This article has been written to illustrate Islamic theological and historical positions behind the recent affidavit submitted by All India Muslim Personal Law Board – AIMPLB in Supreme Court recently. Assertions and arguments of Shri Swarup from his book ‘Woman in Islam’, whenever quoted verbatim have been italicized. Further, authentic sources available online on internet have been additionally quoted to support the facts mentioned in this book.
As Shri Rajiv Malhotra explains, the tradition of ‘purvapaksha’ (studying your opponents point of view thoroughly); developing deeper understanding of outsiders who often come in different grabs masquerading their intent as well as identity, is important for building proper defence of one’s society.
Late Shri Ram Swarup, founder of the non-profit publishing house Voice of India, can be termed as the pioneer of ‘purvapaksha’ of Islamic society. He was one of the great thinkers who rekindled this tradition of purvapaksha which Dharmic society had forgotten.
His book ‘Woman in Islam’ was first published in 1994 to understand cultural and theological position of woman, her rights and obligations in Islam. This book is of historic importance because not only could it very well explain Muslim ulema’s position on maintenance after divorce (Shah Bano case), but it could also forecast the position of Muslim clerics and AIMPLB, some 22 years later in another case – the recent Public Interest Litigation (PIL) filed by Shayara Bano in the Supreme Court of Bharat.
As a tribute to this great visionary son of Bharatvarsha, I am bringing some highlights of this book ‘Woman in Islam’ before today’s discerning readers.
Shri Ram Swarup also exposes in this book, with surgical precision and accuracy, the Hindu-phobic Indian-Liberal, who will never fight for cause of betterment of condition of Muslim woman. His observation is true even after more than two decades
Discerning readers can refer to this recent article by Flavia Agnes to understand the typical Indian ‘liberal’ stand on triple talaq and Muslim women’s rights : http://www.epw.in/journal/2016/20/web-exclusives/muslim-womens-rights-and-media-coverage.html
Summary of Preface
In the preface itself, Shri Ram Swarup hints that it has been painful to write those essays and it must be painful to read them too. He further declares that problem of woman in Islam is more ideological than legal. In deeper conceptualization, Islam’s world has been a male world in which woman has held frankly a low position.
He also foresee that getting the desired change, in response to new social mores and needs is not easy. Firstly, the growing voices of protest against this low treatment of woman are very feeble and secondly Islamic laws on marriage and divorce are not just social legislation, these are revealed truths, Allah’s commandments, therefore, unalterable.
Shri Swarup further posits that attempt to humanize Muslim legislation through reinterpretation of the Quran, is not possible within the present ideational framework of Quran and the Sunnah. It will be self-defeating, as it will strengthen the very sources of the ideas which have kept the woman down.
He also mentions that Islam has treated her women badly enough, but it has treated its neighbours far, far worse. The two problems are not unconnected, as they arise from same ideology. Historically too, religious ideologies that have been unkind to women have been cruel to their neighbours.
He concludes that Hindu-phobic Hindu ‘Liberals’ are worse than Muslim ‘liberals’. These Hindu ‘liberals’ would never support a person like Taslima Nasreen, who was hounded out from her own country Bangladesh as well as parts of Bharat like West Bengal, due to her expose of plight of Muslim women in her earlier writings, and persecution of Hindus in Bangladesh in her 1993 novel Lajja.
Summary of Chapter 1: Woman in Islam
Shri Ram Swarup claims that individual cases (like Shah Bano’s maintenance) will not lead to better understanding of the underlying problem, and it will fail to throw any light on the larger subject. There is a larger framework of Islamic laws on marriage, divorce, dower, polygamy that involves the very question of woman’s place in Muslim theology.
Different regions of Muslim world have different variations of Sharia in practice. In Bharat, Hanifah school Fiqh interpretations is more prevalent. Most importantly, the book of this school is Hidayah (Guidance), written by Burhan al-Din al-Marghinani.
Customary practices of a region, particularly Arabian practice, also had force of law, but Shariat pretends that this source does not exist or is evil.
Shri Swarup says that position of woman in pre-islamic Arabia was not as depressed as it subsequently became. He cites the example of prophet’s first wife Khadijah who used to run her own business, engage her own employees and chose her own husband.
He also cites the example of Hind, a very independent and courageous lady of her time. He asserts that women in Medina enjoyed even more independence than in Mecca at the time of Hijra (Islamic Prophet Muhammad’s migration from Mecca to Medina).
Shri Swarup concludes that with the new social order of Islam, which was introduced as divine revelations, it was impious to question, and woman’s position in society deteriorated. To the practice of Polygamy were added Veil (Purdah) and seclusion. The new Revelation was frankly on side of man. “Men have pre-eminence above women” (Quran 4.34)
Al Ghazzali, perhaps the most influential theologian of Muslim history, explains the above verse to mean that “merit has one thousand components, only one of which is attributable to women. While nine hundred ninety nine are attributable to men.”
Shri Swarup draws the final inference that probably a woman’s depressed position in Muslim theology has also tended to make her position depressed in Muslim Society as well. He further stresses this point that the Quranic God is palpably masculine and he waged a relentless war against pre-islamic Godesses like Al-Lat, Al-Uzza and Al-Manaat.
Summary of Chapter 2 : Marriage in Islam
Shri Swarup writes that many cultures take sacramental view of marriage except Islam that regards marriage as a social contract which creates certain social and sexual obligations further fortified with religious sanction. Celibacy has no part in Islam, as Muhammad was against celibacy in his followers and enjoined marriage upon them as a command of Allah.
Muslim law and tradition prohibits marriage on many grounds. Shri Swarup quotes verses 4.23 and 4.24 from Quran, which lay the foundation of Muslim law on marriage.
“Prohibited to you are your mothers, your daughters, your sisters, your father’s sisters, your mother’s sisters, your brother’s daughters, your sister’s daughters, your mothers who nursed you, your sisters through nursing, your wives’ mothers, and your step-daughters under your guardianship born of your wives unto whom you have gone in. But if you have not gone in unto them, there is no sin upon you, and the wives of your sons who are from your loins, and that you take in marriage two sisters simultaneously, except for what has already occurred. Indeed, Allah is ever Forgiving and Merciful.” (Additional Source: https://quran.com/4:23)
Following are some of rules regarding Muslim marriage which Shri Swarup describes –
“A Muslim cannot marry a married woman until she is divorced, but prohibition does not apply to women captured in war. The Quran’s verse 4.24 explains this – And (also prohibited to you are all) married women except those your right hands possess. (This is the) decree of Allah upon you”. (Additional Source: https://quran.com/4/24)
A Muslim may marry Kitabee woman (woman from religion following book, like Jew, Christian) but not a polytheist woman. But a polytheist woman can be kept as a concubine. The Quran verse 2.221- “And do not marry polytheistic women until they believe. And a believing slave woman is better than a polytheist, even though she might please you.” (Source: https://quran.com/2/221)
A slave cannot enter into marriage without permission of his master, for among conditions of a valid marriage contract are discretion, puberty (bulugh) and freedom (hurriyyat), the last of which he lacks.
A marriage contract need not be written. The contract consists of two parts’ declaration and acceptance. A Muslim marriage where both parties are Muslim can be contracted in presence of two male witnesses, or one man and two women, who are sane adult and Muslims.
Consent of a girl who has attained age of discretion is necessary for a valid marriage. Woman expresses her consent by her silence or smile. However a marriage without a guardian of woman is considered void and woman doing so is considered adulteress.
In Islam, there are provisions of ‘temporary marriages’ called Nikah mut‘ah (practiced by Shia Muslims), Nikah al-Misyar (traveller’s marriage practiced by Sunni Muslims) and Nikah ‘urfi (practiced by those who cannot afford high cost of marriage)
A Muslim woman is entitled to equality in choice of her husband. She has the right to be married to a man of similar or superior social rank, but cannot marry someone beneath her in social rank. Shri Swarup quotes the below from Al-Hidayah, a 12th-century legal manual by Burhan al-Din al-Marghinani–
“Husband be the equal of his wife, but it is not necessary that the wife be the equal of his husband, since men are not degraded by cohabitation with women who are their inferiors.”
For this purpose, Al- Hidayah explains further that some Muslims are more equal than others, and describes the order of Muslims for inter-marriageability. Local converts are called Ajlaf (low born) and Arzal (working class). Ashrafs being (sons of Mohammed) descendants of Arabs, have highest status in the Indian sub-continent.
Above law of Al-Hidayah on woman’s entitlement to equality in choice of husband, effectively rules out marriage of women from higher social strata with men from lower social strata; however the reverse is permitted.
Summary of Chapter 3: Marriage – Rights and duties
Since Muslim marriage is a contract, marrying man and woman have their rights and duties. Obligations of a wife are defined by the Quran verse 2.223 –
Your wives are a tilth for you; so approach your wives when and how you like but take heed of your ultimate future; and fear God and know that you shall meet Him; and give good tidings to those who obey [Quran 2:223] (Note – tilth: cultivable land)
In return, the wife has right to maintenance (nafaq or nafaqah). When the marriage is consummated, the husband becomes responsible for providing his wife and children born of the marriage with food, clothing, and shelter regardless of the wife’s own resources. The right to nafaq is obligatory in nature, and needs to be paid even at cost of solvency, as stated in Quran.
“Men are protectors and maintainers of women because God has given them the one more than the other, and because they support them from their means [their wealth]” (Qur’an 4: 34 https://quran.com/4/34)
Muslim marriage, though favoring man with polygamy and concubinage, demands “faithfulness” from man and woman alike. Extra marital sexuality is Zina, that is punished heavily. It covers both adultery (extra-marital sex) and fornication (pre-marital sex).
Following Quranic verses deal with Zina –
“Nor come nigh to fornication/adultery: for it is a shameful (deed) and an evil, opening the road (to other evils).” — The Quran, 17.32 (https://quran.com/17/32)
“The woman and the man guilty of fornication,- flog each of them with a hundred stripes: Let not compassion move you in their case, in a matter prescribed by Allah, if ye believe in Allah and the Last Day: and let a party of the Believers witness their punishment.” — The Quran 24.2.17 (https://quran.com/24:2 )
Penalty for “fornication” as suggested above is 100 lashes. For Zina to be proven needs four witnesses, and in absence of witnesses, accuser need to be lashed as per below verse –
“And those who accuse free women then do not bring four witnesses, flog them, (giving) eighty stripes, and do not admit any evidence from them ever; and these it is that are the transgressors. Except those who repent after this and act aright, for surely Allah is Forgiving, Merciful.” —The Quran 24.4 and 24.5 (https://quran.com/24:4)
However, for adultery the Quran verse 4.15 provides for confinement of guilty women in houses until death, whereas the following hadith prescribes death by stoning (Lapidation/ Rajm) –
“Allah’s Messenger awarded the punishment of stoning to death to the married adulterer and adulteress and, after him, we also awarded the punishment of stoning, I am afraid that with the lapse of time, the people may forget it and may say: We do not find the punishment of stoning in the Book of Allah, and thus go astray by abandoning this duty prescribed by Allah. Stoning is a duty laid down in Allah’s Book for married men and women who commit adultery when proof is established, or if there is pregnancy, or a confession”— Sahih Muslim, 17:4194
Incidentally this death by stoning is the same as Old Testament law. It is still followed in Islamic society. However in practice, proving adultery against a powerful accused is next to impossible due to the requirement of four witnesses; this law is essentially used more as a political tool against poor people and women.
Summary of Chapter 4: Polygamy and Concubinage- towards Monogamic reform
Shri Swarup states that “the Quran takes for granted the institution of polygamy and concubinage that prevailed among Arabs at the time of Prophet, but it froze the custom by giving it divine sanction.”
Any worthwhile Muslim’s harem consisted of two categories of women –
One included wives proper on whom some dower was bestowed, their number was restricted to four. (https://quran.com/4:3 )
The other category included half wives or concubines consisting of women purchased or gifted and also captured in holy wars and received as war booty. The Quran describes these concubines as women whom “your right hand possesses”. A man can have as many concubines as his means, capacity and opportunity.
Even in the first category, the limitation meant four wives at a time, as wives can be legally replaced to maintain this number at any time. The Quran verse 4.20 sanctions this. (https://quran.com/4:20)
Shri Swarup mentions that in spite of this limit of four wives, the grandson of Prophet Hasan Ibn Ali had children from sixteen wives and concubines.
Shri Swarup says that “under pressure of new moral forces, many Muslims apologists and reformers claim, that properly understood, the Prophet taught monogamy.” These apologists give the specious argument that since Quran teaches equal treatment to wives, and practically it is not possible, so actually Quran teaches monogamy.
However Shri Swarup simply trashes this argument. He says that tenor of verse is very clear that it permits plurality of wives. In fact some commentators have read in this verse support for nine wives (2+3+4), others even for eighteen. Anyway even if there is restrictions on the number of wives, there is no restriction on the number of concubines, without offending the Quranic law or the Muslim public morality.
Shri Swarup further stresses that Monogamy is not supported by the ethics of the Quran read as whole, nor by example of Prophet and his companions, nor by tradition, nor by fiqh.
He concludes that polygamy and concubinage were political institutions, feeding fast growing Islamic Imperialism. Islamic society practiced aggressive wars and annexed outside territories as suppliers of slave men and women. Jihad and conquest of infidel lands provided a continuous supply of captives, men and women, who were further bred for more slave trade. Politically too polygamy and concubinage were useful. One Arab or Turk with many slave concubines became sire of numerous progeny. This helped Muslim expansion and colonization and strengthened its demographic and administrative base.
Summary of Chapter 5: Dower (Mehr) in Islam- Its meaning and nature
Shri Swarup writes that practice of dower (mehr) in early Islamic society was heavily influenced by practices of pre-Islamic societies of Arabs, Hebrews and Egyptians. The very word used in the Old Testament for dower is mehr, the same as in the Quran.
He cites the code of Hammurabi on dower to show surprising similarity between this code and Muslim Law. “A man may divorce his legitimate wife by refunding her dowry as well as her bridal price or paying her instead of the bridal price one mina of silver. If he divorced a concubine (captured woman) the woman received her dowry and half of the estate to raise the children, after the children were grown, she received one portion of estate equal to that of one son.”
He further quotes the Bible to make a point that, in its larger conception too, Muslim law follows the old lead. In this conception, dower is regarded as a purchase price for the sexual favours received from the woman. According to the Bible, if a man seduced a girl he shall give to the father of young woman fifty sheckles of silver (Deut 22.29) and make the girl his wife. (http://www.biblestudytools.com/deuteronomy/22.html)
Islam borrowed heavily from this Biblical revelation.
Shri Swarup highlights that dower is also called ujoor or ujrat (wages). He quotes the Quran verse 33.50 in support of this practice. ( https://quran.com/33:50 )
“O Prophet, indeed We have made lawful to you your wives to whom you have given their due compensation and those your right hand possesses…..”.
Also verse 4.24 and 4.25 indicate nature of dower is wages or due compensation. (https://quran.com/4:24)
A woman becomes entitled to dower if marriage is consummated, and for only half the dower if marriage is unconsummated. (The Quran verse 2.237 – if you divorce them before you have touched them..pay them one half of what you have settled- https://quran.com/2:237 )
The Quran verse 2.236 further states that “There is no blame upon you if you divorce women you have not touched nor specified for them an obligation. But give them [a gift of] compensation – the wealthy according to his capability and the poor according to his capability – a provision according to what is acceptable, a duty upon the doers of good” (https://quran.com/2:236)
From all above citations Shri Swarup draws this final conclusion:
“It appears from a perusal of the Quran, the Sunnah and Fiqh that the Muslim law has no idea of maintenance of a divorced woman in modern sense of word. She is entitled to dower but that is a very different thing in conception and intent and it does not amount to maintenance as such.”
This deeper analysis of nature of dower brings clarity to underlying cause for Indian Islamic orthodoxy’s counter position in case of Mohd. Ahmed Khan v. Shah Bano Begum (1985 SCR (3) 844) on the issue of maintenance.
Summary of Chapter 6: Marriage and Dower
“Some dower, big or small, is incumbent on a Muslim husband. It is prescribed by revelation and supported by tradition. It need not be in terms of money, it could also be in terms of goods excepting wine, hog and few such other things. It could also be in terms of labour as is not degrading for husband”, states Shri Swarup.
He also cites example of Moses and Isaac who worked for their in-laws to fulfill the obligation of dower, for marrying their daughters respectively.
A proper dower (mehr misl) of any woman is to be regulated, in amount or value, by that of her paternal relations. A dower can be high or low according to the circumstances of the parties concerned. But it can never be less than 10 Dirhams or equivalent money. This minimum is derived from what the Prophet is believed to have said,-there is no dower under ten dirhams.
(Additional source on dower: https://toplawsearch.wordpress.com/2014/12/05/kinds-of-dower/)
Though there is no upper limit on dower, the tendency of parents in upper strata of most Muslim countries is to fix it on the higher side, as it is a mark of social status and prestige.
Dower (mehr) is not cash payment but a future promise for payment, which a woman can and normally does forgo. As the Jurists of Islam argue, the dower is purely a right of woman which she is at liberty to renounce.
Revelation in the Quran verse 4.4 provides for this remission. “And give the women [upon marriage] their [bridal] gifts graciously. But if they give up willingly to you anything of it, then take it in satisfaction and ease” (https://quran.com/4:4)
Shri Swarup describes a peculiar one sided nature of dower and its application in cases of Muslim divorce. If a Muslim woman seeks divorce from her husband due to abuse or tyranny (called Khula), this act frees the husband from the liability of stipulated mehr. Tyrant husbands often force this kind of divorce on their brides in order to escape from liability of dower. In Khula divorce, a woman not only forgoes her mehr, but sometimes also pays the husband some compensation.
Quran verse 4.128 supports this form or securing release from marriage by payment of compensation to husband. (https://quran.com/4/128- “And if a woman fears from her husband contempt or evasion, there is no sin upon them if they make terms of settlement between them”)
Shri Swarup poses this intriguing question “But whom should she go to with her plea”, to enforce this limited right Muslim woman has for improving her marital position, as in Hanafi school followed by Sunni Muslims there is no such channel.
While a Muslim man can divorce his wife for any reason or no reason at all, the law recognizes no ground on which a woman could go to a Qazi for dissolution of her marriage. In matter of Talaq Muslim man has all the initiative, a woman none.
He concludes the chapter on a sombre note:
The improvement of woman’s position in Islam is a difficult matter. It goes beyond re-interpretation of scriptural texts or liberal legislation or new reformist trends. Islam has been eminently a man’s religion in which woman holds a low position as a matter of course.
Summary of Chapter 7: Divorce (Talaq)
According to a tradition, divorce is hateful to Allah but it is perfectly legal and it appears to have been made pretty easy for those who are so minded.
Shri Swarup further describes details of pronouncement of divorce:
A divorce can be pronounced personally or delivered from a distance through a letter; it can be explicit or implied. It could be expressed metaphorically, like “take veil”, or “join your people” and this amounts to divorce. It can be expressed in the language of gestures, for example by dropping three pebbles. If a man says to his wife, “you are under divorce thus”, holding up his thumb and fore and middle finger, three divorces become effective. Divorce can be pronounced monosyllabically or in full sentence; it can be pronounced separately, “you are divorced, divorced, divorced” or collectively, “you are divorced thrice”. In fact, the Hidayah takes many pages in discussing the grammar and arithmetic of these pronouncements.
A divorce is automatic as soon as word ‘talaq’ is repeated three times. If wife is bond-maid two time will do. The religious leaders have issued fatwa in past that according to the Prophet, words (three times word talaq) uttered unintentionally or even for sake of fun are binding.
A good talaq is one where a husband repudiates a wife by three divorces in three tubres – spaces intervening between three menstrual fluxes.
A triple talaq delivered in one sitting is bad, though still perfectly legal.
Shri Swarup gives example of how rigid the system of talaq is, by giving the example of Pakistan where High court ruled that registering of talaq in local council was mandatory for talaq to be effective. However, under pressure of Islamic scholars, Supreme Court invalidated this requirement of written notice.
Further, a woman could be charged for ‘Adultery’ if her former husband denied having divorced her.
Returning to the wife (Rijaat)
A man can return to his wife or take back his wife provided it is first or second talaq and woman has not ended her iddah (the period a woman must observe after the death of her spouse or after a divorce, during which she may not marry another man. Its purpose is to ensure that the male parent of any offspring produced after the cessation of a nikah (marriage) would be known). More details can be found at – http://www.quran.mu/taking-back-a-wife-after-a-talaq-divorce-in-islam.html
But if a woman is divorced by three talaq, man cannot marry her again unless she is married to a third party and they have consummated the marriage. (The Quran verse 2.230 – “And if he has divorced her [for the third time], then she is not lawful to him afterward until [after] she marries a husband other than him. And if the latter husband divorces her [or dies], there is no blame upon the woman and her former husband for returning to each other”- https://quran.com/2/230)
The institution of Muhallil or Nikah Halala emerged out of this peculiar situation when a woman or man divorced by triple talaq, again want to marry each other. Verse 2.230 clearly reveals that this is not possible unless Nikah Halala is performed with a third person and the man and woman lived as husband and wife together.
Summary of Chapter 8: Forms of Divorce – Custody of Children
Khula is a form of divorce where Muslim woman buys divorce from her husband by forgoing her dower, and at times paying compensation. But she could not approach any Qazi for seeking Khula.
However she got rights to approach the court for dissolution of marriage through a 1939 law called ‘Dissolution of Muslim Marriage Act’, enacted by the British on petition of Ulema themselves, who were faced with the situation of conversion by unhappy Muslim women who converted to free themselves from unwanted marriage.
Shri Swarup writes that here Ulema themselves indicated that Shariyat is not final for them. He emphasized that now that fundamentalism is on the rise in Muslim countries, the threat of conversion is no threat- the Muslim law of apostasy would take care of it.
Ila (vow) is another form of divorce. In Ila, the husband takes an oath not to have sexual intercourse with his wife. Followed by this oath, there is no consummation for a period of four months (two months in case of slave). After the expiry of the fourth month, the marriage dissolves irrevocably. But if the husband resumes cohabitation within four months, Ila is cancelled and the marriage does not dissolve.
Zihar (back) is a form of talaq of historical importance only. Here, husband compares his wife with a woman within his prohibited relationship e.g., mother or sister etc. The husband would say that from today the wife is like his mother or sister. After such a comparison the husband does not cohabit with his wife for a period of four months. Upon the expiry of the said period, Zihar is complete.
Lian (Laan) or imprecation is another form of divorce that operates when a husband levels charges of un-chastity or adultery against his wife with no witnesses. The wife has got the right to ask for divorce on grounds of character assassination. Lian does apply when both parties are slaves, infidels or Kitabees.
Since Adultery (zina) is punishable with stoning (rajm) in Shariyat, and prescribes eighty lashes to husband who fails to prove the charge, sometimes lian is lucky escape for both to break marriage without invocation of Shariyat’s punishment for adultery.
Shri Swarup says that Lian is similar/close to Christian practices which are still followed by Indian Christians in form of 1869 Indian Divorce Act.
Custody of children
Divorce often involves children, the issue of their custody and care. In Muslim law, the custody of infants belongs to the mother while their maintenance is obligation of father. The mother has a right of custody for a male child until the child is capable of taking care of his own basic bodily needs – this has been set as seven years of age. In the case of a female, the mother has this right of custody until she reaches puberty. The right of custody will be taken away from the mother if she apostatizes, or marries a stranger, or changes her domicile. Then the right of custody transfers to grandparents. A custodian mother cannot handle or look after property interests of the child, as she is regarded as deficient in discretion.
Taking up of foundling (laqeet) – an orphan child, or a child abandoned by parents – is laudable in Islamic law. Its maintenance is to be defrayed from public treasure. The child owns nothing to benefactor who brought him up as it is a gratuitous act.
Summary of Chapter 9: The Problem of reform
Shri Swarup contends that Muslim laws on marriage, divorce, polygamy or dower, are not a patchwork but they reveal a great inner consistency. They have grown out of a particular conception of man and woman and they subserve that conception.
They also show that the problem of raising the status of woman in Islam is a big problem. It requires more than providing pecuniary aid to indigent divorcees under some sections of Constitution. It requires a change of mind, a more humane and less theological approach.
Shah Banu’s case is painful and it strikes a sympathetic chord in every heart not hardened and made insensitive by theology and politics.
Shri Swarup further appeals that Muslim males should learn to look at problem as parents and brothers too and not merely as husbands.
Muslim women too should play a greater role than they have hitherto done in their struggle for more freedom and dignity.
Here Shri Swarup makes a scathing comment on Indian liberals who could otherwise have helped Muslim women in this struggle.
“But they are a most phoney lot as their history shows they have merely been aids and abettors of Muslim Leaguers and Muslim fundamentalists.”
On possibility of Islamic reform in treatment of woman in Islam, Shri Swarup has this to say –
“Any durable work will require leaders of the new intellectual movement to question the basic ideology and assumptions of their society, its thoughts and practices. Indeed they will be called upon to question Islam itself. We have the example of Europe where another similar faith with its own brand of fundamentalism prevailed not long ago. But the break came not with Lutheranism, but with rationalism and science which offered different worldview, an alternative ideological framework. Islam has yet to undergo this Rationalist Revolution.”
Some liberal Muslims seeking reforms and amelioration in condition of Muslim women, in the name of the Quran and hitherto undiscovered ‘true’ Islam are falsifying history and this (falsification) can never take these reformers very far.
He advises serious Muslim intellectuals will have to proceed in a different way. They will have to reject a good deal of fundaments of Islam and would be called upon to provide a new ideological lead. Quoting stray verse from the Quran in support of a reform of the day will not do.
Shri Swarup concludes this chapter and this great book by criticising Supreme Court in Shan Banu’s case, for quoting in its judgement verse 2.241 of the Quran – “And for divorced women is a provision according to what is acceptable – a duty upon the righteous”
He builds his criticism as under –
“that this verse may mean what Supreme Court supposes, but this meaning is not supported by overall spirit of Quran, nor by life of the Prophet and his companions, nor by any Fiqh school. No Islamic court ever granted a maintenance to a divorced woman for life or till she was married.
The Supreme Court overrided its work, it became interpreter of teachings of the Quran. It was enough for the integrity of the Court if its decision interpreted the law of the land and was in consonance with human and moral law and conscience. Indian courts should not try to pretend that they are as good as or even better than the Shariat courts of some Muslim countries.”
I will conclude this article with this note:
Today, people sympathetic to the cause of emancipation of Muslim woman, are waiting with bated breath and crossed-arms, if the Supreme Court of Bharat will heed to advise and criticism of this great scholar, this time in another Bano’s plea.
(Disclaimer: This article represents the opinions of the Author, and the Author is responsible for ensuring the factual veracity of the content. HinduPost will not be responsible for the accuracy, completeness, suitability, or validity of any information, contained herein.)