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Muslim Personal Law Board in India: Trapped in Contradictions and Traditions

Dr Mahfooz Jawed Nadvi

Image In mid-2005, media reports emerged from northern Uttar Pradesh, India, of a man who, under the guise of being a devout Muslim father, sexually assaulted his daughter-in-law, violating core religious and social values. This deeply distressing event, regardless of faith, evoked profound sorrow throughout the country. The physical and emotional trauma inflicted on the victim was unimaginable, and the husband's anguish extended beyond the loss of dignity to the rupture of his bond with his father.

Common sense, as well as Islamic teachings, demanded the immediate arrest of the criminal and the strictest legal punishment to protect society from future predators. The woman and her husband deserved full sympathy, with society offering support, shielding them from gossip, and ensuring their rehabilitation so they could live the rest of their lives in peace and dignity.

However, instead of delivering justice and compassion, a fatwa was issued by a Darul Ifta following the Hanafi school of thought, declaring that not only had the affected woman become permanently haram (forbidden) to her husband, but that the two victims could never remarry and live together.1 This rigid adherence to archaic legal interpretations by muftis, often perceived as lacking insight, only deepened their suffering, adding salt to their wounds. The irony lies in the fact that, rather than challenging this fatwa, the All-India Muslim Personal Law Board, from whom moral support was anticipated, endorsed the ruling.

Muslims in India are governed by the Muslim Personal Law (Shariat) Application Act of 1937. This law encompasses matters related to Muslim family law, such as marriage, divorce, and inheritance, as well as waqf. Enacted under the British Raj, the Act continues to be in effect in independent India. In 1973, the All-India Muslim Personal Law Board was established with the aim of safeguarding and advancing the application of Muslim Personal Law within the country. While the Board includes representation from various sects and schools of thought, it is predominantly led by ulama and scholars of the Hanafi school of jurisprudence, as the majority of Muslims in India adhere to Hanafi tradition.

The Mufti in question cited a Quranic verse to justify his fatwa: “Do not marry those women whom your fathers have married.”2

However, the critical question is: when did the father in this rape case ever marry the victim? The father committed a grievous sexual assault against his daughter-in-law, yet the Mufti equated this vile act with marriage. Another verse in the same chapter clearly states, “It is haram (forbidden) for you to marry a woman who is already married,”3 prohibiting any marriage of a woman still in a lawful union. There is unanimous consensus within the Muslim Ummah on this point: a marriage contract with a woman already married is invalid, regardless of any offer and acceptance.

Even for argument’s sake, if any form of offer and acceptance had occurred between the father-in-law and the daughter-in-law, the marriage would still be religiously null. In the Qur'an, the term 'nikah' appears five times as a noun and eighteen times as a verb, and in every instance, it refers explicitly to the contract of marriage.

Qarabah and Musaharah: Blood vs. Marriage

If such fatwas are challenged based on the Qur'an and Sunnah, muftis frequently invoke the concepts of qarabah (blood relation) and musaharah (relation by marriage) within Islamic jurisprudence. Qarabah prohibits marriage with close relatives, such as mothers, daughters, sisters, grandmothers, nieces, or aunts. In contrast, musaharah refers to kinship by marriage, making it unlawful to marry a wife’s mother, daughter-in-law, stepmother, or stepdaughter.4 Islamic jurists have meticulously delineated these relationships, distinguishing between permanent prohibitions and those that are conditional on specific factors; if the condition ceases, the prohibition is lifted.5

While rape constitutes a grave violation, jurists are in consensus that, even if a wife engages in immoral conduct, any child born of the marriage is still considered the husband’s, and the marital bond remains intact. A well-known hadith from Bukhari and Muslim affirms this by stating, “The child belongs to the (legitimate) bed, and the adulterer gets only stones,”6 indicating that the child is attributed to the husband, while the adulterer has no legal claim.

Marriage in Islamic law is a contract (aqd) between husband and wife. Once this contract is validly established, only the contracting parties have the authority to maintain or dissolve it; no external entity may intervene.

Primary Sources of Hanafi Jurisprudence

A study of the rulings of early mujtahids of the Hanafi school reveals a different perspective on issues like musaharah (relation by marriage). While Abu Hanifa’s pivotal role in Hanafi jurisprudence is undisputed, it is important to note that none of his own writings have survived. His legal opinions are known only through the works of his students, particularly Abu Yusuf and Muhammad al-Shaybani.

Abu Yusuf's notable works include Kitab al-Kharaj on financial matters and Kitab al-Athar, a collection of hadiths. He also authored Ikhtilaf Abi Hanifa wa Abi Layla and al-Radd 'ala Siyar al-Awza'i, which focus on legal debates. However, the foundation of Hanafi jurisprudence largely rests on the writings of Muhammad al-Shaybani, particularly his six renowned works (al-Mabsut, al-Ziyadat, Kitab al-Jami' al-Kabir, Kitab al-Jami' al-Saghir, Kitab al-Siyar al-Kabir, and Kitab al-Siyar al-Saghir), collectively known among Hanafi scholars as Zahir al-Riwayah, which are central to the development of the school. It is interesting to note that, in recent times, scholars have questioned the complete authenticity of the Zahir al-Riwayah books, observing that many sections reflect the reasoning of Muhammad al-Shaybani's students or even later generations. These texts often present varying conclusions attributed to Abu Hanifa, Abu Yusuf, and Muhammad al-Shaybani, suggesting that significant portions were later additions, influenced by qiyas (analogical reasoning) and urf (local customs).7

Regardless of the question on the authenticity of Muhammad al-Shaybani's works, they only contain principled discussions on musaharah. Although the early mujtahids of the Hanafi school disagree with the mainstream jurists on the conditions under which the prohibition is established, it is important to note that there is no assertion within these texts that a wife becomes haram to her husband if she is raped by her father-in-law. However, over time, later jurists introduced additional layers of interpretation, expanding discussions of musaharah into lengthy, hair-splitting, and, at times, contradictory discourses. We aim to illustrate these contradictions in the following discussion.

Inconsistencies in Musaharah Rulings

Al-Hidayah, compiled by the 12th-century Hanafi jurist Burhanuddin al-Marghinani, remains a foundational text of the Hanafi school, despite the relative obscurity surrounding the details of its author's life. Its canonical status within the Hanafi tradition is evident through its longstanding inclusion in the curriculum of Islamic madrasas across regions adhering to Hanafi jurisprudence.

Although the Qur'an primarily prohibits believers from marrying women who were previously married to their fathers, women who were married to their sons, their stepdaughters, and their stepmothers, focusing specifically on past marital ties, Al-Hidayah expands the concept of musaharah (affinity through marriage) to include non-marital interactions. According to Al-Hidayah, musaharah is not only established through marriage but also through:


Al-Hidayah presents a perplexing contradiction in its rulings on musaharah (affinity through marriage). On one hand, as we will see below, it prohibits marriage to a woman’s daughter if a man merely touches her or looks at her private area with sexual desire. Yet, on the other hand, more serious acts under certain conditions do not establish musaharah. This inconsistency raises questions about the internal logic of these rulings.

According to Al-Hidayah, if a man touches a woman or looks at her private areas with sexual desire, he is permanently prohibited from marrying her daughter. However, if the man advances in his actions and engages in anal sex with the woman, musaharah is not established, and the prohibition on marrying her daughter is lifted, allowing him to marry her if he wishes.

An even more puzzling aspect arises when Al-Hidayah stipulates that if a man touches or looks at a woman’s private areas with sexual desire, musaharah is established, making her daughter forbidden to him. Yet, if the man experiences ejaculation during this act, both the touching and looking are invalidated, and musaharah is not established, meaning he may marry the woman's daughter if he chooses.8

Post-classical jurists, particularly commentators and glossators, further complicated the discourse on musaharah. Their works now form the basis for contemporary fatwas. As a result of this complexity, the muftis, in their 2005 fatwa, overlooked a critical point. According to the mujtahids of all schools of jurisprudence, musaharah had already been established in the above case, and marrying the victim was already haram for the father-in-law. Even if we assume, hypothetically, that no relevant incident occurred, and the husband either died or divorced his wife, she would still be prohibited from marrying her father-in-law after completing her waiting period (‘iddah). This is because the musaharah had already rendered her like a daughter to him.

Prominent scholars have emphasised that just as nikah ‘ala al-nikah (marrying an already married woman) is invalid, so too is musaharah ‘ala al-musaharah (affinity over affinity). If a woman is permanently forbidden for marriage (haram ‘ala al-ta’bid), such as a daughter-in-law, any subsequent marriage or illicit act holds no legal standing in Islam and is considered a punishable offense. Based on a Shariah principle commonly deployed in fiqh al-mu'amalat (Islamic jurisprudence on social and financial dealings), which states that ‘the unlawful does not make the lawful unlawful,’ scholars have concluded that a lawful marriage cannot be invalidated by an unlawful act, whether committed willingly or through coercion.

Challenges Beyond Musaharah

The challenges associated with Muslim Personal Law in India are not limited to the issue of musaharah; rather, they permeate almost every aspect of this legal framework. While the issue of musaharah may be more prominent in Hanafi jurisprudence and less so in other schools of thought, the underlying concerns extend far beyond this. Many of these challenges reflect a disconnect from the true essence and objectives of Shariah, often failing to align with the higher ethical and moral principles it seeks to uphold. For instance, when we consider the matter of talaq (divorce), we encounter a multitude of issues across all sects and schools of thought. Thus, the intricacies within Muslim Personal Law are not confined to a single jurisprudential school or issue but are far-reaching and systemic.

Juristic Interpretations of Islamic Family Law

Islam places immense importance on the family system, positioning it as a cornerstone of its social and legal structure. After acts of worship, family matters are the most extensively discussed topic in the Qur'an. Significant portions of Surahs such as Al-Baqarah, An-Nisa', An-Nur, Al-Ahzab, At-Talaq, and At-Tahrim are dedicated to addressing family issues and providing rulings related to them. The subject of divorce is discussed in detail in both Surah Al-Baqarah and Surah At-Talaq. When the verses from these two chapters are studied together, they reveal a well-balanced, practical, and coherent legal framework. However, when these verses are interpreted by jurists centuries later, their interpretations often deviate from the intended meaning, undermining the core objectives of Shariah (maqasid al-Shariah).

Let us now delve deeper into this point. In Surah At-Talaq, the Qur'an mandates the presence of two witnesses for the completion of the process of talaq (divorce). The Qur'an enjoins:

“O Prophet, when you [Muslim men] divorce women, divorce them at the prescribed time of their waiting period, and keep count of the waiting period. And fear Allah, your Lord. Do not expel them from their homes, nor should they leave unless they commit a clear immorality. These are the limits set by Allah, and whoever transgresses the limits of Allah has certainly wronged his own soul. You do not know; perhaps Allah will bring about a new situation thereafter.

Once they have fulfilled their waiting period, either retain them with fairness or part with them in fairness. And call two just witnesses from among you and establish the testimony for the sake of Allah. This is an admonition for whoever believes in Allah and the Last Day. And whoever fears Allah, He will make a way out for him.”9

It is interesting to note that, the Qur'an does not explicitly require witnesses for the validity of nikah (marriage), yet all Sunni schools of thought, following the objectives of Shariah, rightfully insist on the presence of at least two witnesses for a marriage to be considered valid. Surprisingly, despite the Qur'an clearly commanding the appointment of two witnesses for the process of talaq (divorce), as mentioned in the verses above, none of the Sunni schools of jurisprudence deem witnesses necessary for a divorce to be valid.

The scholars who do not believe in the necessity of witnesses in divorce, when confronted with the muhkam (clear and decisive) verses of the Qur'an that mandate witnesses, often cite a Hadith narrated by Abu Hurayrah to support their position. In this Hadith, the Messenger of Allah (peace be upon him) is reported to have said: “There are three matters in which both seriousness and joking are treated as serious: marriage, divorce, and taking back one’s wife.”10

They argue that, based on this Hadith, even if a man divorces his wife in jest, the divorce still takes effect, thereby negating the need for witnesses. However, one may legitimately question why, despite the same Hadith mentioning nikah (marriage) alongside divorce, they uphold the requirement of witnesses for marriage while disregarding it for divorce. This reveals a glaring inconsistency in their argument.

In fact, this Hadith lacks the level of authenticity required to establish a sound basis for legal rulings. One of its narrators, 'Abdul Rahman ibn Habib ibn Ardak, has been deemed munkar al-Hadith (rejected in Hadith) and layyin al-Hadith (weak in narrating Hadith) by scholars of Hadith.11 Such a weak and unreliable tradition, whose structure resembles a legal text from a jurisprudential manual rather than an authentic Prophetic saying, is easily recognisable by those with even a basic understanding of 'ilm al-Hadith (the science of Hadith). It most likely originated during the Abbasid era, a period when legal codifications were being formalised, and was fabricated to fit the framework of legal texts from that time. Therefore, it cannot be considered a reliable source in opposition to the muhkam verses of the Qur'an.

Quranic Injunctions on the Talaq Process

If we engage in a deep reflection on the Qur'an, the rulings on divorce become remarkably clear and unequivocal, much like the simplicity of mathematical certainty. The first commandment is that during the period of waiting (‘iddah), the husband has the right to reconcile with his wife. The Qur'an states: "And their husbands have more right to take them back in this [period] if they want reconciliation"12, indicating that, provided there is a genuine intention for reform, the husband may exercise his right to return to his wife during ‘iddah.

However, the question arises: what happens once the ‘iddah period has been completed? On this matter, the Qur'an provides further guidance: "And when you divorce women and they have fulfilled their term, do not prevent them from remarrying their [former] husbands if they agree among themselves on an acceptable basis"13. This signifies that after the completion of ‘iddah, the woman should not be hindered from entering into a new marriage contract with her former husband, provided both parties mutually agree in a dignified manner.

A further question then emerges: Does the husband possess unlimited rights to reconcile with or remarry his wife during or after the ‘iddah? The Qur'an itself provides a definitive answer: No, such an unrestricted right does not exist. The Qur'an states: “Divorce is twice. Then, either keep [her] in an acceptable manner or release [her] with good treatment”14 . This clarifies that the right to divorce and reconcile is granted only twice. After that, the husband must either retain his wife with kindness or release her with grace.

The Qur'an further elaborates: “And if he has divorced her [for the third time], then she is not lawful to him afterward until [after] she marries a husband other than him”.15 This means that if a man, after reconciling or marrying her again twice, divorces his wife for the third time, she becomes permanently unlawful for him unless and until she marries another man, and that marriage subsequently ends.

The objective of Shariah here is clear: it grants both parties two opportunities to reconcile and continue their marital relationship, providing them time to determine whether they are compatible with each other. If not, it is deemed better for the woman to marry someone else and seek peace in her life. This third and final divorce is referred to in jurisprudential terminology as talaq mughallazah (the irrevocable divorce), after which the husband no longer holds the right to reconcile with or remarry her.

In principle, when a marriage is contracted once, the husband should be entitled to revoke it once. Even if he repeats the word of divorce multiple times, only one divorce should take effect. The clear words of the Qur'an testify to this. However, the issue arose when certain Sunni jurists generalised a decree issued by Caliph Umar (may Allah be pleased with him), thereby limiting the Qur'anic provision of 'divorce is twice' and stripping the husband of his right to reconcile or remarry twice. Instead, they allowed the permanent termination of the marriage contract with a single instance of three pronouncements of divorce.

The Ahl-e-Hadith scholars did not go to this extreme, yet many of them too hold the view that if a husband pronounces divorce in three different sittings during the period of ‘iddah, talaq-e-mughallazah takes effect. In other words, they also endorse the notion that a single contract of marriage can be terminated three times. But this raises a fundamental question: how can one contract be cancelled three times? It defies common sense and is simply incomprehensible. This interpretation not only contradicts the Qur'anic teachings but also flies in the face of basic rationality.

Unfortunately, the traditions upon which Sunni scholars base their reasoning contain numerous deficiencies.16 Many of these traditions exhibit contradictions, particularly those that are brief in nature. In contrast, the more detailed traditions have weak chains of transmission (isnad), and in other legal matters, particularly the Hanafi scholars, have rejected the hadiths narrated by these same individuals. If these narrators are deemed unreliable in other issues, then how can their traditions be accepted in opposition to the unequivocal verses of the Qur'an?

Understanding the Gravity of Talaq in Islam

It is essential to reconsider this issue from another perspective. The Hanafi muftis do not view the entire process of divorce as a dignified and amicable termination of a contract. Instead, they often give legal recognition to every baseless and nonsensical utterance made by the husband. Early Hanafi jurists did, to some extent, acknowledge that a divorce pronounced in a state of anger does not take effect. However, contemporary muftis tend to focus disproportionately on the idea that divorce is typically pronounced in a state of anger. Their rationale suggests that if anger is not accepted as a valid factor, then the process of divorce would be rendered impractical. In their view, a man cannot divorce his wife with a clear, calm mind, and it is only through the heat of anger that such a decision is made. This sweeping generalisation implies that without anger, the institution of divorce would cease to exist, a claim that overlooks the complexity and gravity of the matter. This approach fails to grasp the deeper essence of the issue.

The real question is whether the husband has merely uttered the words of divorce in a moment of anger or if he has truly grown weary of his marital life. If his discontent is sincere, then just as he brought his wife home with dignity and honour, he should divorce her with witnesses, ensuring that the matter is handled respectfully and in consideration of societal norms. Clearly, after issuing the divorce, he retains the right to reconcile during the waiting period (‘iddah). If that period expires, the option for a new marriage remains.

The Qur'an explicitly states in the same section of Surah al-Baqarah where divorce is discussed, “Allah will not call you to account for thoughtless oaths”17. Yet some of our scholars, entangled in the intricacies of legal manuals, often overlook such Qur'anic injunctions. As a result of this perspective, women are reduced to mere commodities, objects without agency. It has become a common occurrence that, in moments of anger, men nonsensically hurl declarations like, 'I divorce you a hundred times' or 'I divorce you a thousand times' at their wives. When they later realise their error, they turn to the muftis, who advise the process of halala. This involves finding a surrogate for a night or a few nights, and often it is a male relative who is tasked with this 'duty.' The woman is then subjected to a formalised rape under the guise of halala, leaving her traumatised and psychologically scarred for life. Can such a practice be considered Islamic?

As mentioned above, the Qur'an grants a man two chances. If he has already reconciled or remarried twice, it is better to release the woman, allowing her to rebuild her life elsewhere. If, after attempting to settle elsewhere, she still cannot find stability, she may return to her former husband, provided both parties are willing. However, due to the muftis' interpretation that the husband's utterance of talaq takes immediate effect, this provision has been exploited as a loophole, leading to a system of institutionalised rape through halala. In reality, there is no place for halala in the Shari'ah. Authentic hadiths make it clear that if a man arranges for his divorced wife to marry another man solely to make her permissible (halal) for himself again, and it is pre-agreed that the second husband will divorce her, such an arrangement is absolutely forbidden and sinful. This so-called marriage is not valid but is merely an act of fornication, and through this conspiracy of marriage and divorce, the woman will not become lawful for her former husband. It is narrated in the agreed-upon traditions of Ali, Ibn Mas‘ud, Ibn Abbas, and Uqbah bin Amir (may Allah be pleased with them all) that the Prophet (peace be upon him) cursed both those who arrange and those who participate in such halala marriages.18

The Need for Reformation in the Talaq Process

In Shia jurisprudence, specifically under the Jafari school of thought, the implementation of the verses of Surah al-Talaq is fundamental, with the presence of witnesses being a necessary condition for the validity of a divorce. Likewise, Salafi scholars like Ibn Taymiyyah, Ibn al-Qayyim, and al-Shawkani have outlined specific conditions for a valid divorce. One of these conditions is that the divorce must be given while the woman is in a state of purity (i.e., not menstruating) and during a period in which the couple has not engaged in sexual relations. If a divorce is given outside of these conditions, it is termed a talaq bid’ie (innovative divorce) and is considered invalid. Furthermore, if multiple divorces are pronounced in a single sitting, only one will be counted.

Many scholars, including classical jurists, also assert that once a divorce is pronounced, the woman's status changes, and she becomes mutallaqah (divorced), entering the waiting period (‘iddah), during which she can no longer be mahall al-talaq (subject to further divorce). For any subsequent divorce to be valid, the husband must either reconcile with her (rujou’) or remarry her after the waiting period. This understanding is based on the Qur'an's reference to divorce occurring "twice" (maratan), rather than simply two pronouncements of divorce. In comparing rulings on the case where the husband issues the second or third pronouncement before reconciliation or remarriage, Ibn Taymiyah states that “only a single pronouncement of divorce is binding, a view held by many of the early and later scholars, including a group from the Maliki and Ḥanafi schools. This view appears to be stronger.”19

Many scholars, relying on authentic Hadith, maintain that a divorce pronounced in a state of anger is not valid.

The aforementioned scholarly opinions, rooted in the true spirit of the Quranic verses, have the potential to prevent much of the harm and confusion often caused by a rigid and literal adherence to outdated legal manuals that prioritise the views of specific jurists over the teachings of the Quran and Sunnah. However, these opinions remain dispersed across various schools of thought. It is therefore crucial to consolidate them and formalise the divorce process into a unified and coherent law, enabling its organised implementation at a broader societal level.

Bleak Prospects for Reform

Yet, given the leadership within the Muslim Personal Law Board, it seems unlikely that they will engage with the perspectives of scholars from the Jafari school of thought and other Sunni scholars. Their prolonged reliance on centuries-old jurisprudential texts has fostered a particular mindset resistant to broader scholarly engagement. This mindset can be better understood through the following example:

Maulana Shams Tabriz Khan, a renowned figure in this circle, authored the book Muslim Personal Law and the Islamic Family System, which is held in high regard in academic circles. In this book, under the section titled ‘Talfīq bayn al-Madhāhib’ (the Combining of Different Legal Schools), he issues a ruling declaring that it is unlawful to abandon one school of thought and adopt another in matters of personal law. He writes: "Allamah al-Shami considers the adoption of a school of thought based on personal desire as an insult to religion, and an audacity that could bring a person close to disbelief. As a result, their testimony would be rendered unacceptable in any case."20 If people's highest point of reference is merely al-Shami from two centuries ago, how can they truly benefit from the insights and opinions of the earlier scholars, let alone directly from the Quran and Sunnah?

The examples of musaharah (relation by marriage) and ṭalaq (divorce) are merely two instances highlighted here in detail, primarily because they have been extensively discussed in the media and are relatively easier for the public to grasp. However, the issue is not confined to musaharah and ṭalaq alone; rather, a critical review and reform, in light of the Quran and Sunnah, is required across all provisions of Muslim family law in India.

In many Muslim-majority countries, reforms in family law are actively being pursued. If the Muslim Personal Law Board in India remains rigid and, rather than aligning with the principles and spirit of the Qur’an and Sunnah, insists on imposing the rulings of Fatawa al-Shami and Fatawa Alamgiri upon the Muslim community, It will inadvertently contribute to the very ambition that successive Indian governments have long sought: the imposition of a uniform civil code.



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