In 1985-86 the All India Muslim Personal Law Board spearheaded a protest movement against the Supreme Court judgment in the Shah Bano case. The board dubbed the judgment interference in religion” and a threat to the special identity of the community. They achieved significant success when Government succumbed to their pressure and enacted a new law called Muslim Women [Protection of Rights on Divorce] Act 1986. After tasting victory, the Personal Law Board started behaving for all practical purposes as the sole spokesman of the Muslim community. As a body of professional clerics from madrasas they revived the demands to set up a parallel judiciary and called for the appointment of kazis to administer Muslim law.
In May 2001, they published a “Compendium of Islamic Laws” providing section-wise codification of Muslim Personal Law for the “benefit of the practitioners of the modern law, judges, scholars and students”. Clearly, the purpose of this publication is to ensure that the judges of the Indian courts decide personal law cases as per their exposition, as, according to the Muslim Personal Law Board, the interpretation of Muslim law is their exclusive prerogative and any new interpretation by the courts amounts to interference in religion.
I have taken some provisions from the Compendium, particularly on the subjects of “Equality in Marriage” and “General Principles of Divorce”, to compare them with the provisions of the Quran the Magna Carta of Islam. Since the Compendium claims to be a compilation of “Islamic Laws it is only right to test the veracity of the claim on the touchstone of the Quran.
To begin with the Compendium, in Part 1, Chapter 7, under the title of “Equality in Marriage [Kafaayat]” it is said:
Section 117: Regard shall be had in respect of descent among the Arabs, especially Quraish and those non-Arab families who have preserved descent. People in the rest of the non-Arab Muslim world are mutually equal. On the basis of this principle a girl can get terminated her marriage to a non-equal contracted by her guardian and a guardian has the right to terminate the marriage of an adult woman to a non-equal.
The Compendium divides Muslims into three categories on the ground of race: 1. Muslims of Arab origin; 2. Muslims of Indian origin who have preserved their descent; and 3. other Muslims who are equal among themselves but do not enjoy parity with Muslims falling in the first two categories.
NOW LOOK what the Quran says on the question of descent and honour. It says:
O mankind! We created you from a single [pair] of a male and a female and made you into nations and tribes that you may know each other [not that you may despise each other]. Verily the most honoured of you in the sight of Allah is [he who is] the most righteous of you [49.13].”
The Quran emphatically lays down that all mankind has descended from one male and one female; the tribes and nations are merely source of identity, but honour belongs to the righteous. Does this verse leave any scope for categorisation on racial grounds?
There is a famous Prophetic declaration made after entering Mecca in 630. It said: “O people of Quraysh, surely Allah has abolished from you all arrogance of ignorance and pride in ancestry. Mankind is descended from Adam and Adam was made from clay.
There is another beautiful tradition of the Prophet saying:Your Rabb [Lord God] is one and your Abb [father] is one.
These are not mere pious declarations, but practical realities of Prophetic life. Imam Zainul Abideen summarised them pithily in his letter addressed to the Umvi ruler Abdul Malik. It is reported that the Imam, who was a great-grandson of the Prophet, had married a freed slave woman and later got his daughter married to a freed slave. This news aroused the racial arrogance of Abdul Malik who denounced the Imam for marrying his daughter to a former slave. Imam wrote to him saying that “The Prophet had married a slave girl after freeing her and gave his first cousin Zainab in marriage to the former slave Zaid to put an end to racial arrogance. If I wish to follow the lofty example of the Prophet, you have no cause to begrudge it.
IN PART 2, Chapter 2, on the General Principles of Divorce [talaq] the Compendium says:
Section 5[b]: For the effectiveness of talaq it is, in principle, necessary that the man pronouncing it should be in his senses. This demands that a talaq pronounced in an inebriated condition should not be effective. However if a person has unlawfully consumed an intoxicant by his own liking and habit, his talaq will become effective by way of punishment. But if a person has consumed any intoxicant as a treatment, or under compulsion or strong pressure or in ignorance, and pronounces talaq in that state, it will not be effective.
Section 6: If a person under compulsion or duress pronounces talaq it will be valid if it is verbal, but not otherwise.
Section 7: A talaq pronounced in jest [hazl] also becomes effective.
Chapter 4: Express [sareeh] Talaq, Rule of Express [sareeh] Talaq
Section 15: The rule of expressing talaq is that it will effect a divorce without intention.
Chapter 5: Symbolic Expressions
Section 27: If a man uses for his wife symbolic expressions of divorce, a talaq will be effective by these words if he intended it, or if there is some context pointing out to a divorce.
It is clear from the provisions that, according to the Personal Law Board, divorce becomes effective when pronounced, 1. under an inebriated condition; 2. under compulsion or threat; 3. in jest; or 4. even through the medium of symbols. All these eventualities raise questions about the intention of the man pronouncing the divorce. To take care of these doubts the learned ulema of the Personal Law Board have clarified that the pronouncement of talaq is sufficient to make it effective even in the absence of intention. The whole emphasis, it appears, is on making talaq easy and simple for the man, without bothering about its disastrous impact on the wife and children.
NOW LET US see what the Quran says about action devoid of intention, compulsion and saying in God’s name something that separates people instead of bringing them together.Allah will not call you to account for that which is unintentional in your oaths, but He will call you to account for that which your hearts have earned [2.225].
Allah accepts the repentance of those who do evil in ignorance and repent soon afterwards to them will Allah turn in mercy [4.17].
And make not Allah’s [name] an excuse in your oaths against doing good or acting rightly or making peace between persons [2.224].The Quran specifically lays down that pronouncements made without intention are beyond scrutiny and actions done in ignorance deserve pardon.
There is a prophetic tradition that says that “the reward of deeds depends upon the intentions and every person will get the reward according to what he has intended”. The Quran and Hadith both hold intention important to decide culpability, but the ulema of the Board have declared pronouncement without intention enough ground to separate man and wife.