Contemporary Development of Muslim Law in various Muslim Countries
Introduction
The aspect, contemporary development of Islamic law in Muslim countries, is very critique and comprehensive which needs, for proper understanding, very deliberative investigation and research. But due to some constraint it is not possible to undertake that in this context Since it is discussed in a nut-shell.
The state is a concrete entity in which the Ummah attains righteousness. It means that the state is one where the Ummah achieves dominance. It shows that the state does not come into existence as an end in itself but takes shape only as means for the righteous people to administer it on the basis of righteousness.
It is stated in the Quran : “Thus we made of you an Ummah justly balanced that ye might be witnesses over the nations and the Apostle a witness over yourselves” (2:143). The government being a representative of the Ummah it is administered on behalf of Allah by principles of righteousness.
Righteousness is to be achieved through the implementation of Islamic or Shariah law. So it is the only duty of the Islamic state is to implement Islamic law for acheiving the goal of the state-righteousness.
Islamic law as the means of righteousness had been introduced in the state from the Prophetic period (Sm.) and it was continued till the Muslim ruled the countries according to the principles of the Islamic Shariah.
What happened later on has been discussed in the preceding chapter, that is the stages of the development of Islamic law.[1]
Application of Islamic laws in the Muslim Countries:
Before the imposition of alien legal system was introduced in the Muslim lands, Islamic legal system was only the basis of the legal system of the Muslim states. The begining of the decline in the Shariah law started with the expansion of European colonialism or political expansion and mental transplantation earlier. Its impact may be started from the Gulhane charter of 1839 in case of Ottomans and the unsuccessful 1857 Muslim uprising in the case of Indian sub continent. The free law movement gaint momentum with the imposition of alien legal systems in the Muslim lands colonised by the European powers. During and after the two world wars, in an atmosphere of foreign laws, the newly independent Muslim countries, patented with the European conceptions of Nationalism secularism and territorial principles, carried forward or followed the western laws in large areas of human relations. The movement of fixv law (man made law) continus to expand and the Shariah law is moulded to be localised in territorial boundaries of individual countries. The threat to existence through capitalism and communism culminating into the Israeli aggression to religion Islam, lovers over the Muslims and there is a practical dictiotomy in the Muslim’s life of the law in books and law in action. In short, the modern stage in the history of the institutions of shariah continues to operate with a severe degree of gravity and peril, perhaps first of its kind in the whole history of Islam.[2]
The policy of the colonial Europe was, as far as possible to minimise the Islamic legal institutions and even to substitute them by European technique in keeping with the dignity of conquering powers.
Development of Islamic Laws in Muslim Countries:
As we have mentioned earlier that all the public as well as private laws except family
laws (to same extent), were abrogated.
Family laws were also paterned on common law or European law. The following laws were modified in the name of development:[3] These are Law of marriage, Law of Dower
Law of Divorce, Law of Guardianship, Law of Inheritance, Law of Waqf.
The following modifications were made of the above laws:
Law of Marriage: In the context of modern Western civilization, the Muslim theory of justice between wives is interpreted beyond the principles of Usid al-Fiqh in consonance with national feelings. It is argued that the control on polygamy is justified in the light of the impossibility of the attainment of perfect impartiality in treatment. In favour of control theory, it is said that the advancement of family and women, the power of the State to legislate in public interest and finally to limit birth rate need such a measure. The law is changed or modified through legisatures in a legal system patterned on Common Law or European law.
The following are some examples:
Tunisian Code of Personal Status, 1956, says : “Polygamy is forbidden. Any person who, having entered into a bond of marriage, contracts another marriage before the dissolution of the preceding one, is liable to one year’s imprisonment and to a fine…” (Art. 18). It contravenes the Quran.[4]
Syrian Law on Personal Status (Decree No, 59) of 1953 provides : “…the judge is empowered to refuse permission to a married man to marry another woman if it is established that he is not in a position to support two wives…” (Art. 17)[5]
The Moroccan Code of Personal Status, 1958, says : “Polygamy is prohibited where it is likely to involve injustice towards the wives…” (Art. 30 [1]; “…the marriage contract concerning the second wife shall not be drawn up until the latter has been informed that her prospective spouse is already married”.[6]
The Iraqi Code on Personal Status, 1959, runs : “…it is not permissible to marry more than one woman without authorisation from the judge.” The grant of permission is regulated by the conditions that the husband’s financial status permits it for supporting the wives and it is for a genuine benefit (Art. 3)[7]
Pakistan’s Family Law Ordinance, 1961, provides : “No man, during the subsistence of an existing marriage, shall, except with the previous permission in writing of the Arbitration
Council, contract another marriage…(Sec. 6], Which will adjudge if the second marriage is necessary and just to grant the permission.” Bangladesh is following this rule.[8]
In the Marriage and Guardianship Code of Mali, 1962, it is provided : “…A man who has opted for monogamous marriage shall, however, be at liberty to revise his contract with the consent of his wife…” (Art. 7), i.e. the second or subsequent marriage is dependent on the permission of the wife by the code which has made monogamy a usual practice.[9]
In Malaysian States, the strong tradition of a matrilineal customary law or the ‘adah law forbids to take another wife in the same tribe.
In Rembau, a special sanction of the ruler is needed while in other states the first -wife’s consent is needed.
Under the Muslim Ordinance, 1957 (amended), in Singapore, subsequent marriages can be solemnised only after permission is granted by the Qadi (Sec. 7A).
The New Constitution of 1962 for the Shi-i-Ismailiyah in Africa prohibits polygamy and similar is the case of the Law of Personal Status of 1945 for the Druze Community of Lebanon.
Turkey abolished the Islamic Law in 1926 and adopted the Swiss Civil Code to make the concept of marriage European, but in villages, the practice continued (see Voice of Islam, XVI, 8,586-97).[10]
Law of Dower: Statutory Developments on Dower. The following is a selected list of some of the important shapes of the law in the Muslim countries.
The Marriage & Guardianship Code of Mali (promulg. 3 Feb. 1962). Under Article 3, where required by custom, the dower and marriage gifts may not exceed a total value of 20,000 francs for a young woman (jeune fille) and of 10,000 francs for a woman (femme). In divorces where wife is responsible, the husband may claim restitution of the bride-price or dower and gifts. Where it is pronounced against the husband, they remain the property of the wife. In cases of reciprocal wrongs of both, the court is to grant the extent of restitution. The persons contravening the rules are punished.[11]
Code of Personal Status and Succession of Morocco (22
November 1957 and later). Article 35 (4) provides complete liberty to administer and dispose of her property without reference to the husband, who has no power over the property belonging to his wife. Under Article 39, in cases of a dispute concerning the ownership of property hi the home and in the absence of proof, credence shall be given to statements made on oath by husband in the case of property normally belonging to him and to statements made on oath by wife in property belonging to her. If the disputed property is in the nature of merchandise, it shall be attributed to whichever of the spouses is proved to be engaged hi commerce. Property customarily belonging to either men or women shall be divided between the spouses on their oath.[12]
Code of Personal Status of Tunisia (13 August 1956). Under Article 23, amongst the husband’s liabilities the wife shall contribute to the expenses of the household if she possesses any property. Article 24 says that the husband shall have no power of administration over the property belonging to his wife. Under Articles 25 and 26, disputes between the parties are to be settled by appointment of arbitrators and in disputes on ownership of property, the law is same as in Morocco.
Libya. By an Act of 1959, women’s right of succession has been protected. The payment of share hi inheritance cannot be refused.[13]
Law of Divorce
Statutory controls on Divorce. To complete the fuller picture of the subject of discussion, the following is a select list of codifications undertaken on Talaq and its connected topics, in the Muslim countries. To what extent they have complied the limits of the methodology of legal evolution of the fiqh will be clear itself to the critical readers.[14]
Arabs. The Tunisian Code abolished the concept of Islamic method of Talaq. It provided: Divorce may not be granted except by a court (Art. 130} A court may order (!) on the petition of either -the husband or the wife on any of the grounds provided for in this code; (2) if both the spouses comment there to; (3) on the position of either the husband or the wife; in once a case the court shall determine the indemnity payable to the wife for the injury done to her or payable by the wife to the husband (Art. 31). The court shall not order divorce until it has made every effort to ascertain, the cause of the dispute between the two spouses, and all attempts to reconcile them have failed. The court may order any emergency measures that may be necessary in regard to living accommodation for the spouses, maintenance and the upbringing of the children (Art. 32). A man is forbidden to marry a woman whom he has three times divorced (Art. 19)[15]
Moroccan Code (Art. 49) provides; “Repudiation is null and void if pronounced by the husband when in a state of total drunkenness, or when he uses coercion or constraint, or when, through an excess of anger, he has wholly or partially lost self-control.” If the Syrian Code had already made the same stipulation, the ‘Iraqi Code has added: A repudiation pronounced a dying person (owing to a diminished use of mental faculties). “Repudiation by the following persons is null and void: a sick person who is in that state of sickness which precedes death, or in that sickness, or in that state and if his wife will inherit from him” (Art . 5). The Syrian Code guaranteed succession rights to the .wife of such a person (Art. 16)[16]The Egyptian Law 10 March 1 29 provided: “A repudiation accompanied by words or gestures indicating a number is equivalent to a single repudiation” (Art, 3). The Syrian Code: “…a divorce pronounced verbally or by signs accompanied by a number is considered to have been only once (Art. 92). The Iraqi Code says: “A repudiation repeated verbally or
Law of Guardianship:
Selected Statutory Provisions on Guar dianship. In the following pages are given come selected important enactments adopted in some of the Muslim countries relevant for the present purposes.[17]
On Marriage Age. Egyptian (Regulation of the Mahkamah) “… that unless an order is given by US. no application for a declaration of marriage will be heard if the woman is under sixteen years of age or the man under eighteen” (Art. 99); “…the marriage of minors, whose ages are respectively less than sixteen, is not void in law, but it cannot be validated by an authentic document. And if the interested parties insist upon the document and we know from experience that this is always the ease they must wait until they have reached the required age” (Art. 367).[18]
Syrian Code. “Marriage can be contracted only by male persons who have attained the age of eighteen (completed years), and female persons who have attained the age of seventeen (completed years)” (Art. 16)[19]
Moroccan Code, “…each of the future spouses must be of sound mind, have attained puberty, and be. free from all legal obstacles” (Art. 6); v… qualification for marriage is acquired (1) at eighteen completed years of age for a man, and (2) at fifteen years of age for a woman” (Art. 8)[20]
Iraqi Code “…to be eligible for marriage, a person must be of sound mind and have reached puberty” (Art 7,1); “eligibility for marriage is acquired at the age of eighteen years” (Art. 8).[21]
Tunisian Code. “The two prospective spouses must not be barred from marriage by any of the impediments established by law. In addition, men under twenty-one years of age and women under seventeen years of age may not marry. A person below the prescribed age may not be married, except by special licence of a magistrate, who shall grant such license only for valid reasons and where it is clearly in the best interests of both prospective spouses to do so” (Art. 5)[22]
Mali’s Code. “A man not having reached the age of eighteen complete years and a woman the age of fifteen complete years cannot contract marriage” (Art. 4); “only the Minister of Justice can grant dispensation of age, for weighty reasons…” (Art 4)[23]
Pakistan. Child Mamage Restraint Act, 1929. “Child means a person who, if a male, is under eighteen years of age and, if a female, is under sixteen years (fourteen years in India) of Age”; “child marriage means a marriage to which either of the parties is a child” (S. 2 [a], [b] prohibited by other provisions of the Act). Bangladesh is following this provisions.[24]
Afghanistan’s Registration of Marriages Act, 1960. “The minimum legal age for marriage is fifteen years. If the prospective spouses are under the age of fifteen, the marriage shall not constitute a marriage between persons of age” (Art. 2)[25]
Algerian Statute of 4 Feb. 1959. “A man not having reached the age of eighteen complete years, or a woman of fifteen years cannot contract marriage. However, the President of the Superior court is empowered, where there are weighty reasons, to grant a dispensation” (Art. 5). Under a later proposed law : “The minimum age at which a girl contracts marriage is fixed at sixteen years” (Art.1)[26]
Law of Inheritance:
The law of inheritance has also been modified in many Muslim countries of the world. A notable change was made in Pakistan under the Muslim family laws ordinance. 1961, that in the event of death of away son or daughter, of propositus before the opening of succession the heirs of the dead person become entitled to succession.179[27]
Waqif:
Statutory Developments in Muslim Countries In conformity with the sprit of the Shari’ah and social solidarity in Islam, the law on awqqfhas been a subject of a series of social evolution. In some countries, the developments have crossed the limit permitted by the Islamic principles, but in a majority of the Muslim lands, useful developments have taken place to prove the legal genius of the juristic law. The following is a selected list of some of the developments.[28]
Pakistan. On the aspect of control. In addition to the Mussulman Wakf Validating Act (VI) of 1913 for family Waqf, the East Pakistan Wakfs Ordinance I of 1962 (the Bengal Wakf Act XHI of 1934); the West Pakistan Wakf Properties Ordinance, 1961, control the waqfs (public) in regard to supervision and administration through a board or commission on the subject.[29]
India. The Wakfs Act of 1954 and other individual State.acts.[30]
United Arab Republic. By a Decree (Law No. 180) of 14 September 1952, those \vaqf constituted for purposes other than pious objects were abolished. The property was distributed among heirs. No private waqfcan be created except for charitable purposes.[31]
Lebanon. By the Law of 12 March 1947 irrevocability discarded (Art. 7), family (dhurri vtaqf) limited to two generations in duration (Art. 8) after which ownership reverts to waqf or heirs (as held by Abu Hanifah) (Art. 9) and conditions on restraints on alienation, etc., void (Art. 13) Partition among beneficiaries and distribution with dissolution of the waqf if in dilapidated or unrepairable condition (Arts. 17-30, 32-34). In such cases a share equivalent to 15% of the value of the property is appropriated to eventual charitable objects.[32]
Syria. By the Legislative Decree No. 76 of 16 May 1949 (as amended) the Creation of dhurri waqf is prohibited and the earlier similar waqfare, liquidated (Arts. 1-2). If corpus of the property is capable of partition, it is divided among beneficiaries, otherwise, if incapable of partition, it is sold Sin auction and proceeds (if charitable objects contingent on extinction of descendants of waqif), 5% is appropriated to such charitable objects and 10% to national defence and remainder distributed among the beneficiaries. In partly dhurri and partly charitable waqf, there is a proportionate allocation. Office of the mutawalli of dhurri waqf suppressed by substituting it to waqf administration. The beneficiaries entitled to share in the corpus of the waqf or, alternatively, in the proceeds of sale are those existing at the date of the decree’s promulgation and their shares are determined as laid down by the waqf.[33]
Saudi Arabia. Under a Decision of Judicial Council, dated 7 Muharram 1347, in “hardship cases, the cases under Hanball law be interpreted in accordance with other schools for public interest. Under the Decision of the Majlis al-Shura No. 61 of 6 Safar 1350, the permission in granted to foreigners to acquire land in the country if it is to be made a waqf in favour of permanent charitable objects.[34]
Tunisia. On 31 May 1956, the State took control of the expenditure for religious or social purposes, of the Djemiyyahdes Habous (Committee for the Hobous), transferred the public habus property to State Lands Office and ordered the committee into liquidation and prohibited to constitute a public habits or private habits (Art 3).
References:
[1] Dr.Md. Ansar Ali Khan, Islamic jurisprudence, Hira publications, 1st edition,2007,p-155
[2] Dr.Md. Ansar Ali Khan, Islamic jurisprudence, Hira publications, 1st edition,2007,p-155
[3] Dr.Md. Ansar Ali Khan, Islamic jurisprudence, Hira publications, 1st edition,2007,p-157
[4] Dr.Md. Ansar Ali Khan, Islamic jurisprudence, Hire publications, 1st edition,2007,p-158
[5] Ibid
[6] Ibid
[7] Ibid
[8] Dr. Md. Ansar Ali Khan, Islamic jurisprudence, Hira Publications, 1st edition, 2007, p-158
[9] Ibid
[10] Ibid
[11] Dr. Md. Ansar Ali Khan, Islamic Jurisprudence, Hira Publications, 1st Edition, 2007, P-160
[12] Ibid
[13] Ibid, P-161
[14] Dr. Md. Ansar Ali Khan, Islamic Jurisprudence, Hira Publications, 1st edition, 2007, P-160
[15] Dr. Md. Ansar Ali Khan, Islamic Jurisprudence, Hira Publications, 1st edition, 2007, P-161
[16] Ibid
[17] Dr. Md. Ansar Ali Khan, Islamic Jurisprudence, Hira Publications, 1st edition, 2007, P-164
[18] Dr. Md. Ansar Ali Khan, Islamic Jurisprudence, Hira Publications, 1st edition, 2007, P-164
[19] Ibid
[20] Ibid
[21] Dr. Md. Ansar Ali Khan, Islamic Jurisprudence, Hira publication, 1st edition, 2007, P-165
[22] Ibid
[23]Dr. Md. Ansar Ali Khan, Islamic Jurisprudence, Hira publication, 1st edition, 2007, P-165
[24] Ibid
[25] Ibid
[26] Ibid
[27] Dr. Md. Ansar Ali Khan, Islamic Jurisprudence, Hira Publications, 1st edition, 2007, P-168
[28] Dr. Md. Ansar Ali Khan, Islamic Jurisprudence, Hira Publications, 1st edition, 2007, P-168
[29] Ibid
[30] Ibid
[31] Ibid
[32] Dr. Md. Ansar Ali Khan, Islamic Jurisprudence, Hira Publications, 1st edition, 2007, P-169
[33] Dr. Md. Ansar Ali Khan, Islamic Jurisprudence, Hira Publications, 1st edition, 2007, P-169
[34] Ibid