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Muslim Family Law: Sharia and Modern World

Book · June 2015

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Muhammad Ekramul Haque

University of Dhaka
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 Preface
The book on Muslim family laws is a straightforward
analysis of the provisions of sharia law and the relevant
statutory provisions. Analysis of modern reforms
around the world and the discussion on important case
laws has been made in the book in order to make it a
timely academic publication on Muslim family law in
Bangladesh.

A major portion of Muslim personal law is not defined

clearly; hence the lawyers and judges largely depend
on juristic interpretations they like. This exclusive
realm of Muslim family law is buried in convoluted,
intricate juristic interpretations, compiled in the form
of fiqh and of inchoate and vague statutes. In this book,
I have tried to present the basic laws in a lucid way.
The readers will get the basic laws under one umbrella
clearly. Another distinctive feature of this book is that
apart from the provisions of Islamic law, I have cited
the relevant popular statutory provisions applicable in
different countries. This will eventually lead the
readers towards a great conclusion about the flexibility
of Islamic law. Of course I did not look into all statutes
in detail, because I always tried to keep this book as a
text book for the students. However, I have opened
doors for further research on many aspects of the
family law.

I have taught Muslim family law for more than a

decade in a number of universities in Bangladesh and
 6

in the external program of the University of London.

During this period, I always felt the necessity for a
proper text book, especially for the students of law in
Bangladesh, which will contain the Islamic legal
provisions in a simple way and at the same time it will
have an exposure to the statutes applicable in the
modern world.

One may ask me the question that why I have

incorporated huge references to modern legislation in a
general text book on the subject. I have done this
because I suppose that one cannot have a proper
understanding of even basic laws if those statutory
developments are not shown. However, I have not
included the discussion on differences of opinion
among different madhabs on every point of law.

One may ask a big question about my reference to

minimum number of cases. I have deliberately omitted
referral to huge number of cases. I tried to incorporate
only those cases that are essential for understating an
existing principle of law or the cases that have laid
some new principles of law. For example, I have cited
cases on the points of judicial khul, best interest
principle in deciding custodian and guardians for
children, consequence of non-registration of marriage,
recovery of past maintenance, consequence of non-
observance of statutory requirements in a divorce, etc.
Thus I tried to always be focused on the actual
provisions of the law. One may find an anomaly in my
book that I have adopted two different approaches in
it. I have deeply analysed some provisions comparing
 7

them in the context of different statutory provisions in

a typically research mode; while I discussed some
other issues in a very plain way. That is because I did
not want to make it a huge volume containing analysis
of all laws and principles. The reason is: I have
analysed in detail some of the provisions considering
their great practical significance, in my opinion. For
example, provisions regarding stipulations and divorce
laws, especially judicial khul and women’s power,
have been elaborately discussed in the book. The
readers will get an idea about the scope of reduction of
husband’s power of divorce and increasing the wife’s
power.

After reading the entire book, one may say why not I
have made it a research book. That is the unique
position of this book where I have mixed the flavour of
research with the plain text of law. Because, I strongly
believe that a plain knowledge isolated from research
and analysis does not become a useful knowledge.
Moreover, this approach will bring the clarity of
thought in the minds of the readers about Islamic legal
provisions.

I have named the first chapter as introductory issues,

where I have in fact inserted a very brief version of
basic issues in Islamic jurisprudence. Some readers
may feel dissatisfied with this approach. Islamic
jurisprudence is an extensive and delicate area in
Islamic law. I have deliberately avoided a detailed
discussion on jurisprudential issues as this is not the
main focus of my book. I have included a very brief
 8

discussion on jurisprudence, which is essential for

starting the study on Muslim family law.

In the chapter on marriage, I have clarified the

constituent elements of a marriage and statutory
requirements distinctively. In doing so, relevance of the
statutory requirements to the validity of a marriage has
been properly pointed out. I have also clearly
distinguished between elements and consequences, for
example, dower is not an element but a consequence of
a marriage. Sharia and statutory provisions regarding
child marriage have clearly been discussed. Another
unique issue has been discussed in length, that is, the
nature of an irregular marriage and the process of its
regularization. I have discussed the rights and duties of
the spouses with reference to modern developments in
the field. In doing so, I have clearly distinguished
between wife’s obligations according to social
perception and her actual legal obligations.

Chapter 3 on stipulations is a unique chapter in my

book. Although marriage in Islamic law is basically an
agreement between two parties, people are generally
ignorant about the scope of terms and conditions in a
marriage contract. The scope for insertion of
stipulations is a very important aspect of Muslim
marriage, which is more significant for women than
men. Women can change the male dominant marriage
format by utilizing this scope in order to make the
marriage conditions women friendly within the
framework of the sharia. Unfortunately the text books,
generally available in Bangladesh and in some other
 9

countries, have not focused much on this important

aspect of Muslim marriage. Considering its great
practical significance I have incorporated a separate
chapter just on ‘stipulations’ in this book. This chapter
has clearly described the scope for insertion of
stipulations in a marriage contract and also has
recommended some very useful marriage conditions
which women can utilize at their interests. The chapter
on dissolution of marriage includes a detailed
discussion of sharia provisions, modern reforms
worldwide and an in depth analysis of Bangladeshi
statutes and their application in the courts.
Maintenance chapter includes the study of the
Maintenance of the Parents Act, 2013 which is a unique
law. The first case decided under the Maintenance of
the Parents Act, 2013 has also been discussed in this
chapter. The chapter on guardianship and children will
open new gender sensitive doors of interpretation and
shall put the children on a progressive horizon of the
best interest principle.

In the appendix, I have added a few selected full

judgments. Because, I believe that it is essential for a
law student to go through the full judgments of at least
few cases in every course. I have also added
Bangladeshi relevant statutes in the appendix. Textual
interpretation of statutory laws is always important.
That is why it is mandatory for the law students to go
through the actual text of the statutory laws. I hope
that the students will read these two very important
appendixes—statutes and cases.
 10

I am very grateful to Professor Dr Taslima Monsoor,

my respected teacher and currently the Dean of the
faculty of law at the University of Dhaka, who has
reviewed the book with her excellence in knowledge
on Muslim family law. I have been immensely
benefitted from her well thought suggestions and
appropriate recommendations. I express my special
gratitude to Lonodon College of Legal Studies (LCLS
South) and it’s Head of Laws Barrister Khalid Hamid
Chowdhury for publishing this book.

I gratefully acknowledge the books which I have used

in my book in explaining many ideas and laws. In
particular, I have used few books frequently
considering them as authentic and highly esteemed
academic publications, which include: A Code of
Muslim Personal Law (Tanzilur Rahman, Karachi ), The
Status of Women under Islamic Law and Modern
Islamic Legislation (Nasir, Jamal J.A., Boston 2009),
Women and Muslim Family Laws in Arab States: A
Comparative Overview of Textual Development and
Advocacy (Lynn Welchman, Amsterdam University
Press 2007) and Knowing Our Rights: Women, family,
laws and customs in the Muslim world (Women Living
Under Muslim Laws, London, 2006).

Responsibility for any flaws is mine. I would welcome

the suggestions and recommendations from my
readers, which I will incorporate in upgrading the book
in the next edition. I hope that the book will be useful
for students, academicians, researchers, lawyers,
 11

judges and the other eager readers of Muslim family

law.

I would like to mention with gratitude the name of

Professor Dr. Sarah Joseph, my Ph.D. supervisor at
Monash University in Melbourne, who is the mentor of
my legal research career. I am indebted to my mother,
Salima Begum, who has always been acting as the
pillar for success in my life. I want to take the privilege
of mentioning the names of my maternal uncles who
really care for me and always inspired me to go ahead.
They are, Mohammad Salem, Mohammad Quasem,
Mohammad Hatem and Late Mohammad Asem.

I am thankful to my wife Afsana Jahan for her exquisite

support and unremitting encouragement. Zaid Ekram,
my beloved son, is always very enthusiastic about my
every publication, who considers publishing any book
as a very big thing. He has designed the cover page of
this book and has also helped me in formatting the
book. His excitement and appreciations always act as
enthrallment for further research and publication.

Dr Muhammad Ekramul Haque

Associate Professor
Department of Law
University of Dhaka
June 2015
 12

Forward

Dr Taslima Monsoor
Dean
Professor
Faculty of Law
Department of Law
University of Dhaka
University of Dhaka

This book is a uniquely comprehensive study made on

Muslim Family Laws, which contain at the same time
sharia law, modern reforms and important case laws.
This is written in a milieu, especially in Bangladesh,
where there was clearly an absence of an authentic text
book on Muslim Family Law.

I was pleased to review the book on Muslim Family

Law written by Dr Ekramul Haque. I have reviewed
the entire book and on close examination I have found
it a solid research work done by the author. The unique
features of this original book, in my opinion, are
twofold: firstly the author has nicely described
different provisions of sharia law in a lucid way taking
them out of convoluted juristic opinions, which gives
the credit to the author of writing a proper text book.
Secondly, the reference to modern statutory laws and
reforms and their critical analysis has given this study
 13

the status of a research book. The author coherently

and systematically set out a theoretical framework. The
format and literary presentation of the book is
appropriate for an academic publication. The strength
and originality of the article lies in the close
examination of different provisions of the sharia and
statutory laws. I must say that this book is the first of
its kind in Bangladesh.

Muslim Family Law bears the imprints of the juristic

interpretations of different schools of thought. The
author has in appropriate cases consulted the primary
sources of Islamic law in order to ascertain the shari’a
laws and has examined relevant legislations and case
laws in Bangladesh. The author has provided a
detailed discussion about the opinions of different sects
and schools on some selected issues in order to
determine whether the applicable laws are consistent
with the broader perspectives of Islam. The book
suggested ways to make existing laws gender friendly
through rightly guided judicial activism. In that
respect, an incisive analysis of the measures, different
states have taken to reshape certain areas of Islamic
family law through legislation or through judicial
activism, have been made. The author has analyzed
certain important issues, like marriage stipulations,
maintenance, dower and its waiver, guardianship of
children and preferential gift, in the light of modern
international human rights law on gender equality,
which is representative of a current wave of research
on gender sensitive interpretation of Muslim Family
Laws. In essence, the book is a sustained work of
 14

advocacy in support of progressive interpretations of

Muslim Family Law.

The author has clearly identified certain anomalies in

the existing statutory laws regarding divorce in
Bangladesh. He has also examined different judicial
decisions on this point. The author made clear the
provisions regarding child marriage and the relevant
statutory provisions in Bangladesh. The author has
made critical analysis of some statutes and referred to
laws of different countries, which eventually would
open the door for new horizon for the researchers to
explore whether the scope of these statutes could be
extended and provide guidelines for further legal
promulgations.

I appreciate the unique writing and research style of

the author which has made the book very useful and
resourceful for students, researchers, lawyers, judges
and policy makers.

Professor Dr Taslima Monsoor

Dean
Faculty of Law
University of Dhaka

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