Sunday, December 13, 2015

Reforming Muslim Personal Law

Reforming Muslim Personal Law
By Ali Raihan, New Age Islam
The recent observation of the Supreme Court that there should be a legislative way out on whether a uniform civil code should be adopted or not. The Court was of the opinion that it does not want to dabble in what should properly be the mandate for the lawmakers of the country. It should be made clear that personal laws are different not just for religious groups in the country but also for different regions who are governed by various kinds of customary laws in practice. Thus there is vast cultural differences within what is called the north east of the country.
But the debate on uniform civil code becomes occasioned mostly by demands to reform Muslim personal law. Despite the sinister campaign on the part of the Hindu Right that Muslim personal law is backward and outdated therefore in dire need of reform, it makes sense to talk about it in the light of the observation made by the Supreme Court. This is not to say that it is only Muslim women which face discriminatory laws in this country, but to underline that Muslim women are also oppressed due to discriminatory laws and practices within their own community. This despite the fact that Muslim women groups have been campaigning for reforming personal laws since the 1920s. Whether it is the issue of triple talaq or the issue of nikahnama, Muslim women have from time to time raised their demand to reform marriage and divorce laws within Muslim societies. Thus in the 1920s, the All India Muslim Ladies Conference was one of the first womens’ organization to demand abolishment of polygamy and triple talaq. Of course their argument was that these practices were customary in nature having no basis in Islamic law which is debatable. But the important fact to point out here is that Muslim women have raised this issue which has yielded hardly any results in terms of empowering Muslim women.
There are two main stumbling blocks when it comes to reforming personal law of Muslims. First of course are the Muslim Ulama who argue quite erroneously that the personal law cannot be changed as it based on sharia which in turn they proclaim as divine. In their thinking, disturbing the Muslim personal law is equal to disturbing the divine law which is understood as perfect. However, they do not explain that if indeed this was the case, then how come Islamic laws have been reformed in Muslim majority countries like Pakistan, Indonesia and the vast majority of countries in the Middle East. The problem therefore is not with the divine status of the sharia but with the attitude of the Muslim clergy which is seems to confuse sharia and fiqh with divine laws. In their intransience, they have opposed even rudimentary and basic changes within the Muslim personal law. Thus we have a piquant situation wherein Muslims in secular India have to live with outmoded laws while Muslims in some Islamic countries have far more progressive laws in terms of gender justice. One should also that this view of the Muslim clergy about the divine status of personal laws is shared by majority of Muslim men and women, thereby hampering any debate within the community on this question.   
The second stumbling block remains the state itself. For time and again it has capitulated under the pressure of conservative sections of the Muslim community and has steadfastly refused to bring changes in laws which affect the life chances of millions of Muslim women in India. The Shah Bano case remains a classic example. Even recent attempts by Muslim women to propose reforms in Muslim marriage and divorce such as those by Mumbai based Majlis have fallen on deaf ears. One can certainly ask the question that if the state will not be sensitive to the demands of Muslim women, then who will? Especially given the context where the society itself seems to unwilling to make those changes, the state needs to step in and at least initiate a process of debate and dialogue between different opinions within the community on this issue. Of course there is a danger here that the state will be seen as interfering in the ‘internal’ affairs of the community. But let us also not be oblivious to the politics which goes within this internal/personal sphere as well as to the fact that the effect of this politics is not just personal but very public and visible.
Ali Raihan is an independent researcher and writer.