The Fyzee Formula

The July 4  meeting of the All-India Muslim Personal Law Board (AIMPLB) in Lucknow has once againhighlighted the vexed issue of reforms in Muslim Personal Law (MPL). Hopes had been raised that the AIMPLBwould finally and explicitly outlaw the practice of triple talaq, which is one of the major concerns ofthe advocates of reform. The AIMPLB, dominated as it is by conservative ‘ulama, however, did not, inits wisdom, choose to do so. 

All that it decided was to promote awareness about the negative consequences of triple talaq, andencourage, through moral suasion, Muslims to abstain from it. While this hardly meets the demand that triple talaqbe banned outright, it must be acknowledged as an important step in the right direction, although one mustalso ask why it has taken so many years for the AIMPLB to finally realise the urgent need to speak out againstthe practice.

It is increasingly being recognised by those concerned with the problems of Muslim women that the focus ofreformist efforts must be directed at suitable changes within the broad framework of the MPL, as opposed tothe scrapping of the MPL altogether and its replacement by a UniformCivil Code (UCC). This is because the MPL has, for various reasons, come to be seen by large sections ofthe Muslim community as a legal guarantee of their separate community identity. 

Rightly or wrongly, they fear that a UCC would result in the ultimate absorption of the Muslims into theamorphous Hindu fold. The vigorous support for a UCC by the Hindutva brigade has added to the suspicions ofthe Muslims of the real intent of the demand for a common civil code. That the Hindutva insistence on a UCC isentirely hypocritical, and is simply a ruse to engage in their favourite pastime of Muslim bashing, is clearlyevident from the oppositionof leading Hindutva spokesmen to the reform of Hindu law in the early 1950s and from their vigoroussupport for the Manusmriti, the Bible of Brahminism, as the legal code for all Hindus.

Muslim advocates for reform within the MPL do not, unfortunately, generally get the attention that theydeserve. For large sections of the press, they defy the stereotypical image of Muslims as unrepentantobscurantists, and thus are not seen as making ‘good’ news. For the diehard conservatives among the ‘ulama,they are nothing less than devious traitors and enemies of the faith, plotting to subvert it fromwithin. 

Yet, today, Muslim men and women who insist on the need to reform the MPL are increasingly asserting theirright to articulate their own perspectives on and of Islam. In doing so, they challenge the monopoly claimedby the traditional ‘ulama to define what is Islamically normative. They insist that Islam has nopriesthood, which is what the class of ‘ulama has been effectively reduced to, arguing, instead, thatevery Muslim, man and woman, who possesses adequate knowledge of Islam has the authority and the right tointerpret it for himself or herself.

In raising the question of reforms in the MPL, reformists question the reduction of Islam simply to issuesof law and jurisprudence, or, in short, the shari’ah. They point out that the Qur’an is primarily abook of the spirit, a guide to ethical action, and not simply a bundle of dos and don’ts. In this way theycritique the tendency of many conservative ‘ulama to equate Islam with shari’ah. In doing soseek to resurrect the original meaning and significance of shari’ah as ‘path’ or ‘road’,stressing, therefore, that it denotes a means to an end—justice, equality, morality and submission to God’swill—rather than an end in itself. 

Reformists go even beyond, by making a crucial distinction between shari’ah, as adivinely-ordained path, on the one hand, and the corpus of fiqh or Islamic jurisprudence, on the other,which they rightly point out to be, to a great extent, a result of human effort and a result, in largemeasure, of developments after the death of the Prophet. They claim that while the shari’ah is divineand immutable, the rules of fiqh, being historical constructions, may change over time in order toreflect the underlying ethical impulse of the Qur’an.

The demand for the reform of MPL had been voiced in pre-independence India by severalmodernist Muslim scholars, and the issue gained further momentum after 1947. Perhaps the most noted of recentMuslim advocates of legal reform was the late Asaf Ali Fyzee (1899-1981). A Gujarati Isma’ili Shi’a, Fyzeewas educated at Cambridge and was an internationally known expert on Islamic law. He served as India’sambassador to Egypt and was also the Vice-Chancellor of Kashmir University. He authored numerous books onIslam, and for his multifarious achievements was given the prestigious Padma Bhushan, in 1962. 

Fyzee wrote extensively on the issue of reforms in the MPL. His case for changes in the MPL is neatlysummarised in a small booklet that he wrote in 1971, titled The Reform of Muslim Personal Law in India.More than three decades later, his views continue to resonate in discussions about the MPL and its future.

Fyzee believed that there was an urgent need for reform in the MPL in order to address the question ofgender justice. He argued that justice was the underlying principle of the shari’ah. Consequently, ifany laws that claimed to be Islamic failed to provide justice they could be considered to be in contraventionof the shari’ah, and, therefore, of God’s will as well. He stressed that certain laws that formpart of the MPL do indeed violate this principle, particularly on some matters related to women. 

Hence, in order to uphold the principle of justice, they needed to be changed. Aware that this proposalwould be stiffly opposed by large sections of the conservative ‘ulama, he claimed that legal reformin this sphere would not be tantamount to changing the shari’ah, and nor would it violate theprinciple of freedom of religion guaranteed by the Indian Constitution. This was because, he argued, the shari’ahand fiqh were two distinct, but related, entities, although most ‘ulama tended to takethem as synonymous.

To buttress this claim Fyzee pointed out that the MPL, as it exists today, cannot be regarded as shari’ahpure and simple. In his words, the MPL in India is ‘a discrete body of law and custom, varying considerablyfrom the rules of the shari’ah as expounded in the classical texts’. Hence, reforms in the MPL, heargued, need not necessarily be seen as interfering in or modifying the shari’ah. 

He pointed out that the MPL, earlier known as Anglo-Mohammedan Law, was itself a product of the interactionbetween traditional Islamic jurisprudence and the British colonial legal system, and was, therefore, notequivalent to the shari’ah itself. In preparing the principles and details of Anglo-Mohammedan law,colonial jurists drew heavily on British notions of equity and justice, in the process modifying traditional fiqhin several important respects. 

Thus, the British did away with Islamic criminal law and even with certain traditional laws relating topersonal affairs. The traditional fiqh rule that required that the judge adjudicating a case betweentwo Muslims himself be a Muslim was scrapped; slavery, upheld by the traditional jurisprudents, was abolished;the law laying down death for adultery and apostasy was replaced; and drinking alcohol and eating pork were nolonger recognised as cognisable offences.

After 1947, legal reform continued apace, although haltingly. Thus, under the Special Marriage Act of 1954,a Muslim could legally marry a non-Muslim without one partner changing his or her religion. Such a marriagehad to be monogamous and could be repudiated by talaq. Children born from such a marriage childrenwould be considered legitimate and would have inheritance rights. Under the same act, an existing nikahbetween two Muslims could be turned into a civil marriage by registration, and a Muslim man married under thislaw could now bequeath a larger share of inheritance to his wife and children than was permissible undertraditional fiqh laws. By registering a marriage under this act, a Muslim did not cease to be a Muslimin other respects, and would be governed by his or her own personal law in all other matters.

All this clearly suggested, Fyzee pointed out, that it was incorrect to argue that further reforms of theMPL would be tantamount to tampering with the shari’ah, because the MPL was not to be regarded assynonymous with the shari’ah in all respects. Further, he argued, it must be recognised that ‘inevery age and in every country, the shari’ah has been the subject of constant study, examination, andexposition, and these expositions being human and imperfect, and relate to time and circumstance, vary fromcountry to country and age to age’. Hence, he added, ‘It is submitted that it is futile to argue thatwhere a certain rule of law, as applied by the Courts in India, needs a change, we are interfering with animmutable rule of divine law’.

Given the inequities inherent in some rules of traditional fiqh, and in certain provisions in theMPL that impinge on Muslim women’s rights, Fyzee proposed radical legal reform, which he saw would guaranteegender and, at the same time, retain the MPL. In his book he suggested that the Indian Parliament pass a newlaw, which he termed ‘The Muslim Personal Law [Miscellaneous Provisions] Act’, which would modify theexisting MPL. 

In order that the proposed legislation be accepted by the Muslims, he suggested that measures for legalreform base themselves on rules accepted by one school of Islamic law (mazhab) or the other in order touphold the principles of justice and equity. This measure would also help open up each school to possibilityof borrowing from other Muslim schools, and would, in this way, help promote a measure of intra-Muslimecumenism. Thus, he suggested that the proposed act lay down that, ‘Where a Muslim is governed by aparticular school of law and a decision according to that school would be against justice, equity and goodconscience, the Court shall have the discretion to apply a rule drawn from any of the other schools of Islamiclaw, Sunnite as well as Shi’ite’.

Fyzee saw legal reform through inter-mazhab eclecticism as crucial for addressing the genuineconcerns of Muslim women, while at the same time fulfilling the need for such reform to be seen as Islamicallyacceptable. This was particularly crucial in meeting the need for reform in the procedure for divorce. Three talaqsuttered by a husband in one sitting, even under compulsion or under the influence of alcohol, are consideredto be a binding divorce according to most Hanafi Sunnis, who form the vast majority of the Muslims inIndia. 

However, this rule is not accepted by several other mazhabs , such as the Shafi’is and the Ahl-iHadith among the Sunnis, and the Ithna Asharis and Musta’lian Isma’ilis or Bohras, among the Shi’as.Given this, Fyzee suggested that the courts apply the more liberal rule drawn from the Shafi’i, Ahl-i Hadithor Shi’a schools in a case involving triple talaq in one sitting, even if the parties to the disputewere both Hanafi Sunnis.

Further on the matter of triple talaq in one sitting, Fyzee pointed out that it was widelyrecognised, even by the Hanafi ‘ulama themselves, that this method of divorce was not looked uponfavourably by the Prophet Muhammad himself. He noted that because it was a later innovation, it had beentermed as talaq-i bida’at (bida’at refers to any sort of innovation from the path of theProphet). 

Hence, he insisted, outlawing the practice of triple talaq in one sitting would actually be fully inaccordance with God’s will, rather than being a gross violation of it. When such a talaq ispronounced, he wrote, the matter should immediately be referred to a Court of Conciliation, which may try tobring the parties together, failing which the Court would allow the husband to give a single talaq,according to the practice recommended by the jurists called talaq al-sunna, or talaq inaccordance with the practice of the Prophet. 

If it was proved that a triple talaq had been pronounced by the husband on the wife, the court, hesuggested, should declare the said talaq to be void, and should refer the matter to itself for furtherhearing. After hearing both parties and their witnesses, the court should declare either that a reconciliationhad taken place (in which case no further proceedings would take place), or that, for valid reasons submittedby the husband, he was empowered to pronounce a single talaq according to the sunna method. 

After such a declaration pronounced by the husband in the Court of Conciliation, the conciliators shouldlay down the conditions for such divorce, including payment of dower and compensation to the divorced wife inthe form of alimony. In making such an order the court should take into consideration the financial positionand social status of the husband and wife and other such circumstances as may seem to it just and proper.

Another issue that Fyzee insisted needed to be urgently addressed was polygamy, which the MPL, as it existstoday, allows for. In line with many modernist Muslims, Fyzee believed that polygamy was actually discouragedby Islam, which limited the number of wives a man could have at a time to four, this being a major reform ofpre-Islamic practice that laid down no such limit. Further, he stressed, the Qur’an allows for a man tomarry more than one wife only if he can treat them equally, but elsewhere adds that this is notpossible. 

In other words, Fyzee wrote, the Qur’an actually seeks to do away with polygamy rather than sanction orencourage it, contrary to what many conservative ‘ulama claim. Given this, he insisted, there was noreason why polygamy should not be outlawed or at least severely restricted, being allowed only under certainspecial circumstances as laid down in law.

In order to protect the interests of the first wife in the event of her husband taking a second wife, Fyzeesuggested that an agreement be entered into at the time of the first marriage stating precisely the rights ofthe first wife. In the absence of such an agreement, the matter must be referred to a Court of Conciliationbefore a second marriage could take place. If such a marriage took place without such conciliationproceedings, the erring husband should be punishable by the criminal law and the wife entitled to seekdivorce. 

Further, Fyzee wrote, in taking a second wife it was imperative that the husband seek his first wife’sprior consent. At the same time, if the court, after review of the evidence, felt that in taking a second wifethe husband had been guilty of such conduct as to make it inequitable for the court to compel the first wifeto live with him, it would refuse relief. The onus would be on the husband who took a second wife to explainhis action and prove that his taking a second wife involved no cruelty or insult to the first. Failing this,Fyzee suggested, the court would presume that the action of the husband in taking a second wife involvedcruelty to the first, and it would be inequitable for the court to compel her against her wishes to live withsuch a husband. Hence, Fyzee went on to insist, the taking of a second wife could not be said to be a ‘fundamentalright’ of a Muslim husband.

After spelling out in detail his various proposals for the reform of the MPL, Fyzee concluded that the mostviable way to promote the reform process was through what he called ‘permissive laws’ and ‘specificamendments’ of the MPL, rather than by seeking to impose a UCC on the Muslims. The latter course, he noted,would be stiffly opposed by many, if not most, Muslims, who might construe it as interference in theirreligious affairs. 

Fyzee’s point is well-taken, and it is obvious that the best course to adopt at present is to encouragereform within the MPL itself, instead of replacing it, by taking advantage of the flexibility and diverseunderstandings of Islamic jurisprudence as well as by evoking the Qur’anic precept of justice. 

Sections of the traditional ‘ulama may undoubtedly be expected to vociferously rant and raveagainst even such reforms. The future of reforms within the MPL does not depend solely on the ‘ulama,however. The receptivity of ordinary Muslims to reform proposals also crucially depends on the overallpolitical climate of the country, particularly on Hindu-Muslim relations.

Quite obviously, heightened communal antagonisms, which the Hindutva brigade has so heavily invested in,works to discourage any openness to the possibility of reforms as Muslims come to see themselves, theirtraditions and their faith under attack. It is only in a climate of reasonably harmonious inter-communalrelations that voices such as Fyzee’s can receive a willing ear among common Muslims, who then, in turn,would be able to pressure the ‘ulama to heed their advice.

Yoginder Sikand is the author of Sacred Spaces: Exploring Traditions of Shared Faith in India and Inter-Religious Dialogue and Liberation Theology: Interviews with Indian Theologians and Activists