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ABSTRACT
Contentiously debated shari’a (Islamic law) across the world has acquired specific political connotations. In India, this is so not only because the overbearing presence of fixity of maslaki-taqlīdi shari’a produce inverted truth that petrifies the true meaning, but also due to the deep entanglement of the legal with extra-legal phenomenon such as communalism, producing palpable theoretical–practical tensions. Employing the concepts of normativity and conviviality, the essay examines the normativity of dominant maslaki-taqlīdi shari’a-based Muslim Personal Law. Such a law aims at producing a conforming Muslim legal subject. On the other hand, this shari’a is rendered a contested terrain critically contesting the authority of the legal monotheism of codified taqlīdi shari’a by everyday laity ijtihād that constitutes the field of conviviality. Such conviviality is characterized by the laity’s everyday idea of justice and democracy marked by a deep sense of defiance propelled by adverse and undesirable conditions of existence in everyday locations, viz., the Social. Thus, the field of conviviality is marked by a movement from normative subject to ontological self, enabling women/subjects to exercise their subjectivity to decode the occultated and petrified meanings of taqlīdi shari’a convivially. This signifies a movement towards making the canonized shari’a/law as an everyday social practice.
Acknowledgements
Thanks to Michae Dusche who read the earlier draft presented in the conference organised by him in 2015. Thanks are also due to Muft Mushtaq Tejarvi for the occasional discussion and for readily sharing some material. Thanks to Manisha Sethi, who in the true spirit of a excavator-editor facilitated the writing of this essay. All the translations from Urdu are by the author.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes
1. Bourdieu uses the concept of field in a very rigid and structured sense where a social field ‘exerts a force upon all those who come within its range’ and those who come within its range are generally not aware of it, and its power is mysterious. See Terdiman, ‘Introduction’, 806. Bourdieu’s concept of field is very much akin to his concept of habitus where primary predispositions constitute structuring principles to constitute human activities/practices. In this essay, a social field is characterized by people placed in a hierarchical social order. They gain knowledge of it in a process that generates critical reflections and enables them to exert influence upon the field in order to change it through a process of unravelling its mysteries by their defiant subjectivities. In other words, people are not just constituted by the field, but they constitute and re-constitute it as well.
2. Relating to Maslak. In Islamic scholarly writings on shari’a it is the term Mazhab which is employed to denote a school of Islamic jurisprudence. Therefore, Muslims claim to belong to the Hanafi, Shafi’i, Hanbali or Māliki mazhab, and only at times the word maslak is used as synonym for the term ‘mazhab’. However, in Indian subcontinent since the term mazhab is widely used and understood for religion (such as mazhab-e Islam), thus the term maslak which is predominantly used for mazhab. But importantly, the term maslakin Indian subcontinent refers not only to the schools of Islamic jurisprudence, but also, and importantly, it refers to sects/denominations within a particular school of jurisprudence, such as Deobandi and Barēlwī, etc. within Hanafi school of thought. Therefore, maslak refers to a system of religious belief and worship based on a particular interpretation of Quran and hadith constituting a sectarian school of thought within an established school of Islamic jurisprudence, indicating at the existence of multiple maslak among Muslims beset with antagonistic relations.
3. Ijtihād in Islamic Shari’a and jurisprudence refers to independent reasoning by legal scholars in finding a solution to a legal question, not specifically provided in Qur’an and hadith, with creative reinterpretation in changed circumstances. But since long ijtihād is not practised that demanded taqlīd, which resulted in fiqh (Islamic jurisprudence) becoming ineffective in changed circumstances. The issue has since long been hotly debated and is central to any discussion on shari’a particularly with regard to Muslim personal law.
4. Taqlīd refers to imitating; conformity to legal precedents of earlier Islamic legal scholars; not applying any critical thinking in changed circumstances. Thus, taqlīd means: ‘Acting on the opinion of another without knowing his evidence or demanding proof’. See Usmani, Usul-al-Iftā waĀdābahu. It is contrasted with ijtihād. Ijtihād and taqlīd have intensely been debated for long involving their historical, theological and jurisprudential dimensions and nuances, here we are using them in their essential sense.
5. The term of Hindutva was introduced by V. D. Savarkar in 1922–3. Ideology of Hindutva seeks to establish a Hindu Rashtra (Hindu Nation) and Hindu hegemony in India. It represents the predominant Hindu idea of nationalism and majoritarian communalism particularly against Muslims who are considered outsider, who ruled over Hindus by force and ultimately partitioned the sacred body of mother India. Hindutva ideology has found Muslim Personal Law an issue on which Muslims can be taught a lesson under the guise of implementing Common Civil Code.
6. Article 44 of the Directive Principles of the Indian Constitution says: ‘The State shall endeavour to secure for citizens a uniform civil code throughout the territory of India.’ The issue of uniform civil code has emerged a hotly and publically debated issue in post-colonial India, and is believed by Muslims as a means to curb personal laws, especially only of Muslims. The issue has further been complicated, as many Muslim women, affected adversely by the personal laws, have begun knocking on the doors of the Supreme Court beseeching it to uphold their fundamental rights to equality and liberty in keeping with constitutional provisions. The question of uniform civil code has acquired a distinct communal overtone after the famous Supreme Court of India judgement in 1985 on Shah Bano case. For general theoretical issues on UCC with reference to India, see Menski, ‘The Uniform Civil Code Debate in Indian Law’; Mahmood, Uniform Civil Code; for a critique of Hindutva agenda of UCC, see Agnes, ‘The Modi Government’s Hindutva Ideology Could Stall Any Progress on the Uniform Civil Code’.
7. Ummah refers to a united community and brotherhood of Muslims independent of national boundaries with a shared history and bound by the tenets of Islam.
8. See Quaiser, “Choreographic Occultation and Petrification of Meaning.”
9. Josselson, “The Hermeneutics of Faith.”
10. For more on historical, social and political dimensions of shari’a, see Hallaq, An Introduction to Islamic Law; Safi, ed. Progressive Muslims; Abou El Fadl, Reasoning with God; Bennett, Muslims and Modernity; and Ziadeh, Usul al-fiqh.
11. These accounts led to the systematic articulation of the body of legal knowledge and rules in the eighth and ninth centuries by the great jurists such as Abu Hanifah, Mālik ibn Anas, Al-Shafi’i and Ahmad ibn Hanbal, the founders of the Hanafi, Māliki, Shafi’i and Hanbali schools of Sunni jurisprudence. A fifth school of Islamic jurisprudence is Fiqh-e Ja’faria named after the sixth Shiite Imam Jafar al-Sadiqfor Shia Muslims.
12. Schacht, An Introduction to Islamic Law, 70–71.
13. For an insightful discussion, see Bennett, Muslims and Modernity.
14. As is discussed below, this is very much true in case of India as well. For example, in March 2015, the secretary of the Islamic Fiqh Academy (India) stated that the principle of taqlīd has generally been accepted since the tenth-century AD onward, which is practised in India. See Kalīdi Khutba.
15. Hallaq, “Was the Gate of Ijtihād Closed?” 3–41.
16. Rabb, Ijtihād.
17. For discussion, see Milton-Edwards, Islamic Fundamentalism since 1945; and Gesink, “Chaos on the Earth.”
18. Rahman and Moosa, Revival and Reform in Islam; An–Naim, Toward an Islamic Reformation; and Wadud, Qur’an and Woman. Although there is continuity, the nineteenth-century modernist notion of ijtihād was located strictly within an Islamic framework, while the contemporary modernist plea for ijtihād would like to draw not only upon shari’a but also upon critical perspectives of modern social sciences, see Taji–Farouki ed. Modern Muslim Intellectuals and the Qur’an.
19. Otto, Shari’a and National Law in Muslim Countries: Tensions and Opportunities for Dutch and EU Policy.
20. Mir-Hosseini, “Islamic Family Law and Social Practice,” 23. In fact Mir-Hosseini is close to what Abou El Fadl states with reference to some earlier jurists – but ultimately stating that shari’a remains the Way and the Law of God, see Abou El Fadl, Islam and the Challenge of Democracy, 30–31.
21. For an intellectually powerful discussion on this question of contextualization of Islamic jurisprudence, see Coulson, A History of Islamic Law, especially 1–7 and 218–226.
22. Nasr, Ideals and Realities of Islam, 112.
23. For Ahl-e Hadīs view, see Fariwai, “Taqdeem”
24. For Shah Waliullah, see Dehlavi, Hayat-e Wali; and Nadvi, Tārīkh D’awat wa ‘Azīmat.
25. Rahman, “Muslim Modernism in the Indo-Pakistan Sub-Continent;” and Esposito, The Islamic Threat.
26. Iqbal, Reconstruction of Religious Thought in Islam.
27. For how strong taqlīd as organizing principle is in Indian subcontinent, see Usmani, Taqlīd ki Shari’yi Haisiyat; and Thānvi, ‘Letter’; and Thānvi, Imdād-ul-Fatāwa.
28. Amini, Fiqh-e Islami kā Tārikhī Pas-Manzar, 19–20.
29. See, for example: Khan, Fatawa ‘Alamgīrī Par Eik Nazar; and Madani, Fatawa Sanaullah Madani.
30. Husain, Administration of justice, 13–16; and Ahmad, The Administration of Justice in Medieval India.
31. The Hedaya, Or Guide. Written in the twelfth century by the leading Muslim jurist Burhan al-Din al-Marghinani (1135–97), the original Arabic al-Hidayah remains a central text of Islamic personal law. It was translated into English by Charles Hamilton. Although since superseded, it remains a significant text in the history of colonial jurisprudence. Its significance can be gauged from the very fact that the four volumes of Hidayah continue to be one of the main texts taught in all the leading madrasa in India.
32. Gilmartin, Anglo-Muhammadan Law; and Kozlowski, Muslim Endowments and Society in British India.
33. Ali, Principles of Mohammadan Law; Fyzee, Outlines of Muhammadan Law; and Gilmartin, Anglo-Muhammadan Law.
34. Anderson, “Islamic Law and the Colonial Encounter.”
35. Wilson, An Introduction to the Study of Anglo-Muhammadan Law, 2.
36. Jamiʿat-ul-ʿulamā-i-Hind founded in 1919 drew its inspiration from the eighteenth-century Muslim anti-European expressions. It claims that after the 1857 revolt ʿulamā were the main target of the British oppression and of the 200,000 people martyred during the revolt 51,200 were ʿulamā. During the anti-colonial struggle, Jamiʿat took the position that Hindu–Muslim unity was necessary for the country’s freedom and it closely aligned with the Indian National Congress and had opposed the partition of India in 1947. See Rizvi, Tārīkh Dār-ul-‘Ulum.
37. Madani, Muttahida Qawmiat Aur Islam.
38. All India Muslim Personal Law Board: Khidmāt aur Sargarmiyan.
39. Shah Bano, a 73-year-old woman was divorced by her husband by triple talāq and denied maintenance. She approached the courts. Ultimately, the Supreme Court of India unanimously ruled in her favour in 1985. But it also passed some adverse remarks about Muslim personal laws and failure of parliament to legislate uniform civil code. Muslims accused the Government of imposing Hindu culture on minorities; and the Board vigorously campaigned for Muslim personal laws and identity. The Congress party led-Government finally passed The Muslim Women’s (Protection of Rights on Divorce) Act (MWA) in 1986, which made Section 125 of the Criminal Procedure Code inapplicable to Muslim women. The Government was accused of ‘minority appeasement’ and as a result, perhaps to compensate the other side, magistrate in Ayodhya ordered opening of the gates of Babri masjid, which further produced the volatile communal politics in the days to come. See Mullally, “Feminism and Multiculturalism Dilemmas in India;” and Joseph and Sharma Whose News?
40. Though the Board has opposed UCC, but of late there seems to be some tension on the issue. For example, it has been reported that the present General Secretary of the Board has stated that if the Supreme Court of India implements the UCC, the Board would accept it. He may have made this statement with the view that the Supreme Court cannot do this, but another prominent Muslim organization has strongly condemned his statement (Jadeed Khabar, 27 December 2016).
41. Hallaq, The Origin and Evolution of Islamic Law; and Abualfaraj, Evidence in Islamic Law.
42. Qasmi, Islāh-e Mu’ashra and Samaj kī Zimmedaariyan.
43. Imārat Shari’a: T’arruf, Khidmāt aur Sargarmiyan, 5–6.
44. Ibid.
45. Arya Samaj, an Indian Hindu organization, was formed in 1875 for the revival of Vedic values and practices. It gained notoriety for its shuddhi (purification) activities for conversion to Hinduism creating communal passions.
46. Ghar Wapsi (Home Coming) is a series of religious conversion activities facilitated by extreme right wing communal Indian Hindu organizations, Vishva Hindu Parishad and Rashtriya Swayamsevak Sangh, to facilitate conversion of non-Hindus to Hinduism, particularly Muslims and Christians in contemporary India.
47. Bastavi, Nizām-e Qaza ka Qyam: Ahmiyat aur Zarurat.
48. “Petition against ‘Shariat courts’ is misguided.” The Milli Gazzette.
49. Vishwa Lochan Madan versus Union of India.
50. http://www.stepswomenjamaat.org/; see also Deepa Dhanraj’s perceptive documentary film on Jamaat, Invoking Justice. More generally on modernist, reformist, reconstructionist Islamic feminist thinking to bring about change in the status of women in general and in family law from secular perspective or from within the framework of the shari’a around the question of gender justice and equality, see Mahmood, Muslim Personal Law; Omvedt, Violence against Women; WRAG Report, Aspects of Culture and Society; Desai, ed. Women’s Liberation and Politics of Religious Laws in India; Mernissi, Women and Islam as well as Beyond the Veil; Mir-Hosseini, How the Door of Ijtihād Was Opened and Closed; Haddad and Esposito ed. Islam, Gender and Social Change; and Ask and Tjomsland ed. Women and Islamisation.
51. Deen Aur Destur Bachao Tahrik: Kya Aur Kyon; and “Board ki Sargarmiyon Kā Mukhtasar Khāka.”
52. Mahmood, Politics of Piety.
53. Khul’a literally means to shed, as to shed clothes. Khul’a is taken to mean separation between spouses, for in Quran husband and wife are considered as one clothe (of each other); and through Khul’a they shed this implied clothe. Thus, its extended implied meaning would be redemption, rescue, and emancipation. The situation in which the wife initiates divorce proceedings by mutual agreement is known as khul’a divorce (talāq-ul khul’a), with other related forms such as sulh, fidya and mubāra’a, having the same meaning, which is in order to obtain her divorce a woman pays compensation. But there are some differences in all the four forms. Khul’a means that the woman has to pay all that husband spent on her (mahr – dower, if it has been paid and any wedding gifts); in case of sulh, she will pay only part of it; fidya means paying more than what she got; and mubāra’a refers to her writing off a claim that she had against husband. Her right of fidya is considered to be at par with talāq. Any sensible woman can go for khul’a. If a woman is generally unhappy with her husband, even if she does not like his physical appearance, she herself can seek khul’a. If husband is at fault then it is prohibited for him to take any compensation. Khul’a can be decided by the spouses themselves and for this they need not go to court-‘adālat-dār-ul-qaza. In case husband does not agree the wife can ask for the annulment of her marriage (Faskh-e-Nikah) and the qāzi is permitted to annul the marriage on valid grounds. However, sometime husbands are forced to agree by various means, but of course that is outside the shari’a. The issue has since long been intensely debated among the jurisprudents of various schools of jurisprudence.
54. Agnes, Written Submissions, 7.
55. Thanks to Urdu journalist Dr Mahtab Alam,Jamal Ayyub and Lamat Rahman for getting a copy of this statement. Copy on record.
56. Siasat Urdu daily, 27 February 2016.
57. Thanks to Irfan Muhammad for the Nizamabad figures.
58. Annexure A in Agnes, Written Submissions.
59. According to a report, numbers of women opting for khul’a are growing at an unprecedented rate in Pakistan’s urban centres. On 31 December 2015, 12,733 cases of khul’a were still pending in family courts of four districts in Karachi. If 10 cases are resolved or disposed, 50 new ones are added, see The Express Tribune, 1 April 2016. In Pakistani Punjab, 13,299 khul’a cases were reported in 2012, which later rose to 14,243 in 2013, and in 2014, they went up to 16,942. In 2016, they have increased to 18,901, see The Nation, 27 June 2016. A report from Bangladesh reveals that Dhaka North City Corporation (DNCC) and Dhaka South City Corporation (DSCC) data show that around 67% of the divorce notices issued from 2011 to 2016 were by women, see Dhaka Tribune, 14 May 2017. In Bangladesh, Muslims in matters of personal law are governed by The Muslim Personal Law (Shariat) Application Act (1937). Qāzi, local Imam and mullā (here, a religious parson) solemnize Muslim marriage; there is no official qāzi court; qāzis are government servants only to maintain marriage and divorce records. Nikahnama has a column, which pertains to delegation to the wife of the power of divorce that by default means yes, unless otherwise written specifically.
60. Interviews; for general concern within the ʿulamā, see Qāsmi, Islāh-e Mu’ashra and Samaj kī Zimmedaariyan; and Qāsmi, Muslim Personal Law Kā Mas’ala: T’arruf wa Tajziya.
61. Nizamuddīn, “Shazrāt.”
62. Personal communication.
63. Dhaka Tribune, 14 May 2017; Macfarlane, Islamic Divorce in North America, 195–6.
64. Author’s interviews; Qāsmi, Islāh-e Mu’ashra and Samaj kī Zimmedaariyan; Times of India, 13 August 2015.
65. See Qāsmi, Muslim Personal Law Kā Mas’ala.
66. Based on personal interviews.
67. Nikāhnāma – approved by All India Muslim Personal Law Board. Office of the Board informs that it is the same Model Nikāhnāma that the Board had presented in 2005. Significantly, after 17 years of the model nikāhnāma, the Board in a Resolution passed in its Working Committee meeting held on 15–16 April 2017 stated that the wife can end marriage by khul’a, see Guidelines & Advisory with Reference to Marriage and Divorce of Muslims in India. Inclusion of talāq-e tafwīz perhaps may not take another 17 years.
68. See note 65 above.
69. Copy on record.
70. A Mufti is a person who is properly trained in the science of Fatwa literature and only then is entitled to issue a Fatwa, which is just a shari’a-based ruling/opinion, and which is not necessarily to be adhered to.
71. In high Islamic discourse, an honorific Islamic religious title was given to Muslim religious scholars, but in Indian subcontinent it refers to a low-level madrasa teacher, or pesh-imam (one who leads five-time prayers in a mosque), etc.
72. Masarrat Urdu weekly, 19 December 2016.
73. My conversation with several people has confirmed this. Some people close to dār-ul-qaza too have unofficially said so. Whatever the case, it is clear that rising cases of khul’a and strident shari’a-bashing over triple talāq have alarmed ʿulamā. In a seminar on khul’a and talāq, a Muslim personal law advocate expressed deep concern over the present ‘lawlessness among Muslims in the matters of khul’a and talāq’ (Siasat Urdu Daily, 15 May 2013). The Board has admitted that several steps have been taken to deal with this misuse (The Times of India, 13 August 2015). Msājid Committee, Bhopal has in 2017 organized training camps for nikāh-khwan (one who solemnizes the marriage), pesh-imams and muezzins (one who calls Muslims to prayer from a mosque) at several tehsil level dār-ul-qazas and issued circulars in this regard (copies on record).
74. Roznāma Rāshtriya Sahara, Urdu Daily, 9 December 2016; conversations with local people. Allahabad High Court – Justice Suneet Kumar, 8 December 2016. Un-reportable items.
75. Shongbad Pratidin, 17 June 2017; Doinik Nabodiganta, 17 June 2017.
76. India Today, 4 May 2017.
77. Thanks to P. Majid and Mufti Aslam for interview. There is a great deal of debate on the question of intention (niyya) and uttering the word talāq among the established Islamic jurisprudents.
78. Althusser, “Ideology and Ideological State Apparatuses,” 123.