This article has been written by Ms. Shruthi I, a II nd year student of TamilNadu Dr. Ambedkar Law University, School of Excellence in Law.
Abstract :
India being a secular country, people here follow different religion. Inorder to govern people in different matters like marriage, divorce, inheritance, guardianship etc they started making laws which came to be known as personal laws. That’s how personal laws evolved and this article is particularly about evolution of muslim personal laws.
Introduction:
To understand a topic better firstly we have to know about its origin and then its history. Islamic law has a separate base in history of India. The presence of islam can be traced back to the seventh century when Arab traders started visiting the Indian subcontinent. Over time islam started to spread in India and Muslim rulers established their kingdoms which paved way for the development of Islamic laws. And thus muslim laws were formulated essentially between eighth and nineth centuries A.D. which not only regulated the people relationship with state and other individuals but also his obligations to god and his own conscience. The Islam’s legal system is called as ‘Sharia’ which means the correct path (ie) people regard sharia as Islamic law based on the teachings of koran and traditions of the Prophet.
Muslim law applies to persons by birth , by covertion to Islamism and it also applies to certain other category of people such as Khojas, Halai, Memons, Sunni Bohras of Gujarat Daoodi etc.
In the case law of Azima Bibi vs Munshi Samalanand (1912) , it was observed that a child born for a muslim couple would be also considered a muslim until he renounces his religion or converts to any othr religion.
The Origin of Islamic Law:
First of all the process of evolution of Islamic religion was spread by Mohammed. Prophet Mohammed continued to receive revelations and he built an ever expanding community around a new faith. After death of Prophet Mohammed in 632 he had not named a successor so one faction of people believed that only individuals with direct lineage to the Prophet could guide the muslim community righteously. They were called as Shias. They accepted Ali, Mohammed’s closest surviving blood male relative should be their next leader.
The other factions of people believed that Prophet’s successor should be determined by consensus and successively elected three of his most trusted companions as leaders of muslim community. These people where called as Sunnis. So therefore the Islamic community was divided into two as Shias and Sunnis.
This division of Islamic community, people were Governed by Quran, the holy book , Sunna, Ijma and Qiyas. All these are considered as sources of laws .
- Quran: The term Quran was derived from an Arabic term Qurra which means to read. Quran consists of the words of God which was communicated to Prophet Mohammed through anger Gabriel. This is considered to be the primary and most important source of muslim law. The Quran covers a wide range of topics such as theology, ethics, social norms, morality and legal matters. They believed that it is complete revelation from god and it is free of error or contradiction. Quranic verses that deal with legal matters are known as Ahkam and they provide the basis for Islamic jurisprudence. As the words of Quran are considered divine in nature it cannot be amended, revised or modified.
- Sunna: The term sunnat mean ‘the trodden path’ or ‘ a procedure’ or a way of action. It was also called as Hadis. Sunna is the traditions of the Prophet Mohammed (ie) whatever the actions of Prophet Mohammed were or what he said or did was considered as traditions. It is the second most important source of Islamic law. Muslims consider the sunna to be a practical application of the Quranic teachings.
The traditions of sunna comprises of :
- Sunna-ul-Fail which is the actions and sayings of Prophet Mohammed
- Sunna-ul-Tuqrir which is the acts of people in accordance with the Quran that was allowed by Prophet Mohammed without openly expressing his consent in words
- Sunna-ul-Qual which is the percepts of Prophet
- Ijma: The people who had much knowledge and learnings about law were known as Mujtahids(ie)jurists. When there were issues, which Quran and Sunna were not able to give solutions these jurists unanimously gave their own opinion. Ijma was considered valid until they were not contradicting with Quran and Sunna. Ijma was based on Hadith which states “My community will never agree on an error”. Therefore when a muslim community agrees on an issue that becomes binding on all the muslims.
- Qiyas: Qiyas refers to analogical deduction from other three sources. It can also be said as interpretation of points of Islam law not clearly covered in Quran and Sunna. This was not accepted as a source of law by some people but the justification of Qiyas as a source of Islamic law was established by Quran and Sunna.
So when there was debate on personal laws some scholars said that the holy book Quran and teaching of Prophet Mohammed should be the ones to make sharia and some other scholars said that the opinions of experienced legal scholars should also be considered. Then came Shafii who was an intelligent legal scholar who believed that Quran should be consulted by the government judge for solving legal questions. If Quran had gaps to be filled then the judge can refer to the teachings and sayings of Prophet Mohammed and even after this if the problem is not sorted he can refer to the consensus of Muslim legal scholars. Even after so many attempts if the problem is not sorted then he can use the anlogical deduction method which was called as Qiyas. This was how Sharia took its shape and it was not a code of law but a body of religious and legal principles.
HISTORY DATING BACK TO ORIGIN OF ISLAMIC LAWS:
Inorder to understand the above stated origin of Islamic laws, the history of its development also plays an important role.
(i)Pre-Mughal period:
During Pre Mughal period (ie) before the arrival of Mughals the people were governed and largely based on the teachings of Quran and Sunna. Islamic Scholars of India interpreted both these primary sources and developed a legal system which was specific to India. This was referred to as Fiqh and this was based on Hanafi school of jurisprudence. At the same time other parts of India were ruled by various dynasities which includes Delhi Sultanate, Bahmani Sultanate. But they had their own legal systems based on the teachings of Quran and Sunna.
(ii)Mughal Period:
The entry of Mughal empire in India played a significant role in development of Islamic laws. As the Mughals emperors were also patrons of Islamic teachings they encouraged the development of Islamic laws in our country. During this period Fatawa Alamgiri came into existence which can be said as compilation on statescraft, military strategy, general ethics, economic principles, justice and punishment etc. This can also be called as Al-Fatawa al-‘Alamgiriyya or Al-Fatawa al-Hindiyya .It was the work of many prominent scholars from all over the world principally based on Hanfi School of law and it was a creative application of Islamic law which restricted the power of muslim judiciary and Islamic jurists to issue discretionary fatwas.
(iii)British Period:
The arrival of Britishers in 18th century also had a great impact on development of Islamic laws. Though British government established secular laws to be applied to all regardless of their religion, muslims followed their own teachings as told above. During the British period Indian legal system was largely transformed to develope a legal system which greatly emphasized on the principle of justice, equity and good conscience. But they did not bring much changes in Islamic laws due to various reasons. One such change was enactment of Muslim Personal Law (Shariat) Application Act in 1937.
(iv)Post independence period:
After independence government tried to unify people under the banner of Uniform Civil Code but faced stirred agitation from different parts of the country. So inorder to avoid such situation government formed its constitution with the right to religion as one of the fundamental right to people and they enforced personal laws for each religion without disturbing their practices except those which caused harm to people.
Some of the Laws which are still in enforcement are:
- Muslim Personal Law(Shariat)Application Act,1937:
- The Wakf Act,1995
- Muslim Marriage Dissolution Act
Landmark judgements as evolution of law:
(i)Mohammed Ahmed Khan vs Shah Bano [1985 (1) SCALE 767 = 1985 (3) SCR 844 = 1985 (2) SCC 556 = AIR 1985 SC 945] :
In the Shah Bano case, a 72-year-old Muslim woman petitioned a local criminal court in Indore, Madhya Pradesh to order her husband, who had divorced her after a 46-yearlong marriage, to pay her maintenance as required under Section 125 of India’s Criminal Procedure Code. That section of the Code (which applies to all Indian citizens, including Muslims) requires a husband to pay enough to maintain his divorced wife for as long as she has not remarried – and as long as she is not living in an adulterous situation, refusing to live with her husband without sufficient reason.
In his defense, the ex-husband argued that Islamic law only required him to pay maintenance for the iddat period (a three-month period to finalize the divorce). Indeed, under classical interpretations of Islamic law, upon divorce, a Muslim wife is generally entitled to maintenance during the iddat period, but the husband’s obligation to maintain his wife ends upon the expiration of this period. Thus, while classical Islamic law requires maintenance only in the iddat period, Indian state law requires monthly maintenance for a divorced woman until her remarriage. Because there is no time limit specified in Section 125 for the period for which maintenance is due under Indian state law, the maintenance payments could potentially continue for the rest of a divorced woman’s life. The Magistrate required her ex-husband to pay 25 rupees a month, and on appeal, the High Court of Madhya Pradesh ordered him to pay 179.20 rupees per month. The case was then appealed to the Indian Supreme Court.
The Supreme Court ultimately upheld the lower court’s decision, holding that if a divorced wife is unable to maintain herself, in addition to maintenance paid during the iddat period under Islamic law, a husband must also provide his ex-wife with a monthly allowance in accordance with the Criminal Procedure Code. The Court noted that civil provisions “do not supplant the personal law of the parties,” but that simultaneously, the religion of the parties and the personal law that applies to them “cannot have any repercussion on the applicability of such laws
In response, in large part to appease the Muslim community and soothe the sparks of conflict, the government passed the 1986 Muslim Women (Protection of Rights on Divorce) Act. The Act essentially overrode the Shah Bano decision, requiring the provision of reasonable and fair maintenance only during the iddat period. According to the Act, a Muslim wife is entitled to further maintenance payments if she is alone in caring for children for a period of two years after their birth. However, the Act did not require Section 125 of the Criminal Procedure Code to be followed unless there was a mutual written agreement filed in court between the former spouses specifying that they seek to be governed by Section 125 of that Code.
In this way, the Act resolved the conflict between state and Islamic law by affirming the supremacy of Muslim personal status laws in cases involving maintenance post-divorce but providing for adherence to state law by mutual agreement. It was a win for the supremacy of religious personal status law, but many women’s rights activists viewed it as a step backwards. As a result, the case generated substantial interest in the issue of Muslim women’s rights and through backlash, promoted action by women’s rights activists. Its legacy has continued in both Indian legal circles and international scholarly circles.
(ii)Shayara Banu vs Union of India:
Ms. Shayara Bano and her husband, Mr. Rizwan Ahmed, got married in April 2002 in Uttar Pradesh. Ms. Bano claimed that her husband ‘compelled’ her family to give dowry for the marriage. She stated that her husband and his family drugged, abused, and eventually abandoned her while she was sick when her family could not provide additional dowry.In October 2015 Mr. Ahmed divorced Ms. Bano through the practice of talaq-e-biddat, also known as instantaneous triple talaq. Talaq-e-biddat is a religious practice that allows a man to divorce his wife instantly by saying the word ‘talaq’ thrice. The practice does not require the wife’s consent.
Ms. Bano filed a writ petition at the Supreme Court in February 2016 challenging the constitutionality of talaq-e-biddat, polygamy, and nikah-halala. Polygamy as an Islamic religious practice allows men to marry more than one woman at a time. If a Muslim woman wants to remarry their first husband following a divorce, nikah-halala requires them to first marry and subsequently divorce her second husband. Ms. Bano claimed that these practices violate the Right to Equality, the Right against Discrimination, and the Right to Livelihood. She further argued that these practices were not protected by the Right to Freedom of Religion—religious freedom is subject to other fundamental rights, public order, morality, and health.
On February 16th, 2017, the SC directed the All India Muslim Personal Law Board (AIMPLB), the Union Government, and women’s rights groups such as the Bebaak Collective and the Bhartiya Muslim Mahila Andolan, to give written submissions addressing the matter. All of these groups, besides the AIMPLB, filed submissions in support of Ms. Bano.While the AIMPLB conceded that Shariat strongly condemns the practice of talaq-e-biddat, they argued that the Court could not review uncodified Muslim personal law. They further argued that these practices were essential to Islam and protected by the Right to Freedom of Religion.
On March 30th, 2017, the SC created a 5-Judge Constitution Bench to hear the matter. The Bench comprised Chief Justice J.S. Khehar and Justices Kurian Joseph, R.F. Nariman, U.U. Lalit and Abdul Nazeer. The Bench heard the case between May 11th and May 19th, 2017, and delivered the Judgment on August 22nd, 2017. In a 3:2 split, the majority held that the practice of talaq-e-biddat was ‘manifestly arbitrary’ and unconstitutional. Chief Justice Khehar and Justice Nazeer dissented, stating that talaq-e-biddat was protected by the Right to Religion and that it was the job of Parliament to frame a law to govern the practice.
Two years later in July, Parliament enacted the Muslim Women (Protection of Rights on Marriage) Act, 2019 which made the practice of talaq-e-biddat a criminal act, punishable with up to three years imprisonment. The Jamiat Ulama-I-Hind, Samastha Kerala Jamiathul Ulema, and the President of the Rashtriya Ulema Council challenged this Act in separate petitions at the Supreme Court in August 2019. However, the Court is yet to begin hearing arguments in the matter.
CONCLUSION:
The above stated cases had a great impact in lives of muslim women and in the muslim laws. There are many such cases with landmark judgements which has created a greater difference in the muslim community. This can also be taken as an example of law being dynamic. So the development of laws has no end and so does the evolution.
Reference:
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