published by the Academy, titled “Social Issues: Decisions of Indian Ulama”.

The booklet is a compilation of various resolutions, mainly dealing with Muslim women’s rights and status, passed at seminars organised by the Academy in recent years. Some of these resolutions simply re-state traditional jurisprudential opinions, deriving principally from the dominant Hanafi school, to which most of the members of the Academy subscribe. On the other hand, some other resolutions indicate a marked departure from Hanafi fiqh, which may point to a willingness on the part of some ‘ulama associated with the Academy to engage in a process of ijtihad, developing new jurisprudential responses to various issues. In doing so they effectively question the necessity of taqlid or rigid conformity to established fiqh rules.

Several of the resolutions contained in the booklet constitute a major advance for Muslim women’s rights and status. Thus, for instance, one resolution declares that every person, male or female, has the right to conduct his or her own nikah or marriage, provided that he or she is mentally sound and has attained puberty. This decision is particularly significant, considering the fact that most women in India, irrespective of religion, have little choice in deciding their spouses. The resolution further declares that ‘a sane adult girl holds the right to enter into her nikah without the consent of her guardian’, but adds that caveat that ‘it would be preferable if the nikah is performed with the mutual consent of the girl and her guardians’. At the same time, however, the marriage of a girl before she attains the age of puberty is said to be legitimate, but the qualification is added that if she does not approve of the marriage on certain specified grounds she has the right to be separated from her husband through a qazi or judge. Forced marriages of girls by their guardians are also condemned as being against the shari’ah. In case of such a marriage, the qazi is said to have the right to nullify the marriage in order to protect the interest of the girl.

In an interesting departure from South Asian tradition, common to Hindus and Muslims alike, the insistence on caste endogamy is critiqued as un-Islamic. ‘It is impermissible and disgraceful’, the booklet declares, ‘to divide human beings on the basis of caste, creed, race and colour and to categorise them as superior and inferior’. In place of caste, the economic and social status of the spouses, and, in particular, their religiosity, are held to be major factors that should be considered when choosing a spouse. Ideally, the booklet states, spouses should come from roughly the same social background in order for the marriage to be successful. Challenging a widely-held notion of converts to Islam not being of the same social status as other Muslims and hence not being eligible marital partners, the booklet declares that converts and other Muslims ‘hold equal rights and privileges’. Hence, the marriage of a Muslim girl with a convert to Islam is said to be ‘not only permissible’ but also ‘a righteous deed as well’. Likewise, the marriage of a sane adult of a Muslim girl with a Muslim man of unequal social status without the permission of her guardian is recognised as legitimate, although the guardian is said to possess the right to ‘approach the qazi’.

Another decision that appears to work in the interest of Muslim women is the recognition of the validity of marriage with conditions, which, presumably, can be written into the marital contract or nikahnama in order to protect the interests of the spouses, particularly the wife. Conditions that violate the spirit of the shari’ah and that militate against the objectives of marriage are said to be invalid. The booklet specifies two such possible conditions as examples: the giving of dowry to the groom or his family and a clause that would absolve the husband of his liability of providing maintenance to the wife. Dowry is condemned in no uncertain terms, being likened to ‘putting bridegrooms on sale...[like] a market commodity’. The shari’ah, the booklet says, ‘prohibits taking from the girl’s party anything in the name of social customs or [...] dowry’. Instead, the shari’ah ‘has entrusted men with bearing the expense of matrimony’. In line with shari’ah rules, extravagant marriages are also condemned. Not only are they against the practice of the Prophet (Pbuh), but they also place a great burden on the girl’s family and constitute a major drain of community resources.

In order to further protect the financial interests of the wife, the booklet recommends that the dower (mehr) payable to the wife be fixed in terms of gold or silver, rather than in cash. However, it does not lay down any rules for deciding the appropriate amount of mehr. Nor is there any mention or critique of the practice of giving only a nominal dower that can hardly sustain a woman for long in the event of a divorce.

As the various issues discussed in the booklet suggest, at least some Indian ‘ulama are willing to consider reforms within the existing laws in accordance with what they see as the true spirit of the shari’ah. For some Muslims, these reforms may not go far enough, while for others they may seem to be unwarranted innovations. Yet, the simple fact that Muslim institutions like the Islamic Fiqh Academy are increasingly willing to discuss a range of contentious issues such as described above itself suggests that the winds of change can no longer be ignored For details on the booklet, contact, Islamic Fiqh Academy (India), Post box No. 9746, 161-F Joga Bai, Jamia Nagar, New Delhi-25. Ph.: 2698 1779. Email- ifa@bsnl.net

(The writer can be reached at ysikand@islaminterfaith.org)