DISSERTATION

“The Social Laws of Islam and Challenges of Modernity”

INTRODUCTION

i. Executive Summary

Shari’a law means a broad area of Islamic laws which are outlined mainly by the Qur’an and the Hadith, and in some extent, by Ijma and Qiyas. Besides various laws of Shari’a, i,e the religious, civil and criminal laws, “The Social laws” are an integral part of the Shari’a law.

The family law of the Shari’a that derived from the Qur’an and the Sunnah may be termed as “The Social laws”. Suffice it to say, It includes laws related to marriage, dower, maintenance, divorce, guardianship, polygamy, Inheritance law etc.

Emphasis may be made to know the importance of the law of family relations that it has been regarded as the “very heart of the Shari’a.^” As Gibb says, ‘to men who believe that the Qur’an is the very word of God, “the idea of changing or abrogating these fundamental laws is equivalent to apostasy’. The Qur’anic prescriptions on marriage, divorce, polygamy and inheritance are fairly comprehensive and primarily designed to improve the legal and social position of women, restrict the laxity of sexual morals and strengthen the matrimonial bond. The attention of western’s scholars toward Muslim family law is markedly seen. As seen, an considerable amount of books, articles and research papers that contribute in this field.

The research paper deals with marriage, child marriage, divorce, polygamy and Inheritance law. The first chapter is headed as title of this paper and all others have been discussed bearing in mind the present reforms throughout Muslim courtiers and with harmonizing to the title. To avoid the vastness of the paper, the topics of maintenance, guardianship, legitimacy and parentage have not been discussed although those are subject matters of social law as well.

The first chapter deals with ‘Evolution of Social laws of Islam’; there are described meaning of the Social law, social laws of Islam nature and sources of the Shari’a Law. Nature and sources of Shari’a law refer its characteristics and immutability respectively. The purpose of those sections is to know its divine spirit of sources so that the reader will be cautious of those changes which brought claiming modernity. Finally, the devolvement of Islamic laws is precisely mentioned. Scope of interpretation is also a key topic of the first chapter. Its aim to give a guidance for researchers not to misunderstand and misinterpret the Islamic law. Islamic law differs from Shari’a law. Then, the main question of modernity comes with response to it. The weakness of the ‘resposne’ section is necessary to mention. There mention present changes only, changes with modern reinterpretation of the Qur’an but not answers the compatibility with it. Whether the present changes are compatible with the Qur’an and the sunnah or not is described in ‘concluding remarks’.

Chapter two deals with marriage and child marriage. Commonly, matters relating to marriage are putted in marriage part. them starts the hot debate of child marriage puts in both sides of modernists and traditionalists. In traditional Islam, child marriage is allowed. In light of present situation, can it be modified and set rules to prohibit child marriage? The answer is given. The relationship of sexes in pre-Islamic Arabia is an uncertain state. Regular form of marriage as it seen today was very rare. Instead, there flourished sexual unions which may be compared to branded prostitution, adultery or polyandry. Aishah (RA) reported four kinds of marriage in pre-Islamic Arabi. ( Abu Da’ud).

In Sura IV of the Qur’an, some of the regulations regarding marriage are laid down. The relevant passageways are: “Marry not the women whom your father has or had married, for this is sinful and abominable and evil way.” (Sura An-Nisa' 4:22)

And in the holy Qur’an the far reaching impediments in marriage narrates in the Sura Nisa Aiyat no: 22-24. Categorically Muslim marriage is not only a civil contract but an Ibadat & Muamlat. Then, the three essentials of a Muslim marriage have been discussed. Mentionable, The law of Shari’a relating to Marriage is not tempered with the wave of modernity clause and many of the formalities and essentials of marriage have not been modified compared of other field of social law throughout the Muslim world. Only in case of minor’s marriage and registration of marriage law reforms have been brought. Verse 2:282 refers registration of any kinds. Moreover, the procedure of marriage registration has been described in light if various reforms. In question of polygamy, Islam neither prohibit nor emphasis it. But it is not a model to follow.

Chapter three deals with divorce. Firstly, pre Islamic divorce has been mentioned. The practice of ‘Talaaq-ul-Bidat’, then comes with the background and compatibility with the Qur’an and The Hadith. Amir Ali explains: “The prophet of Islam looked upon these customs of divorce with extreme disapproval and regarded their practice as calculated to undermine the foundation of society. It was impossible however, under the existing conditions of the society to abolish the custom entirely. The prophet had to mould the mind of an uncultured and semi- barbarous community to a higher development. Accordingly, he allowed the exercise of the power of divorce to husbands under certain conditions. He permitted to divorce parties three distinct and separate periods within which they might endeavor to become reconciled; when all attempts at reconciliation prove unsuccessful, then in the third period the final separation became effective.” After some of the verses discussed it is undoubtedly proved that the Holy Qur’an does not ever recognize Talaq-ul Biddat and neither the Hadith does. Then the reforms throughout the Muslim countries regarding it have been described precisely.

Chapter four deals with grandchildren’s right to inheritance. After being made a scenario of pre Islamic inheritance, it has shown what Islam changes in best way of distribution. . Justice Mahmood has ably and lucidly explained the significance of it by saying “that law was founded by the prophet upon republican principles, at a time when the modern conception of equality and division of property was unknown even in the most advanced countries of Europe”. The only rule which bears hardship is that the right of representation is not recognized in Islamic law. So, a son, whose father is dead, shall not inherit the estate of his grandfather together with his uncles. For instance, A dies leaving a son, B, and a predeceased son’s son, C, here C is entirely excluded by B, and B is the sole owner. It certainly seems to be harsh rule. Similarly, if A dies leaving two son B, C, along with two grandson E, F, it will not be unjust or illegal in sense excluding E, F by B, C respectively, would it? Therefore, the reason behind exclusion of grandson is the consequence of the principle “the nearer exclude the more remote”, and the nature or object of it is not intended to exclude him but to make consistent with precedence in classes. Many modern writers, including Anderson, have tartly criticized of this particular excluder. Islam imposes mandatory duty on guardians to maintain orphan (predeceased son’s son), to bequeath and to ensure his right in estate. In this perspective, The Qur’an states “ And when the relatives and the orphans and Al-Masakin (the needy) are present at the time of division, give them out of the property, and speak to them words of kindness and justice (04:08). While man was doing injustice with them vastly, Islamic scholars were in consensus after analyzing the verse mentioned above to enact law concerned. It is evidently seen some defects remain in distribution of property grandchildren by ‘theory of Representative’ as Anderson’s analyses. Therefore, Egypt, Syria, Morocco and some other countries evolved the system of “Obligatory Bequests” basing on Islamic texts with some variation among them. It contemplates that the grandparent must make a bequest to grand-children or on failure the court is to presume its existence. It may be satisfaction for the traditionalists evolving the above device.

Finally, chapter five deals with polygamy. The institution of polygamy in Islam has been a hotly debated issue. Here the historical background of polygamy has been pointed out and then polygamy in Islam has been pointed out. Islam is the first country who says first ‘marry only one’. The Qur’an reformed pre-Islamic practice of unlimited marriages by imposing restrictions on the number of wives. Verse IV: 3, known as the “verse of Polygamy”

The classical jurists think that this verse as giving permission to a man to marry up to four wives. But the modernist thinkers have contended that it really mean to legislate monogamy and gave permission for polygamy only under exceptional circumstance.

Referring to the injunction in the same verse that if a man cannot do justice among co-wives, he should marry only one wife, the modernists contend that permission of polygamy is subject to the condition that he would do full justice to all the co-wives. Justice does not mean equality in food, lodging and clothing alone but also equality in love, affection and esteem. As equality in love, affection and esteem is almost impossible the Qur’an has virtually prohibited polygamy. In support of their views they quote the first part of the Verse IV: 129. The traditionalists point out that the latter part of the above verse presupposes the existence of several wives. They reject the modernist interpretation of the term justice and say that it signifies equality in material things like food lodging and clothing only. Besides, ‘Modern reforms relating to polygamy’ have been precisely pointed out throughout Muslim countries.

Though monogamy has been the normal practice in Muslim societies and polygamy and exception, there is a general impression in the West that Islam has introduced, encouraged and widely practiced polygamy. As a matter of fact, Islam has neither introduced nor encouraged polygamy. Therefore, who developed it is cited in ‘Polygamy: past and future’.

It is necessary to mention that every chapter lacks a conclusion. To sum up all the chapters and to justify the conformity of the present reformations amongst Muslim countries with the primary sources of Shari’a, concluding remarks has been attached at last.

ii. Research Objectives:

Shari’a law was founded by Prophet Muhammad (peace be upon him) in a manner to adjust in present and future circumstances and to respond to many challenges upcoming and to draw a complete code of life moderately. Maulana Ihtishan-ul-Haq has finely and ably explained it in his tune: The teachings and Injunction of the holy Qur’an and the Sunnah shall be the authoritative guidance and final word for all the infinity of events that may take place in this universe. The research paper will provide readers an opportunity to link theoretical perspectives on Islamic law, its sources and its application in contemporary Muslim world. The content of the ‘Thesis’ deals with the answers of the questions which we face in our day-to-day life. The problems and the issues that have been discussed relate to familial and social issues like marriage, divorce rights etc.

The research is indented to illuminate the social laws and present changes. There are a number of legislation seen in every Muslim countries where reforms made in light of reinterpretation of the Qur’an. In some case reformist’s explanations break the Shari’a law down. To point the inconsistencies out, this type of research is highly important, but not enough to deal all the points.

Generally Islamic law includes personal, civil, criminal, mercantile, evidence, constitutional and international law. Islam gives great importance on social relations. The peace and stability of society depends on good social relations amongst the members of society. The rationale behind this study is to clarify some concepts and practices of Islamic personal laws and to reply to its reforms. An attempt will be taken to draw complementary relation between Islamic social laws and present reformed laws of those to check conflicting relation of both. Then, the question relevantly arise how far Present reforms comply with “The Social laws of the Islam”. And lastly author leaves a scope for reader of this study to take a preference.

iii. Justification for This Research:

To make oneself knowledgeable about the social laws of the Islam and to analyze the impact of the reforms of social law of Islam throughout Muslim world; a study like this one is highly important.

There are in many cases critical dissidents between traditionalists and modernists occur. They vary on the basis of Marriage, Registration of Marriage, Dower, Divorce, Procedures and reconciliation method of Divorce, Maintenance, and Polygamy in some extent. The issues are crucial in the sense that whether the present reforms have deviated from the Shari’a, if deviation is done, on what extent! The debate between traditionalists and modernists are mainly on the interpretation of the Qur’an. Traditionalists rest their views on 12^th century’s, whereas modernists rest their views considering present facts and circumstance. Should one be modernists keeping pace with time is a question frequently arises today. Why Ijtihad should be revived is a crucial point. The gate of Ijtihad stopped at that time when the then jurists thought those rules and finding were enough to meet the challenges upcoming. Their honest attempt was to close fitna not to Ijma. Ijma and qiyas, the two methodology whose applicability were approved by the Prophet himself and inferred by the Qur’an too, are the tools of tackling the newly faced problems.

Considering all of the aspects, this research takes place. It can be expected to be highly rational to be conducted. And so, it may appear as an important one to the concerned and interested sections of people.

iv. Research methodology and limitations

Both primary and secondary sources of data are used in preparation of this Dissertation. These sources may be summarized as bellow:

§ Primary Sources

1. Practical Desk works

§ Secondary Sources

1. Various Research Papers

2. Articles

3. Internet

The major portions of data used in this dissertation are from secondary sources

There are some kind of limitations of all research and work. For, the some I had some limitation of this paper too. Especially I moved difficulty to collecting data. This is caused by some limitations. The dissertation is vast one. As it shows major reforms throughout the Muslim countries relating to social laws. It was not possible to write a comprehensive work within a sort time. The question is not clearly solved whether all the reformations are conformed to the Qur’an and the hadith. The defensive views of traditionalists in relevant points should have discussed more than what are there. To say simply, it needs more time and study for this important dissertation

CONTENTS

Pages

i. Submission of letter ……………………………………………………………….. 2

ii. Declaration …………………………………………………………………………3

iii. Acknowledgement …………………………………………………………………4

iv. Dedication ………………………………………………………………………….5

INTRODUCTION:

i Executive Summery …………………………………………6

ii. Research Objectives ………………………………………………10

iii. Justification for This Research ……………………………………11

iv Research methodology and limitation …………………………….12

CHAPTER I: THE SOCIAL LAWS OF ISLAM AND CHALLENGES OF MODERNITY ………………………………………………..15-34

1.1 Meaning of the Social law …………………………………………15

1.2 Social Laws of Islam ………………………………………………15

1.3 Nature of the Shari’ah Law ………………………………………..16

1.4 Sources of the Shari’ah laws ………………………………………19

1.5 Development of Islamic law ……………………………………… 21

1.6 Challenges of Modernity …………………………………………. 27

1.7 Responses to challenges of modernity …………………………….29

CHAPTER II: MARRIAGE AND CHILD MARRIAGE ………………… 35-53

2.1 Pre-Islamic Background ………………………………………….. 35

2.2 Nature of Muslim Marriage ………………………………………. 37

2.3 Essentials of valid Muslim Marriage …………………………….. 39

2.4 Reforms relating to Muslim Marriage ……………………………. 44

2.4.1 Registration of Muslim Marriage ………………………… 44

2.4.2 Child marriage …………………………………………… 46

CHAPTER III: DIVORCE IN ISLAM ……………………………………….54-70

3.1 Pre- Islamic background …………………………………….……..54

3.2 After the advent of Islam ………………………………….…….…55

3.3 Shari’a law of Divorce ………………………………….…….……56

3.4 Modern deforms in divorce law …………………………..………. 62

3.5 Reforms in the Indian Subcontinent …………………..………... 65

CHAPTER IV: INHERITANCE AND RIGHTS OF THE ORPHANED GRANDCHILDREN …………………………………………71-83

4.1Historical Background ……………………………………………..71

4.2Inheritance after advent of Islam …………………..………………72

4.3 Significance of Islamic Inheritance ………………………………..73

4.4 Women rights in inheritance ……………………………………....74

4.5 The controversy over Orphaned Grandchildren’s right to Inheritance

in Islamic Law, The present reforms. …………………75

CHAPTER V: THE PROBLEM OF POLYGAMY ………………………...84-99

5.1 Historical Background of polygamy …………..…………………..84

5.2 Polygamy in Islam: a controversy …………………………………86

5.3 Modern reforms relating to polygamy …………………………….90

5.4 Polygamy: past and future …………………………………………95

CONCLUDING REMAKS: ……………………………………………………100-103

BIBLIOGRAPHY: ………………………………………………………………… 104

CHAPTER I:

THE SOCIAL LAWS OF ISLAM AND CHALLENGES OF MODERNITY

SYNOPSIS

1.8 Meaning of the Social law

1.9 Social Laws of Islam

1.10 Nature of the Shari’ah Law

1.11 Sources of the Shari’ah laws

1.12 Development of Islamic law

1.13 Challenges of Modernity

1.14 Responses to challenges of modernity

1.1 Meaning of the Social law

Social law refers to the interaction of organisms with each other. The interaction between organisms may be irrespective of whether they are aware of it or not, or whether the interaction is voluntary or involuntary. Social law may also refer to living together in communities, or something relating to human society and its modes of operation.¹

1.2 Social Laws of Islam

Muslim Personal Law synonymous with the Arabic muamalat, which means rules and regulations of social life, or the rules that regulate the day to day life of a person. In other words, the rules that a person should follow in his/her personal and social life are collectively called 'muamalat' or social law. The branch of laws treated as 'personal law' in the general legal system is called 'social law' in Islamic Shari’ah. Thus Muslim law means the personal and social laws of Muslims.

It is necessary to differentiate between Islamic laws and other civil codes lies. Ordinary social laws are legislated according to the wishes of the majority of individuals in the society regardless of whether they are in conformity with the principles of justice and the real interests of the community or not, whereas Islamic laws have been formulated according to the dictates of nature and instinct, which represent the Divine Will.²

Hence, the Holy Qur'an reserves the right to legislate solely for God. It says:

Sovereignty solely belongs to God ... (12:40) Who is better in judgment than God, for those who are certain in belief? (5:50)

‘Social law’ means a broad area of Islamic laws which are outlined mainly by the Qur’an and the Hadith, and in some extent, by Ijma and Qiyas. Besides various laws of Islamic Shari’ah, i,e the religious, civil and criminal laws, “The Social laws of the Islam” are an integral part of the Shari’ah law.³

The idea of divine law in Islam is traditionally expressed by two words, fiqh and sharīah. Many people refer to Islamic law as Shari‘a law and many translate Fiqh or Islamic jurisprudence as Islamic law (Saeed, 2006: 46).

Yet, a distinction should be made between the two Shari‘a.

Fiqh originally meant understanding in a broad sense. The specialist usage, meaning understanding of the law, emerged at about the same time as the first juristic literature, in the late eighth and early ninth centuries. All efforts to elaborate details of the law, to state specific norms, to justify them by reference to revelation, to debate them, or to write books or treatises on the law are examples of fiqh. By contrast, Shari’ah as Saeed explains

“…represents the divine guidance contained in the revelation communicated to the Prophet through the Qur’an and further illuminated by the Prophet in his sayings and deeds (Sunna). In the context of Islamic law, Shari‘a refers to the totality of this guidance contained in the Qur’an and Sunna and generally expressed in their commands and prohibitions” (Saeed, 34).

The word sharīah is sometimes used in place of fiqh, in which case its positive connotations will be transferred to the scholarly tradition.

1.3 Nature of the Shari’ah Law

Islamic Social law, popularly known as Muslim family law, remains one of the major legal systems in the world today. It is applicable in different forms as part of state law in countries of the Middle East, Asia and Africa, and also has strong influence amongst Muslim communities in the West generally, such as in Britain. Yet, it is probably the most misunderstood legal system in many parts of the world today, especially in the West. “The first step to a better understanding of the nature of Islamic law is to appreciate that “Sharī’a” and “Islamic law” are not technically synonymous concepts”, said by Professor Mashood Baderin. He added : “

As The Sharī’a strictly refers to the fundamental sources of Islam, namely, the Qur’an and the authenticated Traditions (Sunnah) of Prophet Muhammad (peace be upon him), both of which Muslims consider to be divine and immutable sources from which Islamic religious, moral, social, economic, political and legal norms are derived. Thus, the Sharī’ah, in the context of these two divine sources, covers more than just law – it is law-plus. Conversely, Islamic law refers to the law or rulings (Ahkām; singular: Hukm) that are derived from the Sharī’a by Muslim jurists and applied by judges. Muslim jurists therefore normally talk of “Ahkām al-Sharī’a” meaning “Sharī’a Rulings” or “Sharī’a Law”, i.e. rulings derived from the Sharī’a, when referring to Islamic law as applied law. The “Ahkām al-Sharī’a” or “Islamic law” are reached through the process of human juristic effort called “Fiqh”. That is, human juristic understanding of the divine sources using different well defined classical and post-classical jurisprudential methods and principles formulated by Muslim jurists over time. These legal rulings of the classical Islamic jurists, unlike the Sharī’a itself, are neither divine nor immutable, but have become accepted by Muslims as established legal treatises of Islamic law in different parts of the world today”.⁴

To sum up, according to his opinion, Shari’ah is unquestionable and immutable but Islamic law or “Ahkām al-Sharī’a” can be changed in accordance with the needs of society. For what Professor Mashood Baderin has said up to this point, he can only be accused of neglecting the rules of ‘Islamic law’ which have been took directly from Shari’ah i.e., the Qur’an and Hadith. These urge unquestionably to apply in Muslim society.

However, the Islamic family law, legislated through the process of legal reasoning, can logically be changed.

Those parts of Islamic law (Fiqh) developed by classical jurists should not supposed to final law. They did not prescribe to stop the continual development of Islamic law based on modern jurisprudence (Fiqh) through the process of legal reasoning (Ijtihād).

Professor Mashood Baderin claims:

“In essence, the evolutional perception represents Islamic law as a system that evolves in necessary response to the dynamic nature of human life. Thus many legal scholars, Muslim or otherwise, see no problem in the incorporation of elements of Islamic civil law—those aspects relating to resolving marriage disputes, or those prohibiting transactions based on interest or usury—from being incorporated into the laws adhered to by Muslims in the West. In fact this is already happening, and has happened in the case for Jewish civil law—which is very similar, if a little more rigorous than Islamic civil law—many years ago”.⁵

Again, ‘Al-Tawhid, Islam and the Modern Age’; defines : Islam has divided human laws and regulations into two classes: the first class of laws that are fixed, being based on the primordial nature of man and the characteristics peculiar to his species. This class of laws is named "Islamic Shari'ah". They guide humanity towards the goal of its highest felicity:

“So set thy face with sincerity to the Religion-God's nature upon which He originated mankind. There is no changing God's creation. That is the right religion ...” ( The Qur’an, 30:30)

Secondly, it should be noted that determination of the second class of laws, which are alterable and can be modulated according to the changing conditions of place and time, has been assigned to the institution of al-wilayahal-'ammah (general guardianship), and are subject to the opinion of the Prophet of Islam (S), his successors (A), and those appointed by him. These laws and regulations are formulated by al-wilayah, in the light of the permanent religious laws, in accordance with spatial and temporal requirements, and counted as part of the Divine law, the Shari'ah, and are not considered a part of "al-Din":

Remarkably , Shari’ah law is divine law and the nature of which is unquestionable over time. The Qur'an says:

“It is He Who sent down to thee (step by step), in truth, the Book, confirming what went before it; and He sent down the Law (of Moses) and the Gospel (of Jesus) before this, as a guide to mankind, and He sent down the criterion (of judgment between right and wrong). Then those who reject Faith in the Signs of Allah will suffer the severest penalty, and Allah is Exalted in Might, Lord of Retribution. Ye aspects of life.” (3:3-4)

O believers, obey God, and obey the Messenger, and those in authority among you. (4:59)

1.4 Sources of Shari’ah laws

The Shari’ah covers all aspects of human life. Classical Shari’ah manuals are often divided into four parts: laws relating to personal acts of worship, laws relating to commercial dealings, laws relating to marriage and divorce, and penal laws.⁶

Before going to justify the scope of interpretation of ‘Social law of Islam’, an interpreter needs to know ‘what are the sources of Shari’ah laws’?

The Qur’an is the primary source containing all the fundamental directives and instructions of Allah. Herein are to be found not only the directives relating to individual conduct but also the principles relating to all the aspects of social and cultural life of human being.⁷

The Qur’an is the last and complete edition of Divine Guidance and this is the only book of Allah that has not been distorted. The Qur’an is not only a book of law. Its main purpose is to awaken in man the higher consciousness of his relation with Allah and the universe. However, in the Qur’an there are at least five hundred verses which possess definite legal elements.

The Sunnah is the second source of Islamic law. Sunnah is an Arabic word which means "Method". It was applied by the Prophet Muhammad (peace be upon him) as a legal term to represent what he said, did and agreed to. Its authority is derived from the text of the Qur’an. The Qur’an says,

"For you the life of the Prophet is a model of behaviour" (33:21).

Many books of traditions were compiled by the companions of the Prophet (p.b.u.h.). These were later on incorporated in the great collections of Hadith (i.e. traditions) Books of Bukhari, Muslim etc. The collectors of traditions adopted a very scientific system in collecting the Traditions. They did not record any tradition except with the chain of narrators. Every tradition gives the name of the last narrator of the tradition from whom he learnt the tradition and so on back to the Prophet or Companion of the Prophet. The Sunnah, which is established through reliable narrators, is fully dependable as legal element.⁸

The Qur’an and the Sunnah are complimentary. The meaning of the Qur’an is general in nature, the Sunnah makes it specific and particular. The Sunnah explains the instructions of the Qur’an. The Qur’anic injunction is sometimes implicit, the Sunnah makes it explicit by providing essential ingredients and details.

The Qur’an and the Sunnah are the primary sources of Islamic law. Ijma (that is consensus of opinion of scholars) and Qiyas (that is laws derived through analogical deduction) are the secondary or dependent sources of Islamic law or Shari’ahh.⁹

Ijma and Qiyas derive their value or authority from the Qur’an and the Sunnah. Therefore, they are called dependent sources

Ijma or the consensus of scholars signifies the importance of delegated legislation to the Muslim community. The Muslim society requires such a rule making power to meet the practical problems for implementation of Islamic Shari’ahh (Islamic Law). Ijma has been technically defined as the consensus of the jurists of a certain period over a religious matter. Ijma is considered a sufficient evidence for action because the Prophet of Islam said, "Muslim (majority or main body) will never agree on a wrong mailer". As such the agreement of the scholars of Islam on any religious matter is a source of law in Islam (Ref: Principles of Islamic Jurisprudence by M. Hashim Kamali).¹⁰

Qiyas is the fourth important source of Islamic law. Qiyas means analogy. Qiyas or analogy is resorted to in respect of problems about which there is no specific provision in the Qur’an or the Sunnah of the Prophet. In such issues the scholars have derived law through analogical deduction on the basis of the provisions of the Qur’an and the Sunnah on some similar situation. The scholars have developed detailed principles of analogical deductions or Qiyas in the books of Islamic jurisprudence. ¹¹

It is said that Mouadh was appointed the Chip justice of Yemen, the Prophet questioned him, and Mouadh replied as follows:

Prophet : On what salt thou base thy decisions?

Mouadh: On the Qur’an.

Prophet : If the Qur’an does not give guidance?

Mouadh: Then upon the usage of Prophet.

Prophet : But if that also fails?

Mouadh : Then I shall follow my own reason.

The Prophet , it is believed , fully approved this applies , and praised Allah that His servant was on the right path.

Qiyas is a kind of Ijtihad. The Prophet has permitted Ijtihad that literally means 'to exert'. Technically it means to exert with a view to form an independent judgement on a legal issue. ljtihad is the Islamic method of facing the new situations and problems in the light of the general principles of the book of Allah (SWT), the Qur’an and the traditions of the Prophet or the Sunnah.¹²

Apart from Qiyas, there are other methods of Ijtihad such as Istihsan (that is juristic preference from different interpretations) and Masalaha (that is moral consideration).

In addition to the above sources, the practices of the Khulafa-e-Rashidun (first four rulers of Islam), the decisions of the judges and the customs of the people are also considered sources of Islamic law in matters which are not spelled out in the Qur’an and the Sunnah.

1.5 Development of Islamic law :

“The first period of development of the Islamic law is the one between 1 A. Hijra and 10 A.H this is the most important period so far as the first sources of law, viz., the Qur’an and the Hadith, are concerned. Most of the verses of the Qur’an reveled during this period deal with legal aspects. So also do some of the Prophets’ most important judicial decisions and traditions”, explained by N,H Jhabvala in his Book ‘Priniple of Mphammadan Law’. He added that the precepts of the Prophet acquired a binding force, because Muslims believe that the actions and saying of the Prophet were inspired or commended by God”

the second period is the periods of thierty from 10 A.H to 40 A.H., when “the right-guided Caliphs”, Abu Bakar, Umar, Usman and Ali (RA) were the Caliphs. This authorized tex of the

The second stage of the development of early Islamic law according to Khalid Al-Azri as was the period of the successors, which refers to the “generation thatimmediately followed the companions…extending to the early part of the second Islamic century” . Given that Islamic society had expanded during the later part of the first Islamic century and the beginning of the second to include places such as Iraq, Egypt and Syria in addition to Arabia, individual legal opinions or Ijtihad also expanded during that time. In the words of Saeed: Through their study, teaching, debates and discussions of issues related to all aspects of law, scholars continued to augment the existing body of legal knowledge based on the Qur’an, the Sunna and the Precedents and opinions of the Companion. According to a number of scholars, the third stage in thedevelopment of Islamic law was marked by the influence of elements of other laws from areas that had been conquered by Muslims, such as the Roman law (Hallaq, 2004: 21-54). The fourth and final period of the early development of Islamic law began more or less around the second half of the second to eighth century and continued well into the third to ninth century. During this period the main schools of Islamic law, as they are defined today, were established.¹³

It is necessary to mention here to clarify the justification of development of various Majhab and behind reasons it’s.

While there was overall unity within Islamic law, the diversity of opinion in the interpretation of text and confusion due the diverse social backgrounds and cultural context of jurists has created the need for legal consultants, called "mufti." This diversity of opinion in the interpretation of text and confusion due to the diverse social backgrounds and cultural context of jurists extends to the various geographical areas of Islam, and therefore, different doctrine of the Shari'a.¹⁴

Geographically, the division between the various schools and sects became fairly well defined as the judges of courts (called "qadis") in different areas became wedded to the doctrine of one particular school.

Thus:

1 Hanafi law came to predominate in the Middle East, and the Indian subcontinent;

2 Maliki law in North, West, and Central Africa;

3 Shafii law in East Africa, the southern parts of the Arabian Peninsula, Malaysia, and Indonesia;

4 Hanbali law in Saudi Arabia;

5 Shii law in Iran and the Shii communities of India and East Africa;

6 Ibadi law in Zanzibar, Uman, and parts of Algeria.¹⁵

Scope of Interpretation

Islamic legal scholars applied the principle contained in the Qur’an and the Sunnah to the exigencies of Muslim laif through two main methods, ijma and qiyas. The Authority of Ijma as a source of law is founded on a Qur’anic and Sunnah texts; one each of which are given here:

“O ye who believe; Obey Allah and obey the Prophet and those of who are in authority, and if he have dispute concerning any matter refer it to Allah and the Prophet”.

It is evident that Qur’an enunciated only a few rules which may be described as fundamental and exemplified everything. { Verse} Since it enunciated fundamentals rules, a numerous subsidiary rules of day by day faced by the followers of Islam has no means to cover. Ijma become necessary in the circumstances.

The following examples illustrate the use of ijtihad and its necessity. Fifteen years after the death of Prophet Muhammad, Caliph Omar ibn-al-Khattab stopped cutting off the hands of thieves because most of them were stealing out of necessity due to hunger, poverty, and drought.

“Cut off the hands of thieves, whether they are male or female (addicted to thieves), as punishment for what they have done—a deterrent from God: God is almighty and wise.

But if anyone repents after his wrongdoing and makes amends, God will accept his repentance: God is most forgiving and merciful”. (the Qur’an 5:38-39) ¹⁶

While this contradicted a verse from the Qur’an, he justified his decision by stating that the principles of justice and fairness were supreme. So, the Caliph had made a clear proof of Ijma to tackle difficulty or harshnesh of rule.

While the doctrine of ijtihad or personal reasoning might be thought to have allowed a variety of interpretations, in practice its use was strictly guided and limited by the principle of consonance with other authoritative sources. Moreover, once unanimous qualified consensus on an issue had been reached, the issue was regarded as forever closed. This led to a general process of solidification of Islamic law by the tenth century and, as Arab thinkers phrased it, “the door of ijtihad was closed” and further legal speculation ceased, at least for several centuries. The overwhelming phenomenon of this closure in the tenth century looms large over the entire subsequent history of Islamic thought. This closure was due in part to the development of Hadith studies, wide agreement by theologians on many central points of doctrine, as well as to the clearer formulation of Sunni doctrine by the followers of Hanbal and Hanafi.¹⁷

In one aspect, all of these developments can be regarded as elements of a general reaction against Mu’tazilite doctrine.

One of the criticisms leveled against Islam is that it is a religion frozen in time, one that has not embraced new paradigms of the modern world. In reality, Islam has always been a living, vibrant faith that adapts to new and changing circumstances.¹⁸

Shaykh Muhammad Hisham Kabbani , a Islamic scholar describes the development of Ijma and necessity thereof. He explains

“Ijtihād has a rich and controversial history that is worth examining in order to understand the issues surrounding it today. The concept of ijtihād emerged out of necessity in a highly eventful period when the Muslim community was expanding rapidly into new lands and cultures. With expansion, Islam’s ability to adapt to new environments was tested, and the community of believers saw the need to develop and formalize methods of adjusting Islamic regulations to various socio-cultural contexts. Brilliant scholars emerged to lead this effort. Each of these luminaries had a direct connection to the Prophet, his companions or their successors - a practice that guaranteed the authenticity of their understanding of this complex process of adaptation. While the Koran and Hadith (traditions of the Prophet and his companions) were grounded in a fixed time, place and socio-cultural milieu of seventh-century Arabia, Islam’s message and the law that it brought was for every time and place. So, scholars sought to penetrate the principles behind the thousands of rulings made in the time of the Prophet and his successors in order to build a system of precedent-based law that would provide a solid foundation for jurists in the future.¹⁹

He further states the reasons behind stopping of Ijma. “Over time, different scholars developed different schools of jurisprudence based on these principles, and after three centuries, there were more than 400 different schools with subtle variations of interpretation. Unfortunately, instead of benefiting from the diversity of opinions, adherents of one school sometimes became adversarial to other schools, insisting that their own interpretation and methodology was the only correct one. This resulted in debate, conflict and finally open bloodshed between adherents of different schools - something their founders never intended.

In order to stop this confusion, fourteenth-century Sunni Islamic scholars banned the creation of new schools. Then the number of “acceptable” schools was whittled down to the four with the largest followings, each named after their founding scholars: Maliki, now found primarily in Africa; Ħanafī, found in Central Asia, Turkey, the Balkans and the Indian sub-continent; Shāfi¿ī, followed in the Middle East and Southeast Asia; and Ħanbalī, followed mainly in the Arabian Peninsula”.²⁰

With the establishment of the four schools, the process of ijtihād was restricted, in order to prevent the factionalist strife that ensued with a proliferation of methods of interpreting Islamic law, but it was not eliminated. There have been several attempts in the nineteenth and twentieth centuries to re-open the door of ijtihad or individual reasoning: scholars have argued both for and against the notion of literal meaning, and the nature of its connection with figurative speech in the text of the Qur’an. The big question is whether the Ijtihad can be revived. Answering to the question, Qazwini says:

“One of the gravest mistakes Muslims have committed, according to, is closing the doors of ijtihad. Closing the doors of ijtihad has had extremely detrimental ramifications for the Muslim world., this decision has resulted in chronic intellectual stagnation, as thousands of potential mujtahids and scholars have been prohibited from offering workable solutions to newly emerging problems”.

A number of scholars opines for reopening of Ijma. Ibn Taymiyya (1263-1328) was a would-be reformer who critiqued the established legal traditions and the Sufi practices of his day, and called for a fresh return to the sources of law through ijtihad. His vision had little effect in his day, but it was revived in various forms by reformers in the 18th century.²¹

There cannot be true ijtihad, Siddiqi pointed out, unless scholars are free to express their opinions and other scholars are free to criticize them if they make errors. Freedom of expression is inherent in the concept and practice of ijtihad. This means that the democratization of Muslim societies and basic freedom for scholars is sine qua non for this process to work.

Allama Iqbal was clearly one of the most dynamic thinkers of our times.Iqbal's brilliant work ‘The Reconstruction of Religious Thought in Islam’ signifies his approch to reopen of gate of Ijtihad. What made him stand out from others w as the depth of critical thinking in his approach to Islam’s heritage. Iqbal, more than others explored the tensions between Islamic tradition and modernity at a more profounder level than most. He has already visited topics that are key issues of time, such as Ijtihad, Islam and democracy, the challenge of reform and of revival.in a word, his opion regarding Ijtihad is clear that in need of time, the interpretation may be must though different with prejurists but with consistent with primary sourses of Islam.²²

1.6. Challenges of modernity

This closure of the gate of ijtihad had sad results. On account of this, Islamic law and society remained largely sterile and stagnant for the next one thousand years and the great age of science and technology which revolutionized men’s thinking and action quickly passed the Muslim societies of different parts of the world by.²³

The principle of Taqlid (blind acceptance of precedents) has a result of a little inadaptability of present time.

As every sections of life has been set up today with keeping pace with modernity. Legal sections e.g., civil, criminal, and evidential law has been applied have been applied in Muslim countries not made by Shari’ah law.

This legal surprising when it is recalled that throughout the history of Islam the public law of Islam has been much less faithfully observed than the law of family relations which has been regarded as the “very heart of the Shari’a.^”²⁴

As Gibb says, to men who believe that the Qur’an is the very word of God, “the idea of changing or abrogating these fundamental laws is equivalent to apostasy ,^10”

Yet, this is precisely the area where battle has been joined between the conservatives and the modernists in the present century. The Qur’anic prescriptions on marriage, divorce and inheritance are fairly comprehensive and primarily designed to improve the legal and social position of women., restrict the laxity of sexual morals and strengthen the matrimonial bond¹¹; and they do not justify the unbridled criticisms directed against them by some Western scholars. The Qur;’anic legislations have conferred on women full legal rights to contract their marriages; receive dower, maintenance and shares inheritance; seek dissolution of an undesirable marriage; own and control properly; and enter into contractual obligations. It has been rightly contended that in some ways the legal status of a Muslim woman was better than that of her western counterpart.²⁵

Financially she retains her own separate; she remains mis-tress of her dowry and of any goods she may acquire by inheritance, by gift, or as the fruit of own labours.

The question may be referred to traditionalists that if they still do not rethink what the rule would be for the present circumstances, the Muslim countries which are not Islamic will make more laws as their thought keeping with modernity. The glaring result of the proposition is as described by Chibli Mallat as follows-

Over the last three decades, most of the countries of the Near East and South Asia have lived a relative legislative lull in the area of family law. In Iraq, Syria, Lebanon, Jordan, Egypt, Pakistan, Iran, and India, as well as in North African countries, the wave of national reforms in matters most at heart of the countries' religious communities seemed to have been successfully completed. In some cases, the attempt at unifying the law in a code of personal status (ahwal shakhsiyya) has failed: Lebanon offers the example of a country which proved unsuccessful in bringing about a unified personal law for Muslim and Christian communities. But on the whole, the legislative ,monuments', as Linant de Bellefonds called them, had been completed. Since then, personal status legislation has remained, in the main, untouched for three decades. The only area where an effort was undertaken to bring about more reforms was influenced by the necessity of advancing women's social and legal rights, but even there, as the case of the Egyptian controversial law of 1979 suggests, the process of legislative change was slow and uncertain. Still, some reforms were completed, as in Jordan and Algeria, but even in this case, the recent adoption of new codes may not have introduced significant breaks with previous legislation.²⁶

A brief account is given below of the changes brought about in the domain of Shari’a law and their methodology and juristic basis special emphasis on the position of women.

The methodology that the modernist reformers applied to reform the laws and adapt them to contemporary social needs and circumstance is three- fold: (a) procedural device, (b) eclectic selection of laws from different schools of law and juristic opinions and (c) fresh interpretation of the ancient texts in the light of present day circumstances. The procedural device left the substantive law which was the cause of some mischief intact and unchanged but precluded the courts from applying it in specified circumstances. Under the doctrine of siyasah the political authority of an Islamic state has the power to control and restrict the jurisdiction of the courts and also to enforce new rules of procedure and evidence. By exercising this power governments of some countries have issued administrative regulations asking the courts not to entertain actions which do not fulfill certain procedural and evidential requirements.²⁷

Eclecticism, technically called takhayyur, is the device of searching for precedents, not only in the four orthodox schools but even in the opinions of individual jurists, which would conform most to the needs of modern life. Takhayyur is not a modern innovation in Islamic jurisprudence. Although many classical jurists held the view that a man born in a certain school must remain in it for life and this has been followed by the main body of Sunni Islam; others permitted him to change his school in Toto but not in part; still others permitted him to follow one school in one particular issue and another in others if his conscience so permitted.²⁸ Ibn Taymiyya, the famous fourteenth century jurist, gives the best exposition of the principle of takhayyur in the following words:

No one is obliged to follow any particular authority, except the prophet himself, in everything he is allowed or forbidden to do. Muslims have never ceased to ask the advice of scholars, and to follow this authority on one occasion he thinks that his argument is the better one, for any similar reason, this is permissible according to the great majority of Muslim scholars. This was not denied by Abu Hanifa , Mali, Shafi Ahmad b. Hanbal or anyone else^.²⁹

Fresh interpretation of the ancient texts in the light of present day circumstances is another important mechanism of challenging modernity. Fresh interpretation of the ancient texts must be in harmony with the Qur’an And the authurative Hadith.

Most of the modernists do not say anything inadaptable with the Qur’an but to a fresh interpretation of the ancient texts which were made for that time. The Islamic jurists of 12^th century played a vital role in developing Islamic laws. But most of present jurists abides by that laws do not meet the modern challenges. The Qur’an is more modern than one thinks today or thought by prejurists. Keeping pace with ever modern nature of the Qur’an, both traditionalists and modernists must have to do Fresh interpretation of the pre texts.

1.7. Responses to challenges of modernity ³⁰

Islamic family law reflected to a large extent the patriarchal scheme of Arabian tribal society in the early centuries of Islam. Unsurprisingly certain institutions and standards of that law were felt to be out of line with the circumstances of Muslim society in the 20th century. At first this situation seemed to create the same apparent deadlock between the changing circumstances of modern life and a purportedly unchallengeable law that had caused the adoption of Western codes in civil and criminal matters. Instead, traditional Shari'ah law has been adapted in a variety of ways to meet present social needs.

From the outset the dominating issue in the Middle East has been the question of the juristic basis of reforms--i.e., granted their social desirability, their justification in terms of Islamic jurisprudential theory, so that the reforms appear as a new, but legitimate, version of the Shari'ah.

In the early stages of the reform movement, the doctrine of taqlid (unquestioning acceptance) was still formally observed and the juristic basis of reform lay in the doctrine of siyasah, or "government," which allows the political authority (who, of course, has no legislative power in the real sense of the term) to make administrative regulations of two principal types.

The first type concerns procedure and evidence and restricts the jurisdiction of the Shari'ah courts in the sense that they are instructed not to entertain cases that do not fulfill defined evidential requirements. The second type of administrative regulation was a directive to the courts as to which particular rule among existing variants they were to apply. This directive allowed the political authority to choose from the views of the different schools and jurists the opinion that was deemed best suited to present social circumstances. Accordingly, an Egyptian law of 1920 codified the Maliki law as the law henceforth to be applied by the Shari'ah courts.

By way of comparison, reform in the matters of child marriage and divorce was effected in the Indian subcontinent by statutory enactments that directly superseded the traditional Hanafi law. The Child Marriage Restraint Act, 1929, prohibited the marriage of girls below the age of 14 and boys below the age of 16 under pain of penalties; while the Dissolution of Muslim Marriages Act, 1939. In the Middle East, by the 1950s, the potential for legal reform under the principle of siyasah had been exhausted. Since that time the basic doctrine of taqlid has been challenged to an ever-increasing degree. The developing use of ijtihad as a means of legal reform may be seen through a comparison of the terms of the Syrian law of Personal Status (1953) with those of the Tunisian Law of Personal Status (1957) in relation to the two subjects of polygamy and divorce by repudiation (talaq).

As regards polygamy the Syrian reformers argued that the Qur`an itself urges husbands not to take additional wives unless they are financially able to make proper provision for their maintenance and support. Classical jurists had construed this verse as a moral exhortation binding only on the husband's conscience " Far more extreme, however, is the approach of the Tunisian reformers. They argued that, in addition to a husband's financial ability to support a plurality of wives, the Qur`an also required that co-wives should be treated with complete impartiality. And since the essential condition for polygamy could not be fulfilled the Tunisian Law briefly declares: "Polygamy is prohibited."

With regard to talaq the Syrian law provided that a wife who had been repudiated without just cause might be awarded compensation by the court from her former husband to the maximum extent of one year's maintenance. The reform was once again represented as giving practical effect to certain Qur`anic verses that had been generally regarded by traditional jurisprudence as moral rather than legally enforceable injunctions Once again, however, the Tunisian ijtihad concerning repudiation is far more radical. Here the reformers argued that the Qur`an orders the appointment of arbitrators in the event of discord between husband and wife. Clearly a pronouncement of repudiation by a husband indicated a state of discord between the spouses. Equally clearly the official courts were best suited to undertake the function of arbitration that then becomes necessary according to the Qur`an. It is on this broad ground that the Tunisian law abolishes the right of a husband to repudiate his wife extrajudicial and enacts that: "Divorce outside a court of law is without legal effect.

In Pakistan a new interpretation of the Qur`an and sunnah was the declared basis of the reforms introduced by the Muslim Family Laws Ordinance of 1961, although the provisions of the Ordinance in relation to polygamy and talaq are much less radical than the corresponding Middle Eastern reforms, since a second marriage is simply made dependent upon the consent of an Arbitration Council and the effect of a husband's repudiation is merely suspended for a period of three months to afford opportunity for reconciliation.

Judicial decisions in Pakistan have also unequivocally endorsed the right of independent interpretation of the Qur`an. For example, in Khurshid Bibi v. Muhammad Amin (1967) the Supreme Court held that a Muslim wife could as a right obtains a divorce simply by payment of suitable compensation to her husband. This decision was based on the Court's interpretation of a relevant Qur`anic verse. But under traditional Shari'ah law this form of divorce, known as khul', whereby a wife pays for her release, is a contract between the spouses and as such entirely dependent upon the husband's free consent.

The traditionalists argue that the texts are merely being manipulated to yield the meaning that suits the preconceived purposes of the reformers, and that therefore, contrary to fundamental Islamic ideology, it is social desirability and not the will of Allah that is the ultimate determinant of the law.³¹ (N.J.C.)

Comment’s of western about reformation refers present situation and may be a guideline for rethought.

In the late sixties Ferreland Abbott raised a question whether reform is possible within Muslim Shari’ah law.³² This question came to the mind of the Professor of History of the Tufts University, USA, as he found no organization in Islam to offer changes within it. Nor does it follow any leadership, except for prayer, who may put forward new interpretations of Shari’ah law. He thought, in his days, that what is needed in Islam is not the new interpretation but a revolutionary departure from the old ‘theological’ interpretation, which in Western Europe is called “Renaissance and the Reformation”.³³

Notes and references:

1. http://answers.yahoo.com/question/index?qid=20100607233915AABDVhg.

2. “Al-Tawhid, Islam and the Modern Age” by Allamah Muhammad Husayn Tabataba'I, Translated by Mahliqa Qara'I Vol I, No. 2.

3. Banglapedia: Muslim Personal Law.

4. Professor Mashood Baderin, “Historical and Evolutional Perceptions of Islamic Law in a Continually Changing World”. See details at http://www.the-platform.org.uk/2010/02/10/islamic-law-on-trial/.

5. Ibid.

6. “A personal view of Shari’ah”Ruqaiyyah Waris Maqsood, a British Muslim.

7. www.witness-pioneer.org/vil/.../sources_of_islamic_law.htm

8. Sources of Islamic http://www.witness- pioneer.org/vil/Books/SH_SL/sources_of_islamic_law.htm. Accessed on 14.11.2010.

9. Ibid.

10. Ibid.

11. Ibid.

12. Ibid.

13. The 20th Century Islamic Legal Reform of the Family Law with the Focus on Oman’s Response to Modernity. Khalid Al-Azri (Oxford Centre for Islamic Studies, Oxford University).

14. Ibid.

15. Islam and the Qur'an; Major Religions of the World www.majorreligionsoftheworld.com/islam_Qur’an.php

16. “The Qur’an”, Oxford UP, 2004) { MAS Abdel Haleem translates Sura 5:38 as follows.

17. Islamic Law: Historical Development and Debate Course Syllabus for Graduate Students in Malaysi by M.A.R. Habib.

18. You are here: Publications Articles Viewpoint: Door of Ijtihad is Open Viewpoint: Door of Ijtihad is Open Shaykh Muhammad Hisham Kabbani.

19. Ibid.

20. Ibid.

21. “Modernity and its consequences” - Untitled Document, http://faculty-staff.ou.edu/V/David.R.Vishanoff-1/Intro/I4-Modernity.htm. Accessed on 25.11.2010

22. Islamic Horizans Excellent Special Issue on Allama Iqbal By Dr. Muqtedar Khan. See details at www.ijtihad.org/IH-Iqbal.htm

23. ‘Shari’ah’s law and Society, Tradition and Change in the Indian Subcontinenent’ by A.M Serajuddin.

24. ‘Shari’ah’s law and Society, Tradition and Change in the Indian Subcontinent’ by A.M Serajuddin.

25. ‘Shari’ah’s law and Society, Tradition and Change in the Indian Subcontinenent’ by A.M Serajuddin.

26. ‘Islamic Family Law: Introduction’ by Chibli Mallat. See details www.soas.ac.uk

27. ‘Shari’ah’s law and Society, Tradition and Change in the Indian Subcontinenent’ by A.M Serajuddin.

28. A.M Serjuddin, “Shari’ah Law and Society”, P-118.

^29.^Ibid.

30. Ibid.

31. “The Culture of Islam”. ttp://www.cyberspacei.com/jesusi/inlight/religion/islam/islam4.htm. Accessed on 15.10.2010. Islamic Law: Historical Development and Debate Course Syllabus for Graduate Students in Malaysia, M.A.R. Habib.

32. Ferreland Abbott, Islam and Pakistan (New York: Cornell University Press, 1968), p. 1.

33. Ibid., p. 4

CHAPTER II:

MARRIAGE AND CHILD MARRIAGE

SYNOPSIS

2.1 Pre-Islamic Background

2.2 Nature of Muslim Marriage

2.3 Essentials of valid Muslim Marriage

2.4 Reforms relating to Muslim Marriage

2.5 Registration of Muslim Marriage

2.6 Child marriage.

2.1 Pre-Islamic Background:

The relationship of sexes In Pre-Islamic Arabia is an uncertain state. Regular form of marriage as it is seen today was very rare. Instead, there flourished sexual unions which may be compared to branded prostitution, adultery or polyandry. ¹

The obscenity of adultery prevailed almost among all social classes except few men and women whose self-dignity prevented them from committing such an act. Free women were in much better conditions than the female slaves who constituted the greatest calamity. It seemed that the greatest majority of pre-Islam Arabs did not feel ashamed of committing this obscenity ²

Abu Da’ûd, on the authority of ‘Aishah [R] reported four kinds of marriage in pre-Islamic Arabia: The first was similar to present-day marriage procedures, in which case a man gives his daughter in marriage to another man after a dowry has been agreed on. In the second, the husband would send his wife – after the menstruation period – to cohabit with another man in order to conceive. After conception her husband would, if he desired, have a sexual intercourse with her. A third kind was that a group of less than ten men would have sexual intercourse with a woman. If she conceived and gave birth to a child, she would send for these men, and nobody could abstain. They would come together to her house. She would say: ‘You know what you have done. I have given birth to a child and it is your child’ (pointing to one of them). The man meant would have to accept. The fourth kind was that a lot of men would have sexual intercourse with a certain woman (a whore). She would not prevent anybody. Such women used to put a certain flag at their gates to invite in anyone who liked. If this whore got pregnant and gave birth to a child, she would collect those men, and a seeress would tell whose child it was. The appointed father would take the child and declare him/her his own. When Prophet Muhammad [pbuh] declared Islam in Arabia, he cancelled all these forms of sexual contacts except that of present Islamic marriage. ³

In addition to this, some other corrupt forms of marriages were: (1) A man would purchase a girl from her parents or guardian for a fixed sum. (2) Muta ( temporary) marriages were widely prevalent. (3) A pre Islamic Arab was allowed to marry two real sisters at one and the same time. (4) Women always accompanied men in their wars. The winners would freely have sexual intercourse with such women, but disgrace would follow the children conceived in this way all their lives.⁴

Among all the forms of marriage and the cohabitation practiced in pre Islamic Arabia mentioned above; only by agreement slightly resembles the form of marriage permitted under Islam. In Sura iv of the Qur’an, some of the regulations regarding marriage are laid down. The relevant passages are: “Marry not the women whom your father has or had married, for this is sinful and abominable and evil way. ⁵(Surat An-Nisa- 4:22)

What sets the Islamic marriage apart from the Pre-Islamic practices is that Islam acknowledged the women as a entity with rights of her own. Marriage, there, became a contract between a women and the man she had chosen to marry, and the dowry became a gift to her, rather than to her father or brother.⁶

2.2 Nature of Muslim Marriage:

According to Islamic Law, marriage (Nikah) is a civil contract, the object whereof is to legalise sexual intercourse and the procreation of children. Defining marriage, Justice Mahmood states: “Marriage among Muhammadan is not a sacrament, but purely a civil contract”.⁷

It is quiet relevant to know whether the Muslim marriage is a sacrament like the Hindu marriage, for this let us get acquainted with some of the definitions of Muslim marriage.

Hedaya defines : “Marriage is a legal process by which the several process and procreation and legitimating of children between man and women is perfectly lawful and valid.”

A Nikah in Arabic means "Union of the series" and carries a civil contract for the purposes of legalizing sexual intercourse and legitimate procreation of children.⁸

Ameer Ali, pointing out social value and moral aspects of marriage states marriage is an organization for the protection of the society. This is made to protect the society from foulness and unchastity.

Describing the nature of Muslim marriage, Mahmood, J., in Abdul Kadir V Salima⁹ case quote from Tagore Law Lectures (1873) (p. 291) in saying that “marriage among Muhammadans is not a sacrament, but purely a civil contract; and though it is solemnised generally with recitation of certain verses from the Kuran, yet the Muhammadan law does not positively prescribe any service peculiar to the occasion. That it is a civil contract is manifest from the various ways and circumstances in and under which marriages are contracted or presumed to have been contracted. And though a civil contract, it is not positively prescribed to be reduced to writing, but the validity and operation of the whole are made to depend upon the declaration or proposal of the one, and the acceptance or consent of the other, of the contracting parties, or of their natural and legal guardians before competent and sufficient witnesses; as also upon the restrictions imposed, and certain of the conditions required to be abided by according to the peculiarity of the case" That this is an accurate summary of the Muhammadan law is shown by the best authorities, and Mr. Baillie, at page i of his Digest, relying upon the texts of the Kanz, the Kifayah, and the Inayah, has well summarized the law: 'Marriage is a contract which has for its design or object the right of enjoyment and the procreation of children. But it was also instituted for the solace of life, and is one of the prime or original necessities of man. It is therefore lawful in extreme old age after hope of offspring has ceased, and even in the last or death illness. The pillars of marriage, as of other contracts, are Eejab-o-kubool, or declaration and acceptance The first, speech, from whichever side it may proceed, is the declaration, and the other the acceptance." The Hedaya lays down the same rule as to the constitution of the marriage contract, and Mr. Hamilton has rightly translated the original text (1): "Marriage is contracted--that is to say, is effected and legally confirmed--by means of declaration and consent, both expressed in the preterit".¹⁰

From what Justice Mahmood has said up to this point, he can only be accused of neglecting the religious aspects of marriage.

Categorically Muslim marriage is not only a civil contract but an Ibadat & Muamlat. Although the essentials of a contract is fulfilled in a marriage can never be said to be a contract solely because marriage always creates a bondage between couples. Since Muslim marriage is an ibadat ( devotional act) too, it bears great importance. ¹¹

Explains the importance of marriage ably and lucidly. Prof. Abdur Rahman states : Allah has created men and women as company for one another, and so that they can procreate and live in peace and tranquility according to the commandments of Allah and the directions of His Messenger.

The Qur'an says: And among His signs is this, that He created for you mates from among yourselves, that you may dwell in tranquility with them, and He has put love and mercy between your hearts. Undoubtedly in these are signs for those who reflect. (30:21)

And Allah has made for you your mates of your own nature, and made for you, out of them, sons and daughters and grandchildren, and provided for you sustenance of the best. (16:72).

These verses of the Noble Qur'an clearly show that in contrast to other religions like Christianity, Buddhism, Judaism etc. which consider celibacy or monasticism as a great virtue and a means of salvation, Islam considers marriage as one of the most virtuous and approved institutions. The Messenger of Allah (peace be upon him) declared, "There is no monasticism in Islam." He further ordained,

"O you young men! Whoever is able to marry should marry, for that will help him to lower his gaze and guard his modesty." (Al-Bukhari)”

Whether or not it is specified in the marriage contract, a groom must pay his bride dower, a sum of money or other property that is useful, of monetary value, and ritually clean. The dower is not a bride-price and is considered the property of the wife, not her guardian or relatives. Although it becomes payable to the wife as an effect of the marriage, a dower may be paid immediately in full, or may be deferred. Shari'a allows all or part of the dower to be deferred. A deferred dower is payable to the wife upon a date agreed to by the couple, or upon divorce or death, whichever occurs first. A large deferred dower specified in the marriage contract can function as a safeguard for wives against divorce; a husband who wants to divorce his wife may opt to stay married rather than pay her deferred dower upon divorce.¹²

2.3 Essentials of valid Muslim Marriage:

The three essentials of a Muslim marriage are:

Proposal and acceptance
Capacity to contract marriage
Absence of any impediments

A. Proposal and Acceptance.

From a legal point of view Islam views marriage as an 'aqd or contract. Like any other contract the marriage contract requires full and free consent of the parties concerned.. This right of free choice is fairly well recognized in the case of men unfortunately but not in the case of women.¹³

In the Holy Qur'an we read: "Do not inherit women against their will" (4:19) And in Hadith we find traditions like the following:

"Khansa bint Khidhan who had a previous marriage, related that when her father married her and she disapproved of that, she went to the Messenger of God and he revoked her marriage." (Bukhari, Ibn Majah)

"A [girl who was not married] came to the Messenger of God and mentioned that her father had married her against her will, so the Prophet allowed her to exercise her choice." (Abu Da'ud, on the authority of Ibn 'Abbas)

According to sharia law, in effecting marriage there should be a proposal ( ijab) and an acceptance (qubul) of the proposal, both of which must be expressed at one meeting and in presence of two male or one male two female witnesses. (Noshirvan H. Jhabvala ) A proposal that made in one meeting and an acceptance made in another meeting do not constitute a valid marriage. The usual form of proposal is “I have married myself to you”, and that of acceptance is “I have consented”. ( Hedaya, 235) There is no strict law who makes first proposal in marriage. Proposal of marriage can be made by either of the parties. There are a number of incidents reported that many women made proposals in the time of Muhammad (PBUH) but neither God nor His prophet objected. To constitute a marriage among Muslims, neither written form nor particular ceremony is required. There is no requirement under any school that the marriage contract be made in a particular form or ceremony; although the Qur’an recommends that marriage contracts be in writing, oral contracts are valid.¹⁴

B. Capacity for Marriage

As a general rule, it may be remarked, that under the Islamic law, the capacity to contract a valid marriage rests on the same basis as the capacity to enter into any other contract.¹⁵

The general essentials for marriage under Islam are as follows:-

(i) Every Mohammedan of sound mind and having attained puberty can marry. Where there is no proof or evidence of puberty the age of puberty is fifteen years.

(ii) A minor and insane (lunatic) who have not attained puberty can be validly contracted in marriage by their respective guardians.

(iii) Consent of party is must. A marriage of a Mohammedan who is of sound mind and has attained puberty, is void, if there is no consent.

Thus a Muslim becomes competent to enter into a contract of marriage when, being of sound mind, he or she attains puberty. Under the sharia law, in the matters of marriage, dower and divorce, puberty and majority are one and the same. (Noshirvan H. Jhabvala ) Puberty and discretion constitute, accordingly, the essential conditions of the capacity to enter into a valid contract of marriage. A person who is an infant in the eye of the law is disqualified from entering into any legal transactions (tassarufat-i-shariyeh), and is consequently incompetent to contract a marriage.

Age of Puberty

For marriage, dower and divorce, the age of majority under the Muslim law is the age of puberty and not 18 years of age. Though Hedaya says the minimum age of puberty for a boy is 12 years and for a girl it is 9 years; or it has been presumed to have been attained on completion of 15 years. Thus, a boy or a girl of 15 years of age will be presumed to have attained the age of puberty unless the contrary is proved.

In case of Shia female, the age of puberty begins with menstruation.

Option of Puberty (Khyar-ul-Bulugh)

Under Muslim marriage, a minor on attaining the age of puberty can exercise the option of puberty wherein the minor can approve or disapprove the marriage contracted by the guardian who is not the father or the grand father. If he disapproves, the marriage will dissolve with immediate effect. If the minor says nothing, it will be presumed that he has approved the marriage. As per the Shia law, a minor has to approve his marriage upon attaining the age of puberty. If the father or the grandfather has contracted marriage fraudulently or negligently, the minor can repudiate the marriage on attaining the age of puberty. A wife can exercise the right even if the marriage was contracted by her father or her grandfather. There can be no unreasonable delay in the exercise of the option of puberty. The husband will lose his right to the option of puberty if the marriage has been consummated. The wife will also lose her right unless the consummation has taken place when the wife was still a minor and against her consent.

Minor’s Marriage

Under Muslim law, a person under 15 years of age is presumed to be a minor and has no capacity to give consent for marriage. Unless and until the guardian’s consent is not obtained the marriage will be void. Guardians for marriage are different from guardians appointed by the court. The order of the priority is as follows:

1) Father;

2) Paternal Grandfather, how ever high;

3) Brother or other male members of the father’s family;

4) Mother; and

5) Maternal uncle, aunt or other maternal relatives

A remoter guardian for marriage can not get the minor married off with out actually following the prescribed order and such a marriage will be void.

Shia Law says that only the father or the paternal grand-father how ever high can be the guardians for marriage

C. Absence of any impediment

The third essential of a Muslim marriage is that there should be no impediments or prohibitions to the marriage of the parties. These impediments are of two kinds: i) absolute , i., those which prohibit a marriage and render it void (batil); and ii) reldadtive, ie., those which do not impose an absolute prohibition, so that a marriage contracted in spite of them is merly invald ar irregular (fasid), but not void.¹⁶

Mr. Syed Ameer Ali says : "The prohibitions may be divided into four heads, viz. relative or absolute, prohibitive or directory. They arise in the first place from legitimate and illegitimate relationship of blood (consanguinity); secondly, from alliance or affinity (al-musaharat); thirdly, from fosterage (ar-riza); and, fourthly, from completion of number (i.e. four). The ancient Arabs permitted the union of step-mothers and mothers-in-law on one side, and stop-sons and sons-in-law on, the other. The Koran expressly forbids this custom; 'Marry not women whom your fathers have had to wife (except what is already past), for this is an uncleanliness and abomination, and an evil way.' (Surah iv. 26) Then come the more definite prohibitions in the next verse: ' Ye are forbidden to marry your mothers, your daughters, your sisters, and your aunts, both on the father's and on the mother's side; your brothers' daughters and your sister's daughters; your mothers who have given you suck and your foster-sisters; your wives' mothers, your daughters-in-law, born of your wives with whom ye have cohabited. Ye are also prohibited to take to wife two sisters (except what is already past), nor to marry women who are already married.' (Surah 4:27) ¹⁷

2.4 Reforms relating to Muslim Marriage

The law of sharia relating to Marriage is not tempered with the wave of modernity clause and many of the formalities and essentials of marriage have not been modified compared of other field law throughout the Muslim world. Only in case of minor’s marriage and registration of marriage law reforms have been brought.

2.4.1 Registration of Muslim Marriage:

As a major religion, Islam was promulgated by Prophet Mohammed in the 7^th century AD. Islamic law is considered as a complete code for living a spiritual and social life that regulates an individual’s relationship with others and the society as a whole.

In Islamic law, marriage is a civil contract in which a wife has to be given a dower (Mahr) by the husband. Classical law had recognized oral marriage as perfectly valid. Non registration of marriage can not invalidate a marriage. For the reason, no practice of registration was seen in Muslim marriage. Muslim marriage went on orally. The question of registration was absent until ninetieth century. As mass of changing views and social expansion, the call of women’ safeguarding and deciding critical legal issue, the question of registration in marriage become inevitable. Western legislation took the mechanism of registration a century back whereas Qur’an ordained people to reduce to proper writing their mutual transactions, howsoever small they may be. The Qur’an stands in question of registration for any types of contracts or transactions and refers reduction in writing (to be registered). It technically says:

O ye who believe! When ye deal with each other, in transactions involving future obligations in a fixed period of time, reduce them to writing Let a scribe write down faithfully as between the parties: let not the scribe refuse to write: as God Has taught him, so let him write. Let him who incurs the liability dictate, but let him fear His Lord God, and not diminish aught of what he owes. If they party liable is mentally deficient, or weak, or unable Himself to dictate, Let his guardian dictate faithfully, and get two witnesses, out of your own men, and if there are not two men, then a man and two women, such as ye choose, for witnesses, so that if one of them errs, the other can remind her. The witnesses should not refuse when they are called on (For evidence). Disdain not to reduce to writing (your contract) for a future period, whether it be small or big: it is juster in the sight of God, More suitable as evidence, and more convenient to prevent doubts among yourselves. (Verse 2:282)

Therefore, legislation regarding registration of marriage is not contradictory with Sharia law but quite consistent with it. Here, home of the legislation regarding the issue has ben discussed below:

In India, registration of Muslim marriages is regulated by statutes such as the Muslim Marriage Restrictions Act of 1981. Muslims in India can register their marriage through the Special Marriage Act of 1954.

However, except in the state of Jammu and Kashmir, registration of Muslim marriages is not mandatory in any part of India as non-registration does not have any legal implications.¹⁸

Aiming to safeguarding and ensuring the rights of the couple and their children. UAE legislation requires he marriage contract must be registered in a Sharia court.¹⁹

In Pakistan, under the terms of the Muslim Family Laws Ordinanece, 1961, failure to register a marriage in the prescribed way renders he celebrad of the marridage and the parties therto liable to thre moths imprisonment or a fine of 1000 rupees or both. Generally, too, a marriage may be provd by means other than the officiall regiastration. But in Egypt since 1931, and in Tunisia since1953, a marriage can be proved only by the officall certificate of registration.²⁰

In Bangladesh, section 3 of th Muslim Marriages and Divorces ( Registration) Act, 1974 has provided mandatory provisions for ‘Registration of marriage’. If not registered under the Act, it shall be punishable with simple imprisonment for a term which may extent to three months, or with fine of 500 tk, or with both.²¹

In South Africa section 29A of the Marriage Act provides that the Marriage Officer solemnizing any marriage, the parties thereto and their duly authorised representatives and two competent witnesses shall sign a marriage register and that the Marriage Officer has the duty to transmit the Marriage Register to the representative designated in terms of the Identification Act 72 of 1986.²²

2.4.2 Child marriage:

Child marriage usually refers to two separate social phenomena which are practiced in some societies. The first and more widespread practice is that of marrying a young child (generally defined as below the age of fifteen) to an adult. The second practice is a form of arranged marriage in which the parents of two children from different families arrange a future marriage. In this practice, the parties of such marriage use ‘option of puberty’ according to Islamic law to accept or reject it.

In Islam

According to Sunni sources, Muhammad consummated his marriage with Aisha, when she was nine years old. Sahih al-Bukhari, 7:62:64.^{23, 24} Islamic scholars state that no age limits have been fixed by Islam for marriage. Children of the youngest age may be married or promised for marriage, "although a girl is not handed over to her husband until she is fit for marital congress".²⁵

The fact that Child marriage was possible in Judaism, is little known or spoken. A ketannah (literally meaning little [one]) was any girl between the age of 3 years and that of 12 years plus one day and child marriage is occurred in that age.²⁶

An increase in the advocation of human rights, whether as women's rights or as children's rights, has caused the traditions of child marriage to decrease greatly as it was considered unfair and dangerous for the children.

Child marriage occasioned and practiced since early Islamic era. It is now prohibited or restricted imposing marriageable age almost all Muslim countries. The Tunisian law (Art.5) stipulates that no no marriage can be contracted between a man under 20 years of age and a women under 17 without special court permission which shall not be given unless there are serious grounds and it is unquestionably to the welfare of the two spouses. Egyptian law (per the new child protection law) stipulates that marriage can be contracted between a man and women under 18 yaers. Yat, the legal age of marriage is indirectly suggested under the sharia court Act No. 78/1931, Article 99 as amended by the law No. 87/1951, which bars “ the judicial consideration of any matrimonial suit of the wife’s age is less than 16 lunar years or if the husband age is below 18 lunar years without special permission.” In the Lebanon, there are different provisions for the Sunnis, the Shias and Druzes. Articke 4 of the Family rights Act stipulates for the bridegroom at least 18 years and for the bride to be 17. Marriageable age in some of the Muslim courtiers is shown in table blow:²⁷

COUNTRY MALE FEMALE

Kenya	16	16
Ethiopia	18	18
Madagascar	17	14
Senegal	20	20
Tanzania	18	15
Somalia	18	16
Tunisia	20	17
Afghanistan	18	16
Azerbaijan	18	17
Bangladesh	21	18
Indonesia	21	19
Philippines	15	15
Turkey	18	17
Kyrgyzstan	18	18
Iran	18	16
India	21	18
Mali	18	18
Nigeria	21	21

Because of practice of child marriage in early era of Islam, child marriage is prevalent among present Muslim countries. The widespread prevalence of child marriage in the Kingdom of Saudi Arabia has connoted the proposition. Saudi clerics have justified the marriage of girls as young as 9, with sanction from the judiciary .There are no laws defining the minimum age for marriage in Saudi Arabia, and girls as young as eight years of age can marry.²⁸

The Child Marriage Restraint Act, 1929 was passed during the tenure of British rule on pre-partition India, and forbade a male younger than twenty-one or a female younger than eighteen to get married. South Asia has the highest prevalence of child marriage of any region in the world.²⁹

The whole troublesome issue of child marriage and the Shariah rose its head again in the Muslim contries; one side indicating this was a distressing cultural phenomenon that had nothing to do with the Shariah and the other arguing that in fact Islam requires child marriage.

First, it is amply clear that the classical Sharia among all Sunni schools of thought sanctions marriage at puberty, which is assumed to be age nine for girls. The age of puberty may vary in each particular county due to geographical impact. In addition, there is quranic direction to marry a younger girl before her puberty and no authorities Hadith confirms it. The Sahih Muslim translation footnote 1958 on p.715 says in part: "According to Imam Shafi’i, marriage in childhood is not something appreciable. It was under some exceptional circumstances that Hadrat ‘A’isha was married to the Prophet (may peace be upon him). The second point to be noted is that Islam has laid down no age limit for puberty for it varies with countries and races due to climate, hereditary, physical and social conditions. Those who live in cold regions attain puberty at a much later age as compared with those living in hot regions where both male and female attain it at a quite early age. "The average temperature of the country or province, is considered the chief factor here, not only with regard to menstruation but as regards the whole of sexual development at puberty. (Alfred C. Kinsey and Others, Sexual Behavior in the Human Female, p.110)" -- All of this was quoted from Sahih Muslim vol.2 footnote 1958 p.715.

Has Islam been alone on this child marriage thing?

In replying to question, Haider Ala Hamoudi ³⁰ says: “Of course not, and it would be easy to say everyone did this in earlier times, that standards were different, that ideas of normalcy were different, that behavioral maturities were different, that if you are going to criticise medieval Muslims for child marriage, then we have to talk about medieval Christian practice or precisely what families and women’s rights and women’s sexual rights in particular meant in the antebellum South less than two hundred years ago for slaves.”

According to a Sana University study, three reasons are given for gross development practice of child marriage, none of which is related to Muslim doctrine

The three reasons given in the study are (i) fear of poverty, (ii) cultural attribution of a young bride as being the most malleable and therefore desirable, and (iii) fear that the daughter will be kidnapped and forced to marry someone else.

A report by the UNICEF ³¹says “Early marriage can have serious harmful consequences for children stated by , including:

Denial of childhood and adolescence: the loss of childhood and adolescence, the forced sexual relations and the denial of freedom and personal development have profound psychosocial and emotional consequences on girls.
Denial of education: Once married, girls tend not to go to school.
Health problems: These include premature pregnancies, which cause higher rates of maternal and infant mortality. Teenage girls are also more vulnerable to sexually-transmitted infections, including HIV/AIDS.
Abuse: This is common in child marriages. In addition, children who refuse to marry or who choose a marriage partner against the wishes of their parents are often punished or even killed by their families in so-called 'honour killings

Muslim jurists need to understand the Prophet's marriage to Aishah which is selected as the exemplary age of marriage for Muslims while his marriage to Khadija, a widow 15 years older than him or his marriage to other widows and divorcees. Should it be an exemplary for Ummah? Moreover, the marriage practice of the Prophet (saw) should not be regarded as normative for the ummah. There is an explicit verse in the Qur'an that refers to his marriages as exceptional.³²

The Qur’an says in this regard “O prophet, we made lawful for you your wives to whom you have paid their due dowry, or what you already have, as granted to you by GOD. Also lawful for you in marriage are the daughters of your father's brothers, the daughters of your father's sisters, the daughters of your mother's brothers, the daughters of your mother's sisters, who have emigrated with you. Also, if a believing woman gave herself to the prophet - by forfeiting the dowry - the prophet may marry her without a dowry, if he so wishes. However, her forfeiting of the dowry applies only to the prophet, and not to the other believers. We have already decreed their rights in regard to their spouses or what they already have. This is to spare you any embarrassment. GOD is Forgiver, Most Merciful”. [33:50]

Accordingly, given a changing set of circumstances with available data on the harmful impact of early marriage on a girl's well-being, then the practice can change and that it is not UnIslamic to campaign to reduce the incidence of early marriage. There is a principle developed by Muslim jurists to close the door to negative consequences. Suffice it to say, the ways of reforms must conform to the Qur’an and Hadith.³³

Notes and references:

1. Syed Khalid Rashid, “Muslim Law” P-50.

2. Aspects of Pre-Islamic Arabian Society.http://www.witness- pioneer.org/vil/Books/SM_tsn/ch1s4.html. Accessed on 02-04-2010

3. Abu Da'ud - The Book of marriage.

4. 4 . Syed Khalid Rashid, “Muslim Law” P-50.

5. ”Surat An-Nisa' [4:22]”

"And marry not those women whom your fathers married, except what has already happened (of that nature) in the past. Lo! It was ever lewdness and abomination, and an evil way. Forbidden unto you are your mothers and your daughters, and your sisters and your father's sisters and your mother's sisters, and your brother's daughters and your sister's daughters, and your foster-mothers and your foster-sisters, and your mothers-in-law and your step-daughters who are under your mother-in-law and your step-daughters who are under your protection (born) of your women unto whom you have gone into -- but if you have not gone into them, then it is no sin for you (to marry their daughters) -- and the wives of your sons from your own loins, and that you should have two sisters together, except what has already happened (of that nature) in the past. Allah is ever-Forgiving, Merciful."

[Noble Qur’an 4:22-24]

6. Women and the Glorious Qur'an: An Analytical Study of Women-related Verses by Gunawan Adnan (2004) "

7. Abdul Kadir V Salima, (1886) 8All 149 at 154.

8. Bailies Digest 2.

9. (1886), 8All 149 at 154.

10. Khaled R, p-52-53.

11. Prof. Abdur Rahman (Doi Professor and Director, Center for Islamic Legal Studies, Ahmadu Bello University, Zaira, Nigeria)

12. Overview Of Shari’a and Prevalent Customs In Islamic Societies - Divorce and Child Custody” By Kristine Uhlman UmHani. January, 2004.

13. Marriage in Islam: Considered from a Legal Point of Viewby Dr. Ahmad Shafaat (1984) http://www.themodernreligion.com/family/family_marriagelegal.html.

14. Overview Of Shari’a and Prevalent Customs In Islamic Societies - Divorce and Child Custody” By Kristine Uhlman UmHani. January, 2004.

15. ‘MARRIAGE’ Excerpted from "Dictionary of Islam" by Thomas Patrick Hughes © 1886. http://muslim-canada.org/marriage_dictionaryofislam.html (Accessed on 02-04-2010).

16. Noshirvan H. Jhabvala.

17. ‘MARRIAGE’ Excerpted from "Dictionary of Islam" by Thomas Patrick Hughes © 1886. http://muslim-canada.org/marriage_dictionaryofislam.html (Accessed on 02-04-2010).

18. Oral Traditions, Marriage, and Registration under Islamic Law, 2010-01-22 — LIG Reporter.

19. Procedures for marriage of Muslims and Non-Muslims. online portal , under eZawaj. http://www.dubai.ae/en.portal?cr_comm_get_married,cr_comm_marrg_proc,1,&_nfpb=true&_pageLabel=lifeEventDetail. Accessed on 25-12-2010.

20. “Succession in the Muslim Family” By N.J Kolson. See page 12.

21. “Muslim Family Law in Bangladesh” by Muhammad Mujibur Rahman.

22. “ISLAMIC MARRIAGES AND RELATED MATTERS” A report by Law commission of South Africa. http://webcache.googleusercontent.com/search.

23. D. A. Spellberg, Politics, Gender, and the Islamic Past: the Legacy of A'isha bint Abi Bakr, Columbia University Press, 1994, p. 40

24. Karen Armstrong, Muhammad: A Biography of the Prophet, Harper San Francisco, 1992, p. 157.

25. Levy, Reuben (2000. First published 1957), "The Social Structure of Islam", Orientalism: Early Sources, XII, London & New York: Routledge, p. 106, ISBN 9780415209106. See details : Main article: Islam and children http://en.wikipedia.org/wiki/Child_marriage.

26. The article incorporates text from the 1901–1906 Jewish Encyclopedia article "Majority", a publication now in the public domain.

27. Marriageable age From Wikipedia, the free encyclopedia.

28. Child marriage From Wikipedia, the free encyclopedia. http://en.wikipedia.org/wiki/Child_marriage.

29. Child marriage From Wikipedia, the free encyclopedia. http://en.wikipedia.org/wiki/Child_marriage.

30. Child marriage and the Syariah — Haider Ala Hamoudi. December 20, 2010, see details at http://www.themalaysianinsider.com/breakingviews/article/child-marriage-and-the-syariah-haider-ala-hamoudi/.

31. The Problem of Early Marriage” This section is extracted from: "Early Marriage- Child Spouses", Innocent Digest, no 7, March 2001, a report by the UNICEF Innocent Research Centre, Florence, Italy. http://www.unicef-icdc.org/publications/pdf/digest7e.pdf.

32. The Problem of Early Marriage” This section is extracted from: "Early Marriage- Child Spouses", Innocent Digest, no 7, March 2001, a report by the UNICEF Innocent Research Centre, Florence, Italy. http://www.unicef-icdc.org/publications/pdf/digest7e.pdf.

33. This section is extracted from: "Early Marriage- Child Spouses", Innocent Digest, no 7, March 2001, a report by the UNICEF Innocent Research Centre, Florence, Italy.

http://www.unicef-icdc.org/publications/pdf/digest7e.pdf.

http://webcache.googleusercontent.com/search.

CHAPTER III:

DIVORCE IN ISLAM

SYNOPSIS

3.1 Pre- Islamic background

3.2 After the advent of Islam

3.3 Shari’a law of Divorce

3.4 Modern deforms in divorce law

3.5 Reforms in the Indian Subcontinent

3.1 Pre- Islamic background

Among the pre Islamic Arabs, the power of divorce possessed by the husband was unlimited. They could divorce their wives at any time, for any reason or without any reason. They could also revoke their divorce and divorce again as many times as they preferred. They could, moreover if they were so inclined, swear that they would have no intercourse with their wives, though still living with them. They could arbitrarily accuse their wives of adultery, dismiss them, and leave them with such notoriety as would deter other suitors; while they themselves would go exempt from any formal responsibility of maintenance of legal punishment.¹

According to Abdur Rahim there were four kinds of dissolution of marriage were known in pre- Islamic Arabia. These were Talaq, Ila, Zihar and Khula. A woman if absolutely separated through any of these four modes was probably free to remarry, but he could not do so until some time, called the period of iddat, had passed. It was to ascertain the legitimacy of the child. But it was not a strict rule. Sometimes, pregnant wife was divorced and was married to other person under an agreement. It is interesting too note that the period of iddat in case of death of husband then was a year.²

The atrocious practice of female infanticide has become the ultimate symbol of women’s oppression in pre-Islamic Arabia. As appalling as it is, however, female infanticide should not be the sole basis for assessing the status of women in the society before Islam. Arabia was a vastly diverse, tribal society, and women’s rights, in turn, varied according to the prevailing customs and traditions of the tribes. To claim that Arab women were universally inferior to men, and had absolutely no rights before Islam is too simplistic, and does not do justice to the women of this period. Their status, therefore, deserves a more careful analysis.³

3.2 After the advent of Islam

In most tribes of pre-Islamic Arabia, it has been shown, women were deprived of their basic rights, such as the right to choose a husband, to divorce, and to inherit from their family.

The advent of Islam shifted the focus from the tribe to the individual, balanced by the concept of community and family, and instituted a system in which everyone was equal, regardless of his/her gender, race, age or wealth. Under Islam, it was the moral and religious principles, not tribal affiliations, that defined women’s rights. Islam acknowledged women as free human beings with full rights of their own. With freedom must come responsibilities and obligations. This has led some to argue that women were more restricted after Islam vis-a-vis Jahiliyya, which may in fact be true in a few tribes that were not as oppressive to women as others. However, Islam improved the conditions of all women, regardless of which tribe they belonged to. It restored women’s dignity and elevated their status, on the whole, to be equal to that of men.

Amir Ali explains : “The prophet of Islam looked upon these customs of divorce with extreme disapproval and regarded their practice as calculated to undermine the foundation of society. It was impossible however, under the existing conditions of the society to abolish the custom entirely. The prophet had to mould the mind of an uncultured and semi- barbarous community to a higher development. Accordingly, he allowed the exercise of the power of divorce to husbands under certain conditions. He permitted to divorce parties three distinct and separate periods within which they might endeavor to become reconciled; when all attempts at reconciliation prove unsuccessful, then in the third period the final separation became effective.”⁴

The reforms of Prophet Mohammad marked a new departure in the history of Eastern legislation. He restrained the unlimited power of divorce by the husband and gave to the woman the right of obtaining the separation on reasonable grounds. He pronounced; talaq; to be the most detestable before God of all permitted things for it prevented conjugal happiness and interfered with proper bringing up of children.

Fyzee says that it sometimes is suggested that the greatest defect of the Islamic system is the absolute power given to the husband to divorce his wife without cause. Dower to some extent restricts the use of this power. But experience shows the greatest suffering is endangered by the husband’s withholding divorce than by his irresponsible exercise of the right.

3.3 Shari’a law of Divorce:

The Arabic for divorce is talaq, which means repudiation. The morphological root of the word implies releasing a wife or freeing her from the bondage of marriage.

The Prophet showed his dislike to it. He is reported to have said that ‘with Allah, the most detestable of all things permitted is divorce’.⁵

In Hindu communities divorce was not allowed under any circumstances. However, after passing The Hindu Marriage Act 1955, it is now allowed. In English law it was not recognized even hundred years back.⁶ Divorce mechanism was recognized in Islamic law since 1400 years back. The reforms of Prophet Muhammad (saw) marked a new departure in the history of the Eastern legislation.⁷ Where the husband or wife possesses such a cruel nature that may endanger the life of the other or for gaining the lust of his or her whims, yet in similar cases, the necessity of divorce is inevitable. ‘Divorce, since it disintegrates the family unity, is of course, a social evil in itself, but it is a necessary evil. It is better to wreck the unity of the family than to wreck the future happiness of the parties by binding them to a companionship that has become odious’.⁸

Considering the facts Islam permits the so called ‘hatred halal’ imposing restrictions like as reconciliation and counting Iddat. Notable, the Qur’an and Hadith prescribe the procedure of reconciliation and counting Iddat. However, according to Muslim law, divorce can be implemented in any of the following ways⁹ : By Husband (a) Talaq-us-sunnat, that is , a talaq which carries the approval of the Prophet. It may be in the most approved form, i.e. ahsan and hasan. (i) Ahsan- Hedaya brands it as the most laudable divorce, where the husband repudiates his wife by a single pronouncement in a period of tuhr (purity, i.e., when the wife is free from her menstrual courses), during which he has not had intercourse with her, and then leaves her to the observance of iddat. The divorce remains revocable during the iddat. In case of a marriage not yet consummated, ahsan talaq may be pronounced during menstruation also. Where the wife and husband are living separate from each other, or where the wife is beyond the age of menstruation, the condition of tuhr is not applicable.

( ii )Hasan- In talaq hasan, the husband successively pronounces divorce three times during consecutive periods of purity (tuhr). It is therefore “a divorce upon a divorce”, where the first and second pronouncements are revoked and followed by a third, only then talaq become irrevocable. It is also essential that no intercourse should have taken place during that particular period of purity in which the pronouncement has been made. Where the wife is not subject to menstrual courses, an interval of 30 days is required between each successive repudiation. (b) by talaq-ul-bidaat Africa.- here the husband does not follow the approved form of talaq i. e., talaq-us sunnat, and neither pays the attention of the perods to the purity nor to the abstention from intercourse” Hedaya defines it as a divorce where the husband repudiate his wife by three divorces in one sentence, or where he repeats the sentence separately, thrice within tuhr.¹⁰

(C) Ila: Besides talaaq, a Muslim husband can repudiate his marriage by two other modes, that are, Ila and Zihar. They are called constructive divorce. In Ila, the husband takes an oath not to have sexual intercourse with his wife.

(d) Zihar: In this mode the husband compares his wife with a woman within his prohibited relationship e.g., mother or sister etc.

Divorce by wife:

There is a widespread misconception that, in Islam, men alone are empowered with the right to dissolve their marriages. In reality, Islam also gives the woman the right to dissolve her marriage, through an agreement between herself and her husband, which may take the form of either khula or talaq-e-mubarat and Talaaq-i-tafweez.

(i) Talaaq-i-tafweez : Talaaq-i-tafweez or delegated divorce is recognized among both, the Shias and the Sunnis. The Muslim husband is free to delegate his power of pronouncing divorce to his wife or any other person. He may delegate the power absolutely or conditionally, temporarily or permanently

If she has this right, she can divorce herself and dissolve the marriage. Once this right is delegated, it cannot be repudiated. The husband’s right of divorce remains intact even after he delegates it to his wife.

(ii) Khula is a process through which a woman can dissolve the marriage by surrendering certain rights given to her, such as dower (jewelry, ornaments and any fixed amount given or to be given by the husband), dowry (gifts brought by the bride at the time of marriage) and bari (the gift given by the groom to the bride on the occasion of marriage), etc. In no event is she required to pay from her own pocket to secure her freedom from a non-functional marriage. It is also widely believed that it can be obtained only through court since out-of-court khula settlements are not so common.¹¹

In khula, the wife dissolves the marriage by paying for dissolution or surrendering certain rights. In talaq-e-mubarat, both spouses are desirous of separation and reach a mutual settlement that makes this possible. This divinely granted right of khula is stated in the Qur’an as follows¹²:

“If you (the judge) do indeed fear that they would be unable to keep the limit ordained by Allah, there is no blame on either of them if she gives something for her freedom. These are the limits ordained by Allah, so do not transgress them.”

There is a consensus among jurists that it is unjust for a husband to receive some kind of payment from his wife if he has been the oppressor. However, if a woman is the guilty party and seeks divorce, the husband can receive something from her the worth of which should not be more than what he had given to her or was supposed to give her as the dower.¹³

The effect of dissolution of marriage through khula is similar to talaq-e-bain: the two cannot rejoin each other without a remarriage through a new matrimonial contract. Jurists of all four major schools in the Muslim world hold that khula can be decided at bilateral level; however, some hold that it can only be obtained through a competent court.

Using the right of khula without reasonable grounds is disapproved of in Islam: according to a saying of the Prophet Muhammad (pbuh), such women will not be able to get even the fragrance of Jannah (paradise).¹⁴

(ii) Lian: If the husband levels false charges of unchastity or adultery against his wife then this amounts to character assassination and the wife has got the right to ask for divorce on these grounds. Such a mode of divorce is called Lian.

Where there have been three declarations, the remarriage of the couple is only possible if second marriage takes place. Such intervening marriage must be actually consummated and pronounced divorce by second husband. In Ahmed Vs Anisa Khatun, ¹⁵one Ghiyasuddin pronounced a triple repudiation on his wife. The words of divorce were clear and effectual, there was an irrevocable divorce. There was no remarriage between the parties, nor was there any proof of intermediate marriage. The couple afterwards lived together and five children were born. The union was void and the five children born after the triple divorce were held to be illegitimate. The decision, in consistence with the rule of Talaq-ul Biddat, appears to be harsh and falls beyond the scope of Islamic original spirits. Because triple pronouncements were regarded as single pronounments during the prophet’s lifetime, during the Caliph Abu Bakr’s reign and also for more than two years. From this point of view, the reunion between the couple before the expiry of iddat was valid and the five children were legitimate. Besides the above types of divorce, it can also be implemented by the wife i.e.Talaq-e-Tawfid, by mutual consent i.e. Khula and Mubarat and by judicial process i.e. Lian and Faskh. According to the Dissolution of Muslim Marriage Act 1939, a Muslim woman can apply for divorce under certain circumstances.¹⁶

We know that this practice does not give the parties an opportunity of reunion by reconciliation as the Qur’an formulates directing “And divorced women shall wait ( as regards their marriage) for three menstrual periods, ….and their husbands have the better right to take them back in that period, if they wish for reconciliation….”.¹⁷ Moreover, it further does not leave the scope of counting iddat so that, in the meantime, they can reconsider. The wording of Qur’an in this regard is “ O Prophet (SAW) ! when you divorce women, divorce them at their Iddat, and count their Iddat…”¹⁸Actually Talaq is of two approved types as mentioned above as the Qur’an says “ The Talaq is twice, either you retain her on reasonable terms or release her with kindness¹⁹Thus, it is undoubtedly proved that the Holy Qur’an does not ever recognize Talaq-ul Biddat and neither the Hadith does. As

Abu Suhail an-Nafi narrated:-

Ibn 'Umar bin Al-Khattab divorced his wife during her menses. Allah's Apostle ordered him to take her back till she became clean, and when she got another period while she was with him, she should wait till she became clean again and only then, if he wanted to divorce her, he could do so

before having sexual relations with her. And that is the period Allah has fixed for divorcing women. Whenever 'Abdullah (bin 'Umar) was asked about that, he would say to the questioner, "If you divorced her thrice, she is no longer lawful for you unless she marries another man (and the other man divorces her in his turn).' Ibn 'Umar further said, 'Would that you (people) only give one or two divorces, because the Prophet has ordered me so."

—Sahih al-Bukhari: ²⁰

Sa'id ibn Jubayr narrated:

Ibn 'Umar divorced his wife while she was having her menses. 'Umar asked the Prophet who said, "Order him (your son) to take her back, and then divorced her before her period of the 'Iddah has elapsed." I asked Ibn 'Umar, "Will that divorce (during the menses) be counted?" He replied, "If somebody behaves foolishly (will his foolishness be an excuse for his misbehavior)?"

—Sahih al-Bukhari ²¹

So the question when or how the disapproved form of talaq was revealed in Islamic laws should be mentioned here for the convenience of the reader to justify the practice, whether they should mean it as obligatory in their daily life or not. The reason behind it has been finely described by Syed Khalid Rashid in his prominent book “MUSLIM LAW”, he narrates- “The triple divorce was not allowed during the prophet’s lifetime, during the Caliph Abu Bakr’s reign and also for more than two years during the second Caliph Omar’s time. Later on Omar permitted it because of a peculiar situation. When the Arab conquered Syria, Egypt, Persia etc., they found women here much more beautiful than their on women and hence were tempted to marry them. But those women not knowing Islam’s abolition of triple divorce in one sitting, would insist that before marrying them they should pronounce divorce thrice to their existing wives which they would readily accept to do ( as they knew Islam has abolished triple divorce and it would not be effective) and marry the Syrian and Egyptian women and would also retain their earlier wives. When the Syrian and Egyptian women discovered that they had been cheated, they complained to Omar. The Caliph then enforced triple divorce again in order to prevent its misuse by the Arabs. He had done so to meet an emergency and not to enforce it permanently”. That decision was taken by Ijma, a majority consensus, can be changed with altering facts and circumstances. Since then male dominated society took the practice as a machine of oppression to women, they remained under the mercy of their husband and a threat of immediate breaking up of marital life.²²

‘Recently, several cases of instant triple divorce have been reported. In Bihar, just because a woman did not vote for the candidate of her husband’s choosing in the Lok Sabha election, he pronounced triple divorce and threw her out. There are several cases of talaq that are as absurd as this one. For many Muslims, orthodox customs have become more important than Qur’anic injunctions. In India, too, Muslim women have become more conscious of their Islamic rights and are demanding changes in personal law in keeping with Qur’anic teachings. Take the issue of talaq, which is regarded as a highly sensitive issue. The Holy Qur’an is very cautious in matters of divorce. Yet, despite clear Qur’anic injunctions to the contrary, we approve of triple divorce in one sitting and destroy marital life in one breath. How can such an act be Islamic? It is the source of the greatest injustice, especially for women.’²³It is evident that the Ulemas are divided into two views. ‘A Fatwa given by a Mufti of Ahl-e-Hadith rejecting the validity of triple divorce brought the Talaq issue to focus again. Maulana Asad Madani, President of the powerful Jamiate-Ulema-e-Hind has strongly opposed the fatwa and declared it un-Islamic and a conspiracy. The progressive Muslim intellectuals like Maulana Wahiuddin Khan and Ashgar Ali Engineer have upheld the fatwa. They argue that if the shari’a truly based on the Qur’an and Sunnah then there is no place for the pronouncement of triple divorce in one sitting. All the Ulemas also agree that this divorce is bidah ( innovation) and hence sinful’ ²⁴

Critics often criticize the practice of marriage of Hilla regarding it is a gross maltreatment against women. This procedure comes from The Qur’an.²⁵ It treats as a punishment of male’s whimsical decision and intends to control their sensitiveness by acting on the strongest feeling of their nature, the sense of honor. ‘Thus it is a kind of relief to the wife from the harassment and tension on account of uncertainty that the Arab could cause her by repeated talaq and revocations without limit. The prophet restrained them to the limit of three repetitions, further shackle on the overbearing males was by way of the requirements of intermediary marriage. Of course the aspect of her further humiliation involved in this process was overlooked.’²⁶ Clause 7(6) of the Ordinance validates the Hilla marriage when such termination is for third time. ²⁷. But Shariya effectuates is for the first time after being held the divorce irrevocable. Is there any wrong with it? This is nothing but a tighter safeguard for the women. It should keep in mind that our personal Laws come from Shari’a-Laws. We were proud of enjoying such a fine and balanced Laws that most of the western prominent writers took it as a subject of researches. Therefore, we should have kept the originality of such laws not modifying constantly except some orthodox customs that are against the spirit of The Qur’an and Hadith.

3.4 Modern Reforms in divorce law:

Middle East

Divorce is fairly common in the Middle East. Several Arab countries have modified their family codes to require men who divorce their wives to give them maintenance beyond the three-month idda period. Article 17 of the 1953 Syrian Law of Personal Status provided that if the qadi judges that a husband has repudiated his wife without reasonable cause, the qadi can require the husband to pay compensation up to the equivalent of one year’s maintenance (Pearl and Menski 1998). In Iraq, the Personal Status Act of 1959 required either a declaration from the court for a divorce or registration of repudiation during the wife’s iddat for the divorce to be valid. The 1976 Jordanian Law of Personal Status stipulates that in cases where the husband has arbitrarily repudiated his wife, she is entitled to ask for a maximum of one year’s maintenance (Moors 1995).²⁸

Although Syrian women are entitled to register a right to divorce in their marriage contracts, few women know it and it is considered socially unacceptable for brides to ask to preserve their right to divorce their husbands. Meanwhile Syrian men in some cases have the right to divorce their wives without the women attending court. Courts rarely enforce the payment of compensation to divorced women. In most cases, the husband owns the house and can force a divorced wife to leave (Sha'aban: 1996).

In Iran, the government has made a model marriage contract available to marrying couples that gives the divorced wife a right to half the property acquired during the marriage, provided she does not seek the divorce herself and is not at fault. Another article of the contract consists of a power of attorney from the husband to the wife, permitting her to divorce herself on twelve different grounds (Esfandiari 1997:43) Regardless of the marriage contract, an Iranian man must secure the court's permission to divorce his wife.²⁹

North Africa

Divorce is common in North Africa. Generally men have more rights in initiating a divorce, but women have informal ways of getting out of an unhappy marriage. The question of who retains custody of children after a divorce varies across the region, with men often having the right but not necessarily the inclination to keep their children with them after a divorce.³⁰

In Algeria, divorce is quite common. Women have certain protections, at least from being divorced by their husbands on the spur of the moment. Divorce, to be legal, must be carried out in court. After a divorce, the father is entitled to custody of the children, though it is unclear at what age children may be taken from their mothers.³¹

In Egypt too, divorce is a regular occurrence and there was an increase in the rate of divorce starting in the 1970s.[47] Men have greater rights in divorce than do women. However, as in Algeria, divorce must be carried out in a court. One of the differences in rights in divorce is that men may initiate divorce for basically any reason, though there must be some reason, as it must be stated in court. That the requirement of having divorce proceedings carried out in court is seen as an important protection of women's rights is shown clearly by the fact that one of the 1979 personal law reforms was that a woman had to be informed when her husband divorced her.³²

Women on the other hand, can initiate a divorce only in certain limited circumstances. Nonetheless, at least one writer on Egypt described women as being able to get a divorce with "relative ease."[51] However, few women seek to initiate a divorce, perhaps in part because divorced women who live alone are socially stigmatized.

After a divorce, Egyptian children traditionally stayed with their mothers until the age of 9 for boys, 12 for girls, at which time they would go to live with their fathers. Now, they usually stay with their mothers until they reach puberty or even later, and then go to their fathers.³³

In Morocco, particularly in small towns, divorce is common. In one town, half of all marriages end in divorce. A man has the right to unilaterally divorce his wife, whereas the woman cannot do the same to her husband. Officially, a divorce must be registered with a court, though there is no requirement that the husband explain why he is divorcing his wife. Also, the requirement that divorce be registered in the court may be somewhat misleading, as many marriages are not ever registered with the state, meaning that the divorce in such situations cannot be registered either.³⁴

After a divorce, a woman generally returns to her father's home. Occasionally, women do not, choosing instead to live as "free women," perhaps including having sexual relationships with men outside of the marriage context. Though there is only a fine line between women who choose to live this way between marriages and women who are essentially not marriageable, it appears that these women remain in the mainstream of society and can re-marry.

As for children, after a divorce, the ex-husband is entitled to custody of the children. However, often they do not claim the children after a divorce.

In Libya, divorce is widespread and can be done simply through repudiation.[62] Though women have few rights to initiate divorce, they can, and apparently do, pressure their husbands into granting a divorce.[63] There is little, if any, social stigma attached to divorce, either for the man or the woman.[64] While divorced women can remarry fairly easily and many desire to do so, it appears that some women do not try to remarry, preferring to remain single.[65] This suggests that the society accepts the presence of a certain number of divorced, single women.³⁵

After a divorce in Libya, children belong to their father and stay with him unless they are very young.[66]

Tunisian divorce law grants equal rights to men and women in terms of initiating a divorce. Divorces must be carried out in a court, and the judge must question both parties on their reasons for ending the marriage.³⁶

3.5 Reforms in the Indian Subcontinent:

In Bangladesh and Pakistan Muslim Family Laws Ordinance 1961 is applicable. It provides the rules of divorce under clause 7(1) that says ‘that any person who wishes to divorce his wife should, after pronouncing 'talaq', is to inform the chairman (of Union Council) in writing as soon as possible and deliver a copy thereof to the wife. Clause 7(3) says, a talaq shall not be effective before the expiry of ninety days from the day of serving the notice to the Chairman under part (1). Clause 7(4) says: Within thirty days of the receipt of notice under subsection (1), the Chairman shall institute an Arbitration Council for the purpose of bringing about a reconciliation between the parties, the Arbitration Council shall take all steps necessary to bring about such reconciliation. In fact, the Act makes a combination between 'talaq-e-hasan' and 'talaq-e-ahsan'.³⁷

The lawmaker have preferred here the chairman to be effected divorce provided the time fixed expired. It leaves some loopholes of law and aristocrats can lob to the chairman to draw the facts in their favour. Because of being politicized societies in Bangladesh, the chairman (of Union Council) may be biased by his supporters. The verses of the Qur’an infer the parties’ family members should hold the reconciliation procedure. As it, the procedure of the expiry of ninety days and Arbitration Council for reconciliation between the parties, took from the approved two forms, the lawmaker could have paid more attention to Islamic text. It could be more acceptable and undoubted amongst the Muslim if the enactment much more complied with the same.

According to Muslim Family Laws Ordinance, 1961, under section 7 of the Ordinance³⁸, to give effect to divorce there are three requirements: (i) Pronouncement in accordance with Muslim Law; (ii) Service of Notice on Chairman; and (iii) Service of copy of Notice on wife. If any one of such conditions is not satisfied, the divorce would not be effected even after 90 days.

A divorce not routed through procedure contemplated by Section 7, does not become effective. Therefore divorce would be effective only after notice of divorce is given to Chairman and prescribed period of three months has expired. If no notice is given to the chairman, the divorce would not become effective because according to clause (3) the period is to be calculated from the date of notice to the Chairman and not from the date of the pronouncement of the divorce. But where the chairman does not constitute an Arbitration Council on receipt of notice or does not call upon the parties to nominate their representative or in any other manner fails to perform his statutory functions, the divorce will become effective on expiry of ninety days from the date of pronouncement notwithstanding such failure in performance of statutory duties.³⁹

Sending Notice of Divorce: Judiciary in dilemma?

The question – whether failure to send a notice to the Chairman of the union council/city corporation on the part of the husband will make a talaq invalid – gives rise to a new judicial debate.

Failure to notify, in the above stated manner, invalidated Talaq until the late 1970s and early 1980s. Since early 1980s, the practice of the Courts in Pakistan is that they validate a Talaq despite a failure to notify as provided under the MFLO.

Under the Pakistani jurisdiction in Maqbul Zan’s case the court observed that failure to send a notice to the Chairman of the union council/city corporation will make a talaq ineffective but it will not be invalid if it is valid under the personal law of the party. Section 7 of the MFLO is a mere restriction on the effectiveness of a talaq rather than making a talaq invalid. The court observed:

If the talaq is otherwise valid; if it is valid under the personal law of the party it is valid. The only clog thereon is that the effectiveness would be postponed for 90 days under sub-section 3 of section 7 of the MFLO.

Professor Fyzee says: “Pakistani law has developed an immensely complex jurisprudence which arose after the time in which. The original position was deceptively simple and persuasive”.

In the famous case of Ali Nawaz Gardezi ⁴⁰, The Court held that notice of divorce was essential to dissolve a Muslim marriage in Pakistan. In other words, in the absence of notice there was no divorce and the marriage was valid”. But then, very soon, cases began to appear in Pakistani courts from which it became obvious that notice of divorce could not possibly be essential for legal validity in all circumstances. The decision in Noor Khan⁴¹ signifies this.

The position of Bangladeshi courts on the issue is unclear. There are numerous cases where the principle of the Lahore case has been followed by the courts. For example, in Abdus Sobhan’s case⁴² the court categorically, while explaining the objective of the arbitration council, has said that non-service of notice to the Chairman of union council/city corporation will not make a talaq invalid rather it will make talaq ineffective. In the same year the High Court Division in Kutubuddin’s case⁴³ has observed that “sending notice to the chairman and the opposite party is [a] prerequisite to legal validity of a divorce.” However, much later in Sirajul Islam’s case⁴⁴ the court indirectly revealed that there are two conditions to be fulfilled to make a divorce effective, i.e. (a) it must be valid according to the personal law of the parties, and (b) it must be communicated.

In fine, the divorce law of Islam has been modified by various reforms. Talaqul Bidaat has proved not conformity with the Qur’an and the Hadith. It is evident from above discussion that the reformers do not pay much attention to legislate laws relating to divorce.

Notes and references:

See Ibrahim Abdel Hamid, Dissolution of Marriage” in Islamic Quoterly,3 ( 1956) 166-75} And Syed Khalid Rashid.
“Muslim Women: Status and Divorce Rights Under Islamic Law” By : Raj kumar makkad. http://www.divorcelawyersdelhi.com/Latest/Muslim-Women-Status-and-Divorce-Rights-Under-Islamic-Law.html.
“Women in Pre-Islamic Arabia” by Muslim Women's League September 1995. See details at http://www.mwlusa.org/topics/history/herstory.html.
Ameer Ali The Spirit of Islam , 243-44 ( London, 1965 ).

5. Muhammad Ali, manual,284, No1; Tyabji, 143. see details: ASF A.A. FYJEE, Outlines of Mohammedan Law

6. Aqil Ahmed p-157 Mohammedan Law

7. Syed Khalid Rashid, MUSLIM LAW, p-97

8. Prof.G.CCheshire, “The International Validity of Divorce”(1945), 61 Law Quar. Rev.352)quoted from fyjee p148

Syed Khalid Rashid, MUSLIM LAW, p-100-101
Hedaya73, quoted from Khaled rashid p101
Ref Dissolution of Marriage: Practices, Laws and Islamic Teachings Policy Perspectives, Vlm 4, No.1.
Ibid.
Ref Dissolution of Marriage: Practices, Laws and Islamic Teachings Policy Perspectives, Vlm 4, No.1.
Ref Dissolution of Marriage: Practices, Laws and Islamic Teachings Policy Perspectives, Vlm 4, No.1.

15. Triple talaq, women’s rights and Indian judicial responses, an article by Saumya Uma published at www.thedailystar.net/law. issue no: 173 January 09,2003

16. Banglapedia: Muslim Personal Law. http://a-Bangladesh.com.HT/M_0424/htm

17. Muhammad Ali, manual,284, No1; Tyabji, 143. see details: ASF A.A. FYJEE, Outlines of Mohammedan Law

18. Aqil Ahmed p-157 Mohammedan Law

19. Syed Khalid Rashid, MUSLIM LAW, p-97

Volume 7, Book 63, Number 249
Volume 7, Book 63, Number 250
Prof.G.CCheshire, “The International Validity of Divorce”(1945), 61 Law Quar. Rev.352)quoted from fyjee p148
Syed Khalid Rashid, MUSLIM LAW, p-100-101
Hedaya73, quoted from Khaled rashid p101

25. 1931. 59 I.A. 21 see details in ASF A.A. FYJEE, Outlines of Mohammedan Law, p- 158

26. These are: (i) when her husband is absconding or the whereabouts of him are not known for a period of four years or more; (ii) when her husband fails to pay for her maintenance for a period of two years; (iii) when her husband is imprisoned for a period of seven years; (iv) when she repudiates the fact of marriage; and (v) when she finds that her husband is impotent, cruel, insane, or an apostate.

Sura Al Baqarah: Verse 227. (The English translation of the verses from The Noble Qur’an by Dr. Muhammad Taqi-ud-din al-Hilali, Ph.D, & Dr. Muhammad Muhsin Khan. See details www.islamasoft.co.uk)
Middle East. Emory Law, website. See at www.law.emory.edu/ access on 14.11.10
Ibid
Ibid
Ibid
Ibid
Ibid
Ibid
Ibid
36 Ibid
Hedaya73, quoted from Khaled rashid p101
Section 7 of Muslim Family Laws Ordinance, 1961 reads as follows:

1) Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of divorce in any form whatsoever, give the Chairman notice in writing of his having done so, and shall supply a copy thereof to the wife.

2) Whoever contrivance the provisions of sub-section (1) shall be punishable with simple imprisonment for a term which may extend to one year or with fine which may extend to five thousand Rupees or with both.

3) A Divorce unless revoked earlier expressly or otherwise, shall not be effective until the expiration of ninety days from the day on which notice under sub-section (1) is delivered to the Chairman.

4) Within thirty days of the receipt of notice under sub-section (1) the Chairman shall constitute an Arbitration Council for the purpose of bringing about reconciliation between the parties, and the Arbitration Council shall take all steps necessary to bring about such reconciliation.

5) If the wife be pregnant at the time of divorce is pronounced, divorce shall not be effective until the period mentioned in sub-section (3) or the pregnancy, whichever be later, ends.

6) Nothing shall debar a wife whose marriage has been terminated by divorce effective under this section from remarrying the same husband, without an intervening marriage with a third person unless such termination is for third time so effective.

39. Divorce Laws http://www.qazilawassociates.com.pk/divorce.php

40. 6. PLD 1963 SC 51 Return to Text. Developments in Muslim Law : The South Asian context* by Werner Menski.

41. 7.PLD 1982 FSC 265. Developments in Muslim Law: The South Asian context* y Werner Menski.

42. Abdus Sobhan Sarker v Md. Abdul Ghani, 25 DLR, HCD, p. 227.

43. Md. Kutubuddin Jaigirdar v Noorjahan Begum, supra no. 50.

44. Sirajul Islam v Helana Begum, 48 DLR, HCD, p. 48. See also “DEVELOPMENT OF MUSLIM FAMILY LAW IN BANGLADESH: EMPOWERMENT OR STREAMLINING OF WOMEN”? By- Anisur Rahman*

CHAPTER IV:

INHERITANCE AND RIGHTS OF THE ORPHANED GRANDCHILDREN

SYNOPSIS

4.1. Historical Background

4.2. Inheritance after advent of Islam

4.3. Significance of Islamic Inheritance

4.4. Women rights in inheritance

4.5. The controversy over Orphaned Grandchildren’s right to Inheritance in Islamic Law, The present reforms.

4.1 Historical Background:

Prior to advent of Islam, the system of inheritance in Arabs was confined to male descendants. The capability of getting inheritance had been measured not by legal status rather means of bearing weapons. Women and minor did not have any share of inheritance. Siblings from the mother's side, like half-brothers or half-sisters, were completely excluded. Other Semitic cultures also practiced primogeniture, under which all property goes to the eldest child. Son, son’s son, father, grand father, brother, paternal uncle etc were regarded sharer of inheritance on principle of

Priority.¹

The pre-Islamic Arabia system of inheritance was designed to keep property within the individual tribe and maintain its strength as a fighting force. The tribe was patriarchal and patrilineal.Women occupied a subordinate and subjugated position within the group whose bond of allegiance was that of asabiyya- descent through male links from a common ancestor. A woman who married into another group belonged henceforth, along with her children, to the tribe of the husband. The maternal relationship therefore lay outside the structure of tribal ties and responsibilities. In these circumstances, the proper exploitation and preservation of the tribal patrimony meant, inter alia, the exclusion of females and non-

agnate relatives from inheritance and the enjoyment of a monopoly of rights of

succession by the male agnate relatives, or asaba, of the deceased.²

4.2 Inheritance after advent of Islam :

Inheritance is an integral part of Shariah Law and its application in Islamic society is a mandatory.The principles of Qur’anic shares have been extracted out from Sura Nisa (04:11) - “Allah hath thus commanded you concerning your children’s (Inheritance), A male shall have as much as the share of the two females but if they be females only and above two in number, they shall have two-thirds part of what the deceased shall leave, and if there but one, she shall have the half,…... (These fixed shares) are ordained by Allah, and Allah is Ever All-knower, All Wise”. The heirs mentioned in the Qur’an are the mother, father, husband, wife, daughter, uterine brother, full sister, uterine sister, and consanguine sister.

Hence, there is a legal share for relatives of the decedent in his estate and property. The Qur’an contains only three verses [4:11, 4:12 and 4:176] ³which give specific details of inheritance shares. This information was used as a starting point by Muslim jurists to expound the laws of inheritance even further using Hadith, as well as different methods of juristic reasoning, like Qiyas. Large volumes of work have been written on the subject.⁴

Therefore, certain heirs referred to as primary heirs are always entitled to a share of the inheritance, they are never totally excluded. These primary heirs consist of the spouse relict, both parents, the son and the daughter. All remaining heirs can be totally excluded by the presence of other heirs. But under certain circumstances, other heirs can also inherit as residuaries, namely the father, paternal grandfather, daughter, agnatic granddaughter, full sister, consanguine sister and mother. ⁵

In Islamic law, only relatives with a legitimate blood relationship to the deceased are entitled to inherit. Thus, illegitimate children according and adopted children have no part in inheritance. In general, a full brother will exclude a consanguine brother, but not uterine brother.

There are even further rules of exclusion and inclusion of different relative. The only "practical situations" which may cause disqualification are differences of religion and homicide. But schools of Islamic jurisprudence differed whether a Muslim can inherit from a non-Muslim or not. All the jurists agree that intentional or unjustifiable killing would a exclude a person form inheritance.

In general, the Qur’an highly emphasized on giving of share fixed to women by identifying their share of inheritance in clear terms. Qur’an did not explicitly mention the shares of male relatives, such as the decedent's son, but it provided the rule that the son's share must be twice that of the daughter's. Muslim theologians explain this aspect of inheritance by looking at the entire Shari’ah law, which bestowed the responsibility and accountability on men to provide safety, protection and sustenance to their women.[Qur’an 4:34]⁶ By explicitly mentioning specific shares of female relatives, the Qur’an elevated the position of women and safeguarded their social and economic interests.

4.3 Significance of Islamic Inheritance:

The Islamic laws of inheritance are, like all issues in Islamic law, a dynamic process that must respond to the many challenges and opportunities that world changes present⁷. Professor Almaric Rumsey has finely explained the significance and elaborate system of rules for the devolution of property that is known to the civilian it by saying, "the Muslim law of inheritance comprises beyond question the most refined system in the world." ⁸ Islamic law of inheritance contributes not only to make a social world but also to devise a method of mathematic solution without it we could not imagine. It infers very complicated solution and trends to invent new era of mathematics. Therefore, it is evident that “the Islamic law of inheritance served as an impetus behind the development of algebra(derived from the Arabic al-jabr) by Muhammad ibn Mūsā al-Khwārizmī”.⁹He devoted a chapter on the solution to the Islamic law of inheritance using algebra. He formulated the rules of inheritance as linear equations, hence his knowledge of quadratic equations were not required ¹⁰ Unlike many contemporary legal systems, which recognize broad powers to specify the distribution of one’s property on death through the use of a will, Islamic law has traditionally required that the bulk of the deceased’s estate be distributed to the deceased’s relatives according to predetermined rules. The received doctrine regarding entitlement to inherit and the size of one’s share reflect the social world in which the law originated and developed on the Arabian Peninsula.¹¹

4.4 Women Rights in Inheritance:

Muslim mothers, wives, daughters, and sisters had received inheritance rights fourteen hundred years before Europe recognized that these rights even existed. The division of inheritance is a vast subject with an enormous amount of details (Qur’an 4:7,11,12,176). The general rule is that the female share is half the male's. This general rule if taken in isolation from other legislations concerning men and women may seem unfair.¹²

The principles of Qur’anic shares have been extracted out from Sura Nisa (04:11) - . Not only the placement of the part of the verses of Holy Qur’an saying that “A male shall have as much as the share of the two females” instead of saying “two females shall have as much as the share of the one male” is excellent and it connote utmost emphasis of women shares in inheritance being measured male’s portions by female’, but also the whole.

In order to understand the rationale behind this rule, one must take into account the fact that they get shares from other sources e.g.; brother, husband and the financial obligations of men in Islam far exceed those of. A bridegroom must provide his bride with a marriage consideration called as Dower, Moreover, the Muslim husband is charged with the maintenance of his wife and children.¹³ In light of these facts, one would appreciate that Muslim men, in general, have greater financial burdens than Muslim women and thus inheritance rules are meant to offset this imbalance so that the society lives free of all gender or class wars. After a simple comparison between the financial rights and duties of Muslim women, one British Muslim woman has concluded that Islam has treated women not only fairly but generously.¹⁴

Nevertheless, it is bitingly criticized that Islam deprives of women by conferring half portion to them. Critics only raise their voices of deprivation of women without providing any support for ensuring such conferred rights.

“Muslim law: A Critique on Law of Inheritance & its Evaluation” by the author of this paper. The article is published in LAWVISION, a law journal of University of Chittagong. 2008.

4.5 The controversy over Orphaned Grandchildren’s right to Inheritance in Islamic Law,

The present reforms:

The only rule which bears hardship is that the right of representation is not recognized in Islamic law. So, a son, whose father is dead, shall not inherit the estate of his grandfather together with his uncles. For instance, A dies leaving a son, B, and a predeceased son’s son, C, here C is entirely excluded by B, and B is the sole owner. It certainly seems to be harsh rule. Similarly if a dies leaving a son, B, C, along with two grandchildren E,F, it will not be unjust or illegal in sense excluding E,F By B,C respectively.

Therefore, the reason behind exclusion of grandson is the consequence of the principle “the nearer exclude the more remote”, and the nature or object of it is not intended to exclude him but to make consistent with precedence in classes. Many modern writers including Anderson have tartly criticized of this particular exclusion. Islam imposes mandatory duty on guardians to maintain orphan (predeceased son’s son), to bequeath and to ensure his right in estate. In this perspective, The Qur’an states “ And when the relatives and the orphans and Al-Masakin (the needy) are present at the time of division, give them out of the property, and speak to them words of kindness and justice (04:08). While man was doing injustice with them vastly, it is a common principle of Islamic jurisprudence that the scholars might be in consensus to enact law concerned.The Qur’anic silence on the point of a specific issue does not mean that it opposes to that issue, and silence always does not mean negativity. Nevertheless, the exclusion of grandson is based on the following ruling on Zaid bin Thabit which was not refuted by any companion of the prophet, thereby establishing Ijma on the matter: “grandsons will inherit like sons and exclude others as sons do. And a grandson will not be an heir in the presence of son.”¹⁵

It is evident that the grandfather, being nearer relative on the death of the father of the propositus, becomes a Qur’anic sharer. Thus, Islamic Inheritance’s law impliedly takes the representational device so to give grandfather’s share on the death of the father of the propositus. ‘Just as the Qur’anic word “father” includes not only the immediate father but also the grandfather and all the predecessors in the ascending order, so does the word “children” or sons include not only the immediate children but also the grandchildren and their successors in the descending order.¹⁶

According to the Ulama the word awlad in Verse IV:11 ¹⁷ means only sons and daughters . grandchildren and granddaughter are not awlad; so, the children of a predeceased person will not inherit from their grandparent. But Molvi Mohammad Usmani ¹⁸ says that the word awlad is used also to mean grandchildren. Imams Hasan and Husayn are described as awlad-i-Rasul, i.e., Prophet’s children.

Accordingly, the correct meaning of Verse IV: 11 would be: God ordains you in respect of your descendents that the share of one male is equivalent to that of two females.¹⁹

Dr. Tanzil-ur-Rahman , in contray to Usmani’s view, says the word awlad is used in two senses, real and metaphorical. It’s real meaning is “son or daughter” and metaphorical meaning is “grandson, granddaughter, grand-grandson, grand-granddaughter” to the lowest degree. Real and metaphorical meaning cannot both be meant at one and the same time and in the same context. Where the real meaning of a word exists, it is not valid to resort to its metaphorical meaning.²⁰Mention may be relevant that in a searching the word ‘awlad’ is mostly used in Qur’anic verses as metaphorical meaning.²¹

Usmani Continues, “ Islam is the religeion of nature. In the presence of orphaned grandchildren, transferring the grand’s parent property by inheritance to distant relations is against the demand of nature.”

As early as 1950 Maulana Mujammad Ali had suggested that ‘awlad’ includes grandchildren too. He argues that it is only the equitable principle that the issue of the dead offspring should take the place of their parent and get what their parent would have got, if alive. And this is also the natural interpretation of the Holy Qur’an. The Hadith: “Give the fixed portions to those who are entitle to them, and what remains should go to the nearest male ( Bu.85:6) which is interpreted by jurists to exclude grandchildren contains only a broad principle and does not show at all that the grandson is not entitled to inheritance, if there is a son living.²² Some Middle Eastern countries have attempted to solve the problem by adopting the device of “Obligatory Bequests”. Bangladesh and Pakistan have accepted the rule of representation for the same purpose.²³Accordingly, The Muslim Family Laws Ordinance 1961 was passed. It is still now in force in Bangladesh. Sec: 4 of this Ordinance states-“In the event of the death of any son or daughter of the propositus before the opening of succession, the children of such son or daughter, if any, living at the time the succession opens, shall per stirpes receive a share equivalent to the share which such son or daughter, as the case may be, would have received if alive”.However, care should be taken whether the law is inconsistent with the basic calculation of Islamic Law of Inheritance. If does, it would be to upset the finely balanced structure of the same. A.M Serjuddin observes the fact in this tune:²⁴‘While the traditionalists are uncompromisingly opposed to section 4 of the Ordinance as being contrary to the Qur’an and Sunnah, the modernists hold it to be in accord with them.The modernists rested their case on some grounds.One of them is that there is no Qur’anic verse or authoritative Hadith excluding orphaned grandchildren from inheriting. Any law depriving them of inheriting would go entirely against the spirit of the Qur’an’. As The Qur’an states “Those who unjustly eat up the property of orphans, eat up a fire into their own bodies: they will soon be enduring a blazing fire!” (04:10) . and so far the qur’an enlarges its comments relating orphaned grandchildren’ s laws,rights and procedures of the conduct in the verses below: 02: 83, 02: 177, 02: 215, 02: 220, 04: 02, 04:03, 04: 08, 04: 36, 04: 127, 06: 152, 08 : 41, 18 : 82, 59:7, 76: 08, 89: 17, 90: 15, 93: 06, 93:09, 107: 2

So, the reform is as the result of an independent interpretation, or ijtihad under which a sociably desirable rule finds its juristic justification.²⁵ On the other hand, the traditionalists hold that section 4 of the Ordinance is contrary to the Qur’an and Sunnah. They argued that it struck the principles of Qur’anic succession.²⁶ Needless to say here what they contended so far, the most convincing argument that is felt is “if the Qur’an intended the orphaned grandchildren to inherit their grandfather’ property along with the latter’ children living at the time of his death, there was nothing to prevent God Almighty from revealing His purpose in the form of an express injunction”²⁷ Secondly, if a predeceased son or daughter has a share in the inheritance of propositus, why should not his or her mother, father , wife or husband do not get share along with his or her children. On the death of a predeceased son, his wife may has to deal with as miserly life as his children. But only have the rights of grandchildren been spoken and others completely denied is not Qur’anic principle. Thirdly, the traditionalists strongly argue that the Islamic law of inheritance is not based on the principle that the needy should be helped. As a matter of fact, some of the criticism of section 4 of MFLO are quite valid. Herbert J. Liebesny, an internationally famous scholar on Islamic law, thinks that section 4 is contrary to the Shari’a law and “the most express deviation yet introduced”²⁸It is evidently seen some defects remain in distribution of property even though after this Ordinance passed as held by Anderson.²⁹ For instance, where the son’s daughter gets 1/6 with daughter (1/2) in the Islamic text, she the son’s daughter gets 2/3 with daughter (1/3) by present law, and two daughter exclude the son’s daughter but by the same law they gets now as equal ( 2/4 & 2/4 respectively) . The crucial question is how far the section 4 of MFLO 1961 is applied in both Bangladesh and Pakistan in Practice. The decision of Peshawar High Court held in Mst. Zarina Zan Vs Mst. Akbar Jan ( PLD 1975 Pesh, 252) is observed in Bangladesh. (The facts of the case are: Sha Zaman the propositus died survived by predeceased son’s (Mir Afjal) daughter Zarina Zan with a daughter Akbar Jan. The Peshawar High Court reversed the decision of lower court ³⁰ and held that the Zarina Jan share was 2/3 and the Akbar jan 1/3.³¹ But doubt is borne in mind considering the language and direction of section 4 as “per stirpes”, “a share equivalent to the share…., would have received if alive”. Here the son’s daughter gets not as per stirpes but the whole. A question is whether the intention of law maker was to provide the grandchildren only Islamic Law shares as he would get if his parents were alive or to provide more than. It may be a natural law that the grandchildren should not be got greater benefit by the legislature than he or she usually gets. Section 4 can not be interpreted to decrease the shares of other legal heirs of the deceased or exclude them from their share of inheritance.³² The reason showed in the facts of the judgment that the ordinance by adopting the principle of per stirpes distribution of inheritance meant to keep intact the share of predeceased son or daughter to be inherited by his son or daughter.³³ Noticeable, Pakistan complies with Lahore High court’s decision. In Kamal Khan V. Mst. Zainab. PLD 1983 Lahore 546 case, Lahore High court dissented from the above view of the Peshawar High court. In brief, the facts of the case that Sufaid Khan died survived by predeceased son’s (Rajoo) daughter Mst. Zainab and brother’s son Kamal Khan .. here Rajoo would inherit the entire estate of the propositus as being his only son; and Zainab would inherit half of Rajoo’s estate ( ½ of 1 or ½ ) and the remaining half would revert to the nearest agnate Kamal Khan . To clarify the decision of Lahore H.C., A person dies leaving one son’s daughter and one daughter. son’s daughter regards there as the same, and if the son were alive he got 2/3 with the daughter’s 1/3, so son’s daughter gets 2/3 of ½ or 1/3 in relation changed daughter into Full Sister at stage.?? This practice is far more adjustable³⁴ with section 4 than that of Bangladesh, but it remains defects too. In the both applications it leaves a discriminatory process that by the same situation the predeceased’ other heirs are excluded; only grandchildren are the beneficiaries of that law. Notable, in Bangladesh grandchildren are given greater portion than they would get if their father were alive. In Pakistan grandchildren are given actual portion and the remained portions are redistributed to. That’s why the application of section 4 is a big issue and it leaves still further justification. Hope our Honorable High court will take decision plausible and adjustable with Islamic text. . It is turned clear why the Prophet says- “Learn the Laws of inheritance, and teach them to the people; for they are one half of useful knowledge. (sirajiyah)

“Obligatory Bequests” a nearer Islamic method:

In Syria, Kuwit and morocco the children of a predeceased son who would be excluded from succession under sharia law ,are now entitled to either the share of their father which they would have taken ,had he survived the propositus or one third of the net estate ,whichever is less .But till now no provision has been made for the children of the deceased ‘s daughter. ³⁵

By contrast, the Egyptian law (1946, art. 76) and the Tunisian law (art. 191) include in their scope the children of a predeceased daughter or of a predeceased son’s daughter. ³⁶

Egypt, Syria, Morocco and some other countries evolved the system of “Obligatory Bequests” basing on Islamic texts with some variation among them. It contemplates that the grandparent must make a bequest to grandchildren or on failure the court is to presume its existence. The reform is based on the Qur’anic Verse II : 180which enjoins a Muslim to make bequests in favour of parents and relatives. Nevertheless, how much bequest would be reasonable and equitable is still remained unsolved.

In Egypt the children of a predeceased son or daughter is entitled to the share of their parent which they would have received ,had he or she survived the propositus ,but within the maximum limit of one third of net estate. ³⁷

In Libya the will act 1994 introduced obligatory bequest for orphaned grandchildren through predeceased sons. But Bangladesh and Pakistan have accepted the rule of representational succession for the orphaned grandchildren. The provision of “Obligatory Bequests” is not a satisfactory solution of the problem and it does not provide full justice to the to the orphaned grandchildren. For example, where four sons out of five predeceased the propositus leaving behind a dozen or mire children, two-thirds of the property would still go to the sole surviving son and only one third to them. {Ref- Kemal Faruki, op. cit., 259} The device of the obligatory bequests has been adopted in Syria (art. 257) and in Kuwait (art. 291.3); in both these countries this kind of bequest was confined to grandchildren through a predeceased son or son’s son. ³⁸

Notes and references:

Bosworth et al, ed (1993). "Mīrāth". Encyclopedia of Islam. 7 (second ed.). Brill Academic Publishers. ISBN 90-04-09419-9.
The Law of Inheritance in Islam” http://webcache.googleusercontent.com/search. Accessed on 24.8.2010
“Allah hath thus commanded you concerning your children’s (Inheritance), A male shall have as much as the share of the two females but if they be females only and above two in number, they shall have two-thirds part of what the deceased shall leave, and if there but one, she shall have the half,…... (These fixed shares) are ordained by Allah, and Allah is Ever All-knower, All Wise”[4 :11]

“You get half of what your wives leave behind, if they had no children. If they had children, you get one-fourth of what they leave. All this, after fulfilling any will they had left, and after paying off all debts. They get one-fourth of what you leave behind, if you had no children. If you had children, they get one-eighth of what you bequeath. All this, after fulfilling any will you had left, and after paying off all debts. If the deceased man or woman was a loner, and leaves two siblings, male or female, each of them gets one-sixth of the inheritance. If there are more siblings, then they equally share one-third of the inheritance. All this, after fulfilling any will, and after paying off all debts, so that no one is hurt. This is a will decreed by GOD. GOD is Omniscient, Clement“. [4:12]

“They consult you; say, "GOD advises you concerning the single person. If one dies and leaves no children, and he had a sister, she gets half the inheritance. If she dies first, he inherits from her, if she left no children. If there were two sisters, they get two-thirds of the inheritance. If the siblings are men and women, the male gets twice the share of the female." GOD thus clarifies for you, lest you go astray. GOD is fully aware of all things“. [4:176]

Islamic Laws of Inheritance – Dr Abid. Hussain
Ibid
"Men are the protectors and maintainers of women, because Allah has given the one more (strength) than the other, and because they support them from their means. Therefore the righteous women are devoutly obedient, and guard in (the husband's) absence what Allah would have them guard. As to those women on whom part you fear disloyalty and ill conduct, admonish them (first), (next), refuse to share their beds, (and last) beat them (lightly); but if they return to obedience, seek not against them means (of annoyance) for Allah is Most High, Great (above you all). (Ali's version of the Koran, Qur’an, 4:34) the verse has various identical meaning. See at http://www.bible.ca/islam/islam-wife-beating-koran-4-34.htm

7.      www.muslimpersonallaw.co.za/inheritancedocs/position%20

8.      Rumsey, (1825-1899) from King's College, University of London. “A. Mohammedan Law of Inheritance”. (1880) Preface

9.      The founder of algebra, and other medieval Islamic mathematicians            The Book of al-jabr (restoring) and al-muqabala (balancing) (henceforth Algebra) was written by al-Khwarizmi in Baghdad sometime during the reign of the ‘Abbasid caliph al-Ma’mun (reigned 813-833). The first half of the book one delves into the topic of algebra as it existed on its inception. . There are problems on mercantile transactions, geometry, and testimonies.  It is the examples involving the distribution of estates which take up the bulk of the applications.  Islamic law, as recorded in the Qur’an, offers very complicated rules for the distribution of estates.  This accounts for the weight given to such problems in the Algebra. There are so many different problems worked out on inheritances alone that we might declare the work to be a handbook for judges who are involved with such cases. See details: Jeff Oaks, University of Indianapolis “Was al-Khwarizmi an applied algebraist?”

10.  Gandz, Solomon (1938). "The Algebra of Inheritance: A Rehabilitation of Al-Khuwarizmi". Osiris (University of Chicago Press) 5: 319–91. See also -  www.muslimpersonallaw.co.za/inheritancedocs/position%20

For men is a share of what the parents and close relatives leave, and for women is a share of what the parents and close relatives leave, be it little or much - an obligatory share.
Ref :Women in Islam Versus Women in the Judaeo-Christian Tradition The Myth and The Reality By: Sherif Abdel Azim, Ph.D.- Queens University, Kingston, Ontario, Canada. PART 12 - FEMALE INHERITANCE.
Ibid
47. B. Aisha Lemu and Fatima Heeren, Woman in Islam (London: Islamic Foundation, 1978) p. 23.

15.   Ibid.

16.   Dr. Tanzil-ur-Rahman , “Succession under MFLO”,98

17.   02:43,02:177,02:215,02:220,04:02,04:03,04:05,04:10,04:36,04:127,06:152,08:41,17:34,18:82,59:07,76:08,89:17,90:15,93:06,93:09,107:02.

18.   Maulana Mujammad Ali, The Religion of Islam,705) see also: A.M Serjuddin, Sharia Law and Society, P-80

19.   A.M Serjuddin, Sharia Law and Society, P-77

20.   A.M Serjuddin, “Sharia Law and Society”, P-78

21.   N.J Coulson, Succession in the Muslim Family

22.   Tanzilur-Rahman, Muslim Family Laws Ordinance,92-4

23.   See: A.M Serjuddin, Sharia Law and Society, P-83

24.   Herbert J. Liebesny “Stability and Change inIslamic law, “the Middle East Journal 21 (1967) : 34

25.   J.N.D Anderson Recent Reforms in the Islamic Law of Inheritance

26.   The issue was whether the whole of Mir Afjal’s share would go to his only daughter Zarina Jan or his sister Akbar Jan would also inherit from him according to the shari’a. The lower appellate court held Zarina Jan would inherit one half of the two-thirds of the property to which her father Mir Afjal was entitled and the other half would go to his sister, so that the share of Zarina Jan was 1/3 and that of Akbar jan 2/3 of the total property

27.   Ibid., at 253-54. see also A.M Serjuddin, p-99-100

28.   Ibid., at 1057

29.   Mst. Zarina Zan Vs Mst. Akbar Jan ( PLD 1975 Pesh, 252

30.   Mst. Zainab v. Kamal Khan, PLD 1990 SC 1051 at 1053-54. The Supreme Court      (Pakistan)decided that the findings of Lahore High Court were based on correct interpretation of section 4.

31.   Syed Khalid Rashid, Muslim Law.

32.   Verse II : 180- “ It is prescribed, when approaches any of you, if he leaves any goods, that he makes a bequest to parents and next of kin, according to reasonable usage; this is due from god-fearing.” note that the majority of jurists hold that the “Verse of bequests” was abrogated by the “Verse of inheritance” but Al Shafi’I and Ibn Hazm hold that it was abrogated only regarding those relatives who actually received a share of inheritance

33.   Sharia Law and Society, “Tradition And Change In The Indian Subcontinant” By- A.M.Sherajuddin.

34.   Ibid

Latent shortcomings in section 4 of Muslim Family Law Ordinance Posted by Muhammad Ramzan on Jan 14th, 2010 // No Comment}
Encyclopedia, Iranica. http://www.iranica.com/articles/inheritance-ii.

37. Latent shortcomings in section 4 of Muslim Family Law Ordinance;Posted by Muhammad Ramzan on Jan 14th, 2010 // No Comment.

38. Latent shortcomings in section 4 of Muslim Family Law Ordinance;Posted by Muhammad Ramzan on Jan 14th, 2010 // No Comment.

CHAPTER V:

THE PROBLEM OF POLYGAMY

SYNOPSIS

5.1 Historical Background of polygamy

5.2 Polygamy in Islam: a controversy

5.3 Modern reforms relating to polygamy

5.4 Polygamy: past and future

5.1. Historical Background of polygamy:

The concept of ‘Polygamy’¹ is rooted in very ancient history. It is found in many human societies. Although it may not be possible to ascertain when and where this practice originated, it can be supposed that many religions i.e., Judaism, Christianity, Hinduism and Islam had influence over the devolvement of the practice.

In Judaism, Multiple marriages was considered a realistic alternative in the case of famine, widowhood, or female infertility like in the practice of levirate marriage, wherein a man was required to marry and support his deceased brother's widow, as mandated by Deuteronomy 25:5–10. Despite its prevalence in the Hebrew bible, scholars do not believe that polygamy was commonly practiced in the biblical era because it required a significant amount of wealth.²

The Torah, Judaism's central text, includes a few specific regulations on the practice of polygamy, such as Exodus 21:10, which states that multiple marriages are not to diminish the status of the first wife (specifically, her right to food, clothing and conjugal relations).³

In Christianity, Many of the Bible's Old Testament prophets had more than one wife, suggesting that God at least permits plural marriage some of the time. A few examples:⁴

1. Abraham and his wife Sarah were unable to bear children, so Sarah gave her handmaid Hagar to him in marriage. Hagar successfully bore Abraham a son (Genesis 16: 3-15.)

2. Jacob had four wives: he worked for seven years to marry Leah, then seven more for her sister Rachel (Genesis 29: 17-28.) He also married Rachel's handmaid Bilhah and Leah's handmaid Zilpah (Genesis 30: 4, 9.)

3. The fact that Abraham and Jacob continued to act as God's prophets even after marrying a second wife shows that God allowed polygamy in those instances. Polygamists were also admitted into heaven: Jesus in the New Testament even referred to heaven as "Abraham's bosom" (Luke 16: 22.)

But Scriptural evidence shows that God does not always allow polygamy. Statements forbidding plural marriage are also found in the Book of Mormon (see Jacob 2: 27,) the New Testament (see Timothy 3: 2) and even in places in the Old Testament (Deuteronomy 17: 17.) This suggests that during some periods plural marriage is acceptable and at other times God does not permit it.⁵

In Hinduism, Polygamy was practiced in many sections of Hindu society in ancient times. There was one example of polyandry in the ancient Hindu epic, Mahabharata, Draupadi marries the five Pandava brothers as a message to human society. Regarding polygamy, in Ramayana, father of Ram, King Dasharath has three wives, but Ram has pledged himself just one wife. The Hindu god, Lord Krishna, the 8th incarnation of the Hindu god Vishnu had 16,108 wives at his kingdom in Dwarka. Although there is controversy regarding this because some Hindu scholars argue that it was not true.⁶

In Buddhism, marriage is not a sacrament. It is purely a secular affair and the monks do not participate in it. Hence it receives no religious sanction. For the reason, polygamy was not dealt in its scriptures.⁷

In Islam, polygamy was a very hotly issue debated since the revelation of the Sura Nisa Aiyat no: 3. It reads: "If you fear that you shall not be able to deal justly with the orphans, marry women of your choice, two or three or four; but if you fear that you shall not be able to deal justly with them, then only one"

Some of Islamic jurists says it is permitted and others argue it is not permitted as the condition imposed by the Qur’an (4:3) refers itself prohibition. Therefore the plain text of the Sura Nisa refers the permission of polygamy with condition. However, polygamy is not a rule but an exception in Islam.

5.2 Polygamy in Islam: a controversy:

Polygamy in Islam has been a hotly debated issue. Polygamy is not a rule but an exception and monogamy is a normal direction for Muslim. Noteworthy, it was common practice among most ancient nations; and prior to the advent of Islam it was also widespread in Arabia because of the abundance of orphans and widows caused by frequent tribal warfare’s.⁸ The Qur’an reformed the existing practice of unlimited polygamy by imposing restrictions on the number of wives a man might concurrently have and also regulating its incidence. Verse IV : 3, known as the “verse of Polygamy” says :

"If you fear that you shall not be able to deal justly with the orphans, marry women of your choice, two or three or four; but if you fear that you shall not be able to deal justly with them, then only one"

The classical jurists thinks that this verse as giving permission to a man to marry up to four wives. But the modernist thinkers have contended that it really mean to legislate monogamy and gave permission for polygamy only under exceptional circumstance. The traditionalist viewpoint regarding the verse is that during the days of “ignorance” it was the general practice amount the guardians of orphan girls to marry them themselves for the sake of their properties without bothering to fulfill their conjugal obligations. The Qur’an enjoined that if they did not intend to keep their conjugal relations with the orphan girls they should not marry them. Instead, they should marry other women of their liking up to the limit of four.⁹ Thus a man is legally free to contract polygamous marriages provided he does not exceed the maximum number of four at any one time.¹⁰

And the key clauses of the Verse 3 are “you will not be able to do justice to the orphans" and "you may marry two or three or four women whom you choose." Maududi (d. 1979) is a respected traditional and conservative commentator on the Qur’an. So we should let him explain what they mean. He says that the clauses accomplished three things:

First, in pre-Islamic Arabia, guardian men married the orphan girls under their care, so the Qur’an says that they should direct their attention to women other than the orphans.

Second, in pre-Islamic days men used to marry a limitless number of women and grab the property of their orphan nephews and nieces to support their wives.

Third, in pre-Islamic days, men could marry as many women as they wanted and "treat them cruelly and unjustly" with impunity. So the Qur’an limits the number to four, and only if the man could keep care of them all: "But if you apprehend that you might not be able to do justice to them."

Maududi concludes that probably all three correctives were intended by this verse (vol. 1, pp. 306-07, note 4).¹¹

To interpret a Qur’anic Verse, the interpreter must have to know the background behind the revelation of the verse. Let’s know it first before going hot debate of the topic.

‘Aysha bint Aubakr, i.e. Prophet’s wife ( pbuh ) , narrated the background of the revelation of this verse. She said that this verse was revealed by Allah as a solution or answer to the question posed by Urwah Ibn Zubair , a son of Aysha’s sister ( Asma ). ‘ Aysha narrated that on the Urwah asked her about the origin of the permission for polygamy, i.e. the possibility for men to marry up to four wives. ‘Aysha replied that this verse was originally revealed to deal with the matter of the orphan girl who was under the supervision of her guardian. Her guardian, i.e. wali, was interested in the wealth the orphan girl possessed as well as in her beauty and therefore, he wanted to marry her without paying a proper dower to her, in other words, he wanted to possess her wealth in an unjust way. In response to this unjust intentions, Allah revealed this verse.

In an interesting recent article a lawyer contends that Verse IV : 3 relating to polygamy is an extension of the law relating to orphans in Verse IV : 2. Read in the context of the historical circumstances in which Verse IV:3 was revealed i.e. following the battle of Ohud when large number of Muslims were killed nad their widows and orphans left destitute and homeless with nobody to look after them it is obvious that the permission to marry more wives than one was not license for and individual but was an emergency measure for the rehabilitation of the rehabilitation of the displaced widows and the uprooted orphans in the socio-economic life of the community.”¹² He concludes that monogamy is the ordinary law of marriage in normal circumstances. The view that Verse IV:3 applies only to orphan girls and widows in war emergency and does not allow plurality of wives from amongst other women is also shared by Maulana Omar Ahmed Osmani.¹³

Interpretation of ‘Justice Clause’

Ye are never able to be fair and just as between women, even if it is your ardent desire : But turn not away (from a women) altogether so as to leafed her (as it were) hanging (in the air).

The key condition precedent of Verse 3 is to treat the other wives justly and fairly. The interpretation of ‘Just among wives’, the Qur’an itself state in the above mentioned Verse.

As early as the reign of Al-Masun this was the Mutazila position on polygamy.¹⁵

The traditionalists point out that the latter part of the above verse presupposes the existence of several wives. They reject the modernist interpretation of the term justice and say that it signifies equality in material things like food lodging and clothing only.

Professor Fazlur Rahman the guru of the modernist school does not accept of the interpretation of the term justice as equality in external dealings only and holds that the Qur’anic objective is monogamy.¹⁶

Other verses of the Qur’an also show that the Qur’an envisages a relationship of love and mercy between the husband an the wife not merely equality in external dealings¹⁷ when therefore, the Qur’an says that it is impossible to do justice among women it is clearly saying that it is impossible to do justice more than one women in the same way”. Professor Fazlur Rahman further points out that the fundamental concept of the zauj or “pair” in the sense of one man and one wife which occurs in the Qur’an more than twenty times also shows that the Qur’anic concept of the normal family life is monogamous. Again he contends when Verse IV : 20 says : “if you intend to replace one spouse with another ...” it clearly assumes that if one desires to have another wife the normal method is to bring her in the place of the first wife rather than add her to the latter.¹⁸

Sir Syed Ahmad Khan who was greatly influenced by Mutazila doctrines contends that polygamy is subject to justice and justice is not possible between wives. Therefore, monogamy should be the general rule and polygamy allowed only in exceptional cases.¹⁹ Shaikh Muhammad Abduah of Egypt one of the greatest and most influential ulama of modern times, holds that no husband can be just to more than one wife under modern living conditions.

5.3 Modern reforms relating to polygamy:

Polygamous marriages are recognized civilly in nearly fifty countries, mostly Muslim and African countries.^20,21 In that region, Israel, Turkey and Tunisia are the notable exceptions.²² Almost a dozen countries that do not permit polygamous civil marriages recognize polygamous marriages under customary law, though in the eyes of the government, they are not considered to be genuine marriages. (Wikipedia, the free encyclopedia).

Notably, many Muslim countries have legislation either to permit or restraint or prohibit it totally.

A comparative study of the reforms effected in Muslim countries has been mentioned below. Some countries e.g, Saudi Arabia Qatar. Bahrain, Oman, Sudan and Brunei, have enacted no legislation restraining or restricting or restricting the practice of polygamy and the traditional law still prevails. The countries which have introduced reforms may be divided into three groups. The first group of countries including Lebanon, Jordan, Morocco and Egypt have imposed no obvious restrictions on polygamy but conferred on women rights to make stipulations in marriage contracts against second marriage of the husband during the lifetime of the first wife. Section 38 of the Ottoman Law of Family Rights 1917 which though repealed in Turkey is still applicable to all Sunni Muslims in Lebanon provides:

Where a women stipulates with the husband that he would not marry another wife and that if he does so she or the second wife would stand divorce the contract of marriage shall be valid and the condition enforceable.²³

The Jordanian Law of Family Rights 1951 allows the wife to stipulate in the marriage contract that the husband shall not take another wife during the continuance of their marital union and entitles the wife to sue for divorce if the husband does not honour the stipulation. The Moroccan Code of Personal Status 1958 reiterates the Qur’anic injunction that if any injustice between the wives is feared, plurality of wives is not permitted.

The Law No. 100/ 19885 of Egypt follows the same trend and gives right to the wife whose husband has married again to apply for divorce if she suffers a material or moral injury as a result of her husband’s second marriage, even if there is no stipulation in the contract that he may not marry a second wife during the subsistence of her marriage with him.²⁴ If the second wife does not know until after her marriage with him that her husband is already married she is also entitled to apply for divorce..

In the second group of countries consisting of Syria, Iraq, Iran before 1979. Algeira, Indonesia and the Malaysian states of Sarawak and Selangor reforming legislation established judicial control over polygamous marriages. Syria was the first country to impose statutory restrictions on the practice of polygamy. The Syrian Law of Personal Status 1953 provides that requests for permission to marry must be presented to the court and the court will refuse to a person who is already married permission to marry a second wife where it is established that he cannot support two wives.²⁵ The explanatory memorandum accompanying the law states that this restrictive provision is based on the Qur’anic Verse of Polygamy itself. A second marriage contracted without the court’s permission is valid; the husband is liable to penal sanctions for contravening the law.

The Iraqi Law of Personal Status, enacted in 1959 and amended in 1963 requires a man who desires to contract bigamous marriage to apply to the court permission. The court shall give him such permission if it is satisfied that (i) he is financially capable of supporting more than one wife (ii) there is legitimate interest for contracting the second marriage, e,g, the first wife is barren or physically incapacitated and thus unable to cohabit and (iii) there is no fear that the husband will not treat each wife with equal justice.²⁶

In Iran, under the Family Protection Act. 1975 which replaced a somewhat similar law of the same name promulgated in 1967,²⁷ but was itself abrogated by the revolutionary regime in 1979 a married man willing to take a second wife was required to seek the prior permission of the court. The court would only grant such permission if the first wife either consented to the marriage or was herself unable to cohabit.²⁸ Should the husband contract a second marriage in defiance of the Act then both he and his second wife, if she was aware of the defiance were liable to imprisonment, for six months although the second marriage would itself be legally valid. The wife was entitled to petition for divorce on the ground of her husband’s second marriage.

Under the Algerian Family Code 1984 the court will grant a husband permission to take a second wife if it is satisfied that there is a clear and genuine need for it and that he is able and willing to treat the wives and the children with equality. Here also the first wife is entitled to seek dissolution of her marriage on the sole ground of the husband’s second marriage.²⁹ Under the Indonesian legislation of 1975 a man may be given permission by a court to contract a second marriage if and only if his wife cannot perform her conjugal duties or becomes crippled, or terminally ill, or cannot give him children and (a) his present wife or wives give him permission. (b) his ability to maintain all the wives and children is certain and (c) his ability to be just to all his wives is certain. The law of the malaysian state of Sarawak permits and man to marry more than one wife only if he can prove that he is financially capable of supporting more than one wife.³⁰

The Selangor Family Law Enactment 1984 allows a man to contract a second marriage if it is established that the husband has the financial means to support two wives the proposed marriage is both just and necessary and the husband has the capability of according equal treatment for both wives.³¹

In the third group of countries namely Turkey, Cyprus and Tunisia and among the Druzes of Lebonon and of Syria and the Ismaili Khoja community of East Africa, polygamy has been altogether prohibited. Turkey is the first so far the only Muslim country to have completely abandoned the Shari’a law in favour or secular laws of Western inspiration. The Turkish Civil Code of 1926 provides that no person shall marry again unless he proves to the satisfaction of the court that the earlier marriage has been dissolved by the death of the other party or by divorce or by a decree of nullity and that a second marriage shall be declared invalid by the court where it is established that at the date of the marriage one of the parties is already married.³²

Tunisia is the first country to have abolished polygamy within the framework of the Sharia. Article 18 of the Tunisian Code of Personal Status, 1957 provides.

Plurality of wives is prohibited. Any person who being already married and before the marriage is lawfully dissolved marries again shall be liable to imprisonment for one year or a fine of 240.000 francs or to both, even if the second marriage is in violation of any requirements of this law.³³

There was considerable disagreement over the issue whether a polygamous marriage contracted in contravention of Article 18 was valid. The Amendment Law of 1964 settled the issue by declaring such a marriage to be invalid. The juristic basis of the prohibition of polygamy was based on the argument that the Verse IV : 3 required the husband to treat the co-wives with complete impartiality but under modern social and economic conditions such impartial treatment was a practical impossibility.³⁴

In Bangladesh, introduction of new regulations on polygamy by Muslim Family Laws Ordinance1961, constraints placed on polygamy. Section 6 (1) of the Ordinance require application to the local Union Council for permission of second marriage and notification of existing wife/wives; penal sanctions for contracting a polygamous marriage without prior permission. There are no sanctions for failing to obtain existing wife’s permission and subsequent marriage is not invalidated for lack of registration or failure to obtain official permission.³⁵

In Pakistan, MFLO 1961 constraints Polygamy placed on by requirement of application to the local Union Council for permission and notification of existing wife/wives, backed up by penal sanctions for contracting a polygamous marriage without prior permission; husband’s contracting polygamous marriage in contravention of legal procedures is sufficient grounds for first wife to obtain decree of dissolution.³⁶

It is notable that about 30 crore Muslim live in India. Here, Muslims are governed by classical law. Indian Criminal Procedure Code provides that a woman refusing to live with her husband on just grounds is still entitled to maintenance, and just grounds expressly include the husband’s contracting of a polygamous marriage; in Itwari v. Asghari (AIR 1960 All 684) onus was put on husband to prove that his subsequent marriage did not constitute insult or cruelty to first wife, and court shouldn’t enforce restitution of conjugal rights under such circumstances.

Since polygamy is banned by law for the Hindus, as a result, an increasing number of Hindu men have been showing a tendency to convert to Islam whenever they want a second wife. Finally, the Indian Supreme Court on the May 5, 2000 plugged this last legal loophole for good for all potential Hindu bigamists. Now, if it's found that a newly converted Muslim has embraced the faith only to embrace another wife or two, he should be prosecuted under the Hindu Marriage Act and the Indian Penal Code. Thus, bigamy for all Hindus has been ultimately outlawed.³⁷

The above survey shows that at one extreme legislative reforms have been made which has abolished or at least put a restraint on polygamy within the framework of the modernists views.

5.4 Polygamy: past and Future

The emergence of social polygamy is unknown. The practice stretches back thousands of years. The Bible did not condemn polygamy. To the contrary, the Old Testament and Rabbinic writings frequently attest to the legality of polygamy. King Solomon is said to have had 700 wives and 300 concubines (1 Kings 11:3) Also, king David is said to have had many wives and concubines (2 Samuel 5:13). The Old Testament does have some injunctions on how to distribute the property of a man among his sons from different wives (Deut. 22:7). The only restriction on polygamy is a ban on taking a wife's sister as a rival wife (Lev. 18:18). The Talmud advises a maximum of four wives.³⁸

Prophet of Islam had 10 wives. Noticeably, the characteristics of Mohammad (SAW) advised to be a model of all Muslim except the affair of his marital matter. The Qur’an, contrary to the Bible, limited the maximum number of wives to four under the strict condition of treating the wives equally and justly ( 33:50).³⁹

Moreover, Jesus has not spoken against polygamy though it was practiced by the Jews of his society. European Jews continued to practice polygamy until the sixteenth century.⁴⁰Polygamy is most widely practiced by Muslims in West Africa (where it is also widely practiced by non-Muslims), as well as in certain traditionalist Arabian states such as Saudi Arabia and the United Arab Emirates.⁴¹

Influencing by history and the long religious traditions, it cannot be seriously denied that polygamy is a legitimate religious belief. Jonathan Turley, a professor of George Washington Law School, says

“Indeed, studies have found polygamy present in 78% of the world's cultures, including some Native American tribes. (While most are polygynists — with one man and multiple women — there are polyandrists in Nepal and Tibet in which one woman has multiple male spouses.) As many as 50,000 polygamists live in the United States.” ⁴²

Experience shows that as long as the ratio of number of male and female is nearly equal, polygamy regards as social evil. But whenever there are outnumber of females than male, the question may be posed to civilized societies what to do? Dr. Sherif Abdel Azim analyse the relevawnt question finds increasing number of male around the world including America and African nations. His findings and possibility of tackling the situation are

“ In most human societies, females outnumber males. In the U.S. there are, at least, eight million more women than men. In a country like Guinea there are 122 females for every 100 males. In Tanzania, there are 95.1 males per 100 females. What should a society do towards such unbalanced sex ratios? There are various solutions, some might suggest celibacy, others would prefer female infanticide (which does happen in some societies in the world today!). Others may think the only outlet is that the society should tolerate all manners of sexual permissiveness: prostitution, sex out of wedlock, homosexuality, etc. For other societies, like most African societies today, the most honorable outlet is to allow polygamous marriage as a culturally accepted and socially respected institution., many young African brides , whether Christians or Muslims or otherwise, would prefer to marry a married man who has already proved himself to be a responsible husband. Seventy-six percent of the women in a survey conducted in Kenya viewed polygamy positively. In a survey undertaken in rural Kenya, 25 out of 27 women considered polygamy to be better than monogamy. After a careful study of African polygamy, Reverend David Gitari of the Anglican Church has concluded that polygamy, as ideally practiced, is more Christian than divorce and remarriage as far as the abandoned wives and children are concerned.”

Considerably, some of the countries have a larger number of females as compared to males. India is an glaring example. The reason behind is the infanticide of females.

A UN researcher says the prevalence of abortion and infanticide targeting girls has caused a gender imbalance that has resulted in 200 million fewer women than there should be worldwide. The researcher says the girls are "missing" because of a practice he calls "gendercide.⁴³

After the Second World War, there were 7,300,000 more women than men in Germany (3.3 million of them were widows). There were 100 men aged 20 to 30 for every 167 women in that age group.⁴⁴ At present, it is still manageable to tackle imbalance of gender by whatever means and polygamy is strongly prohibited or restricted throughout the world. The big question is if this imbalance that means the ration of females constantly increase in number, then, what policy will be taken to combat the situation, still monogamy, polygamy or other’s.

Notes and references:

1. By Dr. Zakir Naik's : Polygamy means a system of marriage whereby one person has more than one spouse. Polygamy can be of two types. One is polygamy where a man marries more than one woman, and the other is polyandry, where a woman marries more than one man. In Islam, limited polygamy is permitted; whereas polyandry is completely prohibited.

2. http://www.chabad.org/library/article_cdo/aid/770990/jewish/Why-does-Torah-law-allow-polygamy.htm

3. Gene McAfee "Sex" The Oxford Companion to the Bible. Bruce M. Metzger and Michael D. Coogan, eds. Oxford University Press Inc. 1993. Oxford Reference Online. Oxford University Press. 19 March 2010. See details: “Polygamy” From Wikipedia, the free encyclopedia, http://en.wikipedia.org/wiki/Polygamy. Accessed on 12.12.2010.

4. “Polygamy” From Wikipedia, the free encyclopedia, http://en.wikipedia.org/wiki/Polygamy. Accessed on 12.12.2010.

5. Ibid.

6. Ibid.

7. http://www.accesstoinsight.org/lib/authors/dewaraja/wheel280.html. Accessed on 12.10.2010.

8. S. Mahmusurnasir, “ Polygamy in Islam”, PLD 1968 ( Vol.20) Journal 60. see also R. Robert, The Social Laws of the Qur’an, 8. see details : A.M Serjuddin, “Sharia Law and Society”, P-117.

9. Dissent, 1594-5.

10. A.M Serjuddin, “Sharia Law and Society”, P-118.

11. James M. Arlandson. “Polygamy in the Qur’an”.

12. Raja Sayd Akbar Khan, opt sit., 9.

13. See Aftab Hossain, Satus of Women in Islam, 494-6.

14. A.M Serjuddin, “Sharia Law and Society”, P-118.

15. Syed Ameer Ali, “Mohammadan Law”. see also- A.M Serjuddin, “Sharia Law and Society”, P-118.

16. Fazlur Rahman, “ The Controversy”, 417.

17. The Qur’an [30:21]

18. Fazlur Rahman, “ The Controversy”, 417. See also A.M Serjuddin, “Sharia Law and Society”, P-120.

19. Danial Latif, “ Change in the Muslim law” in Tahir Mahmood (eds.), Islamic law in modern India() (Bombay, 1972), 105.

20. "Polygamy in Muslim countries". Waleg.com. June 26, 2005. Retrieved October 21, 2010.

21. "Polygamy, Practiced in Secrecy, Follows Africans to New York City". Wehaitians.com. Retrieved October 21, 2010.

22. "Tunisia: Notable Features: Polygamy". Law.emory.edu. Retrieved October 21, 2010.

23. Tahir Mahmood. Family Law Reform in the Muslim World (Bombay, 1972), 25.

24. Jamal J. Nasir. The Status of Women, 25-6.

25. Doreen Hinchecliffe, “Polygamy in Traditional and Contemporary Islamic law”, 20.

26. Mohamed AL-Nowaihi, “Changing the Law on Personal Status in Egypt within a Liberal Interpretation of the Shari’a in Michael Curtis(ed.). Regional and Politics in the Middle East (Boulder, Colorado, 1981) 114”.

27. See Doreen Hinchchiffe. “The Iranian Family Protection Act”. ICLQ 17 (1968): 516-7.

28. Norman Anderson. Law Reform in the Muslim World (London, 1976). 112-3.

29. David Pearl. A Textbook on Muslim Personal Law (2^nd ed., London 1987). 81.

30. Tahir Mahmood. Family Law Reform, 202.

31. See: “A.M Serjuddin, Sharia Law and Society, Tradition and change in the Indian Subcontinent, P-180, R-129.

32. Tahir Mahmood, Family Law Reform, 27 29.

33. See: “A.M Serjuddin, Sharia Law and Society, Tradition and change in the Indian Subcontinent, P-153”

34. Ibid.

35. “Possibilities of Reform Through Internal Initiatives” by the Law and Religion Program Emory University, Atlanta, GA January 7, 1998. See details http://www.law.emory.edu/legal/bangladesh.html.

36. “Possibilities of Reform Through Internal Initiatives” by the Law and Religion Program Emory University, Atlanta, GA January 7, 1998. See details http://www.law.emory.edu/legal/pakistan.html.

37. “Polygamy in Hinduism” for details, see

http://en.wikipedia.org/wiki/Polygamy#Hinduism http://www.islamawareness.net/Polygamy/poly_nm_article0004.html.

38. Leonard J. Swidler, “Women in Judaism: the Status of Women in Formative Judaism” (Metuchen, N.J: Scarecrow Press, 1976) p. 115.

39. Women in Islam - Part 14- Polygamy?

www.islamicity.com/mosque/w_islam/poly.htm. Accessed on 14.09.2010

40. Women in Islam Versus Women in the Judaeo-Christian Tradition

The Myth and The Reality By: Sherif Abdel Azim, Ph.D.- Queens University, Kingston, Ontario, Canada

41. http://www.spiritus-temporis.com/polygamy/polygamy-worldwide.html

42. “Polygamy Laws Expose Our Own Hypocrisy” by Jonathan Turley

Shapiro Professor of Public Interest Law at George Washington Law School

USA, October 3, 2004. see details at http://patriarchsjournal.wordpress.com. Accessed on 15.10.2010

43. Researcher: Abortion, Infanticide Means 200 Million Fewer Woman

by Steven Ertelt LifeNews.com Editor November 21, 2005.

44. Ute Frevert, Women in German History: from Bourgeois Emancipation to Sexual Liberation (New York: Berg Publishers, 1988) pp. 263-264.

Concluding remarks:

In the late sixties Ferreland Abbott raised a question whether reform is possible within Muslim Shari’a law. This question came to the mind of the Professor of History of the Tufts University, USA, as he found no organization in Islam to offer changes within it. Nor does it follow any leadership, except for prayer, who may put forward new interpretations of Shari’a law. This was the consequence of principle of taqlid. A very long time’s closing the door of Ijma has resulted many problems unsolved. Despite a growing national spirit among Muslims day by day, absence of individual interpretations (given by a leader) of Islamic law hinders the reform process. Maulana Ihtishan-ul-Haq has viewed against the reforms those go not within the Qur’an and Sunnah. He says:”The teachings and Injunction of the holy Qur’an and the Sunnah shall be the authoritative guidance and final word for all the infinity of events that may take place in this universe”. There is no doubt that the two sources are the authoritative guidance and final word for all the perpetuity of events that may occur in this world. It is evident that the interpretation of the some verses of the Qur’an still remains scope of further research, it was in past, is at present and will in future too. Consequently, this generation has faced new challenges those were not solved by the pre-jurists. This necessitates the reinterpretation of the Qur’an. But it is seen in some Muslim countries’ reinterpretations makes frequently in deliberate violation of Islamic teachings. Turkey is the stunning example. The reasons behind it, the lacking of spirit of the main text and highly influence of western cultures and ideas in field of law. West follows in making laws reasons and science but Islamic teachings guide to follow in making laws its primary sources and in interpreting them, reason, justice and conscience are referred to take in consideration.

In question of child marriage, it was not the law but a mere practice in Islam. Islam only teaches to arrange marriage of a child when they reach at puberty. As marriage is regarded civil contract, there was a custom to contract for marriage in future. Islam always forbids not to do what is detriment to health and mind. There is no scope to say child marriage is sunnah as the Qur’an declare the marriage’s matters of Prophet is no for His Ummah. But the reforms do not observe the condition of puberty as they limit marriageable time shown in table above (see chapter II, ).

The debate over Talaq-ul-Bidaat have been elaborated in light of the Qur’an and Hadith. The elaboration has a finding to confirm ‘ Talaq-ul-bidaat’ is not in conformity with them. The consequent is to come in actual teaching of Qur’an by reforms. But they put some stipulation such as obligatory giving notice (MFLO, 1961, Section 7) is not conformed to them. Some of the reforms are as follows: Syrian women are entitled to register a right to divorce in their marriage contracts. In Iran, the divorced wife has a right to half the property acquired during the marriage. In Algeria, Divorce is to be legal, it must be carried out in court. Tunisian divorce law grants equal rights to men and women in terms of initiating a divorce. Divorces must be carried out in a court. So the reform has resulted weakening the power of unfettered right of husband. And the reconciliation has been put to court’s review.

It has been shown above in chapter IV that what Islam changes in best way of distribution. The only rule which bears hardship is that the right of representation is not recognized in Islamic law. So, a son, whose father is dead, shall not inherit the estate of his grandfather together with his uncles. Therefore, the reason behind exclusion of grandson is the consequence of the principle “the nearer exclude the more remote”, and the nature or object of it is not intended to exclude him but to make consistent with precedence in classes. Islam imposes mandatory duty on guardians to maintain orphan (predeceased son’s son), to bequeath and to ensure his right in estate. In this perspective, The Qur’an states “ And when the relatives and the orphans and Al-Masakin (the needy) are present at the time of division, give them out of the property, and speak to them words of kindness and justice (04:08). This is from which Islamic scholars were in consensus after analyzing the verse mentioned above to enact law concerned. It is evidently seen some defects remain in distribution of property grandchildren by ‘theory of Representative’ as Anderson’s analyses. Therefore, Egypt, Syria, Morocco and some other countries evolved the system of “Obligatory Bequests” basing on Islamic texts with some variation among them. It contemplates that the grandparent must make a bequest to grand-children or on failure the court is to presume its existence. It may not be satisfactory in some cases and be nor conform to Shari’a. It remains still more research in this topic.

It is often questioned whether polygamy is allowed in Islam. Chapter IV : 3 allows polygamy with stipulation of just and fairness among wives. Modernists says polygamy is prohibited according to present state of mind that can not judge equally and fairly. But equality and fairness, according of traditionalists, are clothes, foods etc. not love and emotion because of their unmeasured nature. Dr. Zakir Nayik, an eminent jurists, says “Islam is the only religion who says marry only one”. He added that limited polygamy is allowed for meeting future imbalance of gender.

In fine, to response to challenge of modernity, Farid Wajdi’s comment may be pertinent. he (in his book; al-Madaniyya wa'l-Islam "Islam and Civilization"), pointed out that when there was a conflict between the laws of modern civilization, and those of Islam, the true Islam is in conformity with civilization. Thus the discoveries in Europe of social progress and happiness are really laws which already exist in Islam. He lists examples of these Islamic laws now practised in the west, such as: "the freedom from the tyranny of priests, human equality, the consultative principle in government, the rights of the intellect and science, the existence of unchanging natural laws of human life, intellectual curiosity about the order of nature, freedom of discussion and opinion, the practical unity of mankind on a basis of mutual toleration, the rights of man's disposition and feelings, the acknowledgement of human welfare and interest as the final purpose of religion, and the principle of progress" (Hourani 1988:163). In other words Islam, seemingly 'dissolved' into modern thought.

The hotly question is whether the new mechanisms brought by reforms in Muslim family law is maintainable in accordance with the Shari’a. The answer can not be given properly in this sort of attempt. The more study and research are necessary to make a solution; otherwise, if is late, the jurists of particular countries who do not have enough knowledge about Shari’a make laws against Islamic spirits. The main conspiracy comes from the Convention of CHEDAW. Most of the Muslim countries become a party to it though with reservations. It may be felt, after degrading more value of spirit of Islam, that the convention aims to codification of all personal laws will be a great obstacle for the finely balanced social laws of Islam. It is time to further evaluate the social laws of Islam.

BIBLIOGRAPHY:

1) Mohammad Nazmi, Mohammadan Law (Allahbad: Central Law Publications, 2005).

2) Syed Ameer Ali, Muhammedan Law, Vol.II, 5^th Ed. (re-printed) 1985.

3) David Pearl and Werner Menski, Muslim Family Law (London: Sweet & Maxwell, 1998).

4) Tahir Mahmood, The Muslim Law of India, 3^rd Ed. (New Delhi: LexisNexis Butterworths, 2002).

5) Tahir Mahmood, Personal Laws in Crisis (New Delhi: Metropolitan, 1986).

6) Taslima Monsoor, From Patriarchy to Gender Equity: Family Law and Its Impact on Women in Bangladesh (Dhaka: University Press Limited, 1999).

7) A.S.M FYJEE , ‘OUTLINE OF MOHAMMEDAN LAW’

8) AQIL AHMED, ‘ The Principle of Mohammedan Law

9) Shahdeen Malik, Muslim Family Courts Ordinance, 1985 and Relevant Reported Judgments (Dhaka: 2005), an unpublished reader for the students of the School of Law, Brac University, Dhaka.

10) Taslima Monsoor, Judiciary and Gender on Trial: Reported and Unreported Decisions of Family Courts (Dhaka: The British Council).

11) Lotika Sarkar and B. Sivaramayya (eds.), Women and Law: Contemporary Problems (Dhaka: Academic Publishers, 1994).L.

12) Asghar Ali Engineer, The Rights of Women in Islam (New Delhi: Sterling Publishers Pvt. Limited, 1992).

13) Obaidul Huq Chowdhury, (ed.), Hand Book [sic] of Muslim Family Laws, 6^th Ed. (Dhaka: Dhaka Law Reports, 2005).

14) Tahir Mahmood, An Indian Civil Code and Islamic Law (Bombay: N.M. Tripathi Private Limited, 1976).

15) Coulson, A History of Islamic Law (Delhi: Universal Law Pub.Co. Pvt. Ltd., 1997).

16) Ignaz Goldziher, ‘Introduction to Islamic Theology’, trans. Andras and Ruth Hamori (New Jersey: Princeton University Press, 1981).

17) J.N.D Anderson Recent Reforms in the Islamic Law of Inheritance.

Tanzilur-Rahman, Muslim Family Laws Ordinance.

Mohammad Rayhan Uddin, Advocate, Supreme Court of Bangladesh (Mobile: 01914676110)

Saturday 26 November 2011

DISSERTATION ON “The Social Laws of Islam and Challenges of Modernity”

5.4 Polygamy: past and Future

প্রযুক্তিগত বোকামি ও সাম্প্রদায়িক সংঘাত