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The Modernist Majority Report

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The Modernist Majority Report

Commentary

In 1955, the Commission on Marriage and Family Laws, consisting of six lay members and one representative of the ulama, was established. A majority report calling for reforms in marriage, divorce and inheritance was issued in 1956. However, Mawlana Ihstishām-ul-Haq wrote a vigorous dissenting opinion. The majority and minority reports provided the basis for a debate between modernists and traditionists. Finally, in 1961, Pakistan enacted The Muslim Family Laws Ordinance.

We shall state briefly the reasons for the formation of this Commission. It is an indisputable article of Muslim creed professed by every Muslim that so far as the basic principles and fundamental attitudes are concerned, Islamic teaching is comprehensive and all-embracing, and Islamic law either actually derives its principles and sanctions from divine authority as revealed in the Holy Qur'ān or clear injunctions based on the Sunna. It is this belief which has been affirmed in the Objectives Resolution and the Constitution of Pakistan. It might be objected that if a well-defined code about Marriage and Family Laws already existed, where was the necessity of appointing a Commission for the purposes of any revision or modification? This question can be easily answered both by reference to the history of Muslim jurisprudence and the present-day circumstances. So far as the Holy Book is concerned, the laws and injunctions promulgated therein deal mostly with basic principles and vital problems and consist of answers to the questions that arose while the Book was being revealed. The entire set of injunctions in the Holy Qur'ān covers only a few pages. It was the privilege of the Holy Prophet to explain, clarify, amplify and adapt the basic principles to the changing circumstances and the occasions that arose during his lifetime. His precepts, his example and his interpretation or amplification constitute what is called Sunna. As nobody can comprehend the infinite variety of human relations for all occasions and for all epochs, the Prophet of Islam left a very large sphere free for legislative enactments and judicial decisions even for his contemporaries who had the Holy Qur'ān and the Sunna before their eyes. This is the principle of ijtihād or interpre-tative intelligence working within the broad framework of the Qur'ān and the Sunna.

Ijtihād

Although there was primitive simplicity in the life of Arabia during the time of the Holy Prophet, his prophetic wisdom was conscious of the fact that there may be situations and problems not clearly envisaged in the Qur'ān, and that in such cases the Qur'ān could only lay down basic principles which could offer light and guidance even in unpredictable circumstances. He knew that his own explanations and amplifications too could not be expected to cover all details or encompass the novelty of situations and circumstances. He enjoined on his companions, to whom important duties were entrusted, to exercise their own rational judgment with a pure conscience if the Holy Qur'ān and the Sunna did not provide any precise guidance in any particular situation.

The great Khalīfas [Caliphs] and others endowed with wisdom and imbued with the spirit of Islam exercised ijtihād when the Muslim State and Society were developing. This is what Iqbāl, the great Philosopher and revivalist of Islam, calls the dynamic principle which according to him is a distinguishing characteristic of Islam. . . . No Muslim can believe that Islam is an outworn creed incapable of meeting the challenge of evolutionary forces. Its basic principles of justice and equity, its urge for universal knowledge, its acceptance of life in all its aspects, its world-view, its view of human relations and human destiny, and its demand for an all-round and harmonious development, stand firmly like a rock in the tempestuous sea of life.

Not a Clergy State

Many a nation of the West, after centuries of bitter conflict between the Church and the State, resorted to Secularism having despaired of divine guidance in the matter of law. Islam was never theocratic in the sense in which this term is used in the history of Western politics. For Islam life is an indivisible unity in which the spiritual and the mundane are not sundered. Religion, according to Islam, means life in the world lived with a spiritual attitude which sublimates all that it touches. For this very reason Islam never developed a church with ordained priests as a class separate from the laity. According to the Holy Qur'ān, the demands of God and the demands of Caesar are not to be satisfied separately because of mutual contradictions and conflicts as Islam recognizes no Caesars. As it countenances no kings who can do no wrong and who stand above the law, so it recognizes no priests. Some may be more learned in the Muslim law than others, but that does not constitute them as a separate class; they are not vested with any special authority and enjoy no special privileges.

Pakistan and Legal Reform

Pakistan was carved out of the Indian subcontinent by leaders of Muslim thought beginning with Sayyid Ahmad Khān and culminating in the person of Qaid-i-Azam Muhammed ‘Alī Jinnāh. Islamic ideology was expounded by Iqbāl, with the firm conviction that Islam, properly understood and rationally interpreted, is not only capable of moving along with the progressive and evolutionary forces of life but also of directing them into new and healthy channels in every epoch. The creation of Pakistan was a revolutionary step, and all revolutions demand primary remolding of the educational system and the recasting of laws and the judicial system to fulfill the aspirations of a free and expanding life. But Pakistan, at its very inception, was faced with problems of sheer existence and self-preservation. Ugly situations created by the hostility of neighbors and economic chaos, for which Pakistan was not responsible, made the country concentrate its energies on problems of sheer subsistence, leaving little mental or material resources for educational reconstruction and legal and judicial reform. The work of legal and judicial reform requires intensive and extensive efforts over a period of time, and can be undertaken fruitfully only by a team of scholars and legal experts who possess a vast experience in the legal field, are conversant with Muslim law and jurisprudence and are progres-sive enough to believe that reconstruction and fresh adaptation of the basic injunctions of Islam are urgently needed to remedy the evils and remove the hurdles created by unsalutary traditions and customs masquerading in the garb of religion. The task entrusted to this Commission is of vital importance as legislation relating to human relationships cannot brook any further delay. The entire revision of our Procedural Law is likely to take a considerable time, and it is only right that a beginning should be made in this respect by tackling Family Laws first of all.

With respect to polygamy, which has become a hotly debated issue in every Muslim society, the commission has adhered to the Qur'ānic view. Polygamy is neither enjoined nor permitted unconditionally nor encouraged by the Holy Book, which has considered this permission to be full of risks for social justice and the happiness of the family unit, which is the nucleus of all culture and civilization. It is a sad experience for those who have practiced it and for those who have watched its tragic consequences that in most cases no rational justification exists and the practice of it is prompted by the lower self of men who are devoid of refined sentiments and are unregardful of the demands of even elementary justice. The Qur'ānic per-mission about polygamy was a conditional permission to meet grave social emergencies, and heavy responsibilities were attached to it, with the warning that the common man will find it extremely difficult, if not impos-sible, to fulfill the conditions of equal justice attached to it. The members of the Commission, therefore, are convinced that the practice cannot be left to the sweet will of the individual. It is thoroughly irrational to allow individuals to enter into second marriages whenever they please and then demand post facto that if they are unjust to the first wife and children, the wife and children should seek a remedy in a court of law. This is like allowing a preventible epidemic to devastate human health and existence and offering advice to human beings to resort to the medical profession for attempting a cure. Great evils must be nipped in the bud, and prevention is always more rational and more advisable than cure. The Commission is conscious of the fact that in rare cases taking of a second wife may be a justifiable act. Therefore it recommends that it should be enacted that anyone desirous of taking a second wife should not be allowed to do it without first applying to a Matrimonial Court for permission. If the court sees any rational justification in the demand of such a husband he may be allowed only if he is judged to be capable of doing justice in every respect to more than one wife and the children. To ask the first wife and her children to resort to a court for the demands of justice is unjust and impracticable in the present state of our society where women, due to poverty, helplessness, social pressure and suppression are not in a position to seek legal assistance. The function of the court is not merely to remove injustice when it is done. In our opinion a more vital function of the legal and the judicial system is to adopt measures that minimize the practice of injustice. Therefore permission of the Matrimonial Court for a contemplated second marriage, so that the demands of justice are fulfilled and guaranteed, is the fundamental reform proposed by the Commission. . . .

Bibliography references:

From The Gazette of Pakistan (June 20, 1956), pp. 1198–99, 1202–03, 1230.

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