Muslim Personal Law: Lack of clarity helped qazis

Hyderabad: The Supreme Court has been informed that in the absence of explanation of procedures of implementation, penalties etc. in the Muslim Personal Law (Shariat) Application Act, 1937, Muslims are forced to depend on maulanas, muftis and qazis who sort out the problems in their own way.

Advocate Farah Faiz, who has been fighting for an amendment to the Muslim Personal Law (Shariat) Application Act, informed this to the apex court through her reply affidavit submitted before it in a suo moto writ petition which has been registered by the court for considering the rights of Muslim women in issues concerning marriage, divorce and maintenance being in violation of Part III of the Constitution. She contended that the Act on a whole was a badly-drafted piece of legislation.

She cited the example of the Imrana case from Muzaffarnagar in Uttar Pradesh. Imrana’s father-in-law had raped her and the mufti had stated in the fatwa that the victim (Imrana) had exited from wedlock with her husband and she should now treat him as a son as her father-in-law had had sex with her.

Ms Faiz contended that fundamentalists must realise that like other religion-based laws of India, Muslim personal law was very much within the domain of the judiciary which has to administer, interpret and apply it acc-ording to the same process and procedures as are used in respect of other branches of Indian law.

According to the reply affidavit available with this newspaper, Section 2 of the Act 1937 unduly elaborates upon certain legal expressions like “property” and “dissolution of marriage”, the meaning and ambit of which are quiet clear, and phrases had been drafted by a group of local theologians who had included these terms and phrases to make their view point very clear.

These could have been advisable in the 1930s but now the language of the Act seems to be wholly out of tune with the times, it stated.

Muslims have many sects like Hanafi, Hanbali, Maliki, Shafei among Sunnis and Ithna; Ashari, Jafari and Ismaili among Shias. But the Act-1937, and the Dissolution of Muslim Marriages Act-1939 as well as the Muslim Women (protection of rights on Divorce) Act-1986 are silent on whether it means that a particular school of Muslim law will be applicable to all Muslims or the followers of various schools would be governed by their respective principles.