 |
NOTE: We take pleasure in enclosing herewith the Memorandum
submitted to the Commission on the Law of Succession recently appointed by the
Government of Kenya, The terms of reference being to consider the existing laws
relating to marriage, divorce and matters relating there to and recommend a
uniform law applicable to all persons in Kenya paying particular attention to
the status of women in relation to marriage and divorce in a free democratic
society. The Secretariat is indebted to Maulana Syed Saeed Akhtar
Rizvi, the resident priest of We pray that God may reward them in plenty in this world
and the world hereafter. ASGHARAL1 M. M. JAFFAR, Hon. Gen. Secretary, K.S.1THNA-ASHER1
SUPREME COUNCIL P.O. Box No., 1085, Mombasa. ***** 1. On behalf of
the Shia Ithna-Asheri Community of 2. Our remarks
are confined to the religious laws appertaining to Will and Inheritance of the
Shia Ithna-Asheri Sect of Islam, except where it was essential to give other
Sects' views to make our point clearer. 3. We have
already submitted the questionnaire sent by the Commission duly completed
together with the codified Islamic Laws (in English) according to Shia School
of Law relating to Inheritance and Wills among other subjects. In this
submission we will endeavor to explain the basic principles behind those rules. 4. We understand
that this Commission is to 'pay particular attention to the status of women.'
We venture to hope that the Islamic Law, enunciated according to the Shia
school, would be of considerable help to the Commission in its work in this
respect. It will not be out of place to mention that the ancient
Arab custom had one principal object in view, viz., and the permanent retention
of the assets in the family. With this object in view, the succession was
confined exclusively to the male relatives, and even among them only to those who
were capable of bearing arms. We do not propose to dwell further on this
point; suffice it to say that similar attitude, more or less, existed in all
societies at that time and has survived in many societies up to now. Islam
gave, by express provision of Law, right of inheritance to those who were excluded
by the ancient institutions. One of the beneficial results of the new divine
law was to raise the status of women in the scale of civilization, by elevating
their economic and social position, and giving the widow, the mother, the
daughters and sisters and other female relatives a right to inheritance. 5. This spirit
has been preserved in the Shia For example: (a) If a Sunni Muslim dies, leaving behind him a
daughter's daughter with a brother's son, the brother's son, would, as an
Asabah (agnate), take the entire inheritance in exclusion of the deceased's own
grandchild. Under the Shia Ithna-Asheri Law, the grand-daughter of the
deceased, as a lineal descendant takes the whole property to the exclusion of
the brother's son. (b) If a Sunni Muslim dies, leaving behind him a
daughter and a brother, the daughter takes her specified share, viz., a moiety
and the rest goes to the brother as an Asabah (agnate). Under the Shia
Ithna-Asheri Law, she takes the whole estate, half as... her specified share,
and the other half by the doctrine of
Return. 6. The guiding
rules may be stated shortly in the following words:- (a) The heir most nearly related to the deceased
inherits in preference to one more remotely connected; (b) Whoever is related to the deceased through
any person does not inherit while that person lives; (c) Full brothers and sisters are preferred to
consanguine brothers and sisters; but uterine brothers and sisters will inherit
with all of them. (d) When the relationship is equal, a male gets
usually double of a female's share; except in case of the heirs related through
the mother who generally divide the inheritance among them equally without
distinction of sex. It may be asked why a woman's share is, normally, half of
that of a man. In fact, it is quite logical. Islam has made male responsible
for the maintenance of the family. No such burden is laid upon woman. Even a
rich wife is entitled to get her maintenance from her husband though he may be
poor. As the man has to bear all the expenses he has been given double
share" in almost all inheritances. Also the woman gets the dowry which
goes from man to the woman. Thus the ratio of the shares as laid down in the
Qur'an is the most reasonable. 7. Groups and Classes of Heirs: In the Shia Ithna-Asheri sheriat, heirs are divided into two groups,
viz., those who inherit by right of Nasab (consanguinity); and those who
inherit by right of 'Sabab', main of which is Matrimony. Both groups inherit
side by side. The First Group, i.e the relations who are entitled to
inherit by virtue of consanguinity are divided into three Classes: (a) First Class: (i) Parents and (ii) Children (or in their absence
grand-children, how low-so-ever). (b) Second Class: If there is no heir at all in
the First Class, then the Ascendants and Descendants of the parents of the
deceased will inherit. It means: (i) the deceased's
grand-parents (how high-so-ever) and (ii) brothers and sisters (or in their absence the
descendants of the brothers and sisters). (c) Third Class: If there is no heir existing
either in the First or the Second Class, then the descendants of grand-parents
(how-high-so-ever) will inherit. It means the deceased's paternal and maternal
uncles and aunts (or in their absence, their children how-low-so-ever). As explained above, the husband or wife or wives of the
deceased will inherit with all these classes. 8. Dhul-Fardh &
Dhul-Qai abat:
It is necessary to mention that, under the Shia Law, heirs, to which ever Group
or Class they may belong, are divided into three categories, in respect of the
right which entitles them to participate in the inheritance: (1)
Dhul-Fardh: Those who have
right to a specified share in the inheritance. They are: (a) The Mother (b) The Husband (c) The widow or widows (d) The person or persons related through the same mother
only. (2)
Dhul-Qarabat: Those who take the inheritance by virtue of their relationship
with the deceased, but whose share fluctuates according to the number of heirs
and circumstances. They are: (a) The son or sons (b) Full brothers, or in their absence half brothers on
father’s side (c) Grand-parents (d) Paternal uncle and aunts (e) Maternal uncles or aunts. (3) Dhul-Fardh
Wal-Qarabat: These are the heirs who inherit some times by virtue of their
relationship and at other times according to their fixed shares. They are: (a) The father, who inherits a fixed share when
there is a child of the deceased; and takes by relationship when there is no
child of the deceased. (b) The daughter or daughters who get their
fixed share when without the deceased's father or her or their own brothers;
and take by relationship when with anyone of them. (c) Full sister or sisters or in their absence,
a consanguine sister or sisters, who get their fixed share when without a
grandfather or brother or brothers of the same degree as themselves, and take
by relationship when with anyone of them. Note: When there is only one heir, whether a Dhul-Fardh or a
Dhul-Qarabat, or one entitled by virtue of the special relationship of sabab
(matrimony), such heir takes the entire inheritance. For example, an only daughter
takes her appointed share, viz. one-half, and the remainder goes to her by
Return. An only son takes the entire estate by right of Qarbat, there being no
specified share assigned to him by the law. When the deceased is a female and
leaves behind her no relation excepting a husband, who is entitled to succeed
by virtue of the matrimony, he takes the entire inheritance, first his specific
share, and the remainder by Return. 9. Shares: As far a shares are concerned they are six in
number, viz.: (1) One-half, (2) One-Fourth, (3) One-eighth, (4) One-third (5) Two-thirds (6) One-sixth. (1) One-half: The
following are entitled to one-half of the inheritance: (a) The husband, when wife leaves no descendant; (b) A daughter, when there is no son; (c) A full sister in default of other heirs who have been
mentioned earlier; (d) A consanguine sister when there is no brother and no
full sister. (2)
One-fourth: The following are entitled to one-fourth: (a) The husband, when there is a lineal descendant of the
wife; (b) The wife, when there is no Lineal descendant of the
husband. (3) One-eighth:
This is taken by the widow or widows when there is a lineal descendant of the
husband. (4)
One-third: The following are entitled to One-third: (a) Mother, when there is no lineal descendant of the
deceased, nor has he left two brothers,
or four sisters or one brother and two sisters. (b) Uterine brothers and sisters, when two or more in
number. (5)
Two-Thirds: The following are entitled to Two-thirds: (a) Two or more daughters when there is no son; (b) Two or more full sisters when there is no
full brother or when there are no half-brothers (on father's side) (6)
One-sixth: One-sixth is taken by the following (a) Both father and mother when the deceased has left
lineal descendant (b) The mother, when there exists with her two or more
brothers of the full blood, or one brother and two sisters or four sisters of
full blood (or by the same father only the father being in existence). (c) A single uterine brother or sister. 10. Division of Estate: When there is only one of the above-mentioned
heirs he or she gets the full estate If he is a Dhul-Qarabat, he gets it by
virtue of the relationship; if he is a Dhul-Fardh, he first gets his appointed
share, and then the residue is given to him as 'return' (Radd). If there are two or more heirs, it will be divided in the
following sequence: First the husband, or the wife or wives will take their
share; then the Dhul-Fardh relatives will get their shares; then the residue
will be divided among the Dhul-Qarbat heirs. An Example: To give an example of our method, let me
suppose that a man dies leaving his father, mother, wife, four sons, five
daughters, three grandchildren, a grandfather, three brothers and two aunts. As he has left parents and sons and daughters, who belong
to the First Class of the heirs, the grandfather and the brothers (who belong
to the second class) and the aunts (who belong to the third class) will be
excluded from the inheritance. Likewise, the grandchildren will be excluded because of the
presence of the children, on the basis of the nearer excluding the more remote. This system of eliminating leaves us with the following
heirs: Wife, Father, Mother, the four sons and five daughters The wife will get 1/8 of the estate, because the deceased
has left children; Father and Mother both will get one-sixth each. The common divisor of 8 and 6 will be 24. Thus the estate
will be divided in 24 shares - out of which the wife will get 3 (i.e. 1/8), the
father 4 (i.e. 1/6) and the mother also 4 (i.e. 1/6). It will be seen that the
father is treated here as a Dhul-Fardh, not as a Dhul-Qarabat, because of the
children of the deceased, and the mother gets her reduced share (i.e. 1/6
instead of 1/3) because of the same reason. Anyhow, after deducting 3+4-1-4 (i.e. 11/24), we are left
with 13 shares. This will be divided among the children, a son getting double
of a daughter's share. It means that each of the four sons will take two shares
(making it 8) and each of the daughters will get one share (making it 5). Thus
all the shares are exhausted. 11. Dhul-Fardh Must Get Their Appointed Share: In the example above, the shares have fitted with the
required portions of the inheritance. But there may be cases when the appointed
shares may exceed the common divisor of the shares. For example, if a woman
leaves behind her a husband, two daughters and a mother, their respective
shares would be one-fourth, two-thirds and one-sixth. The common divisor of 3,
4, and 6 is 12, which represents the shares into which the estate would have to
be divided … 3 being the husband's share, 8 of the daughters^ and 2 of the
mother But 3+8+2 make 13, not 12. The Sunnis accordingly divide the state into
13 shares, bringing the shortage to all. But among the Shias, the mother and
husband, being Dhul-Fardh, must get their full shares, i.e. 3+2. And the
residue, i.e. 7/12 would be divided equally among the daughters, because the
children are also among the Dhul-Qarabat. Thus whenever there is any shortage in the appointed
shares, it falls on the Dhul-Qarabat, whose shares are liable to fluctuation,
not on the Dhul-Fardh. 12. Imam: Heir of Heirless
Deceased: If there is no heir
in any of the classes and groups mentioned above, the Imam will be his heir. As
our 12th Imam is in seclusion for the time being, the Mujtahid will receive the
estate on Imam's behalf and will utilize it on the propagation of the faith and
the religious uplifting of the Shia community, preferably in the same area
where the deceased lived. A person having no heir except the Imam, has been allowed
in the Shia Law, to dispose of by will his entire estate provided such
disposition is for the interests of the Ithna-Asheri poor, or Ithna-Asheri
ophans or Ithna-Asheri destitute travelers only. 13. Exclusion from Inheritance: No testator has any right to debar any of his
heirs from his due share of inheritance. Even if he makes a will to this
effect, it will be null and void in law. But an heir would be debarred from
inheritance if he happens to be a non-Muslim or if he has intentionally and
unjustifiably killed the deceased in whose estate he would have inherited, 14. Testamentary Wills: The making of will is recognized and encouraged
by Islamic law. A will may be oral or in writing. A testator is allowed to
bequeath up to one-third of his net estate. Any bequest in excess of the
one-third is void, unless assented to by the heirs. The detailed rules on this
subject are given in the accompanying book "Islamic Law" and it is
unnecessary to go into details here, 15. Payment of Debts and Expenses from the Estate: It may be noted here that in all cases debts
lawfully due by the deceased together with certain expenses must take
precedence on the payment of bequests and shares of the heirs. The term "debt" means ordinary debts incurred by
or on behalf of the deceased and includes also religious dues such as Zakat (poor-tax), Khums (prescribed one-fifth), kaffara
(atonement or expiation), Nazar (vows) etc.; and the term "expense includes
the obligation to end a proxy at the expense of the deceased's estate to
perform pilgrimage to Mecca if it had been obligatory on the deceased and had
not been performed by him during his lifetime. Funeral expenses have also to
be paid in priority. After paying the aforesaid dues and expenses and any
bequest directed by the will of the deceased to the extent of one-third of the
net estate, the residue would be divided amongst the heirs. 17. The rules concerning succession are laid down with utmost
precision by the Holy Qur'an and are fully enunciated in the traditions of the
Holy Prophet and the Twelve Imams and there is not the least doubt that these
rules are in accordance with the broad principle of the brotherhood of man
which Islam seeks to establish. 18. The Note: This Memorandum unavoidably incorporates some
paragraphs from the Memorandum submitted to the On behalf of the Shia Ithnasheri Community of The claimed aim of the proposals is to remove the present
condition in which "the existing laws do not recognize all the marriages
contracted under different laws as equal.” But, is it necessary, for this purpose, to enact a uniform
law of marriage? Can this object not be easily achieved by bringing all the
marriages under the jurisdiction of one court and under one register of
marriages? In 1964, the 'Restatement of Islamic Laws Act' was passed to the effect that the rules of
Islamic Laws of marriage be codified. A Subsidiary Legislation' under that Act
was published as the Supplement No.34 in the Gazette of 27th June, 1967. This
was supposed to be the first installment. We wonder why that policy could not be continued, or even
extended to cover the different customary as well as the Hindu and Christian
marriage laws. These laws could be codified and brought under the jurisdiction
of one court. Then, and only then, could a comprehensive chapter be added
dealing with the conflict of law, some examples of which have been given in the
White Paper. We appreciate that multiple social problems arising out of
the abuse or misinterpretation of customary or religious laws, in general give
cause for serious concern to the Government. The Government, in the efforts to
secure the welfare of its people, in that respect, is confronted with the task
of eradicating social evils. Any effort in this direction is worthy of support and
deserves all co-operation. But we feel that the idea of enacting a common law,
repealing the Restatement of Islamic Laws Act, is not the right one. Even traditions (not having any divine authority behind
them) are hard to change. This becomes even more dangerous in cases like the
Islamic Law which is an integral part of our religion. These laws cannot be
violated without incurring a sense of guilt and sin. Therefore, we feel that the best way would be to "let
a hundred flowers bloom." National unity does not demand that all citizens
should have the same dialect or the same religious belief. Why is it considered
essential to have a uniform law of marriage and divorce applicable to all
people in Our Shia Ithna-asheri Shariat is not based upon
"Ra'i" (Opinion) or "Qiyas" (Analogy). It is based wholly
on the Qur'an and the traditions of the Holy Prophet and our Twelve Imams. As the White Paper is concerned with matters of matrimony,
we must point out that our fundamental rules of marriage and divorce are based
upon the Qur'an. Details which are not explicit in the Qur'an are explained in
the traditions. Our religious scholars who are called Mujtahid do not give
any ruling by their opinion, analogy or consensus. There is no such authority
given to any body in our school of law. They may differ in interpreting certain
traditions concerning some minor details, but even then that difference is a
difference in interpretation, not of opinion. The Shia Ithna-asheris follow in all religious matters the
rulings of the greatest Mujtahid of the time. He is considered the
representative of our 12th Imam and he is the final authority on all religious
matters. In him rests in certain cases the powers of guardianship of
children, marriage and divorce, executorship of the will and state of a
deceased and such matters. Ithna-asheri For example marriage and divorce rules have direct bearing
on legitimacy of a child; on virtue or sin of togetherness of the man and the
woman; on their mutual right of inheritance and that of the child; apart from
other social and legal implications. In Islamic Law a man cannot use anything obtained illegally
(in religious sense) either for secular or-for religious purposes. Therefore,
if a change is made in the laws of succession, for instance, and someone is
given more than his due share according to Quran, his whole life would become
miserable. His daily life would be a long list of transgressions; his prayers,
pilgrimages, food and clothing would, in the religious sense, become unlawful. Thus it is clear that the pattern of laws of marriage,
divorce and inheritance cannot be changed. Otherwise, this would constitute a
direct interference in our religion. Regarding the rights of a woman in Muslim Law we wish to
submit that: In our Islam, according to Shia school, has given a woman right to
contract herself in marriage if she is adult and discreet. Islam has given the woman an independent identity. A Muslim
woman owns her property even after marriage and a husband cannot interfere with
it. She can sue her husband, can give evidence against him. She
inherits from him by right and he inherits from her. This mutual right of
inheritance was given when no society ever thought about it. A woman's share is, normally, half of that of man. But this
is quite logical. Islam has made man responsible for the maintenance of his
family. No such burden is laid upon a woman. Even a rich wife is entitled to get her maintenance from
her husband though he may be poor. As the maintenance of the family is the
responsibility of man, he has been given double share in almost all
inheritances. The woman gets the 'Mahr' (it is not the 'bridge-price
which is foreign to Islamic thinking) which goes from husband to wife. The
ratio of the shares as laid down in the Qur'an is, therefore, most reasonable. Islamic laws relating to will do not allow a person to will
away more than one third of his net estate. Thus the financial position of the
would-be heirs (including the wife) is always secure and beyond any
encroachment by any one. This security is still lacking in many societies which
allow a man to give all his estate even to a stranger. Now coming to the White Paper itself, there is one proposal
which in its present form, cuts deep at the root of all religions. It is the
suggestion that "If a man cohabits with a woman for a period of more than
two years then he would be presumed to have married that Woman, and if they
have children such children would be deemed to be legitimate children of such
spouse." If the intention is to provide safety to a genuine wife
whose marriage was not registered or whose marriage certificate was lost, the
word 'co-habit' does not convey the idea. It should be changed to "living together as man and
wife in a family atmosphere, provided it is possible for them to marry and one
of the spouses claims marriage which is not refuted by the other spouse; or in
case of death of either spouse, it is commonly known that they were married and
it is not proved that there was no marriage at all. Also, as we have mentioned earlier, in Islam a wife has no
responsibility to maintain her husband. Thus the proposal of the White paper to
make the wife liable to maintain her husband goes completely against Qur'anic
injunctions. As a debate is going on the question of polygamy, it is
necessary to reaffirm that we are fully convinced of the desirability, nay, and
essentiality of polygamy in many cases. African society, as the White Paper
rightly affirms, is a polygamous society. Islam agrees with it. But Islam has
put the limit to four wives at a time and has enjoined, by specific
regulations, equality in treatment and rights of all wives, as the White Paper
desires. It should be remembered that polygamy is not a compulsory
thing nor is it advocated. It is just permission with certain limitation and
conditions. And in some of the circumstances this permission proves extremely
useful. For example: If the wife is chronically ill, or is barren,
or for some other reasons it is not desirable for the couple to live as husband
and wife. The remedy offered by certain societies is to divorce the wife and
re-marry. But is this justice? Is it kind or noble to turn out a woman in her
old or middle age from her home, just because she remains sick or happens to be
barren? Islam discourages such cruelty by permitting polygamy. This is quite apart from the statistical findings that
women out-number men in We think this much will suffice to show the wisdom of the
White Paper in recognizing polygamy as a lawful and "useful"
institution. But, in its present form, the White Paper will not serve the
required purpose. What will happen if in spite of the conditions necessitating
a second marriage, the first wife refused to 'Voluntarily and freely agree to convert
the monogamous marriage” into a polygamous one? Will it not force the man
"into a position whereby he has either to divorce his first wife or
co-habit (illegally) with the other woman", with all its inevitable
undesirable effects? A better course is to require the man to go to the proposed
marriage tribunal or board of his community and convince them of his needs. If
they agree, the refusal of the first wife should not be entertained at all. We assume that, as there is no question of changing the
nature of marriage in a Muslim marriage, a Muslim will not need the consent of
his first wife (or wives) before marrying another one. Divorce: There is no need to emphasize that in certain
conditions divorce is the only remedy left to a couple. The usefulness of the
divorce system can be seen from the fact that even Hindus and many Christians
have been compelled by sheer force of necessity to enact divorce laws. The
White Paper recognizes this necessity. Also it must be remembered that Islam,
while admitting of its necessity in some cases, has declared it to be the
"most abominable of all legal provisions" to be resorted to in case
of extreme hardship only. The Qur'an has established the machinery for reconciliation,
and many Muslim communities have such committees. Unfortunately some quarters
have disregarded this important system completely. This abuse of the legality
of divorce must be stopped and the attempt of White Paper to curb this tendency
is very welcome. Conditions of Divorce: We must point out at the outset that the Shia
Ithna-asheri Further, it is also necessary that the husband must be
adult, sane, and of sound understanding, acting on his own free will and not
under the fit of rage or duress, and that he should have the distinct intention
to dissolve the marriage. So far as a wife is concerned, she at the time of divorce
must be in a state of purity, and that divorce cannot be pronounced even in a
period of purity in which the husband has had sexual intercourse with her. If any of the above mentioned conditions is violated, the
divorce is null and void. The Muslim law does not give the right of divorce to the
woman. And any suggestion that the woman should be given right to divorce her
husband is going to be an 'interference with religious precepts' which; the
White Paper repeatedly says, is not the intention of the Government. A family is the basic society, and like every society, it
needs a final authority to maintain discipline and well-being of the members.
Islam has given that place to the husband who has been given right to give
divorce. But a Muslim Woman is entitled to ask for dissolution of
marriage or even nullify it herself, in the following cases:- à
She can ask for 'Khula' which may be agreed upon by the husband; à
She can request the Mujtahid (who is the ‘Qadh’ in Shia Ithna-asheri
sheriat) to grant her divorce if the husband has disappeared, or neglects to maintain
her; à
She can cancel the marriage if the husband is insane, or becomes insane
after marriage. à
And she can nullify the marriage (after referring the case to the
Mujtahid) if the husband is impotent. It will be necessary, while drafting the bill, to recognize
the divorce granted by the Mujtahid and the nullification of marriage so far as
the Shia Ithna-asheri marriages are concerned. The above mentioned rules have a bearing on the provision
of the White Paper concerning the husband who has disappeared. The granting of
divorce by the Mujtahid (or in case of non-Ithna-asheris or non-Muslims by the
judge) is a far better solution than to presume the husband dead (for the
purpose of his marriage) and alive (for other purposes, including the other
marriages, if any) at one, and the same time! As the White Paper rightly recognizes the divorce given by
a Muslim husband as final, and requires the court to register such divorce
without any further investigation, we want to emphasize that such divorce
should be effective from the date of pronouncement of the formula of divorce by
the husband, and not from the date of registration. The White Paper requires a Muslim intending to marry to
give notice of his intention, 21 days before, to "a Sheikh authorized by the
Minister to solemnize marriages." It has overlooked the fact that a Muslim boy and girl can solemnize
the marriage themselves without any need to "call a Sheikh and ask him to
perform the marriage”. We are sure it is not the intention of the Government to
create a new version of Islam which would have institutionalized clergy like
Christianity. So why this reference to a Sheikh authorized by the Minister? It
is needless to say that this idea goes extremely against Islam. Also we fail to see any need for this proposal of 21
days notice. Suppose a girl from Kigoma and a boy from Pangani (both presently
residing at Dar-es-Salaam) inform the priest of their community at Dar-es-Salaam
that they want to be married. That priest is not expected to publish or announce
the proposed marriage in newspapers or on radio. So, how can he know if there
is any legal hitch against that marriage? And, after all, there will not be even one case of such
illegal intention in one thousand marriages. We think, it is better to omit
this provision and substitute it with another one to the effect that if it
becomes known even after marriage that they could not be married lawfully, the
marriage would be null and void from the beginning. So far as the registration of marriage and divorce is
concerned, in our community marriage registers have been in existence for
over 125 years, and we issue the couples with the marriage
certificates. But we must emphasize most forcefully that the validity of
the marriage or divorce should not be made subject to registration.
Non-registration may be made an offence; but it should not affect the validity
of the marriage or divorce. Likewise, in other respects also, if a marriage is correct,
according to religion, it should not be considered void if it contravenes any
conditions imposed by the White Paper. Otherwise, it would be a direct
interference in religion. The purpose of this memorandum is to bring home to the
Government that enactment of laws should strive to preserve the religious laws
of different communities living under one flag, especially when such laws have
far reaching effect on such fundamentals as the marriage and family life. As we have pointed out earlier, in Islam the law and the
religion are inseparable, since our laws emanate from the Qur'an; needless to
say that if any law is enacted which contravenes either the Qur'anic
injunctions or the Hadith, it will naturally cause a considerable unrest in the
minds of the Muslim public and therefore the whole Muslim community will be perturbed. In the end, we would like to sum up our views as follows:- We demand that instead of enacting a uniform law for all, the
"re-statement of Islamic Laws Act" should remain in force for the
Muslims and the Subsidiary Legislations under that Act be drafted, published
and given effect to as soon as possible. So far as the proposals of this White Paper are concerned we
completely agree that "marriage must be a voluntary union" (para 6 of
the English version of White Paper); that the couple should not be within
prohibited degree of affinity or consanguinity (para 9); that "either
espouse may own his or her own separate property” (para 19); that the wife
should be able to give evidence against her husband (para 21); that there
should be provision of divorce "if the marriage has completely broken
down" and that the "divorces should not be treated lightly"
(para 24); and that there should be marriage conciliation boards and that due
recognition should be given to such boards which exist in venous communities prior
to the proposed new legislation," (para 25). We agree to the following proposals with certain conditions
and qualifications:- Minimum age of 15 and 18 years for the girls and boys
respectively (para 7) and registration of marriage (para 17), and of divorce
(para 27) are good things and we agree with them provided, their violation does
not make a marriage or divorce null and void. A Muslim's pronunciation of divorce formula is recognized
in the White Paper as the evidence of complete break-down of marriage and the
court is supposed to "issue a certificate dissolving the marriage. We accept this proposal, provided the said certificate is
retrospective with effect from the date of pronouncement of the formula of
divorce by the husband. We are in complete accord with the proposal to allow a
monogamous marriage to be converted into polygamous. But we do not think it
practical to insist on the consent of the first wife (para 12). The husband
should have a right to approach the proposed marriage board and their decision
should be final. Also, we assume that a Muslim marriage being a potentially
polygamous one, a Muslim husband will not be governed by this provision. We think that the proposal to presume a husband (who has
disappeared for 5 years) as dead is not the sound one. The right way is to
allow the judge (or Mujtahid) to grant divorce if the circumstances demand it. The right of the woman to demand divorce or dissolve or
nullify the marriage must be limited to the circumstances mentioned earlier in
this memorandum. Any legislation going beyond that limit will be a direct
interference in our religion. We vehemently denounce the proposal that co-habiting with a
woman for any period (the limit of 2 years is quite arbitrary) makes the couple
legally husband and wife. Unless the wording is changed as proposed in para 11
of this memorandum, this proposal cannot be acceptable. We totally disagree with the proposal of making wife
responsible to maintain her husband (para 19). We think that the proposal requiring 21 days notice is
absolutely useless, and coupled, in case of the Muslims, with the phrase
"notice would be sent to the Sheikh, who is authorized by the Minister to solemnize
marriage" acquires a very alarming note, as it appears to establish an institutionalized
clergy which is absolutely against Islamic fundamentals. Therefore, we cannot
agree with it. |
