Cases in the Muhammadan Law of India, Pakistan and Bangladesh: Asaf A.A. Fyzee; edited and revised by Tahir Mahmood

Contemporary Islamic law

N.R. Madhava Menon

Fyzee's contribution by way of consolidation and restatement of the law through cases is a major step forward in an otherwise dicey situation of orthodoxy, prejudice, inequality and fear

Cases in the Muhammadan Law of India, Pakistan and Bangladesh: Asaf A.A. Fyzee; edited and revised by Tahir Mahmood, Oxford University Press, YMCA Library Building, Jai Singh Rd., New Delhi-110001. Rs. 595.

Fyzee's Outlines of Muhammadan Law (1949), of which several editions are now available, is an authoritative book on the subject widely used by the academic world even today. The author intended this book under review as its `companion volume'. First published in 1964 it has undergone a thorough revision in this second edition by Tahir Mahmood, who is an Islamic law scholar of international repute and long-term colleague of the reviewer at Aligarh and Delhi Universities.

Challenges

Muslim law, like `personal laws' of other religious groups, is today facing several challenges from within the community as well as from outside. This is but natural in an era of unprecedented changes in societies everywhere. As Fyzee himself conceded in his preface to the first edition of Cases in the Muhammadan Law of India, Pakistan and Bangladesh, the influence of English Common Law and Equity had forced changes in the rules applicable in order to "satisfy modern concepts of social justice." Another reason according to him for unique changes in Islamic law in India is the articulation of rules by the legislatures in specific areas and their interpretation by courts mainly through the English language and jurisprudential traditions. Finally, social history shaped by interaction of different religions as well as developments in international (treaty) law also had the effect of modifying Islamic law as practised in the sub-continent. Fyzee himself being a product of Cambridge naturally had a reformist approach in his analysis of Muslim Personal Law.

Study of law through cases has profound significance in a precedent bound legal system and the present volume is perhaps the first of its kind in analysing personal law through analysis of judicial decisions.

Law through cases

In about 19 chapters the author has discussed as many topics entirely through cases decided by superior courts in India, Pakistan and Bangladesh. They cover a range of subjects including marriage, dower, divorce, guardianship, gifts, wakfs, inheritance and legitimacy. Along with them the author has looked at the role of custom and customary law, the approach to interpretation of the Quran and the Traditions of the Prophet (the scope for logical inferences) and identified the trends in judicial evolution of Islamic law in India, Pakistan and Bangladesh. No doubt the book is an excellent tool for teaching the subject in law schools and for research.

However, there are differences of opinion among Islamic scholars themselves about the degree of authority they give to interpretations given by modern secular courts. According to the author though courts in India often made elaborate references to Quranic verses in support of its viewpoint (Anwara Begum (1981 GLR 358); Shah Bano (AIR 1985 SC 985), "no Court has specifically claimed an authority to re-interpret the Quranic verses or the Prophets' Traditions on law."

While Fyzee found Indian courts having given "utmost sanctity to the Holy Quran as the only revealed book of Islam" and dismissed petitions attacking the Quran (Chopra, AIR 1986 Cal.104), he has stated that the trends in Pakistan and Bangladesh have been different despite their officially owing allegiance to Islam. In Pakistan (Rashida Begum, Din PLD 1960 Lah.1142) the Lahore High Court observed, "If the interpretation of the Holy Quran by the commentators who lived thirteen or twelve hundred years ago is considered as the last word on the subject then the whole Islamic society will be shut up in an iron cage and not allowed to develop along with the time."

Imrana case

One wonders whether the caution and restraint which Fyzee found on the part of Indian courts are being misunderstood by a section of the Islamic clergy in recent times to assume jurisdiction for running a parallel system of adjudication. The case of Imrana (The Hindu dt. June 29, 2005), allegedly raped by her father-in-law being adjudged by the Muslim Personal Law Board resulting in a Fatwa of termination of marriage is illustrative of this trend. The editor of the volume under review, Tahir Mahmood, reportedly came to the defence of the Muslim Personal Law Board by saying that "in a country like India where Islamic law was only selectively applicable under the authority of its own law, the fatwa or the rule of Islamic law underlying the decision need not be strictly imposed on an innocent and unwilling couple desirous of continuing in marriage." He found the principle of Islamic law on which the fatwa was given pro-women as it enabled "the wives outraged by sexual misbehaviour of their male in-laws to walk out of their marital bond and seek a new life elsewhere!"

There is an interesting chapter in the book titled `Who is a Muslim?'. With the help of two old cases (Abraham v. Abraham (1863) 9MIA 195; Narantakath v. Parakkal (1922) 45 Mad.986) the author attempts to answer this question giving his own interpretations and inferences. The law applicable to converts is now settled through judicial intervention (Sarla Mudgal, AIR 1995 SC 1531).

Conversion to Islam will not attract instant application of Muslim law. The `update' in each chapter is indeed a valuable addition to give the latest position of decisional law on the subject.

The book under review is essential reading for both academics and practitioners on Islamic law and comparative law. The index of cases at the end of the book is drawn from a number of countries and is in addition to those referred in the running text.

Need for reform

Islamic law like any other law is in need of reform. The urgency lies in application of contemporary standards of equality, dignity and individual rights in matters relating to marriage, divorce, inheritance, guardianship and maintenance. The need is clearly for a uniform civil code as mandated by the Constitution.

Today, more than anything else, women's rights are in jeopardy because of attitudes and practices developed over the years through religion-based personal laws.

Unfortunately, the issue got involved in communal politics to such an extent that even public discourse on the subject is suspect and inhibited. In such a context, incremental reform through the judicial process, though slow and uncertain, is still welcome.

In this perspective, Fyzee's contribution by way of consolidation and restatement of the law through cases is a major step forward in an otherwise dicey situation of orthodoxy, prejudice, inequality and fear.

http://www.hindu.com/br/2005/10/18/stories/2005101800061500.htm