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Tahir Mehmood

A 1939 Act enacted by the British said that Muslims would be governed by their personal Law (ie, the Shariat). The Shariat allows Muslims to follow their rites of passage in accordance with Islamic practices, be it marriage, divorce, children’s custody or inheritance. However, the Shariat is not codified, which means that whatever guidelines are spelt out in the Quran and Hadith have not been spelt out in Hindi/ Urdu/ English and vernacular languages like in all laws. Prof Tahir Mahmod, former member of the Law Commission of India, has been a strong proponent of codification. He speaks to SABIHA FARHAT about why this has not been done so far. 

What is your opinion on codification of the Muslim personal law?
Codification of the Shariat is the need of the hour. India is a country of personal laws and every community has them. Hindu law is also a “personal law” despite the word personal not being used. It has four acts, representing Hindus, Buddhists, Sikhs and Jains. Christians and Parsis too have personal laws. But they are all codified, so there aren’t many problems. As the Muslim personal law is not codified, a judge has to look up several books. And these books are based on old cases. In most cases, the law has been misrepresented, so what is in practice is not really personal law.

Maulanas are opposing codification….
They have a single-point agenda: How to keep Muslims socially backward. For the past 43 years, all they have been worried about is whether the Supreme Court has stopped any man from divorcing his wife by pronouncing “talaq, talaq, talaq”.
And successive governments have opposed change by pandering to maulanas because they need votes. I have been writing about the
need for reforms in Muslim personal law for 50 years now.

A Muslim group has formulated a draft of the codified Muslim personal law….
Codification is a process which can only be done by parliament through legislation. Private codification has no meaning. Only the state can do it. In 1995, the Supreme Court gave a sound judgment in the Sarla Mudgal case. It told the government to entrust the work of codification of the personal law of minorities to the Law Commission of India, with the instruction that it should prepare the draft in consultation with the Minorities Commission. What can be a better mechanism?
Today, 20 years and many government changes later, they still haven’t done it. No government will bring an official bill because that will compromise its political interest.

What about countries like Pakistan and Bangladesh?
In matters of personal law, they are much more advanced than us. In fact, the entire Muslim world, except Saudi Arabia, has reformed personal law. Since 1972, I have been translating acts passed in other countries to reform personal law into English. Fortunately, I know Persian and Arabic. My first book, Family Law Reform in Muslim World, was a compilation of changes in Shariat. In fact, a Personal Law Board was set up that year as a reaction to the book. But nothing has been done on this issue.

And you say that India is much worse?
Yes. Nowhere does divorce take place by merely saying “talaq, talaq, talaq”. And India has among the largest population of Muslims. It is a very complex situation as no government is interested in this. The Law Commission, despite directions from the Supreme Court, has not worked on it

What does the Shariat say on inheritance of property by women?
When the Quran was written some 1,500 years ago, it was brilliant. A daughter was given half the share of what was given to the son. It was for the first time in history that women had a right to inheritance. Forget reforms for the time being, at least practice what is given. Hadith (Shariat is derived from the Quran and the Hadith, a supportive text) is full of directions for Muslim men to marry widows or divorced women. It says that marrying a widow or a divorced woman is better than marrying young, eligible women. Who does it?

How can we reform the Shariat then?
It is very simple. I will give you an example. There is a Muslim Marriage Dissolution Act (1939). It suggests by its very name that it must be for all Muslims. But it is only for Muslim women. This law provides the grounds by which a woman can obtain a divorce from court. It states: “Any woman married according to Muslim law can obtain a divorce….” We only need to add one word here— “Any woman or man married….” This way, we can get rid of the entire talaq issue and make the law equal for all. This is how it is for other communities.

So we don’t need any new laws, only minor additions and deletions. And this is what I have written in reports submitted to the Law Commission. These acts, like the Muslim Marr-iage Dissolution Act, were passed by the central legislature; just add the word “man” to it.
When the Muslim Women Act was drafted, the law minister referred it to me. I just changed a few words to create the scope for maintenance after the period of separation. The draft presented by maulvis had said: “Maintenance for the period of separation (before final divorce).” I just changed it to “maintenance during the period of separation”. You can imagine the implications. This law has been interpreted by the Supreme Court to obtain maintenance even after divorce till she remarries. This is supported by the Quran too. Nowhere does it mention that women cannot get maintenance after divorce. I can challenge the maulvis on this.

What about a uniform civil code?
That is a utopia. Is there a draft of this? The Modi government will not bring it in. The most favorable aspect of Hindu society is its “joint family” system as the Hindu joint family gets special relief in the Income Tax Act. Will the Hindus give this up? Under a uniform civil code, this provision will have to go as no other community has a “joint family system”.
All those who talk of a uniform civil code, would not have read the provisions of it in the Indian constitution.

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