Anas Peleppuram
India is secular democratic country where a pluralistic society lives. The unity in diversity is the basic feature of Indian society. India has no a state religion, followers of different religious community live there. They have freedom to freely profess, practice and propagate their religion as it is clear from Indian constitution. Each and every religious community has their own laws and in India it is legal to practice such laws in accordance with the rights given by the constitution of India.
Hindus, Muslims, Christians, Jews, Sikh and Jains, all have their own family law as it is recognized by Indian government through various legislations. In case of Muslim Family law property inherited or obtained under contract or gift or any other provision of personal law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs are governed according to Shari’a where parties are Muslims.
It is fact that the Muslim family law in India has administrated in different periods of history through different forms. As result of long historical process it has reached to the current stage. At the initial stage Muslim laws were administrated by Qadis appointed by rulers of that period. Such Qadis were pure religious scholars and they issued the verdicts depending upon Islamic jurisprudential texts. This led to the administration of Muslim family law with in the spirit of Islamic law. Then the conflict with the Shri’a in judicial process was less in number.
Later the power of India reached to the hands of British rulers. Then they followed this system, but soon British courts began to administrate Muslim law and the position of Qadis was less in power, at last Qadis lost all kind of administrative power. It was seen in cases of Hindu laws. Then, the British judges began to administrate Muslim law based on English translations of some classical jurisprudential texts, such as translation of Al- Margiani’s Al-Hidaya. As result of this administrative process, Muslim laws began to known as Anglo- Muhammadan law. It was true in this aspect, because it was a fusion of elements of British law, Islamic law, customary law, etc...
After India won freedom, Indian courts began to administrate Muslim laws. But no more changes were seen in this period. Indian judicial system was a following the same pattern of British judicial system. It was the reality in case of Muslim law also. In this period, the term Muslim personal law began to be used rather than Anglo Muhammadan law. Nowadays this is widely used to indicate Muslim family law in India.
Thus it is said that, the present form of Muslim family law is balance sheet of British rule in India, and judges of modern period are widely depending upon former judgments of Indian courts, May it is issued after independence or before. A large number of them may never referred Islamic jurisprudential texts while they have issued verdicts in cases which are related with Muslim family law. So it is argued that this tendency has caused to the misinterpretation of Islamic laws in many issues.
The above argument is very important when the issue of Muslim family law is concerned. Even today there is no a codified form of Muslim family law except only some legislation on some provisions. What known as Muslim family law is collection of such Acts and court verdicts. Rather than this there is no any official suggestion or direction to refer and depend upon any source when the case related to Muslim family law is taken for a judgment.
In the light of this fact, a number of scholars raise their voices to reform the Muslim family law which is applied in India. There are several movements which for this purpose. According to them practicing of current family law on Muslims is a kind of cruelty and injustice, especially toward Muslim women. The issues such as Triple Talaq, polygamy and maintenance have to be reformed in favor of women. At the same time there are other scholars who strongly oppose any kind of reformation in Muslim family law in India. According to them any effort to reform Muslim family law in India is an effort to eliminate the practicing of Islamic law and it will lead to the imposition of uniform civil code on Muslims.
Thus the issue of Muslim Family Law in India and voices for reformation is crucial issue, which deserves serious research and study. it is high time to examine whether the current form of Muslim family law in India is against the teachings of Islam or it is in accordance with Islamic law, and to know is any kind of reformation in Muslim family law is a reform in Shari’a itself or is there room for the reformation within the frame work of Islamic jurisprudence. This paper titled, ‘Reformation of Muslim family law in India: a critical study’ is an attempt to lighten toward these issues and to propose a method to reform the current status of Muslim family law without any contradictions to Islamic law.
VOICES TO REFORM MUSLIM FAMILY LAW OF INDIA
The reformation of Muslim family law is a topic of debate in India for a long period. There are voices from different cones, within the Muslim community and outside, regarding the reformation of the Muslim family law in India. A number of movements at individual and organizational levels are very active in this field. They conduct seminars, debates and workshops on this issue and put forward suggestions and proposals to reform the Muslim family law.
ORGANIZATIONAL VOICES
There are a number of organizational voices in regard with reformation of Muslim family law in India. Some of the organizations have formed to concern with family law and other laws related with Muslim community. They are attentive to the discussion of family law at any time. Other organizations have formed with the aim of empowerment of the nation and society. Such organizations take the Muslim family law to their discussion as a part of social empowerment. Major organizations working in regard with reformation of Muslim family law are,
1- All India Muslim Women’s Personal Law Board
2- Bharatiya Muslim Mahila Andolan
3- All India Democratic Women's Association
4- Women’s Research And Action Group
The arguments these groups can summarized as follows: they suggest mainly making triple talaq invalid, banning the polygamy or to make it restrictive and conditional so that it becomes almost impossible for a Muslim man to contract another marriage in the subsistence of the first. Consent of bride should be mandatory. According to some The witnesses to the marriage could be from either sex, The maintenance of the wife and children is the responsibility of the husband even if the wife has an independent source of income, Wife has half the right over the surplus which remains behind after all household expenses and After divorce she is entitled to fair and reasonable provision and maintenance to be made and paid within the iddat period.
4.2 INDIVIDUAL VOICES
The voices in regard with the reformation of Muslim family law are seen at individual level also. The organizational level voices are part and product of individual efforts, although some individual voices deserve special mentions as it is motive for a number of movements and organization. They are,
1- Asghar Ali Engineer
2- A.A Faizee
According to the engineer the Muslim family laws are as a result of scholarly attempts to find out Islamic laws from Quran and sunnah, thus he call to reform it in accordance with the modern time. He pointed out that the Muslim family law of India is a British product and it is more rigid than it was during the period of Mughal empires. He says that, the Fatawa Alamgiri of Aurangzeb’s period is more dynamic and liberal to women than the Muslim personal law enacted by the British.
To reform the existing form of Muslim law in India A.A Faizee has put forward a number of suggestions. The following suggestions are important in this regard.
He suggested that Indian parliament have to pass a new law- The Muslim Personal Law (Miscellaneous Provisions) Act’, this act will modify the existing Muslim personal law. In this new legislation the parliament has to regard the following matters.
1- Legal reform would not be based on only one school of Islamic law (mazhab). But it has to include legal provisions of all school of Islamic law.
2- Outlaw the issuance of triple talaq in one sitting.
A PROPOSAL TO REFORM MUSLIM FAMILY LAW WITH IN THE FRAMEWORK OF SHARI’A
It is clear from the descriptions given before, that a large number of the Muslim family law in India is uncodified and The Muslim Personal Law (Shariat) Application Act. 1937 and the Acts legislated to amend some provisions of this Act are base for Muslim family law in India. Thus The Muslim family law in India is a meaning and concept of acting in accordance with Shari’a, not a written document.
As a result of this, earlier judgments of various courts, directions and instructions given by the courts at the time of issuance of verdicts and the books which discuss the Muslim laws are used as references for Muslim family law. This tendency lead to the misinterpretation of Islamic laws as it was seen during the period of Shah Bano case. All these facts along with strong demand of various groups make the reformation of status of Muslim family law in India necessary. This can be done only through a well planned and prepared methodology, otherwise it will be void of fruits.
From this point of view two things can be understood
a. The allegation that Muslim family law is a British product is false as the base of Muslim family law in India is shari’a
b. The voices to reform and renew the provisions of Muslim family law in India is either voices to correct misinterpretation of Islamic law by some legal authorities or a voice to reform shari’a itself.
Methodology to reform Muslim Family Laws
Muslim family law is a broad area which includes each and every aspects of one’s life in a family, and there are different schools of Islamic jurisprudence. Each of the schools has its own stand on the family issues, while there are a lot of common provisions among these laws. Thus when the Muslim family is reformed all these aspects have to be seriously considered. Otherwise it will lead to the imposition of one jurisprudential school upon all, and denying their freedom to practice valid law.
When the issue of the reformation of Muslim family law is concerned, mainly a three issues have to be considered.
1. To form a codified Muslim Family law
2. Uncodified, but well designed MFL
3. A board or department to regulate the functioning of MFL
To form a codified law
As mentioned before, in India the presence of Sunni sects and shia sects is a reality, and among Sunni sect the followers of different schools of law are found. Each of those sects has their own stand in personal laws. So, to codify the Muslim family law in India all these aspects should be concerned. in respect the reformation of Muslim family law, the researcher put forward the following suggestions.
If the Muslim family law is codified these conditions have to be preserved
The laws must be in accordance with majority community. In case of India the followers of Hanfi School of Islamic law is a majority community, so the general laws have to be formed by concerning that community.
After concerning the majority community, the sub sections have to be included to concern the matters of followers of other schools of Islamic jurisprudence.
To form muslim family law in respect to the states, thus in a state where followers of Shafi’e school are a majority community the law will be in accordance with Shafi’e school, and the laws of other schools have to be included as sub clause.
Formation of an uncodified, but well designed MFL
As mentioned befre, the Muslim Family law is a broad area and to codify it need many sub sections due to the presence of the followers of various schools of Islamic jurisprudence. Thus to form an uncodified but well designed Muslim family law is better to preserve the spirit of Islamic law. The following issues have to be considered in this regard
Rather than codifying each and every law, the legislation acts which give directions toward the practice and administration of Muslim family law, have to be enacted.
In the legislation of directions, jurisprudential texts which can be used as reference in respect of each school should be mentioned, such as Al-Hidaya in respect of Hanfi School.
In the light of the Act the translations of each book which have mentioned in the Act have to be published.
The translations have to be approved by Islamic scholars, then it have to be given administrative status in case of Muslim law.
Proposal toward the Administration of Muslim law
In India there are so many cases related to Muslim family law. to fulfill its judicial procedures it took a long period of time and it is handled by the lawyers and judges of the courts may them Muslims or non-Muslims and may they were keeping the spirit of Islamic law or not. This tendency leads to controversy in several occasions
At the same it is a fact that a large number of issues related to Muslim family law are solved by various authorities, especially in small cities and villages. Dar-ul-Qaza and Fatwa issuing centers are important agencies in this regard. If these agencies are reformed and updated it will lead to protect the real spirit of Islamic law as well as it will less the burden of Judicial system. A number of suggestions to reform the practice and adjudication of Muslim family law are made here.
Shari’at courts
In India there are a number of Shari’a courts commonly known as Dar-ul-Qaza. In such courts the disputes between two parties related to Muslim law especially family law, are adjudicated. This type of courts, are found in some parts of Bihar, Orissa, Jharkhand and West Bengal. To widen this system to the all part of India will be effective in the protection and administration of Muslim family law in India. The following matters have to be considered when such a court is established.
a. The court has to work under the supervision of local courts.
b. A retired or sitting judge has to chair the court.
c. Beside the chair man, Scholars representing different schools of Islamic law are must included the judging panel.
d. The representation of the scholars of each school of the Islamic law, have to be in proportion to the number of its followers within the region.
e. The verdicts of the courts must given the judicial status in the courts
f. The verdicts of the court have to be recorded and sent to supreme board of Islamic law
Center for fatwas
In India there are a large number of centers of fatwas, may it at individual level or institutional level. These centers issue fatwa to the parties who ask them the fatwas in a specific issue. It is very important to note that the parties are ready to obey the fatwas issued by these authorities even if there is judicial status. This proves the influence of such centers in the Muslim community.
If such centers of fatwa are given a judicial or sub judicial status it will make the administration of Muslim family law easy to an extent. To make this a working system the following issues have to be considered.
a. The centers which are ready to function in adjudicate level have to register in the supreme council of Islamic law.
b. The supreme council has to appoint the inspectors to watch the centers registered to the council.
c. The center has to appoint a fulltime or part time legal expert as its legal assistant.
d. If the center is at individual level, normally it may relate to a school of Islamic jurisprudence, and then it has to be considered as the center of that school only.
e. If the center is at an institutional level, the character has to be clarified whether it is a center of only one school of Islamic law or it will represent all schools.
Conclusion
The Indian constitution has guaranteed its entire citizen the freedom to freely profess, practice and propagate their religion. Thus all of the citizens of India, irrespective of their religion and cast have the right to profess their respective religions in its true spirit by promoting coexistence. So others should avoid any undesirable criticism and interventions especially in matters in which the respective religion has its own stand. The Government should take actions and necessary directions to preserve this condition as unity in diversity in the feature and identity of Indian culture.
In this paper the researcher identifies the following facts
a- The central Act of 1937 is the base of Muslim family law in India. It only orders to apply the Muslim Personal law in areas such as marriage and maintenance, in cases where parties are Muslims. Thus Muslim family law in India is nothing different from that of shari’a and the allegation that the Muslim family law of India is a British product is false. And there is no a written document which can be said as Muslim family law of India.
b- Muslim family law can be applied in India depending upon any of the sources of Islamic law. This feature of Muslim family law in India may lead to misinterpretation by depending upon a source which is not a source according to majority of Muslim community. Thus either codification of Muslim family law or direction toward the texts of reference is necessary.
c- In India members of different schools of Islamic jurisprudence live such as Hanafites and Shafi’ites. And there are different theological groups such as Ahl-e-Hadith, Sunnis and Shia. Thus the codification of Muslim family law has to be done by concerning all these factors.
d- The complex of the codification of Muslim family can be avoided through enacting a new law which will provide list of texts which have to be applied in accordance with each jurisprudential and theological group of Muslims.
e- The voices in regard with the reformation of Muslim family law in India rather than codification is related the reformation of shari’a’s position itself on the given area. Thus the state has to accept the position and affirmation of scholars when it take such a issue to its concern, don’t allow the shari’a to be the ball of some players.
anaspeleppuram@gmail.com
India is secular democratic country where a pluralistic society lives. The unity in diversity is the basic feature of Indian society. India has no a state religion, followers of different religious community live there. They have freedom to freely profess, practice and propagate their religion as it is clear from Indian constitution. Each and every religious community has their own laws and in India it is legal to practice such laws in accordance with the rights given by the constitution of India.
Hindus, Muslims, Christians, Jews, Sikh and Jains, all have their own family law as it is recognized by Indian government through various legislations. In case of Muslim Family law property inherited or obtained under contract or gift or any other provision of personal law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs are governed according to Shari’a where parties are Muslims.
It is fact that the Muslim family law in India has administrated in different periods of history through different forms. As result of long historical process it has reached to the current stage. At the initial stage Muslim laws were administrated by Qadis appointed by rulers of that period. Such Qadis were pure religious scholars and they issued the verdicts depending upon Islamic jurisprudential texts. This led to the administration of Muslim family law with in the spirit of Islamic law. Then the conflict with the Shri’a in judicial process was less in number.
Later the power of India reached to the hands of British rulers. Then they followed this system, but soon British courts began to administrate Muslim law and the position of Qadis was less in power, at last Qadis lost all kind of administrative power. It was seen in cases of Hindu laws. Then, the British judges began to administrate Muslim law based on English translations of some classical jurisprudential texts, such as translation of Al- Margiani’s Al-Hidaya. As result of this administrative process, Muslim laws began to known as Anglo- Muhammadan law. It was true in this aspect, because it was a fusion of elements of British law, Islamic law, customary law, etc...
After India won freedom, Indian courts began to administrate Muslim laws. But no more changes were seen in this period. Indian judicial system was a following the same pattern of British judicial system. It was the reality in case of Muslim law also. In this period, the term Muslim personal law began to be used rather than Anglo Muhammadan law. Nowadays this is widely used to indicate Muslim family law in India.
Thus it is said that, the present form of Muslim family law is balance sheet of British rule in India, and judges of modern period are widely depending upon former judgments of Indian courts, May it is issued after independence or before. A large number of them may never referred Islamic jurisprudential texts while they have issued verdicts in cases which are related with Muslim family law. So it is argued that this tendency has caused to the misinterpretation of Islamic laws in many issues.
The above argument is very important when the issue of Muslim family law is concerned. Even today there is no a codified form of Muslim family law except only some legislation on some provisions. What known as Muslim family law is collection of such Acts and court verdicts. Rather than this there is no any official suggestion or direction to refer and depend upon any source when the case related to Muslim family law is taken for a judgment.
In the light of this fact, a number of scholars raise their voices to reform the Muslim family law which is applied in India. There are several movements which for this purpose. According to them practicing of current family law on Muslims is a kind of cruelty and injustice, especially toward Muslim women. The issues such as Triple Talaq, polygamy and maintenance have to be reformed in favor of women. At the same time there are other scholars who strongly oppose any kind of reformation in Muslim family law in India. According to them any effort to reform Muslim family law in India is an effort to eliminate the practicing of Islamic law and it will lead to the imposition of uniform civil code on Muslims.
Thus the issue of Muslim Family Law in India and voices for reformation is crucial issue, which deserves serious research and study. it is high time to examine whether the current form of Muslim family law in India is against the teachings of Islam or it is in accordance with Islamic law, and to know is any kind of reformation in Muslim family law is a reform in Shari’a itself or is there room for the reformation within the frame work of Islamic jurisprudence. This paper titled, ‘Reformation of Muslim family law in India: a critical study’ is an attempt to lighten toward these issues and to propose a method to reform the current status of Muslim family law without any contradictions to Islamic law.
VOICES TO REFORM MUSLIM FAMILY LAW OF INDIA
The reformation of Muslim family law is a topic of debate in India for a long period. There are voices from different cones, within the Muslim community and outside, regarding the reformation of the Muslim family law in India. A number of movements at individual and organizational levels are very active in this field. They conduct seminars, debates and workshops on this issue and put forward suggestions and proposals to reform the Muslim family law.
ORGANIZATIONAL VOICES
There are a number of organizational voices in regard with reformation of Muslim family law in India. Some of the organizations have formed to concern with family law and other laws related with Muslim community. They are attentive to the discussion of family law at any time. Other organizations have formed with the aim of empowerment of the nation and society. Such organizations take the Muslim family law to their discussion as a part of social empowerment. Major organizations working in regard with reformation of Muslim family law are,
1- All India Muslim Women’s Personal Law Board
2- Bharatiya Muslim Mahila Andolan
3- All India Democratic Women's Association
4- Women’s Research And Action Group
The arguments these groups can summarized as follows: they suggest mainly making triple talaq invalid, banning the polygamy or to make it restrictive and conditional so that it becomes almost impossible for a Muslim man to contract another marriage in the subsistence of the first. Consent of bride should be mandatory. According to some The witnesses to the marriage could be from either sex, The maintenance of the wife and children is the responsibility of the husband even if the wife has an independent source of income, Wife has half the right over the surplus which remains behind after all household expenses and After divorce she is entitled to fair and reasonable provision and maintenance to be made and paid within the iddat period.
4.2 INDIVIDUAL VOICES
The voices in regard with the reformation of Muslim family law are seen at individual level also. The organizational level voices are part and product of individual efforts, although some individual voices deserve special mentions as it is motive for a number of movements and organization. They are,
1- Asghar Ali Engineer
2- A.A Faizee
According to the engineer the Muslim family laws are as a result of scholarly attempts to find out Islamic laws from Quran and sunnah, thus he call to reform it in accordance with the modern time. He pointed out that the Muslim family law of India is a British product and it is more rigid than it was during the period of Mughal empires. He says that, the Fatawa Alamgiri of Aurangzeb’s period is more dynamic and liberal to women than the Muslim personal law enacted by the British.
To reform the existing form of Muslim law in India A.A Faizee has put forward a number of suggestions. The following suggestions are important in this regard.
He suggested that Indian parliament have to pass a new law- The Muslim Personal Law (Miscellaneous Provisions) Act’, this act will modify the existing Muslim personal law. In this new legislation the parliament has to regard the following matters.
1- Legal reform would not be based on only one school of Islamic law (mazhab). But it has to include legal provisions of all school of Islamic law.
2- Outlaw the issuance of triple talaq in one sitting.
A PROPOSAL TO REFORM MUSLIM FAMILY LAW WITH IN THE FRAMEWORK OF SHARI’A
It is clear from the descriptions given before, that a large number of the Muslim family law in India is uncodified and The Muslim Personal Law (Shariat) Application Act. 1937 and the Acts legislated to amend some provisions of this Act are base for Muslim family law in India. Thus The Muslim family law in India is a meaning and concept of acting in accordance with Shari’a, not a written document.
As a result of this, earlier judgments of various courts, directions and instructions given by the courts at the time of issuance of verdicts and the books which discuss the Muslim laws are used as references for Muslim family law. This tendency lead to the misinterpretation of Islamic laws as it was seen during the period of Shah Bano case. All these facts along with strong demand of various groups make the reformation of status of Muslim family law in India necessary. This can be done only through a well planned and prepared methodology, otherwise it will be void of fruits.
From this point of view two things can be understood
a. The allegation that Muslim family law is a British product is false as the base of Muslim family law in India is shari’a
b. The voices to reform and renew the provisions of Muslim family law in India is either voices to correct misinterpretation of Islamic law by some legal authorities or a voice to reform shari’a itself.
Methodology to reform Muslim Family Laws
Muslim family law is a broad area which includes each and every aspects of one’s life in a family, and there are different schools of Islamic jurisprudence. Each of the schools has its own stand on the family issues, while there are a lot of common provisions among these laws. Thus when the Muslim family is reformed all these aspects have to be seriously considered. Otherwise it will lead to the imposition of one jurisprudential school upon all, and denying their freedom to practice valid law.
When the issue of the reformation of Muslim family law is concerned, mainly a three issues have to be considered.
1. To form a codified Muslim Family law
2. Uncodified, but well designed MFL
3. A board or department to regulate the functioning of MFL
To form a codified law
As mentioned before, in India the presence of Sunni sects and shia sects is a reality, and among Sunni sect the followers of different schools of law are found. Each of those sects has their own stand in personal laws. So, to codify the Muslim family law in India all these aspects should be concerned. in respect the reformation of Muslim family law, the researcher put forward the following suggestions.
If the Muslim family law is codified these conditions have to be preserved
The laws must be in accordance with majority community. In case of India the followers of Hanfi School of Islamic law is a majority community, so the general laws have to be formed by concerning that community.
After concerning the majority community, the sub sections have to be included to concern the matters of followers of other schools of Islamic jurisprudence.
To form muslim family law in respect to the states, thus in a state where followers of Shafi’e school are a majority community the law will be in accordance with Shafi’e school, and the laws of other schools have to be included as sub clause.
Formation of an uncodified, but well designed MFL
As mentioned befre, the Muslim Family law is a broad area and to codify it need many sub sections due to the presence of the followers of various schools of Islamic jurisprudence. Thus to form an uncodified but well designed Muslim family law is better to preserve the spirit of Islamic law. The following issues have to be considered in this regard
Rather than codifying each and every law, the legislation acts which give directions toward the practice and administration of Muslim family law, have to be enacted.
In the legislation of directions, jurisprudential texts which can be used as reference in respect of each school should be mentioned, such as Al-Hidaya in respect of Hanfi School.
In the light of the Act the translations of each book which have mentioned in the Act have to be published.
The translations have to be approved by Islamic scholars, then it have to be given administrative status in case of Muslim law.
Proposal toward the Administration of Muslim law
In India there are so many cases related to Muslim family law. to fulfill its judicial procedures it took a long period of time and it is handled by the lawyers and judges of the courts may them Muslims or non-Muslims and may they were keeping the spirit of Islamic law or not. This tendency leads to controversy in several occasions
At the same it is a fact that a large number of issues related to Muslim family law are solved by various authorities, especially in small cities and villages. Dar-ul-Qaza and Fatwa issuing centers are important agencies in this regard. If these agencies are reformed and updated it will lead to protect the real spirit of Islamic law as well as it will less the burden of Judicial system. A number of suggestions to reform the practice and adjudication of Muslim family law are made here.
Shari’at courts
In India there are a number of Shari’a courts commonly known as Dar-ul-Qaza. In such courts the disputes between two parties related to Muslim law especially family law, are adjudicated. This type of courts, are found in some parts of Bihar, Orissa, Jharkhand and West Bengal. To widen this system to the all part of India will be effective in the protection and administration of Muslim family law in India. The following matters have to be considered when such a court is established.
a. The court has to work under the supervision of local courts.
b. A retired or sitting judge has to chair the court.
c. Beside the chair man, Scholars representing different schools of Islamic law are must included the judging panel.
d. The representation of the scholars of each school of the Islamic law, have to be in proportion to the number of its followers within the region.
e. The verdicts of the courts must given the judicial status in the courts
f. The verdicts of the court have to be recorded and sent to supreme board of Islamic law
Center for fatwas
In India there are a large number of centers of fatwas, may it at individual level or institutional level. These centers issue fatwa to the parties who ask them the fatwas in a specific issue. It is very important to note that the parties are ready to obey the fatwas issued by these authorities even if there is judicial status. This proves the influence of such centers in the Muslim community.
If such centers of fatwa are given a judicial or sub judicial status it will make the administration of Muslim family law easy to an extent. To make this a working system the following issues have to be considered.
a. The centers which are ready to function in adjudicate level have to register in the supreme council of Islamic law.
b. The supreme council has to appoint the inspectors to watch the centers registered to the council.
c. The center has to appoint a fulltime or part time legal expert as its legal assistant.
d. If the center is at individual level, normally it may relate to a school of Islamic jurisprudence, and then it has to be considered as the center of that school only.
e. If the center is at an institutional level, the character has to be clarified whether it is a center of only one school of Islamic law or it will represent all schools.
Conclusion
The Indian constitution has guaranteed its entire citizen the freedom to freely profess, practice and propagate their religion. Thus all of the citizens of India, irrespective of their religion and cast have the right to profess their respective religions in its true spirit by promoting coexistence. So others should avoid any undesirable criticism and interventions especially in matters in which the respective religion has its own stand. The Government should take actions and necessary directions to preserve this condition as unity in diversity in the feature and identity of Indian culture.
In this paper the researcher identifies the following facts
a- The central Act of 1937 is the base of Muslim family law in India. It only orders to apply the Muslim Personal law in areas such as marriage and maintenance, in cases where parties are Muslims. Thus Muslim family law in India is nothing different from that of shari’a and the allegation that the Muslim family law of India is a British product is false. And there is no a written document which can be said as Muslim family law of India.
b- Muslim family law can be applied in India depending upon any of the sources of Islamic law. This feature of Muslim family law in India may lead to misinterpretation by depending upon a source which is not a source according to majority of Muslim community. Thus either codification of Muslim family law or direction toward the texts of reference is necessary.
c- In India members of different schools of Islamic jurisprudence live such as Hanafites and Shafi’ites. And there are different theological groups such as Ahl-e-Hadith, Sunnis and Shia. Thus the codification of Muslim family law has to be done by concerning all these factors.
d- The complex of the codification of Muslim family can be avoided through enacting a new law which will provide list of texts which have to be applied in accordance with each jurisprudential and theological group of Muslims.
e- The voices in regard with the reformation of Muslim family law in India rather than codification is related the reformation of shari’a’s position itself on the given area. Thus the state has to accept the position and affirmation of scholars when it take such a issue to its concern, don’t allow the shari’a to be the ball of some players.
anaspeleppuram@gmail.com
Comments
Post a Comment