Wow! It has really been a while since I last featured a ‘Say What?’ column. Please accept my sincerest apologies dear readers. Let’s get to it then, shall we?
During the past few weeks, South African muslims have been overwhelmed with information regarding the Muslim Marriages Bill (MMB). Whether the information provided by various individuals, organisations, radio stations etc. has managed to create an in-depth understanding of the bill in the minds of Muslims living in South Africa remains to be proven as there still are many Muslims who are fence-sitting in the hope that some great mind will shed clarity, understanding and a way forward with respect to this hotly debated bill.
Those who are in favour of the bill have come out strongly in support of it as the bill is intended for recognition, enforcement, regulation etc. of Muslim Marriages. This may all sound extremely good in theory and in all fairness, why should we not have a bill which can finally regulate Muslim marriages especially those in which there are instances of spousal abuse, violence, neglect etc.?
I suppose that the aforementioned observations had led a select few to think up the ‘brilliant’ idea that is the Muslim Marriages Bill but which had quite unfortunately resulted in what is arguably the least-qualified project committee with regard to Islamic and Shar’i principles.
The main problem I have with the Muslim Marriages Bill (and this should be quite evident to anybody who has taken the time to actually read the bill) is the definition of a ‘Muslim’. It reads:
“Muslim” means a person who believes in the oneness of Allah and who believes in the
Holy Messenger Muhammad as the final prophet and who has faith in all the essentials of
Islam (Daruriyyat Al-Din)
The definition creates a problem for those who proclaim to be ‘Muslim’ but do not fit the definition of a Muslim contained in this Bill. For instance, if a Muslim man and a Muslim woman get married according to this Bill and the man or woman changes his/her beliefs from that as defined in the Bill but still considers himself/herself to be a Muslim, will the marriage be annulled? Is the Nikaah no longer valid?
The Bill cannot define who is/who is not a Muslim and it cannot judge who is/who is not a Muslim. If we allow such a bill to dictate who is and who is not a Muslim, the consequences will be disastrous. There are sects in Islam who claim to be the Ahlus Sunnah Wal Jama’ah but are in actual fact quite far from it. Who will judge which sect holds the correct view? Do the modernist Muslims hold the correct view? Do the Shia Muslim hold the correct views? Do those who believe that the creation is equal to the Creator hold the correct view? If these groups are not ‘Muslim’ enough for a ‘Muslim’ Marriages Bill, something must surely be amiss.
Those who enjoy singing the same song of ‘living in a secular state’ will understand the fact that it is unfair to declare a certain individual or a certain group of individuals ‘non-Muslim’ on the basis of them not being Muslim enough for a Bill which is meant to represent them. This Bill obviously demonstrates the immense favouritism towards the Sunni-Muslim groups present in South Africa. The fact that the Bill does not adequately cater for the other smaller groups of Muslims and their beliefs is evidence enough to prove that this Bill is quite selfish it its representation of the entire Muslim public of South Africa.
Therein lies the biggest problem for our project committee and the biggest problem for the MMB. It was quite unfortunate of them to have to have chosen sides in a very public matter such as that of the MMB resulting in the Bill heavily favouring (what seems to be) Hanafi Fiqh(jurisprudence). The Bill does not explicitly include the recognition of any of the 4 accepted and recognised schools of Fiqh (jurisprudence) which is in itself questionable since the nature of the issues to arise from marriages would almost always be Fiqhi (juristic) matters.
I tuned in to one of local Radio stations last week(Radio Islam) and had the fortunate experience of listening to the Secretary General of UUCSA (United Ulama Council South Africa) rambling on about why he thought it would be a good idea to ‘engage’ with government instead of outright rejection of the Bill. UUCSA represents seven (wow…SEVEN, I didn’t even know there were that many!) of the countries Ulama bodies. Six out of these seven throw their weight behind UUCSA’s decision of engagement whilst our friends over at Jamiat KZN have adopted the stance of total rejection of the Bill(well done!).
Yes, getting back to UUCSA’s secretary-general (or is it general secretary?), he was explaining the many cases of women’s rights being abused, the cases encountered, the amount encountered etc. and the need for such a Bill to be implemented (not necessarily the current drafted Bill) and the fact that the courts are already ruling in our Muslim marriages whether we subscribe to the Bill or not.
Firstly, no bill which will trample and destroy the Shari’ah will ever be enough to protect the rights of spouses in a marriage. Even if the bill is a hundred percent in full compliance with the Shari’ah, there is no guarantee that the Bill will remain in such a state for the simple reason that in doing so, there are groups of Muslims who will be discriminated against since they will not be classified as ‘Muslim’ under such a Bill; or there will be those who get married as Muslims under the MMB but change their beliefs down the line. These Muslims will not be satisfied with a Bill which does not recognise them or their beliefs because such a Bill would be downright judgmental, discriminatory and completely unfair to those who call themselves Muslim but do not harbour the same beliefs as a Sunni Muslim!
Secondly, if a Muslim woman is unhappy with the ruling of Shari’ah (or finds it unfair), goes to a secular court in search of a more favourable alternative and ultimately receives a favourable outcome totally contrary to Shari’ah, her action has not changed the Shari’ah. Her actions and that of the court have no bearing on the Shari’ah unless she is publicly announcing to the world that the Shari’ah should be changed to allow women more rights, to allow her to divorce her husband, to fine or imprison a man for practising upon a right given to him by Allah Ta’ala etc. Beginning to sound familiar? Ah yes, this is exactly what the MMB will do, isn’t it?
When a bill is called “Muslim Marriages Bill” and its intended purpose is for Muslims, we should be very careful what we put inside that Bill. Many people assume that if certain clauses of the Bill(those UUCSA has issues with) are to be rectified, the Bill will be fully compliant with the Shari’ah. There are clear clauses in the Bill which are in direct conflict with the Qur’aan. There are clear clauses in the Bill which, if accepted by Muslims will most likely take them out of the fold of Islam.’
At this stage, there is no room for partial acceptance or rejection of the Muslim Marriages Bill. There is no room for engagement with government. There is plenty of room to scrap the Bill altogether and start over taking all necessary elements into consideration and being very specific as to which group of Muslims the bill will target.
Polygamy, I suspect, has always and will always be a hotly debated topic especially when it comes to our dear friends and brothers and sisters from the modernist fraternity of Islam. Polygamy has not fared well with them unfortunately with many citing that it has no place in a modern context of the world we find ourselves in blah blah blah. I have had the most unfortunate run-ins with the gender desktop/women’s rights mujaahidaat to know that polygamy has no place in their perfect little worlds of re-interpretation of Qur’aanic texts, gender equality, ponies and flowers(okay that last bit had no bearing on the topic so I apologise, I couldn’t resist!).
You can therefore imagine my lack of surprise when I read that this marvelous Muslim Marriages Bill proposed by the project committee and approved by Cabinet and meant to recognise Muslim marriages in a secular state had the most absurd amount of and utterly ridiculous restrictions on polygamy. A man who wishes to marry a second wife may do so with the permission of the court. If he does without the permission of the courts, he will be ‘guilty of an offence and liable on conviction to a fine not exceeding R 20 000.00.”
How strange that even in Allah Ta’ala’s court a man who takes on a second wife or a third or a fourth wife is not guilty of any offence and already has Allah Ta’ala’s permission to do so. What many pro-MMB supporters have failed to realise is that by subjecting Islam and principles of Fiqh to a system which does not and cannot protect and safeguard this Divine system from Western modification or influence, you allow Islam to be changed and you allow the Shari’ah to be destroyed. The sanctity of Qur’aan is also destroyed together with the Imaan of many Muslims who will opt-in to such a Bill thinking that this Bill is in conformance to Shari’ah.
A man who wishes to take a second wife and does so is well within his rights as a Muslim and he is completely allowed to do this in accordance with the Shari’ah. Those who have a problem with such a right may take it up with Allah Ta’ala. Any women’s rights groups/gender activists who feel that multiple wives is somehow unfair, deeply misogynistic, sexist etc. I suggest that you too take it up with your Creator or alternatively you could think up your own Bill devoid of any association to Islam or Muslims.
As for those 6 out of 7 organisations who have chosen to hide under the umbrella of UUCSA, know this and know this well: Your duties are first and foremost to Islam and the Muslims of South Africa. Your allegiances do not lie with Muslim feminists, with the government of South Africa, Cabinet, the Saudi embassy, any embassy, your own whims and fancies etc. Your allegiances should lie with Allah Ta’ala who has given Muslims enough rights and ample responsibilities. You and your supporters should not attempt to pull the wool over the eyes of the Muslim public in South Africa in an attempt to curry favour through blind following and undying support. Please remember that your aim/s should never be the success of your organisation or the fact that your organisation exists in the first place. The aim should be the preservation of Islam and the Shari’ah.
If you are not doing this, if you are not concerned with such an aim then the Muslims in South Africa would be better off without your organisation!
The Say What? column featured on Muslimality is meant to inspire, teach, engage debate or simply make you laugh. This column revolves around a variety of issues relating to Muslims in South Africa and Muslims around the world.
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