Towards a Progressive
Interpretation of Islam
by A. Faizur
Rahman
The
Delhi court judge who rejected bail to a maulvi
in a forcible marriage case was right in saying that there is no blanket
sanction for polygamy in the Koran.
In
a significant judgment
pronounced last month (in State vs. Nadeem
Khan case) Delhi’s Additional Sessions Judge Dr. Kamini
Lau called upon religious heads, priests and maulvis “to ensure that the
religious texts are progressively interpreted and to confirm that it is only
those beneficial practices which are in the best interest of all sections of
humanity which are encouraged and observed.” She was dismissing the
anticipatory bail application of a Maulvi
accused of forcibly marrying a young Muslim girl to an already married man who
raped her soon after the Nikah.
The judge’s remarks, which form part of her eloquent 14-page order, were in
response to the maulvi’s
defence
that there was nothing illegal about his performing the Nikah because the Shariah
permitted a Muslim man to have four wives at a time.
The
importance of Dr. Lau’s order lies in her scholarly refutation of the medieval
belief that polygyny enjoys blanket sanction in Islam. Citing Muslim scriptures
the judge avers that “polygamy
is neither mandatory nor encouraged but merely permitted. The Koran’s
conditional endorsement of polygamy stresses that self-interest or sexual
desire should not be the reason for entering into a polygamous marriage”
because the original purpose of allowing this practice was “to protect the
social and financial standing of the widows and orphans in their community.”
Historical context
Dr.
Lau is absolutely right in her analysis. Indeed, except conditional polygyny,
the Koran frowns upon all types of non-monogamous relationships within in and
outside marriage. Significantly, polygyny itself finds mention just once (4:3)
in the entire Koran. Yet Muslim men have abused it over centuries without
appreciating the spirit behind its exceptional sanction, which is clearly contextualised
in the historical conditions of the time when a large number of women were
widowed and children orphaned as Muslims suffered heavy casualties in defending
the nascent Islamic community in Medina. Even a simple reading of verses 4: 2,
3 and 127 will show that it was under such circumstances that the Koran allowed
conditional polygyny to protect orphans and their mothers from an exploitative
society.
Verse
4:2 warns caretakers against devouring the assets of orphans either by merging
them with their own, or substituting their “worthless properties for the good
ones” of the orphans. And, if the caretakers “fear that they may not be able to
do justice” to the interests of the orphans in isolation, the next verse allows
them to marry their widowed mothers – on the condition that the new family would
be dealt justly on a par with the existing one. For those who are not up to it,
the instruction of the Koran was: “Then [marry] only one.”
The
sanctity of taking care of widows and their children is further emphasised
in 4:127: “And remember what has been rehearsed unto you in the Book [in 4:2
and 3] concerning the orphans of women to whom you give not what is prescribed,
and yet whom you desire to marry...” This proves that verse 4:3 is not a
hedonistic license to marry several women.
Furthermore,
the Koran idyllically describes the marital couple as “spousal mates” created
to find “quiet of mind” (7:189) and “to dwell in tranquility” (30:21) in the
companionship of each other. In fact, verse 7:189, which traces the origin of
man to a single cell (nafsan waahida),
refers to the wife in the singular as zaujaha,
thereby emphasising
monogamy. Thus, in the Koranic conception, marriage is the emotional bonding of
two minds which cannot be achieved simultaneously with more than one woman.
Restricted in many countries
For
this reason polygyny is severely restricted in many Muslim countries and
totally banned in Tunisia and Turkey, a fact pointed out by Dr. Lau in support
of her judgment. In Pakistan for instance, Sec. 6 of the Muslim Family Laws
Ordinance, 1961 states that no man, during the subsistence of an existing
marriage, can contract another marriage without the permission in writing of
the Arbitration Council – a body consisting of representatives of each of the
parties to a matter dealt with under the Ordinance – which would grant the
sanction applied for after satisfying itself that the proposed marriage is
necessary and just.
The
Indian Muslim community is perhaps the only Islamic society in the world where
utter confusion prevails insofar as the proper definition of Shariah is
concerned. Judge Lau brings this up saying, “… in democratic India, it is time
to clear certain misconceptions and misgivings regarding Islam. Merely because
the Muhammadan
Personnel Law does not stand codified, it does not in any manner entitle a
violator / accused to get away with an interpretation which suits his
convenience.” Once again she has hit the nail on the head. One fails to
understand why the Muslim clerics have always sought to straitjacket the
time-transcending polysemic phraseology of the Koran
and restrict its meaning to outdated medieval hermeneutics. It is no wonder
that a verse in the Koran (25:30) visualises
Prophet Muhammad as complaining to God on the Day of Judgment that after his
demise his followers had circumscribed the comprehensive message of the Koran.
In
this context, one is reminded of the valiant attempt made by the great 14th
century jurist Abu Ishaq al-Shatibi
of Muslim Spain who in his celebrated legal treatise al-Muwafaqaat
fi usool
al-Shariah
developed the concept of Maslaha
(public good) as an essential element of his doctrine Maqaasid al-Shariah (Goals of the Shariah)
which he formulated to make Islamic law adaptable to social change. Shatibi
argued that an inductive analysis of the injunctions of the Koran and the
teachings of the Prophet would reveal that Maslaha is the universal
principle that permeates Islam because, the
divine intent behind societal sharaa’i
(laws) is the masaalih
(benefits, good) of the people, both immediate and future. Therefore, any law
that does not have Maslaha
as its basis cannot be attributed to the Lawgiver.
Surprisingly,
even a staunch traditionist like Ibn al-Qayyim
agreed with Shatibi. In his I’laam al-muwaqqi’in he wrote: “The Shariah is
all justice, kindness, masaalih
and hikma
[wisdom]. Hence, any rule that departs from justice to injustice…from Maslaha to Mafsada is
not part of Shariah…”
It can, therefore, be stated with a fair amount of certainty that the
stagnation of Islamic law in India is a result of ignoring the relevance of
public interest in lawmaking. It is time Muslim theologians realised
that any interpretation of Islam that is amoral, unfair and inconsistent with
principles of natural justice and social ethics, cannot claim to represent the
Divine Will, and therefore, does not deserve to be epitomised
as the Shariah.
(A. Faizur
Rahman
is secretary general of the Islamic Forum for the Promotion of Moderate
Thought. E-mail: faizz@rocketmail.com)
Posted
March 31, 2013. This article was
originally published in The Hindu on January 11, 2013, it is
posted here with the author’s permission. For more on the subject of Shari'ah, we highly recommend Rumee Ahmed's "Shariah Compliant:
A User's Guide to Hacking Islamic Law." It is one of the finest works by a modern Muslim scholar, and should be essential reading for
EVERY student of Islam, within or outside of the faith.