Dr Puneet Agrawal
We are not going to discuss here the teachings of the Quran or what Shariat says about farz or namaz not about what is haram in a life of a Muslim but rather should see what does Shariat means in the eyes of the law in India and particularly in the matrimonial perspectives. Though the teachings are in a direct way relates to the conduct of the inhabitants as husbands and wives and even the Courts lift corollaries from the religious texts when they need some specific interpretation over an issue. But normally the legislation is taken as the base for adjudicating the legal disputes, except for those matters where no such enactment or provision is found capable to do justice.
Muslim family law is one of the areas where the Muslim Personal Law (Shariat) Application Act, 1937 has clearly stated that the rule of decision in a case where the parties are Muslims shall be the Shariat. So, the next question arises is to know what is Shariat in the eyes of law for the purpose of Matrimonial disputes.
A word as to the meaning of the expression “Shariat”. A.A.A. Fyzee describes “Shariat” as follows:
Coming to law proper, it is necessary to remember that there are two different conceptions of law. Law may be considered to be of divine origin, as is the case with the Hindu law and the Islamic law, or it may be conceived as man-made. The latter conception is the guiding principle of all modern legislation; it is, as Ostrorog has pointed out, the Greek, Roman, Celtic or Germanic notion of law. We may be compelled to act in accordance with certain principles because God desires us to do so, or in the alternative, because the King or the Assembly of wise men or the leader of the community or social custom demand it of us, for the good of the people in general. In the case of Hindu law, it is based first on the Vedas or Sruti (that which is heard); secondly on the Smriti (that which is remembered by the sages or rishis).
Although the effect of custom is undoubtedly great yet dharma, as defined by Hindu lawyers, implies a course of conduct which is approved by God.
Now, what is the Islamic notion of law? In the words of Justice Mahmood, ‘It is to be remembered that Hindu and Muhammadan law are so intimately connected with religion that they cannot readily be dissevered from it’. There is in Islam a doctrine of ‘certitude’ (ilm al-yaqin) in the matter of Good and Evil. We in our weakness cannot understand what Good and Evil are unless we are guided in the matter by an inspired Prophet. Good and Evil – husn (beauty) and qubh (ugliness) – are to be taken in the ethical acceptation of the terms. What is morally beautiful that must be done, and what is morally ugly must not be done. That is law or Shariat and nothing else can be law. But what is absolutely and indubitably beautiful, and what is absolutely and indubitably ugly?
These are the important legal questions; and who can answer them? Certainly not man, say the Muslim legists. We have the Quran which is the very word of God.
Supplementary to it we have Hadith which are Traditions of the Prophet – the records of his actions and his sayings – from which we must derive help and inspiration in arriving at legal decisions. If there is nothing either in the Quran or in the Hadith to answer the particular question which is before us, we have to follow the dictates of secular reason in accordance with certain definite principles. These principles constitute the basis of sacred law or Shariat as the Muslim doctors understand it. And it is these fundamental juristic notions which we must try to study and analyse before we approach the study of the Islamic civil law as a whole, or even that small part of it which in India is known as Muslim law.
Modern jurists emphasize the importance of law for understanding the character and ethos of a people. Law, says a modern jurist, ‘streams from the soul of a people like national poetry, it is as holy as the national religion, it grows and spreads like language; religious, ethical, and poetical elements all contribute to its vital force’; it is ‘the distilled essence of the civilization of a people’; it reflects the people’s soul more clearly than any other organism. This is true of Islam more than of any other faith.
The Shariat is the central core of Islam; no understanding of its civilization, its social history or its political system is possible without knowledge and appreciation of its legal system.
Shariat (lit., the road to the watering-place, the path to be followed) as a technical term means the Canon law of Islam, the totality of Allah’s commandments. Each one of such commandments is called hukm (pl. ahkam). The law of Allah and its inner meaning is not easy to grasp, and Shariat embraces all human actions. For this reason, it is not ‘law’ in the modern sense; it contains an infallible guide to ethics. It is fundamentally a Doctrine of Duties, a code of obligations. Legal considerations and individual rights have a secondary place in it; above all the tendency towards a religious evaluation of all the affairs of life is supreme.
The legal definition of Shariat is no way different than the religious one as what is understood by any common man in India. Just that the way it is accepted in the Courts and taken as a source of Muslim Law is what changes the game. Therefore, it becomes essential to first know what the religious texts say and only then it will be easy to further probe into the legal interpretation of it. There exist no legal complication, but widespread confusion survives in the mind of a Muslim man while facing Court cases. He is primarily found struggling about what to follow? The orthodox ones are bent towards their convictions and preaching they have received since childhood. Though he is pretty aware of the religious teachings as applicable to a Muslim way of matrimonial living, as discussed in the previous posts, not all those are a code of conduct in totality in the country.
There are several reasons as to why the Shariat is not a law in totality applicable to the Muslim population. No, not only because India is not an Islamic Country, had it been so the 1937 Act and other similar ones would not have existed as well. The baffling question is then why even this relaxation of certain provisions of Shariat applicable and why has this existed? Was it mercy, a continuing tradition, or beneficial legislation or a matter of democratic rights? The reasons had been more political in nature, but Courts have nothing to do with politics or religion. Religious texts are what they read as a statute and not what they do at large in the society inside the areas of worship, be it a building or the minds of its followers.
For example, the establishment of a Uniform Civil Code is an ongoing point of debate regarding the Indian constitution's mandate to replace Personal Laws based on the scriptures and customs of each major religious community in India with a common set of rules governing every citizen. Article 44 of the Directive Principles expect the state to apply these while formulating policies for the country. Apart from being an important issue regarding secularism in India & the fundamental right to practise religion contained in Article 25, it became one of the most controversial topics in contemporary politics during the Shah Bano case in 1985. The issues of women rights in Muslim personal Law are highly controversial. Although Article 44 of the Indian Constitution guarantees UCC to all citizens, the debate arose when the question of making certain laws applicable to all citizens without abridging the fundamental right of right to practice religious functions. The debate then focused on the Muslim Personal Law, which is partially based on the Shariat law, permitting unilateral divorce, polygamy and putting it among legally applying the Shariat law.
Personal Laws are distinguished from Public Law and cover marriage, divorce, inheritance, adoption, and maintenance. Goa retained a common family law known as the Goa civil code, due to colonial rule in the erstwhile Portuguese Goa and Damaon that was separate from British India, thus being the only Indian state to have a UCC. The Special Marriage Act, 1954 permits any citizen to have a civil marriage outside the realm of any specific religious personal law.
Personal Laws were first framed during the British Raj, mainly for Hindu and Muslim citizens. The British feared opposition from community leaders and refrained from further interfering within this domestic sphere.
The demand for a UCC was first put forward by women activists[clarification needed] at the beginning of the twentieth century, with the objective of women's rights, equality and secularism. Till Independence in 1947, a few law reforms were passed to improve the condition of women, especially Hindu widows[clarification needed]. In 1956, the Indian Parliament passed the Hindu Code Bill amidst significant opposition.
Keeping this debate aside, and giving it a marital coating, it is more sensible to know here about what is relevant in the Courts. Certain civil matters of jurisdiction for Muslims such as marriage, inheritance and waqf properties are governed by the Muslim Personal Law which was developed during British rule and subsequently became part of independent India with some amendments. Indian Muslim personal law is not developed as a Shariat Law but as an interpretation of existing Muslim laws as part of Common Law. The Supreme Court of India has ruled that Shariat or Muslim Law holds precedence for Muslims over Indian civil law in such matters.
Basically, it is more than the needs of the Constitution or Article 44 the growing demands of Muslim womankind that special enactments keep growing and curbing the application of Shariat law. This is not just a case with Muslims, the States across the nations in the globe do the same. More and more laws are made to empower the citizens with special rights thereby giving more power to the State to execute it and in one or the other way curbing the Natural Rights and Justice. The only way out is to buy some lonely island and become a Sultan of your own kingdom. Until you can afford that venture, you are bound to obey the laws of your land irrespective of whosoever made them and in whatever shape they are. So, better learn the new art of “knowing the law” to win. The criticism of existing laws, what if it is draconian or beneficial, comes under the domain of activism and are not a part of Court procedures. Legal activism can be a tool that can bring success in such litigation, but for it “knowing the law” is essential, equally as important as finding a good lawyer.
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