Alhassanain(p) Network for Heritage and Islamic Thought

InDefence of Islamic Laws

Four Memoranda on Various Personal Laws of Islam

AUTHOR(S):Allamah Sayyid Sa'eed Akhtar Rizvi

PUBLISHER(S):Bilal Muslim Mission of Tanzania

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Table of Contents

Preface 5

Turning to Kenya 5

Back to Tanzania 6

Present Situation 6

Ministry of Education and Culture's Circular No. EDC/10/62/voI.1I417 dated 28 August, 1995 8

English Translation 9

Memorandum on Matrimonial Laws 10

Extract From The Covering Note 10

Memorandum on the Laws of Succession 15

Memorandum on Tanzania White Paper on Uniform Marriage Law 22

Divorce 25

Conditions of Divorce 25

Memorandum on Hijab and Succession 29

InDefence of Islamic Laws Four Memoranda on Various Personal Laws of Islam byAllamah Sayyid Sa'eed Akhtar Rizvi Published by:Bilal Muslim Mission of Tanzania P. O. BOX 20033 Dar-Es-Salaam Tanzania TEL: 2120111 / 2112419 - FAX: 2116550 e-mail: bilal@cats-net.com www.bilaltz.org

Preface

In 1964, Tanganyika parliament passed the "Islamic Law (Restatement) Act", which empowered the minister responsible for legal affairs to prepare and publish a statement of Islamic Law after consultation with learned persons in the Islamic schools of law According to the Standard Tanzania (13.7.67), "It is understood that Tanganyika is the first country to have undertaken the exercise of codifying the Islamic Law in a statutory form. These statements will greatly assist the courts who have to rely on text books"

TheKhoja Shi’a Ithna-’Ashari Territorial Council of Tanzania took keen interest in this matter. Mr. Mohamed G.Dhirani then President of the said Council tookme to the Attorney Generals Chambers, where I met the lawyer in charge of that project He was aZanzibarian Muslim. He advisedme to write in English the detailedShi'a law on related matters, for use by his office. ThusI wrote "Islamic Laws, concerning marriage, dissolution of marriage, acknowledgement, will, inheritance andwaqf ', Mr.Fidahussein Abdallah Hameer , then Secretary of the said Council, arranged for secretarial help.

The papers finally reached Mr.Bashir Rahim , then Senior Parliamentary Draftsman, who finalized four chapters of marriage as accepted by three principal schools of Islamic Law -Shafi’i ,Hanafi andShi'a ). Itwas published , under authority of Mr.Rashidi Kawawa , then Second Vice-President of Tanzania, who was also responsible for Legal Depts. It appeared as the Subsidiary Legislation under the Restatement of Islamic Law Act (No. 56 of 1964), the Gazette Supplement No. 34 of 27June, 1967. It was understood that remaining chapters relating to custody of childrenand divorce etc . would be published by end of the year, and then the laws would come into force.

Turning to Kenya

Now the scene shifts to Kenya. The Kenyan Govt. had meanwhile set up a Commission on the laws of marriage,divorce and succession, under the Chairmanship of Mr. Justice Spry of Kenya High Court.The Commission was to make recommendations for a new law providing a comprehensive and, so far as might be practicable uniform law of marriage, and divorce applicable to all persons in Kenya, which would replace the existing law on the subject comprising customary law, Islamic law, (emphasis ours) Hindu law, and the relevant acts of Parliament and to prepare a draft of the new law; paying particular attention to the status of women in relation to marriage and divorce in a free democratic society.

I had gone to Mombasa in July 1967 in some other connection; and the office-bearers of the Supreme Council took me to meet an advocate who was an expert in the Muslim Personal Law. On being informed of the Tanzania developments, he asked me to send a copy of the IslamicLaws which I had written for Tanzania.I promised.

Prior to this, I had written answers to the Commission'squestionnaires which were sent to the Commission beforehand.

Returning to Dar as Salaam,I got the said Islamic Laws (about a hundred foolscap size, closely typed pages) cyclostyled, and dispatched it to the Supreme Council.

In the 3rd week ofAugust, 1967, I was hurriedly called to Mombasa where the Commission was to sit for hearing from 21st August.I wrote a memorandum for submission before the Commission, which was finalized after discussions with the office bearers.

That Memorandum was submitted to the Commission and then published in the Light of July-August, 1967. (Late)Haji Mohamedali Meghji , the President of the K.S.I. Supreme Council, wrote a covering note an extract of which is reprinted before the first memorandum.

Mr. Justice Spry was heard saying to his colleaguesafterwards that “these people knew what they were talking about.”

Another Memorandum on the law of Succession, written by me, was sent to the Commission and published in the Light of January-April, 1968. It isthe second Memorandum in this collection.

Back to Tanzania

When the above developments were taking place in Kenya, the Tanzania Govt. had abruptly stopped the codification exercise.

The Kenya Commission submitted its reports and recommendations sometimes in 1969. On10.9.69 the Tanzania Govt. published a White Paper. (No 1 of 1969) to the effect that it wanted to enact a Uniform Law of Marriage, and gave the details of theprovisions it wanted to be included in the proposed Act.

With the publication of the White Paper, the govt. invited comments and suggestions from communities and individuals. The Christians, theHindus and theIsmailis published their views in the newspapers.I approachedBakwata for this purpose; they flatly refused to interfere in the Govt.'s plan. I had no alternative but to write on behalf of theShi'a Ithna-’Asharis only.

The comments were frank and probably the last paragraph was a bit harsh. I sent the draft to Mr.Anverali M.Rajpar , then President of theKhoja Shi’a Ithna-’Ashari Territorial Council of Tanzania. He toldme to go ahead and get it published in the Standard on behalf of the Tanzania Council. It appeared in the Standard (Dar-es -Salaam) on8th December, 1969 (Monday) and later its extracts were printed in the Light of December, 1969. This appears as the third Memorandum in this booklet.

When months later, the Supreme Council sent tome the two reports of the Kenya Commission, I was amused to see that most of the proposals of the Tanzanian White Paper were lifted from the Kenya Commission's recommendations.

While drafting the Law of Marriage Act, 1971, in the light of the White Paper and the comments received, Mr.Bashir Rahim , then the Chief Parliamentary Draftsman, tried his best to accom­modate the provisions of the Islamic Laws. Before finalizing the draft, itwas shown to the scholars of every religion and sect, and some changes were made based on their suggestions.

Present Situation

The Tanzania government now wishes to enact Law of Succession, which would give to women shares equal to that of men. When the Muslim scholars (notBakwata ) raised their voices against it, the then President His Excellency Al-Haj Ali HassanMwinyi , assured them that the idea was not to change the Muslims' law, but to bestow right of inheritance on those women who have no such rights at all-rather they themselves are treated as items of inheritance.

Meanwhile in 1990, various Muslim associations (other thanBakwata ) began a campaign for the Muslim girls tobe al­lowed to usehij’ab in schools. Their representatives met several times, and based on their discussions,I wrote a Memorandum onHij'ab and succession, which was ultimately presented to the Presi­dent Al-Haj Ali HassanMwinyi . It is included in this booklet as the4th Memorandum.It is gratifying to note that the President announced in a public speech on 10/8/1995 that Muslim girls were now allowed to wearhij’ab in schools; and the Acting Commis­sioner of Education issued a directive to this effect to educational institutions, the original of which may be seen on the next page, and its English translation is given at the end of the book.

TheBilal Muslim Mission of Tanzania feels that these Memoranda contain clear arguments to prove that the Islamic Laws, emanating from the Divine Wisdom, cannot be changed; and that the Islamic jurisprudence is the onlysystem which can promulgate justice and fair play in a society.

It is for this reason that the Mission has decided to publish the four Memoranda together in this booklet. I am thankful to them for this initiative, and pray to AllahSubhanahu wa Ta'ala to give them moretawfiq and make this booklet a means of guidance for the Muslims and non-Muslims alike. Amen

Sayyid Sa’eed Akhtar Rizvi ,

Dar-es -Salaam

31stOctober, 1998

Ministry of Education and Culture's Circular No. EDC/10/62/voI.1I417 dated 28August, 1995

English Translation

The Principals,

SecondarySchoois ,

TanzaniaMainiand

Re: Implementation of the directive of the President regarding wearing ofHiiab in Schools

His Excellency the President, Ali HassanMwinyi , (speaking) in aMaulid (Birthdayofthe Prophet) celebration held on 10/8/1995 here at Dar-es -Salaanl , has ordered that the students should be allowed to wear "Hijab " within the schools' premises.

Through this letter all Secondary Schools and Teachers Training Schools arehert':by directed that they should immediately start implementing this Presidential directive.

The Muslim Students should be allowed to wear "Hijab "; these dresses should conformwith the material andcolour of the uniforms used in the school or Institute concerned.

(Signed)

S.P.Mkoba

Acting Commissioner of Education

Memorandum on Matrimonial Laws

Extract FromThe Covering Note

The following memorandum was written byMaulana Sayyid Sa’eed Akhtar Rizvi for submission before the Commission on the laws of Marriage, Divorce and succession, set up by the Kenya government under the Chairmanship of Mr. Justice Spry, of Kenya High Court.

The terms of reference for the Commission are:

"To consider the existing laws relating to marriage,divorce and matters relating thereto;

"To make recommendations for a new law providing a comprehensive and, so far as may be practicable, uniform law of marriage, and divorce applicable to all persons in Kenya, which will replace the existing law on the subject comprising customary law, Islamic law, Hindu law and the relevant acts of Parliament and to prepare a draft of the new law;

"To pay particular attention to the status of women in relation to marriage and divorce in a free democratic society".

The Commission had earlier sentquestionaires to all interested parties, and the Supreme Council sent their answers (also written byMaulana Sayyid Sa’eed Akhtar Rizvi ) to the Commission beforehand.

The Commission sat for hearing in Mombasa from21st August, 1967. Our delegation appeared before the Commission on22nd August. Along with the memorandum, a comprehensive set of "Islamic laws" and a collection of lectures onUsul -e-Deen "Islam", both written and compiled byMaulana Sayyid Sa’eed Akhtar Rizvi , were presented before the Commission.

Needless to say that Maulana’s effort in this respect has been most commendable; and I have no hesitation to admit that the following submission would not have been successful without his guidance and assistance.

The members of the delegation wereMulla Ashgherali M. M.Jaffer (Hon. Gen. Secretary), Mr. Hassan A. M.Jaffer (Hon. Treasurer),Maulana Sayyid Sa’eed Akhtar Rizvi ,Maulana SheikhMaqbool Hussain (Mombasa), Mr.Bashir H.Pira andI .

The Hon. General Secretary of theKhoja Shi’a Ithna-’Ashari Supreme Council,Mulla Asgherali M. M.Jaffer , acted as the spokesman of theShi’a Ithna-’Asharis ; and read out the submission before the Commission. He also replied to the questions put forward by the Commission, and clarified several points relevant to the laws of marriage, divorce etc. according toShi’a school.

Mohamedau Meghjl ,

President,Shi’a Ithna-’Ashari Supreme Council,

P.O. Box 1085, Mombasa.

*****

1. On behalf of theShi’a Ithna-’Ashari Community of Kenya, we take the liberty of making this submission for the consideration of the Commission.

2. In this submission, we are confining our remarks to religious laws pertaining to Marriage, Divorce,Will and Inheritance of theShi’a Ithna-’Ashari Sect of Islam.

3. It is appreciated that multiple social problems arising out of the abuse or misinterpretation of customary, traditional or religious laws, in general practice, give cause for serious concern to the Government; and the Government in its desire to secure the welfare of its people in that respect, is confronted with a difficult task of eradicating social evils.

Any effort in this direction is worthy of support and deserves all the co-operation.But , we feel that the idea of enacting a Common Law to replace the existing Islamic Laws is not the right one. Even traditional customs (not having any religious authority behind them) are hard to change. This becomes even more dangerous in cases like IslamicLaw which are an integral part of our religion, which are not confined to rituals only. These Lawscannot be violated without incurring a sense of guilt and sin.

Therefore, we feel that the best way would be to "Let hundred flowers bloom." National unity does not demand that all citizens should have the same dialect or the same religious belief. So why is it considered essential that there be a Uniform Law of Marriage and Divorce applicable to all persons in Kenya.

4. OurShi’a Ithna -ashenSha’riah is not based upon "Ra'i " (Opinion) or "Qiyas " (analogy). Itis based wholly on the Qur'an and the traditions of the Holy Prophet and our Twelve Imams.

5. As this Commission is concerned with matters of matrimony and succession, we must point out that the fundamental rules and many details of successionare given in the Qur'an. In fact, this subjectis dealt with more fully in the Holy Book. Likewise, the fundamental rules of marriage and divorceare based upon the Qur'an.

Thedetails which are not explicit in the Qur'an are explained in the traditions as mentioned above.

Our religious scholars who are calledMujtahid do not give any ruling by their opinion,analogy or Consensus. There is no such authority given to anybody in our School of Law. They may differ in interpreting certain traditions concerning some minor details, but eventhen that difference is a difference in interpretation, not of opinion.

TheShi’a Ithna-’Ashari Sect follows in all religious matters the rulings of the greatestMujtahid of the time. Heis considered the representative of our Twelfth Imam and he is the final authority on all religious matters. In him vest in certain cases the powers of guardianship of children, guardianship in marriage and divorce, executorships of the Will and estate of a deceased and such matters.

Ithna-’Ashari school of Islamic Law is a well-knit entity. We cannot change or amend one or two aspects of it without destroying the whole fabric.

For example:

(1) Marriage and divorce rules have direct bearing on legitimacy or otherwise of a child; on virtue or sin of togetherness of the man and the woman; on their mutual right of inheritance and that of the child; apart from the social and legal embarrassments.

(2) In Islamic Law a man cannot use anything obtained illegally (in religious sense) either for secular or for religious purposes. Therefore, if a changeis made in the Laws of succession and someone is given more than his due share according to Qur'an, his whole life would become miserable. His daily life would be a long list of transgressions; his prayers, pilgrimages,food and clothing would, in the religious sense, become unlawful.

Thus it is clear that the pattern of laws of marriage, divorce and inheritance cannot be changed; otherwise this would constitute a direct interference in our religion.

6. With regards to the Commission's desire "to pay particular attention to the status of women in relation to marriage and divorce in a free democratic society" we wish to submit as under:-

(a) In our School of Law a women have such rights, privileges and safeguards since Fourteen Centuries, most of which were unimaginable in non-Islamic Societies up to the last century and some of which are ahead of the so-called modern time.

(b) Islam according toShi’a school has given a woman right to contractherself in marriage if she is adult and discreet.

(c) Islam has given the woman an independent identity. A Muslim woman owns her property even after marriage and husband cannot interfere with it.

(d) Shecan sue her husband ,can give evidence against him . She inherits from him by right andhe from her. This mutual right of inheritancewas given when no society ever thought about it.

7. A woman's share is, normally, half of that of a man.But this is quite logical. Islam has made man responsible for the maintenance of his family. No such burdenis laid upon women. Even a rich wife is entitled to get her maintenance from her husband though he may be poor. As the maintenance of the family is the responsibility of man, hehas been given double share in almost all inheritances.

Also , the woman gets the dowry which goes from husband to wife. The ratio of shares as laid down in the Qur'an is, therefore, most reasonable.

8. Islamic Laws relating to Will do not allow a person to will away more than one third of his net estate. Thus the financial position of the would-be heirs is always secure and beyond any encroachment by anyone. This security is still lacking in manysocieties which allow a man to give all his estate to a perfect stranger.

(a) Now we come to some of the matrimonial affairs:

Polygamy: African Society was, and to a certain extent is, a polygamous society. Islam also permits polygamy. It has allowed four wives at a time and has enjoined equality in treatment of all wives.

(b) Itshould be remembered that polygamy is not a compulsory thing nor is it advocated. It is just permission with certain limitation and conditions.And in some of the circumstances this permission proves extremely useful.

Forexample: If the wife is chronically ill, or is barren, or for some other reasons it is not desirable for the couple to live as husband and wife. The remedy offered by certain societies is to divorce the wife and remarry.But is this justice? Is it kind or noble to turn out a woman in her old or middle age from her home, just because she remains sick or she happens to be barren? Islam discourages such cruelty by permitting polygamy.

10. (a ) Divorce: There is no need to emphasize that in certain conditions divorce is the only remedy left for a couple. The usefulness of the divorce systemcan be seen from the fact that even Hindus and many Christians have been compelled by sheer force of necessity to enact divorce laws.

(b) We must point out at the outset that theShi’a Ithna-’Ashari school of Islamic Law has laid down strict rules based upon the Qur'an and traditions, concerning divorce.

(c) Divorce has been declared by the Holy Prophet to be the “most despised of all legal things.”

(d) Qur'an has established the machinery for reconciliation whenever there is any discord between husband and wife.

(e) Conditions of Divorce: The divorceis allowed provided it is pronounced in the presence of two "Adils " (men of approved probity) witnesses who hear the words and understand the nature of divorce. The divorce must, be pronounced in approved, formula.

Further, it is also necessary that the husband must be adult, sane, and of sound understanding, acting on his own free will and not under the fit of rage or duress, and that he should have the distinct intention to dissolve the marriage.

So far as wife is concerned, she at the time of divorce must be in a state of purity, and that divorce cannot be pronounced even in a period of purity in which the husband has had sexual intercourse with her.

If any of theabove mentioned conditions is violated, the divorce is null and void. • '

(f) Three divorcescannot be given at one time. If somebody says that he gives three divorces, even one will not be valid.

(g) In most cases, the divorce is revocable and the husband is bound to maintain the divorced wife during the period of "Iddat " (normally three months) in his house unless she opts to leave.

(h) During thesaid period of "Iddat ", the husband has right to revoke the divorce by words or action and there will be no need for any formality.

These strict rules have always been observed by our sect . Thanks to ourSha’riah , divorces inShi’a Ithna-’Ashari Sectare very rare.

11. Right of Woman Regarding Dissolution of Marriage: Womanhas not been given a right to divorce her husband. The reason is not very difficult to understand. Family is the basic society of humanity and as every society needs a final authority to keep itwell-organized , the family also must have a supreme head. Islamic Law has given that place to the husband, and the husbandhas been given the right to give divorce.

But the wife is entitled to ask for divorce in many cases: e.g.

(1) She can ask for aKhula which can be agreed upon by the husband;

(2) She can request theMujtahid to grant her divorce in cases where the husband has disappeared, or neglects to maintain her.

(3) In case of insanity of the husband, whether it occurred before or after the marriage, she has the right to cancel the marriage without any need to refer the case toMujtahid .

(4) And she can nullify the marriage after referring the case to theMujtahid , if the husband is impotent.

12. In our submission, we have pointed out earlier that a uniform law in a cosmopolitan society such as that of Kenya is not essential for national unity. We now beg to submit that peaceful co-existence and goodwill among the people attached to diverse religious beliefs and lawscan only be brought about if freedom is granted to them to practice such laws, and act accordingly.

It won’t be out of place to mention here that Islam has a comprehensive set of Theology embracing all walks of life, and that its behests and directions are not confined to rituals and liturgy only.It is a code of life that gives a detailed treatment to the social, matrimonial, moral, as well as commercial conduct in human life.

Itwill, perhaps, be of interest to know that Tanzania has recently published the Statements of Islamic Law. This is the Subsidiary Legislation under the Restatement of Islamic Law Act (No. 56 of 1964). Gazette Supplement No. 34 of27th June 1967 refers. This timely move in Tanzania established that any country advocating freedom of worship and religious practicecan safely accommodate diverse laws in respect of marriage, divorce, inheritance or any such matters. It also shows that such a move is practicable. May we add that it also implies that such a codification is conducive to better understanding and relationship in country where amiable environment is to be created, and we commend the Commission to recommend a similar move inKenya.

13. To try to draw a fine line between the Qur'an and Islamic Law is never imaginable. Any attempt to disrupt or in the wordings of the term of reference of the Commission to "replace Islamic Law" will be unacceptable. As explained above, the Muslim Lawis based on the Holy Quran and replacing the Muslim Law is tantamount to replacing the Holy Quran.

14. We have submitted the questionnaire sent by the Commission duly completed along with the Codified Islamic Law (in English) according toShi’a School of Law relating to Marriage, Dissolution of Marriage, Will, Inheritance, Acknowledgment andWakf , and we shall be glad to answer any questions arising there from and submit clarifications required.

Dated, Mombasa, 22nd August, 1967