Muslim Law: The need for reform

Photography courtesy Sister-Hood

DR REEZA HAMEED on 04/01/2017

The All Ceylon Jamiyyathul Ulama (ACJU) is opposed to making

any changes to the existing Muslim family law. Mufti Rizvi, who is
a member of the Saleem Marsoof Committee appointed to look
into reforms to the Muslims Marriages and Divorces Act (MMDA) of
1951, has made the oracular pronouncement that the law is
perfect in its present state and required no reform. Mufti Rizvi
also presides over the ACJU. Regrettably, the views expressed by
the Mufti and his outfit are anachronistic and obscurantist.

Matters relating to Islam and Muslim law ought not to be the sole
concern of the ulema. In this comment I have touched upon some
issues in the hope that it will contribute to the debate on the need
for reform.

Minimum age for marriage

In Muslim law marriage is not a sacrament but a civil contract.

Neither religious ritual nor having it done in a mosque is essential
to confer validity to a marriage. A Muslim marriage is contract like
any other in Islamic law. Parties to a marriage should have legal
capacity to enter into the contract. There has to be an offer and
an acceptance of that offer with the intention of establishing a
marital relationship. There must be consideration given to the
wife known as mehr. All the schools of law recognise that a
person has freedom of choice to enter into a marriage and that he
or she cannot be forced into one.

The age at which a young Muslim acquires legal capacity to marry

has been a contentious issue. The traditionalist view adumbrated
by classical jurists is that a person acquires the legal capacity to
marry on attaining puberty. In the Hedaya, the manual on Hanafi
law, the earliest age at which puberty is attained by a girl is 9 and
by a boy at 12. A similar view is adopted by the Shafi School,
which is followed by a majority of Sri Lankan Muslims. The
presumption of Muslim law as applied in India and Sri Lanka is
that a person attained puberty at 15.
In Sri Lanka, in a case decided in 1948, Justice Gratiaen decided
that a Muslim minor becomes emancipated and, therefore,
acquires capacity to enter into contracts on proof of attaining
puberty or on reaching the age of 15. In 1950, in another case,
Justice Swan held that, for the purposes of marriage, a Muslim
attains majority on reaching the age of puberty. In my view these
decisions ought to be reconsidered.

According to the Shafi School, an unmarried Muslim female

requires the consent of her guardian to enter into a contract of
marriage. There is no assurance that the guardian would always
act in the childs best interests or prevent child marriages from
taking place. There is also the risk that a young girl might be
forced into a marriage she is not ready or willing to embark upon.
Tahir Mahmood, editor of Fyzees standard book on Muslim law,
has stated that the reason why Muslim law proclaims the majority
of young persons who have reached puberty is to free them from
the guardians authority to force them into unwanted marriages
and not to promote child marriages. In my view, the imposition of
a minimum age for marriage is the better safeguard.

Age limits have been prescribed by the law in many areas of

human activity. The law does not permit a person from driving a
motor vehicle until he is 18. A person is considered not fit enough
to vote at an election until she is 18. A person cannot ordinarily
bind himself in contract until he is 18. The rationale for denying
persons who have not obtained majority is that they are deemed
to be lacking in maturity of judgement and the degree of
responsibility necessary to engage in such activities.

The ACJU is opposed to the setting of a minimum age for marriage

for Sri Lanka Muslims and wishes to retain the attainment of
puberty as the event to determine the capacity for marriage.
The ulema seem to think that the introduction of a minimum age
for marriage would amount to interfering in the religious beliefs
and practices of the Muslims. In support of its position, the ACJU
has cited the Prophets marriage to Aisha claiming that she was
either 6 or 9 when it took place.

It is unfortunate that the ACJU has perpetuated the false narration

about Aishas age to defend child marriages. The Prophets
detractors have been making this claim in order to denigrate him.
The ACJU, by repeating this falsehood, has sullied his good name.

Aisha was about 18 when she married the Prophet. (On this, see
Dawn: https://www.dawn.com/news/696084/of-aishas-age-at-
marriage). There are traditions which report that, at the time of
her marriage, Aisha had a good knowledge of Arabic poetry and
genealogy as well as a good understanding of ethics. These
attributes do not fit the profile of a 9 year old.

The Prophets daughter Fatima was 18 when he gave her in

marriage to Hazrat Ali. They were married in Medina after the
prophet migrated to Medina. The Prophet supposedly married
Aisha before the migration but moved in to his household in
Medina after the migration. If Aisha was 9 at the time, then Fatima
would have been 17 or 18. How could the Prophet have taken a
girl of 9 into his house as a wife when he had an unmarried
daughter of 17 or 18 living with him? It is not plausible.

Historians and ulema have also misrepresented the age of

Khadija, the Prophets first wife, to whom he was monogamously
married for about 25 years. Many biographical accounts of the
Prophet give Khadijas age as 40 and the Prophets as 25 when
they were married. Khadija was twice married and twice widowed
before she married the Prophet. Khadija had given birth to
children by both her previous husbands. She also gave birth to
seven children by the Prophet, and the last of them was born a
year after he attained Prophet-hood at 40. If she was 40 when she
married the Prophet, then she would have been 56 years old
when she gave birth to her last child, an unlikely proposition even
by todays conditions but especially so then, given the
comparatively shorter life spans enjoyed by men and women and,
in the case of women, the risks associated with child birth.

According to historians such as ibn Habib and Baladhuri, Khadija

was in fact 28 when she married the Prophet. Thus, 12 years have
been added to Khadijas age, and 12 years have been taken off
Aishas age.
While the ulema are given to citing the Prophets supposed
underage marriage to Aisha to condone marriages to underage
girls, they hardly ever encourage Muslim men to follow the
Prophets example and marry either a widow or a woman of 40 (or
above), as the Prophet supposedly did in Khadijas case.

There is nothing in the Quran which says that a man should marry
a young girl. There are references to marriage in Surah an-Nisa.
The title is an indication that this surahs concern is with women.
In Surah an-Nisa verse 3 the Quran says: And if you have reason
to fear that you might not act equitably towards orphans, then
marry from among other women It is clear from this verse that
the marriage contemplated in the Quran is between men and
women and not between men and girls.

In verse 6 of the same Surah there is a reference to marriageable

age. The Quran does not specify when a girl reached
marriageable age, but it is the commentators who have
interpolated puberty as the stage when it is reached. For instance,
Maulana Maududi has explained it to mean: When they are about
to attain their puberty, keep an eye upon them and go on testing
their intelligence in order to see how far they have become
capable of looking after their own affairs. It is to buttress a false
interpretation that the falsehood about Aishas marriage has been
perpetuated.

It is not in the best interests of a girl to be married off early. Early

marriage robs a girl of her childhood. It would cause her childhood
to be interrupted and prevent her normal growth into adulthood.
She would be denied the opportunity of education and the
empowerment that comes with education.

Puberty is a physical fact but does not make a girl mature.

Maturity comes with age. Marriage requires physical as well as
mental and intellectual maturity. Puberty does not furnish the
necessary maturity and intellect to deal with the complexities and
demands of married life. Early marriage would prematurely cast
upon a child the burdens of childbearing and childrearing for
which she is ill equipped and is neither physically nor mentally
prepared. It would expose her to the risk of child birth at an early
age. Yet, puberty is advocated as an acceptable age at which to
confer upon a girl the capacity to undertake the onerous burdens
of a marriage and subject her to such risks.

Polygamy

Another contentious issue among Muslims relates to the

institution of polygamy. Polygamy existed even before the advent
of Islam, but the Quranic impulse is to abolish it. In Surah an-Nur
verse 32 the Quran exhorts: Marry those of you that are single.
It makes no distinction between men and women. There is
nothing in this verse to suggest that men ought to take more than
one wife.
In Surah an-Nisa verse 3 it is said: And if you fear that you may
not be just to the orphans, then you may marry whom you please
of the women: two, and three, and four. But if you fear you will
not be fair, then only one

Traditionalists among Muslims have argued that this verse

encourages polygamy. This verse was revealed shortly after the
battle known as the Battle of Uhud in which the Muslim army
suffered heavy casualties, leaving many widows without carers. It
was no longer possible for them to return to their clans which they
had abandoned upon embracing Islam. Membership in the
nascent Muslim community was based on affiliation to Islam and
not on affiliation to a clan or a tribe. It was in this context that the
verse permitting polygamy was revealed to alleviate the condition
of those women, reluctantly giving acceptance to the institution,
but hedging it with conditions.

The conditions hedging around plural marriages are difficult to

fulfil and it is impossible for a person to maintain equality
between two or more wives. Indeed, the following warning is
given in the Quran in the same Surah at verse 129: You will not
be able to treat all women equally even if you wish to do so.
Instead of regarding this as an exhortation not to engage in
polygamy, the ulema have defended this institution claiming it to
be a fundamental aspect of Islam. Maulana Maududi, echoing al-
Razis view, has even interpreted this verse to mean that because
it is not possible for a man to treat all his wives equally, it is too
much to demand from a husband that he should mete out equal
treatment to all his wives.

Maulana Umar Ahmad Usmani has argued that the Quran does
not permit plural marriages except of widows and orphans in
exceptional war like situations. The recommendation is for
monogamy rather than polygamy. The late Maulana Mumtaz Ali,
another product of the Deoband School, argued that marrying
four wives simultaneously is not the intention of the Quran.

Gender equality

The ACJU is opposed to the appointment of a female as a judge

asserting it is contrary to Islam. To support its position, it has
relied on a fatwa issued by the Dar ul-Uloom at Deoband,
according to which appointing a woman as a judge was near
haram. Despite saying that picking and choosing madhabs
would cause confusion, the ACJU has done exactly that by
choosing a fatwa from the Hanafi Deobandi School.

Two verses from the Quran have been cited to defend the
legitimacy of its position. (i) Surah 4 verse 34: Men are
protectors and maintainers of women. (ii) Surah 2 verse 228:
Men have a degree (of responsibility) over them. A Hadith, too,
has been cited.

The phrase al rijalu qawwamuna ala l-nisa appearing in Surah 4

verse 34 has been the foundation on which the arguments about
gender relationships have been constructed by the
traditionalist ulema, and echoed by the ACJU. The meaning that is
ascribed to the concept of qawwamah is central to an
understanding of the relationship between men and women as
conceived by the Quran.

Variable interpretations have been given to the

word qawwamuna depending on the view that has been taken
about its root word, with some deriving it from qiyam and others
from qawam. The traditionalists, reading of qawwam as a
derivative of qiyam (meaning guardianship over other), have
argued that men are in charge of and are superior to women.
Maulana Maududi has understood the verse to mean: Men are
the managers of the affairs of women because Allah has made the
one superior to the others and because men spend of their wealth
on women. Maulana Ahsraf Ali Thanvi of the Deoband School
translated qawwam to mean ruler over women.

Others have interpreted qawwamun as derived from qawam. T.B.

Irving says that qawm is a difficult word to translate properly. He
has translated the word to mean to stand up as in to defend the
common interests. In this sense, men are not superior to women
but they are required to stand up for the rights and safeguard the
interests of women.

Rather than expressing a relationship of superiority over

women, qawwamuna implies an obligation on men to maintain
women. The Quran in Sura 2 verse 228 comes strongly in favour
of gender equality when it says of women: They have rights
similar to those against them. Surah an-Nisa itself begins with
the divine declaration that both men and women are from the
same soul and are equally accountable to the Creator.

According to the hadith cited by the ACJU the Prophet had said:
No people will ever prosper who appoint a woman in charge of
their affairs. This hadith is based on a solitary report (ahad) by a
person named Abu Bakrah. Hadith scholars distinguish between
various types of hadith based on how sound they are. Thus,
a mutawatir (massively transmitted) hadith refers to a report that
was narrated by large number of people with a degree of
consistency in their reports such that that all of them cannot be
expected to agree upon a lie. An ahad hadith is lacking in the
qualities of a mutawatir hadith and, therefore, does not inspire
the same degree of certainty.
It is to be noted that this hadith was included by Bukhari in the
chapters on Campaigns and Civil Strife. In Tirmidhis collection it
has been included only under the chapter on Civil Strife. It is only
in al-Nasais collection that it has been placed in a chapter
dealing with the rules applicable to judges. What it demonstrates
is that different hadith collectors have used a single hadith
originating from a single source differently by placing it under
different subjects, attributing different interpretations upon it.
The ulema, in turn, have constructed a rule of far reaching
implication for women based on the authority of a single narration
of uncertain if not doubtful certainty.

More significantly, this hadith is inconsistent with the story of

Bilkis, or the Queen of Sheba, as narrated in the Quran. The
Quran says that her rule had been just. Rather than approaching
the hadith through the Quran, the ulema have approached the
Quran through the Hadith and given preference to the hadith
even where it is inconsistent with the Quran.

Public interest

It was reported that the Committee had asked the ACJU to look
into the possible use of the concept of public interest to develop
the law when reforming it.

The shariat permits the adoption of a rule which promotes public

good and the broader principles of justice. Istihsan, which means
giving preference to a regulation in the interests of justice, is a
recognised principle of Islamic jurisprudence. It is related to the
principle of interpretation known as maslaha. Maliki law has an
equivalent principle known as istidlal.
In 1936, the late Maulana Ashraf Ali Thanvi issued a fatwa in
which he advocated the adoption of certain principles of the
Maliki School with a view to empowering women subject to Hanafi
law to have their marriages dissolved on grounds recognised by
Maliki law. Maulana Thanvi was from the Deoband School which
adheres to the law as expounded by the Hanafi School. Hanafi law
prevented Muslim women from getting divorced without their
husbands consent. Maliki law recognised a womans right to
divorce based on certain grounds such as the husbands refusal to
provide maintenance or his insanity.

The Maulana, motivated by his desire to ameliorate the hardship

of Muslim women locked into miserable marriages, issued the
fatwa to recommend the dissolution of marriages based on
grounds recognised by Maliki law. His efforts resulted in the
enactment of the Dissolution of Marriages Act 1939. The
statement of objects of this Act declares that the Hanafi jurists
have clearly laid down that, where the application of the Hanafi
law causes hardship, it is permissible to apply the provisions of
the Maliki, Shafi or Hanbali law, and the Act was being enacted in
order to relieve the sufferings of countless Muslim women. This is
an example of a change in the law brought about in the public
interest.

It demonstrates that in Islamic jurisprudence there is no

impediment to picking and choosing from different madhabs, or to
change the law on public interest grounds.

Moving from one madhab to another should raise no objection

because the orthodoxy of all four schools is accepted by each
other. Choice is an essential feature of sharia and courts have
upheld this choice. Hence, the submission made by ACJU that if
the madhab is not specified it could lead to people picking and
choosing from different madhabs, is a reflection of confused
thinking.

There is, of course, a case for removing the word sect from the
Act. The term sect is commonly rendered in translation as a
heresy, but a Sunni madhab is not a heresy.
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Editors note: For other articles and content we have carried on
this issue, including compelling and exclusive video testimony
from women, click here.
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