Demands of justice

It is one thing to fight the Hindutva demand for a uniform civil code, it is another for Muslim leaders to wage a war against their own people.

DR ALAMGIR M. SARAJUDDIN of Bangladesh is an erudite teacher of law who has won international recognition. He did his research for a time at the Indian Law Institute in New Delhi besides universities in the United States and Britain. This book describes the role of South Asian courts in the interpretation and application of Muslim family law, which greatly affects the lives of millions of Muslims of South Asia. Conservative Muslims, who constitute the overwhelming majority of the worldwide Muslim community, believe that the principles and rules of the Sharia (Islamic law), as determined by the classical jurists in the formative period of Islamic thought, are sacrosanct and immutable and any attempt to change, reform or abrogate them is blasphemous. But a number of these rules are incompatible with the changing social conditions of the present day; some of them are heavily weighted in favour of men and against women who are a disadvantaged, underprivileged and weaker segment of society.

On account of the sensitiveness of the issues involved, the South Asian legislatures are reluctant to intervene. But the courts of law cannot refuse to adjudicate when social justice issues are addressed to them; for, to deny relief is to nullify the judicial process and negate justice. In such circumstances, must the present-day courts faithfully follow the interpretation of law given by the classical jurists of the ninth century A.D. or can they give their own interpretation

It draws extensively on the rulings of courts in India, Bangladesh and Pakistan. The law was fossilised by the Privy Council which, as Mohammad Ali Jinnah said in the Central Assembly on February 17, 1925, on several occasions absolutely murdered Hindu law and slaughtered Muhammadan Law. It propounded, in sheer ignorance, rules of interpretation of Muslim law that barred creativity.

The author considers in great detail rulings of the courts in India, Pakistan and Bangladesh since 1947. The topics concerned are maintenance of divorced wives, talaq (divorce) under Muslim law; the un-Islamic triple talaq; divorce by a court order, unilaterally by the wife (khula), with which not many are familiar; divorce under a right stipulated by the wife in the marriage contract (nikahnama), called delegated divorce (talaq-i-tufwid); custody and maintenance of children; and some related topics.

Pakistan's Supreme Court reinterpreted the sources of Sharia and broke new ground. The author concludes:

Some rules of the traditional Hanafi law relating to polygamy, divorce, maintenance, custody and guardianship of children, inheritance, etc., are incompatible with the changing social conditions of the present times and degrading to Muslim women's legal status and social position. In an admirable display of scholarship and creativity, the South Asian judiciary has shown that it is possible to adapt most of these rules to the needs of a modern, forward-looking society from within the lslamic framework. This they have done by giving wide, liberal and creative interpretation to these rules instead of a narrow, conservative and literal one.

He makes an earnest plea for collaboration among lawyers of South Asia. As India, Pakistan, and Bangladesh have inherited the same legal history and tradition, legal institutions and laws, including Muslim personal law of pre-1947 India, there is no reason why they should not share their post-Independence experiences.

It is one thing to fight the forces of Hindutva and their demand for a uniform civil code (a demand made by some others also in sheer ignorance), it is another for Muslim leaders to wage a war against their own people, specially the women.

Modernism in Islam denotes an intellectual effort to bring about social and legal reforms through a new interpretation of the sources of Sharia Law, including the Quran and hadith. It is consciously rooted in lslamic history, beliefs and values in contradistinction to secularism which insists on social reforms without any reference to Islamic principles and practices. The modernist Muslim believes that he can be both a believing and progressive Muslim. The activist role of the courts regarding interpretation of Muslim family law is close to the modernist stance. The judges make conscious efforts to justify their decisions in the light of the ethos and sources of Islamic law, including the Quran and Sunnah.