1 F R Fandi and M N Siddiqui (eds ), Muslim Personal Law - Papeis and Pi acceding* of Seminar III (Aligarh, 1973)

Transcription

1 587 SHARIA LAW AND SOCIETY - TRADITION AND CHANGE IN THE INDIAN SUBCONTINENT (1999). By Alamgir Muhammad Serajuddin. Asiatic Society of Bangladesh, Dhaka. P xiv Price Tk THE DEBATE about the reforms in the personal law of Muslims of the Indian subcontinent is an age old one. There have been two parallel movements - one for change and the other for no change The most disturbing trend of this debate has been that it is sentimental, politically motivated and ill informed. Some people posed it as stagnant and unsuitable to ever changing social conditions of human life It always remained a matter of concern for moderates that no dispassionate study of Islamic provisions regarding marriage, divorce and inheritance has been done. And the clergy and supporters of classical jurists were never interested in understanding the viability of the modern alternatives of some of the traditional provisions of Muslim law This made the path narrow for an unbiased student of Muslim law to frame his own views in a well-informed manner. Needless to say that scant attention had been paid to realize the need of ijtihad, of frequently reviewing the details of the law in the light of changed circumstances and accumulated experience l Though it is most essential that one must approach Islam from a purely Islamic point of view, it may be mentioned that Islam alone does not determine the life patterns of Muslims inhabiting all over the world One must bear in mind that Islamic law in the Indian subcontinent is further complicated by the influence of British law Alamgir Muhammad Sirajuddin in his book, Sharia Law and Society - Tradition and Change in the Indian Subcontinent has made a worthwhile and useful attempt to dispel the ignorance of Muslims and remove the misunderstanding of intellectuals about the suitability of the personal law of Muslims in the changing conditions of socio-economic life of the people of Pakistan and Bangladesh. The book under review contains a sixteen-page preface and seven chapters along with two appendices, abbreviations, glossary, table of cases, bibliography and index Chapter I of the book is concerned with traditions that have prevailed and the changes that have taken place in the Muslim world and the 1 F R Fandi and M N Siddiqui (eds ), Muslim Personal Law - Papeis and Pi acceding* of Seminar III (Aligarh, 1973)

2 588 JOURNAL OF THE INDIAN LA W INSTITUTE f Vol 44 4 Indian subcontinent. Many people who harbour unfriendly attitude towards Islam hold that Islam and modernity are incompatible and contradictory to each other. It has been alleged that Islamic law, institutions, principles and precepts are not adaptable to modernity. The author forcefully refutes these allegations and shows that Islam is a dynamic way of life. The progressive development of fiqh has not lost sight of the changes occurring in social life. Change is the law of nature, It has been stated in the book under review that the emergence of sharia and establishment of different schools of fiqh have flourished in accordance with Islamic theology but never turned a blind eye.to the socio-economic and geographical conditions of the people. It was the device of ijtihad through which solutions of new problems were found in the light of Islamic teachings. Ijtihad always took the help of adat, customs, mores, and social patterns prevailing in different societies to resolve their problems. New rules of interpretations have been adopted to make the sharia doctrines adaptable to the new socio-economic scenarios. The emergence of Istehsan, Istislah, Mlasteh al-murrsaleh and Qayas reveals the dynamic character of the laws of Islam. This was the assimilative and liberal spirit of sharia which allows the growth of regional legal schools. The accommodative tendencies of sharia could not keep pace with the later jurists and they declared that doors of ijtihad have been closed. Muslims were directed to conform to any of the schools already flourished. Hereafter the rule of taqlid gained currency. With the passage of time the taqlid acquired legal sanctity. Even the most brilliant scholars of Islamic jurisprudence became the victims of taqlid as they denied to themselves the right to interpret the texts of religion. And thus, the sharia started its march towards stagnation. The author of the book under review throws light on this development. He forcefully, but in a lucid way, advocates the need of the ijtihad. He discusses alternative devices too. He finds doctrine of takhayyur as constructive and accommodative in the era of taqlid. This method of adjustment of doctrines of different schools and its adoption by many Muslim societies have saved the sharia from becoming purified. The doctrine of eclectic choice {takhayyur) enjoys legal sanctity as all schools of Islamic jurisprudence recognize the veracity and authenticity of the doctrines propounded by each other. The author especially discusses the position of fiqh as prevailed in Indian subcontinent. A close study of the history of fiqh in India reveals that the Muslim rulers did not implement the Muslim law in its letter and spirit. The Indian fiqh works clearly establish the importance and efficacy of local customs such as adat or urf These were taken into consideration in formulating the law suited to the local needs, for example, laws relating to Moplahs, Khojas, Kutchi Memons, Ismailies and Mole Salam Girasias etc. Their customs were unhesitatingly

3 2002] BOOK REVIEWS 589 incorporated when it was found that they did not transgress the sharia. In British India, m its formative stage, the personal law of natives was applied as such 2 and the court adopted the doctrine of taqlid 3 '. During this period some progressive changes were introduced in the name of equity and mitigation of hardships, 4 The author rightly observes that Muslim Personal Law (Shanat) Application Act, 1937 was enacted to establish the preference of Muslim law over customary law 5. However, the author does not see the exclusion of the application of the sharia m case of agricultural property. The author holds that the Dissolution of Muslim Marriage Act, 1939 was a progressive legislation inspired by the legal modernism of Arabs and other Muslim countries. But this was not the reason. This legislation was enacted to save the Muslim women from apostasy as the Hanafi women were converted to other religions just to get nd of their marriages which had already been broken down The Hanafi law does not provide any rescue to the married woman to get nd off their husbands. Though doors of ijtihad had not been opened, however, the ulema used the device of takhayyur to adopt and apply the Mahki law of dissolution of marriage at the instance of the aggrieved wife. After independence, Indian Muslims refused to see the light of reforms and also left the application of takhayyur, while in Pakistan, judiciary has played the role of Mujtahid. The author observes* 6 The sixties of the 20 th Century has been the glorious era of judicial ijtihad and activism in Pakistan. The same decade witnessed the passing of the most significant and substantial reforming legislation in the realm of sharia - the Muslim Family Laws Ordinance, Chapter II of the book is devoted to the narration of reforms of Muslim personal laws in Bangladesh and Pakistan. It has been pointed out that the era of judicial ijtihad had taken the place of collective ijtihad The Commission of 1955 was set up to consider the necessary reforms in the laws of personal status. The commission assumed the status of Mujtahid: 1 For the theoretical foundations of their recommendations the commission re-opened the door of ijtihad which considered to have been closed at the beginning of tenth century. 2 Alamgir Muhammad Serajuddm, Sharia Law and Society - Tradition and Change in the Indian Subcontinent 10 (Dhaka, 1999) 3 Id at 13 4 Id at 15 5 /rf at 17 6 Id at 27 7 Id at 35

4 590 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol 44 4 The author presents the proceedings of the commission at length and profusely quotes from there to support the idea that "life can improve only by freedom of judgment". He uses it in support of his own inclination towards liberal application of the doctrine of ijtihad. The author is honest enough to present the line of argument of ulema who opposed the reinterpretation of the texts. And equally, the author discusses the views of the progressive and the prochangers. He extensively elaborates the stand taken by Maulana Ihtishamul Haq and gives him full coverage. He states that the publication of the report in June 1956 brought the conflict between traditionalists and liberals to the forefront. While the liberals greeted it with enthusiasm, it was widely condemned by the ulema. Then followed the fierce battle of wits between modernist and orthodox thinkers. However, the vehement opposition of the commission's recommendations by the ulema proved futile as the President declined to accept the recommendations as "they only provided a procedure for proper and judicious implementation of Islamic family laws". The author is of the opinion that the commission seemed arrogant in pursuing its line of argument. The commission did not bother to support its arguments from classical jurists like the Middle Eastern jurists did. To quote the author: 8 The Middle Eastern modernists have, no doubt, severely restricted but never denied the doctrine of infallible consensus. The modernist majority of the Pakistan Commission have, however, denied it outright. Finally, the exercise of ijtihad, both in form and substance, is for more sweeping in the commission's report than in the Middle Eastern reforms. Having narrated the conflict between liberal and conservative members of the Commission the author evaluates the 'main provisions' of the Muslim Family Law Ordinance, 1961 (MFLO). The author points out that this ordinance excluded the application of Arbitration Act, 1940 and Civil Procedure Code, 1908 in the proceedings of the arbitration council. This ordinance was also opposed by the ulema who called it "repugnant to the express injunctions of Quran and Sunna". The author also discloses that the ulema of India also did not take it kindly. They regarded it "as a wholly" unislamic measure. The author cites, in this regard, the views of Maulana Abdul Majid Daryabadi. He feels that the traditionalists had strong influence over the masses, for he points out: l) In fact, so strong was the opposition against the ordinance that had it not been for Ayub Khan's personal interest in the matter 8. Id. at 56 9 Id. at 65.

5 2002] BOOK REVIEWS 591 and the effective lobbying of the APWA and other woman's organisations, the MFLO would have been nipped in the bud. The book under review makes it clear that religiosity was a dominating factor of the Pakistani society and it acquired fanatic overtones as they refused to look at the past history of Islamic jurisprudence and did not pay any attention to the progressive development of some Muslim countries of the Middle East like Syria, Tunisia, Morocco and Iraq "In spite of all the opposition against the MFLO it was never repealed or modified in Bangladesh and Pakistan and till the present day it remains in force in both the countries". The opposition to progressive reforms even in accordance with the mechanism provided by Islamic jurisprudence, is so strong that "MFLO remains vulnerable to traditional assault in Pakistan to this day" This shows that Pakistani society does not attach any significance or value to norms of dissent and this may lead to fanaticism and extremism which is detrimental to the dynamism of Islamic fiqh. Chapter III of the book deals with inheritance law and rights of orphaned grand children. Having described the scheme of inheritance in Islamic law in a cursory and elementary form, the author seems to be under the influence of orientalists like J.N D. Anderson whom he quotes at length without doing much justice to the exponents of Islamic law as he places their views in the footnote. 10 The author produces a true picture and observes correctly that "the rule of sharia law of succession has aroused maximum attention and controversy in modern times in the exclusion of orphaned grand children from their grand parents' inheritance". He seems to be of the opinion that the rule of exclusion of the grand children from inheritance has lost its significance because "with the breakdown of the ties of extended family in the contemporary social milieu the rule does cause hardships and injustice". Two different solutions have been offered to solve the problem of orphaned grand children's succession. One is as has been adopted m the Middle East in the form of 'obligatory bequests'; and the other is as devised by Pakistan under section 4 of the Muslim Family Law Ordinance, However, this radical provision of Pakistani law has given rise to an unending debate The author analytically evaluates the stand taken by the supporters and opponents of the rule enunciated m section 4 at length. The traditionalists' viewpoint carries some weight in opposing the representational role. They hold that this rule includes sons and daughters of a predeceased son of the deceased. This rationale demands that it should also necessarily include the mother, father, wife or husband. "What was especially intolerable to 10 Id at 75

6 592 JOURNAL OF THE INDIAN LA W INSTITUTE \ Vol the conservatives was the introduction of children of daughters as primary heirs in the traditional scheme of succession", the author asserts. This has compromised the position of agnates. The cognates have been given precedence over agnates. This provision of MFLO has been kept beyond the purview of judicial scrutiny. The courts are not empowered to review the repugnancy of this provision to the tenets of Quran and Sunna. Thus, it seems that the debate between jurists has focused the light on the shortcomings of the rules of section 4 of MFLO. The author also examines the judicial attitude adopted by various high courts who fell in with traditionalists. The Supreme Court of Pakistan finally settled the conflict in favour of section 4. The author also elucidates the position of the jurists who advocate the adoption of the principle of obligatory bequest made in favour of orphaned grand children. The principle of 'obligatory bequest' seems to rest on the ground of need and destitution, while the succession of orphaned grand children is, in fact, regarded as a matter of right and not need and destitution. The author subscribes to the point of view of the latter line n of jurists: To sum up, compared to the obligatory bequests section 4 of the MFLO is straight forward, simple and practical; and certainly the provisions it makes for orphaned grand children are more equitable and just. It is also considered to be more satisfactory from judicial point of view. However, he admits, "that it unwittingly upsets the shares prescribed in the Quran, which was not the intention of the law maker". Therefore, the author advises and rightly so, "to amend the ordinance to protect the shares prescribed by Quran and ensure the inheritance rights of only those grand children who have been totally deprived of by the operation of the rule of exclusion". 12 Under chapter IV of the book the author presents the views of the classical jurists who vehemently opposed the imposition of any type of restrictions on the practice of polygamy in Pakistan and Bangladesh. The author does not contribute to the idealogy of the supporters of polygamy. He asserts that the line of arguments of the reformists group against polygamy is more cogent. The defenders of polygamy opposed the recommendations of the commission and section 6 of the MFLO, while the modernists hailed the pragmatic reforms envisaged under this section. The author has also taken notice of the decisions of the High Court Division of Bangladesh Supreme Court. In this case the court held that "since section 6 does not altogether prohibit polygamy, it is 11 Id. at Ibid

7 2002 BOOK REVIEWS 593 against the principle of Islamic law. 13 It seems that the author has quoted it wrongly. It should have been 'since section 6 does not altogether prohibit polygamy, it is not against the principle of Islamic law." The author highlights the stand taken by the court as a "simplistic and bold decision". 14 He also pointed out the role of the judiciary of Pakistan in bringing the vagueness of the provisions of section 6 of MFLO to light. Inadequacy of the existing law is largely responsible for the fact that the ordinance has not been very effective against the abuses of polygamy in the society. Regarding the prevalence of polygamy in Pakistan and Bangladesh the author observes, "the incidence of polygamy in Bangladesh and Pakistan is low; and the restrictions placed on it by the MFLO coupled with the social and economic forces operating against the institution are causing gradual decline m its practice. 1S In chapter V the author projects an analytical perspective of the growth of law of divorce, especially in Pakistan and Bangladesh. Tracing the course of evolution of the law of divorce he presents the views of classical jurists, Mutazila's view, and Ibn-e-Tajmiya's opinion about the law regarding' triple talaq. The author finds that Hanafi jurists liberally interpreted the provisions of texts pertaining to three pronouncements of talaq. The British judges who implemented the Islamic law of divorce strengthened the Hanafi legacy. They distorted this branch of law by formulating, extraneous rules like "there is no occasion for any particular cause for divorce, and mere whim is sufficient", (Machaughten); "A divorce without any cause is good in law, but bad in theology" (Batchelor); and "a Mahomedan may divorce his wife at his mere whim and caprice". (Costello). The author makes an honest attempt to refute these illogical expositions of the law of divorce. He makes a survey of many jurists before he comes to a conclusion: 16 A large and influential body of jurists regard pronouncement of talaq as prohibited except for necessity... Lamenting the view of the clergy of Pakistan regarding section 7 of MFLO. The author finds himself in the company of the group of prochangers. While he supports the aims of this section in preventing, controlling, regulating and mitigating the evil of talaq-i-bidat, he points out the impact of provisions of section 7 of MFLO Id at Ibid 15 Id at Id at Id at 248

8 594 JOURNAL OF THE INDIAN LA W INSTITUTE Vol 44 4 The overwhelming majority of the rural people of Pakistan and Bangladesh believe that the provisions of the ordinance relating to talaq-i-bidat and intervening marriage are un-islamic and should be ignored. The author suggests, "The alternate aim of the legislators of Bangladesh and Pakistan should be to make all divorces judicial" 18. The author seems to be naive when he suggests the above-mentioned reform because the public opinion of these countries is against any type of reform in the rules framed by classical jurists regarding talaq and this fact has been admitted by the author himself 19. Chapter VI of the book covers the law relating to maintenance. The author highlights the relative importance of the non-religious law and procedure regarding enforcement of the right of maintenance. The Commission on Marriage and Family Laws also preferred the remedial procedure as laid down in section 488 of the Code of Criminal Procedure, For civil remedy in the suits of maintenance, the Family Court Act, 1964 has found favour with most of the intellectuals because it has done away With the formalities of the Civil Procedure Code 1898 and the Evidence Act, Chapter VII, the last one, contains concluding remarks. The author has summarized some points discussed in earlier chapters and also reacted to some of the issues of modernization and progressive development of the family law of Muslims. The title of the book appears to be thought provoking and attractive. The contents of the book are in consonance with the title. The book presents a mature and scholarly analysis of the subject. It is informative as well as critical. On the whole the book is very useful for any and every serious student of Islamic law. Furqan Ahmad* 18. Id. at Id. at 299. * M.A. (Socio.), LL.M., Ph.D., Associate Research Professor, Indian Law Institute, New Delhi

9 595 BOOKS RECEIVED FOR REVIEW M. RAMA JOIS, Ancient Indian Law Eternal Values in Manu Smriti (2002). Universal Law Publishing Co. Pvt. Ltd., C-FF-1A, Ansal's Dlkhush Industrial Estate, G.T. Karnal Road, Delhi Pp. xxviii+140./pnce Rs. 165/-. VALERIAN RODRIGUES, The Essential Writings ofb.r. Ambedkar (2002). Oxford University Press, YMCA Library Building, Jai Singh Road, New Delhi Pp. xi+559. Price Rs. 695/-. BENIMADHAB CHATTERJEE, Environmental Laws Implementation Problems and Perspectives (2002). Deep & Deep Publications Pvt. Ltd., F-159, Rajouri Garden, New Delhi Pp. xvii+283. Price Rs. 580/-. K.D. GAUR, Criminal Law & Criminology (2002). Deep & Deep Publications Pvt. Ltd., F-159, Rajouri Garden, New Delhi Pp. xix Price Rs. 990A. V.K. MEHROTRA, V.G. Ramachandran's Contempt of Court (2002). Eastern Book Company, 5-B, Atma Ram House, 5 th Floor, 1, Tolstoy Marg, Connaught Place, New Delhi Pp. xcvi Price Rs. 960/-. RAJU RAMACHANDRAN & GAURAV AGRAWAL, B.R. Agarwala's Supreme Court Practice and Procedure (2002). Eastern Book Company, 5-B, Atma Ram House, 5 th Floor, 1, Tolstoy Marg, Connaught Place, New Delhi Pp. xxiv Price Rs. 775/-. PARAS DIWAN, Law of Marriage & Divorce (2002). Universal Law Publishing Co. Pvt. Ltd., C-FF-1A, Ansal's Dlkhush Industrial Estate, G.T. Karnal Road, Delhi Pp. cvi Price Rs. 895/-.