The Council of Islamic Ideology’s Islamizing Perspectives by Dr. Muhammad Akbar Khan, Assistant Professor IIU, Islamabad

The Council of Islamic Ideology (CII) has turned to become one of the leading organizations which had invited a lot of criticism from almost all quarters of life especially in the print media in the last few years due to its bizarre treatment of Islam – odd suggestions, strange comments, and hard to rationalize verdicts. The council has started issuing verdicts after verdicts more than ever before usually in matters having either very little scope or no scope at all in the perspective of Islamizing the legal system of Pakistan.

The issue such as beating of wife lighter or harsher, these days, is being discussed often humorously in almost every office, street, home, and social gatherings. But, in the male dominated society like ours, where women are not given the required social space and status, beating of wives would continue whether the council issues a fatwa against it or not unless the masses are equipped with education.

The issues like allowing second marriage without the permission of the first wife and endorsement of underage marriages has dragged a lot of criticism from various segments of society for the CII. Similarly, the council has also suggested the adoption of the gold and silver as medium of currency and so on and so forth. Instead of spreading further confusion about Islam in a state where the masses are already less educated and more under the pressure of poverty, load-shedding, and inflation.  Why the CII is not playing its role in promoting the message of love and peace among the people which is the real spirit of Islam?  

There are also other issues of great public importance that need to be addressed by the Council - the issue such as bringing reforms in legal education. Any reform whatsoever brought through these efforts will have a large impact on the administration of justice for future.

But unfortunately no single word is ever uttered by any office bearer of the council about this matter of importance. This movement for the reforms in the legal education of Pakistan could have been taken as an opportunity to bring uniformity and coherence in the syllabus of the law schools in the country.

Previously such items have always been part of the agendas of the meetings in the council and finally a scheme of the study was also proposed by the council for LLB degree in 1998. The then committee on legal education recommended that the basic courses on Islamic law and jurisprudence should be made compulsory in the national curriculum for the law schools.

The current stakeholders in the council should pay attention to these issues and try to bring harmony in the legal education of the country and make it useful for the justice system. Pakistan has inherited its legal system from Britain hence it is a common law country however the importance and significance of Islamic law cannot be denied as it is one of the basic sources of the country’s legal system today. 

The council should get a grip and focus on the larger picture of the society and try to achieve the goal of Islamizing the judicial system of the country. In this context adding courses of Islamic law and jurisprudence in the curriculum of all law school will be a great achievement in these challenging times.

The council may pay attention to this and matters like that from now onward. However, practically it can become feasible only when the high-ups in such institutions are people of high caliber, unbiased and without any political background i.e. specialists in the field.  Thus, it is suggested that the legal education is the foundation of the whole judicial activities which needs proper attention from all quarters of the country especially from the CII.

Gender Equality and Islamic Divorce Law by Dr Zubair Abbasi

Shayara Bano’s petition before the Supreme Court of India for questioning the legality of triple talaq on grounds of being unconstitutional has attracted much media attention in India and internationally. Bano’s husband unilaterally divorced her after 13 years of their marriage. Her case depicts the proverbial tyranny of Muslim husbands who can divorce their wives at the drop of a hat. Muslim wives, however, do not have a similar right unless their husbands confer this right upon them, technically called, talaq tafwiz — delegated right to divorce.

Bano seeks a judicial declaration that a Muslim husband’s unilateral right to no-fault based divorce is discriminatory against women and hence is illegal. In other words, she wants that a Muslim husband’s right to divorce his wife should be limited in the same way that a Muslim wife’s right to divorce her husband is restricted.

This is not the first time that the issue of compatibility between Islamic divorce law and right to gender equality provided under the Constitution has been raised before the Indian Supreme Court. In 2002, while deciding Shamim Ara’s petition, the Supreme Court held that a Muslim husband must have a reasonable cause to divorce his wife. In this way, Supreme Court judges tried to equalise a wife’s right to that of a husband by adding the requirement of “reasonable cause” thereby restricting a husband’s unilateral right to divorce under Islamic law.

The genesis of this judicial principle can be traced back to the judgment of Justice Krishna Iyer in Yousuf Rawther v Sowramma (AIR 1971 Ker 261). After referring to verse 4:35 of the Qur’an, which prohibits husbands from seeking a way against their obedient wives, Justice Iyer argued that under Islamic law a man could divorce his wife only when there was a justification for doing so. A decade later, Justice Baharul Islam of Gauhati High Court in Rukia Khatun v Abdul Khalique Lascar (1981 1 GLR 375) endorsed this view. The Supreme Court subsequently affirmed its view in Shamim Ara in Iqbal Bano v State of UP (AIR 2007 SC 2215).

The above mentioned precedents illustrate that the Indian Supreme Court had already removed gender discrimination under Islamic divorce law. Shayara Bano’s husband cannot unilaterally divorce her without establishing a “reasonable cause”. This is the Indian model of gender equality under Islamic divorce law. What if a husband, who does not wish to live with his wife, is unable to establish a reasonable cause? Will Indian courts then specifically enforce an Islamic marriage contract? Indian judges have yet to develop a list of reasonable causes for divorce for Muslim husbands.

A limited or no right to divorce is justified under various religious based personal laws in India such as Hindu law, Christian law and Parsi law because marriage under these religious traditions is considered a sacrament. The efforts of Indian judges to harmonise Islamic family law with other prevalent personal laws have made Islamic divorce law inconsistent. Indian judges may wish to consider the Pakistani model of Islamic divorce law in support of gender equality for future developments.

In contrast to the Indian model of gender equality, the Pakistani judges did not limit a husband’s unilateral right to no-fault based divorce. Instead they recognised a similar right for a Muslim wife. As early as 1959 in the Balqis Fatima case, the Lahore High Court acknowledged that a Muslim wife had a right to obtain a divorce through a court of law on the basis of khula without the consent of her husband.

In his judgment, while upholding a wife’s unilateral right to no-fault based divorce, Justice Kaikaus observed that it does not seem reasonable that only a husband should be given a right to divorce in a marriage contract. Eight years later, the Supreme Court of Pakistan confirmed this principle in Khurshid Bibi’s case by observing that the Qur’an placed both the husband and the wife on an equal footing with regard to their mutual rights and obligations.

Despite criticism from conservative ulema, the Federal Shariat Court sanctioned this principle in its decision in the Saleem Ahmad case published in 2014. Justice Fida Muhammad, who has been serving at the FSC for more than three decades, observed that the injunctions of Islam regarding gender are based on “equality without any discrimination”. He supported this view by referring to various Qur’anic verses: 2:228-229, 2:237 and 4:34. The Pakistani judges have been following this principle consistently since the 1960s and superior courts have developed new rules to ensure gender equality in Islamic divorce law.

In May 2015, the Council of Islamic Ideology declared as un-Islamic the judicial practice of granting wives divorce without the consent of their husbands. Because of the Council’s status as an advisory constitutional body, its views do not have any binding value. While the Council, under Maulana Sheerani’s Chairmanship, did not refer to a single Qur’anic verse or Prophetic tradition in support of its conclusion, this view nonetheless represents that of the orthodox ulema. These ulema resist any change or what they perceive to be as interference in classical Islamic law unless it is led by them. After all, this was the same Council, which had previously, under its former Chairman Dr. Khalid Masud, recommended reforms in Islamic divorce law in its report in 2009.

A unilateral right to no-fault based divorce of Muslim wives is recognised in several Muslim countries. Egypt provided this right in 2000, Jordan in 2001, Morocco in 2004, Algeria in 2005, UAE in 2005, Qatar in 2006 and Palestine in 2008. Policy makers in many parts of the Muslim world have realised that the proverbial tyranny of Muslim husbands does not lie in their unilateral right to no-fault based divorce, rather the real tyranny is the denial of this right to Muslim wives who are trapped in broken marriages.

Originally published in The News on Sunday