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The Minority Report

Document type:
Report

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The Minority Report

Commentary

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

But the selection of members of the Commission, made for the purpose of achieving this objective, is most disappointing and surprising. What greater injustice could be done to Islamic Sharī‘a than entrusting the work of bringing the marriage laws into conformity with Islamic Sharī‘a to a Commission the majority of whose members have neither the detailed knowledge of the Islamic teachings and injunctions nor are they versed in the interpretation and application of those laws. In this connection I was told that in constituting the Commission some of the members were included purely for the reason of their possessing legal and judicial experience, the women members were taken in on the ground that they were conversant with family problems and conditions more than men, and only one member was added to advise on Sharī‘a. There was no apparent harm in utilizing diverse talents but in the meetings of the Commission every member, save myself, assumed the position of an expert authority on Sharī‘a and an absolute mujtahid. Hence they all remained one and united in contravening the Holy Qur'ān and the Sunna and in ridiculing Muslim jurisprudence, and by calling their action an ijma’ [Consensus] in the Report, they have debased this technical term of Sharī‘a. . . .

The members of our Commission, who hasten to declare, so sweetly, the Holy Qur'ān and the Sunna as their source and fount, are neither prepared to perform the feat of codifying a new set of laws of jurisprudence in supersession of the existing one by generalizing from specific provisions, nor are they willing to be guided by the established laws of jurisprudence as their guiding star and beacon light. It is obvious, therefore, that to take personal and individual whims as the basis for the derivation of laws and principles is neither fiqh nor ijtihād but amounts to distorting the religion of God and the worst type of heresy. In spite of their blatant departure from the view of the Muslim commentators and jurists, no member of the Commission could take the place of Fakhruddīn Rāzī or Abū Hanīfa. This is the reason that certain recommendations, which reflect subservience to the West of some of the members and their displeasure with Islam, constitute an odious attempt to distort the Holy Qur'ān and the Sunna with a view to giving them a western slant and bias. . . .

In order to seek a justification for the arbitrary ijtihād of the Commission, the Introduction of the Report says this about the Holy Qur'ān and the Sunna:

The Holy Qur'ān and the Sunna depict events and contain answers to the questions as they took place and arose while the Book was being revealed. As nobody can comprehend the infinite variety of human relations and situations 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 that principle of ijtihād or interpretative intelligence working within the broad framework of the Qur'ān and the Sunna.

It is a matter of surprise that persons utterly ignorant of elementary propositions concerning God, His Glory, the Prophethood, and the comprehensiveness and universality of religion, should have the temerity to write on such subjects. Perhaps our Introduction-writer does not know that the Qur'ān is the sacred Word of God and embodies His Divine Guidance, who has the fullest knowledge and embodies prescience of every minor event of every period and every epoch from the beginning of Time to its end. He knows all the infinite varieties of human relationship which can happen in any period for epoch in all futurity. Hence His revealed Book and His appointed Prophet with prophetic wisdom, all are based on the truth that until doomsday all teachings and injunctions of the Holy Qur'ān and the Sunna shall be the authoritative guidance and final work for all the infinity of events that may take place in this Universe. This is the basic and fundamental article of faith in Islam owing to which Islam is a religion for all times. If the scope of the Qur'ān and the Sunna were limited to the circumstances and events that arose during the Prophet's lifetime or while the Qur'ān was being revealed, then it would be meaningless to call the Holy Qur'ān and the Sunna as the revealed Word of God, and Islam as His Revealed Religion. It would then be more correct to dub the Qur'ān and the Sunna as the work and compilation of an individual who could not see beyond the limited horizon of his own time.

Their sole motive to malign the ‘ulamā’ was that Muslims should ignore the ‘ulamā’ and these so-called progressives should install themselves in the place of Ghazālī and Rāzī themselves. But in spite of the destructive propaganda Muslims had enough religious consciousness and feeling for faith to turn for religious guidance to the pious ‘ulamā’ who possess the knowledge of Sharī‘a and act upon it. It is an obvious fact that in all technical matters only experts and specialists are consulted. This prerogative of the specialist is not based on any racial or tribal ground but is rooted in reason. When people did not take any notice of the nontechnical ijtihād and opinions of these anglicized, West-ridden Sahibs, they started propaganda against the ‘ulamā’ that they have created priesthood in Islam, so that their own opinion may have the right to encroach upon their domain. They should know that the ‘ulamā’ have not got a special privilege of interpreting and quoting the Holy Qur'ān and the Sunna on the basis of any racial distinction. ‘Ulamā’ is not the name of any race or tribe but everyone who has devoted the greater part of his life to the acquisition of knowledge on religious subjects is an ‘ālim. This right of theirs is based on their erudition and experience in exactly the same way in which the right of explaining and interpreting the provisions of the Pakistan Penal Code vests in lawyers and barristers only. It is obvious that the lawyers are not a tribe but they have studied law. The right of prescription and treatment belongs only to a doctor. As anyone who studies law is a lawyer or barrister, in the same way anyone who studies Sharī‘a and religion is an ‘ālim no matter to what race or tribe he belongs.

The main cause of raising this question [of polygamy] is inferiority complex against the West and the desire to copy it blindly. Our young men and women, who happen to visit Europe, often find themselves in situations in which their country is ridiculed for permitting polygamy. Unable to think out for themselves, these young things readily take to the course of condemning polygamy as the greatest evil in society. It is in fact this class of persons who have, on their return from abroad, taken up arms against polygamy permitted by Islam in an attempt to copy the West and to uphold the condemnation to which they have pledged themselves while in foreign lands. In fact polygamy is not a matter for any human society to be ashamed of, nor does its abolition constitute any achievement of Europe that may be worth emulation by others. Moreover, if we cannot put Europe to shame for permitting free indulgence in adultery, we have no cause to blush at the permission granted by Sharī‘a for lawfully marrying a second wife. The real comparison in this regard is that of contentment with one woman and this contentment is equally absent in Europe as well as in our own society. The difference is that we proceed to take a second wife by entering into a solemn agreement with her and accepting certain bona fide responsibilities in the form of nikāh [marriage], while they choose the unworthy and irrespon-sible course of playing with the chastity of women in return for a few coins. Thus it is clear that marrying a second wife in the lifetime of the first is nothing discreditable; the sin and the shame of it lies in indulging in adultery while living with a lawfully wedded wife—a practice which has not been declared a penal offense in any European country if it is committed with the consent of the woman involved. It is nothing but a sad demonstration of our own shortsightedness and inferiority complex that we feel shy of a just and reasonable injunction of our religion and do not venture to put others to shame for their glaring fault.

In short, we do not have the slightest excuse for imitating the ways of a people with a social setup and a legal system which tolerates sexual satisfaction by means other than marriage. It is indeed hard to imagine a worse type of blind imitation than the one we find in the present case wherein the women who have kicked up so much dust on the question of polygamy and the Commission which has supported their views have not chosen to utter a word against adultery or recommended it to be declared a penal offense, although this form of vice not only means a flagrant violation of the rights of the lawfully wedded wife but also constitutes a deprecation committed on the chastity of others. The question of adultery in this way becomes purely a question of matrimonial and family life in its bearing. The insti-tutions so vociferously advocating the rights of women and the leaders who dub polygamy as the greatest bane on womanhood, would do well to take the trouble of going round the bazaars in Pakistan and cast a glance on the legions of prostitutes who are daily corrupting unmarried as well as married men in the thousands and breaking up many a happy home by sowing the seeds of hatred in the minds of young men against their innocent wives. In this background the conclusion is inescapable that polygamy is to be penalized while adultery is to be left to flourish free of all legal restrictions and that holy alliance between man and woman, as permitted by Shari‘a, is to be declared a crime while moral depravity is to be left unscathed. . . .

Bibliography references:

From The Gazette of Pakistan (August 30, 1956), pp. 1561–62, 1564–65, 1572–73, 1591–92.

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