Tuesday 14 October 2014

MUSLIM WOMEN MAKE HISTORY ON 18TH JUNE 2014 Codification of Muslim Family Law in India-An Initiative of Indian Muslim Women

MUSLIM WOMEN MAKE HISTORY ON 18TH JUNE 2014

Codification of Muslim Family Law in India-An Initiative of Indian Muslim Women

Women for long and in all societies been confined within private spaces of home. But when she is able to break free out of this shackle she not only works for her own emancipation but also for the freedom and liberty of her own ilk. Muslim women in India are in the process of entering that stage where she will show the way to the community. By codifying the Muslim family law and placing the draft before the community and society, Muslim women have shown tremendous courage and tenacity. It is now for the community to respond in an equal measure to lend a hand to Muslim women’s fight for justice and peace.

Muslim women have been impacted by their own history and by the history of the struggles of women from other communities. She has been impacted by the historical events in the social and political life of the Muslim community in India. She is continuing to be impacted by the increasing conservatism within and outside the community. Despite the odds, she is also in a unique position where she has the Constitution of her country and the book of God, Quran, by her side to support her in her struggle for justice.

A LITTLE BIT OF HISTORY
To understand the present struggle of Muslim women for legal justice, it is imperative to take a few steps back. India is home to many. The diversity of peoples, languages, racial stocks, religions is amazing and such vast collection of groups in a single geographical nation-state is difficult to find elsewhere in the world. We as a nation speak sixteen major languages and more than 1000 minor languages [1] and umpteen numbers of dialects which change every 20 mile. Eighty percent of the population, though officially Hindu, comprises of various religious groups like Sikhs, Jains, Buddhists. The rest of the 20% form other religious minorities like the Muslims, Christians, Parsis, and Jews etc. We profess secular ideals in the Constitution and comprise of such huge density of religions. To top it over we are an extremely religious set of people who ‘religiously’ follow our rituals, traditions and cultural practices and who celebrate religious festivals with zeal and fervor. Never mind if some of the customs and traditions and anti-women and should be done away with.

We are a society of contradictions. The most modern and the most backward can be found here. Our social, cultural, economic, political life offers every thing that can satisfy everybody. Legally too we are a nation with full of variety and we juggle the contradictions sometimes with ease and expertise and other times we remain a bundle of contradictions with no respite in sight. For instance, the Criminal Procedure Code is applicable to each and every citizen but personal laws which dictate on issues of marriage, divorce, inheritance, guardianship, custody and other matters are as per the religion of that individual. There is a history to this dichotomy, which will be explained later. But the impact of this division can be seen when a single individual is subjected to not only different sets of laws but also different implementing agencies. The worst sufferers of this legal hotchpotch are the poor and the marginalized who have no clue how and from where justice will be delivered to them.

FAMILY LAW / PERSONAL LAW
The 'personal law' is the system of rules applicable by any court to an individual, which is to be determined by reference to the religion that an individual professes or deems to profess [2]. Personal laws are thus recognized by the Courts and are to be implemented through the regular legal structure. In India currently, the personal laws of all communities are recognized by the State. They are in fact implemented through the State machinery. This State intervention goes back in history when the British too used the State structures to provide legal aid to people.

The legal system in the pre-British India too was not unified. Although Dharmashastra [3] which existed as law, there was no unification of its implementing machinery. That was because there was also in existence local authorities in the form of kings and small rulers who ruled their limited lands with their own interpretations of shastras and having their own legal systems to implement laws. They enjoyed autonomy in administration of its laws. The Mughal Emperors too continued with the plural legal system.  When the British entered India through the East India Company, Islamic law governed the Muslims and the Shastric law governed the Hindus. Pandits who were the Brahmin priests took decisions which were obeyed by the people. Accordingly, a system of personal law was operating in that Hindus were governed by Hindu law in some respects against the background of the fundamental Islamic law of the Muslim Mughal Emperors [4]

By 1865 the British courts had acquired sufficient knowledge of Hindu law and did away with the services of the pandits. By that time sufficient caseload had been built up based on which the British judges passed the judgment. Some obnoxious provisions of the Hindu law like the sati and prohibition on widow remarriage, on the plea of social reformers, was abolished. Thus classical Hindu jurisprudence was gradually ousted by 'Anglo-Hindu Law', as it was called. The courts soon stopped having direct recourse to traditional legal literature and the law was practiced as pure case-law. [5]

The social reformers, who gained prominence because of their insistence on abolition of Sati and other reforms, were keen that the reformed laws must conform to modern, liberal values. The Hindu communities too saw the opportunity to reform its laws and incorporated sweeping changes in favour of women, who till then, had been denied their rights.
Post-independence, while Article 44 of the Indian Constitution promised the Uniform Civil Code, which would as a single code be applicable to the entire country, in reality, till date all religious communities are governed by their personal laws, which are based on their religious scriptures. Even the codification of Hindu law which sought to unify all Hindus under one uniform code was met with resistance from the conservatives. But the process continued and the Hindu Code Bill in the form of smaller codes was put into force. Thus, the Hindu Code provided the machinery and the ideology for legislation to be enforced throughout the Indian society, allowing for unprecedented consolidation and standardization of the Hindu law.[6] Barring the conservatives the Hindus accepted the codification of Hindu law and showed the way to the other communities for the process of codification of their personal laws. It also conveyed that the Parliament, under the guidance of the Constitutional principles, can be mobilized to reform one’s own laws and bring them on par with the fundamental values of equality, justice, democracy and accountability.

A LITTLE BIT OF MUSLIM FAMILY LAW HISTORY
Although the Hindu community seized the opportunity to modernize its laws, the same cannot be said of the Muslim community, which will be the focus of this article. Historically, a half-hearted attempt was made in 1937 when the Shariat Application Act was passed with the intention to apply the Shariat, and not the customary laws, on the Muslim population. The text of the Act stated that,

Notwithstanding any customs or usage to the contrary, in all questions (such questions relating to agricultural land) regarding intestate succession special property of females, including personal property inherited or obtained under contract or gift or any other provision of personal law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties and wakfs (other than charities and charitable institutions and charitable and religious endowments) in cases where the parties are Muslims shall be decided by the Muslim Personal Law (Shariah).

The Act said that in all personal matters, the Shariat laws and not the customary laws will govern the Muslims; though the Act did not go on to lay down the specific details of what will comprise this Shariat law. In reality each sect in the Muslim community continued to follow their sect traditions and customs. Moreover, there was opposition to a codified law for all Muslims from certain quarters who were benefiting from the customary practices. Thus the first attempt at enacting a uniform Muslim Personal Law in India was rendered unsuccessful. One cannot see much advantage of this Act except for the fact that it tried to bring the Muslim community under one law despite its heterogeneity. It also brings home the fact that Muslims in India post-Independence have not made any serious attempt to codify diverse practices of its different schools of thought and jurisprudence.

Another feeble attempt was made in 1939 when the Dissolution Of Muslim Marriage Act was passed. It laid down 9 grounds on which a Muslim woman could seek divorce in the court of law. Islamic law then allowed a man to divorce his wife on his will but a wife did not have the right either to give divorce or even seek one. The only way out for Muslim women then was to convert to other religions to annul their marriage. Alarmed at this trend the Ulemas coxed the British government to pass this law. This law allowed a woman to go to court to seek divorce but put no curbs on the men’s right to orally and unilaterally divorce his wife. Thereafter the next law, Muslim Women (Protection on Divorce) Act, came only in 1986 [a good 47 years later] after the Shahbanu controversy. This law, as we all know, prescribed the right to maintenance for a Muslim woman after her divorce. Different courts interpreted the law differently and some women even continued to take resort to the Cr. P.C 125 [Criminal Procedure Code sec. 125] to demand maintenance.

The laws, which were passed in 1939 and 1986, were not as a result of concerted efforts at reforms. They were more of a product of reactions by the conservative religious men who saw reforms in personal law as an infringement on their right to religion and a threat to their identity. The British government was in any case not interested in interfering in the personal matters of any community. They did what was asked for. In 1986 the politics of vote-bank was at the fore. The Congress overruled the Supreme Court judgment in favour of Shahbanu and introduced a law to appease the Mullas whose interpretation of the Shariat never gave any rights to the Muslim women.

Moreover these laws were piecemeal, targeting only one or the other aspect of the personal law. For instance the Dissolution of Muslim Marriage Act only laid down grounds on which women could seek divorce. It never curbed men’s right to unilateral oral divorce nor did it lay down any procedure for the recovery of mehr, post-divorce maintenance or about the custody of children. The Muslim Women [Protection on Divorce] Act of 1986 did not mention any thing about maintenance during the marriage.

All the three instances of part codification of some aspects of Muslim personal law, shows that all along the process was highly influenced by the religious men from the community who took upon themselves the responsibility to protect the Shariat from any pro-women reform. All three attempts at bringing about pro-women reforms and some uniformity in the Muslim law failed.

The problem has been compounded by the fact that the Muslim community is not a homogenous community. It is divided into sects and sub-sects and each sub-sect has its own version of the Muslim law. Broadly the community is divided into the Shias and the Sunnis. The Sunnis, who form a majority, are further divided into the Hanafis, Shafis, Mallikis and the Hanbalis. The Shias are also divided into the Bohras, Khojas and the Isnaasharis. So the community is not homogenous and the laws governing them are also not homogenous. These laws or unwritten compilations are implemented through the structures within the community are different from the statutory legislation passed by Parliament. Even statutory legislations are not without its flaws. Some aspects of the law like the right of Muslim women to seek divorce and the post-divorce maintenance have been codified. But other aspects like inheritance, custody of children etc. have not been codified. On top of all these is the prevalence of customary laws, which the community has been following as a matter of tradition.

Moreover, some communities are well organized [Khojas, Bohras, Qureshies] in which case they have created structures where men and women can go with their grievances. Needless to say these community structures are more often than not, very unjust towards the women. However, many other communities are not similarly organized. In such communities there are no authorities where community members can approach with their problems. Chaos reign in such communities and the man is not accountable to anyone. He can interpret the laws as he wishes and there is no one to question him.

With the legacy of this legal chaos, post-1986, the country was gripped by the right-wing politics of hatred and Muslim-bashing. The demolition of the Babri Masjid was a water-shed event in the life of the Muslim community. It pushed parts of the community to look inwards and get more entrenched in its ‘Muslim’ identity. Many others started to look inward to see what had gone wrong where and if something can be done to bring the community out of its cesspool of educational, economic and social backwardness. Muslim personal law was one area, which had to be thoroughly hauled up and made on par with the Constitutional and Quranic requirements. But the threat of Uniform Civil Code by the Right wing parties further pushed the community within itself and it was not even willing to discuss reforms let alone a uniform code. The religious bodies like the All India Muslim Personal Law Board resisted any attempt to even talk of reforms terming the Muslim law as divine and hence not amenable to changes. The Muslim women in the meanwhile continued to suffer because of polygamy, oral unilateral divorce, low mehr amounts, lack of maintenance and other ills which plague the Muslim law. In the last 20 years, except for some pro-women judgments, there has been no forward movement in the effort to reform the Muslim law by codifying it and making it uniformly applicable to the entire Muslim population across the country.

MUSLIM WOMEN SPEAK UP
What is heartening to see is that the women’s organizations have played a remarkable role in highlighting the plight of the Muslim women. They have and continue to play a catalyst in organizing the Muslim women around the issues concerning the Muslim law, especially the demand for the abolition of oral unilateral divorce. This movement got a boost with the fatwa against Imrana. Imrana, a mother of five children from Muzaffar nagar was raped by her father-in-law. The shariah jamaat passed a fatwa which nullified Imrana’s marriage with her husband. The All India Muslim Personal Law Board, latter put its stamp of approval on the fatwa issued by the Darul Uloom Deoband’s above ruling. This incident again highlighted and confirmed the fact that religious bodies like the AIMPLB, shariah jamaat, Darul-uloom Deoband will never ever agree to gender-based reforms in the Muslim law. They show outward sympathy but also express their unwillingness to reform in the name of divinity. It also reiterated the fact that the onus for bringing about pro-women changes in the Muslim law lies with the women themselves who must shake the State out of its stupor and make them listen to its desperate voice.

Post-Imrana and other regressive fatwas, many Muslim women’s organization rose against this politics of fatwa and demanded a closure of such regressive bodies. The realization has dawned that there is no point in dialoging with such patriarchal religious bodies who continue with impunity to issue some more fatwas harming the cause of the Muslim women. It also pinned down the State in taking more responsibility in protecting the rights of the Muslim women who are equal citizens and are entitled to benefits, which accrue to women of other faith. 

In 2007 a massive movement of Muslim women called the Bharatiya Muslim Mahila Andolan [BMMA] was launched to provide a national platform to Muslim women to demand her rights as a Muslim and as a citizen of this country. The BMMA took the lead in drafting an alternative Muslim personal law which is gender just. A National Consultation was held in Mumbai in December 2006 to seek Muslim women’s views on codification of Muslim law. The Consultation was attended by close to 400 Muslim women from different states like UP, Gujrat, Madhya Pradesh, Chattisgarh, West Bengal, Rajasthan Karnataka etc. The delegation from different states deliberated on the discriminatory aspects of the Muslim law. In the 2-day conference Muslim women took up each aspect of Muslim law and deliberation was done not on what the law is but on what they want. What kind of Muslim law is aspired by Muslim women? How should be the process of divorce, how much mehr should a woman be getting? These and many aspects of Muslim law were discussed. The Conference resolved that the Muslim law as it exists is discriminatory and it is time that it is codified and the conference takes on the responsibility to work out a draft of an ideal Muslim personal law. 

The leaders of BMMA like Nishat Husein, Zakia Soman, Khatoon Shaikh, Naish Hasan, Dr. Noorjehan Safia Niaz, Farhat Amin, Kamila, Zaibunnisa, Safia Akhtar, Noorjehan Dewan, Rahima Khatoon, Akhtari Begum, Nasreen Jamaal and many others carried out innumerable consultations to feed into the law that was being prepared. Thereafter regional consultations were held in Chattishgarh, UP, Maharashtra, Madhya Pradesh, Orissa, Gujrat to discuss the draft law with the lawyers and academicians. Muslim women enthusiastically participated in these consultations and gave their views about an ideal Muslim personal law. After a long journey of hundreds of consultations with Muslim women, lawyers, academicians and other stakeholders, BMMA released its draft of codified law on 18th June 2014. 

MUSLIM WOMEN MAKE HISTORY ON 18 JUNE 2014
The draft prepared by BMMA was released on 18th June 2014. It gives solutions to a wide gamut of issues which plague a Muslim woman today.

The conditions relating to solemnization of a Muslim marriage include payment of mehr and unambiguous consent to marriage by both the parties. The conditions also include the age of marriage to be 18 and 21 for the girl and the boy respectively. The draft nullifies marriage within the prohibited degrees as well. And the pertinent provision which has brought in the most discussion so far is linked to polygamy. The draft prohibits a man to marry another woman in the subsistence of his previous marriage. In other polygamy is to be made illegal.

The draft also throws light on the procedure for the solemnization of marriage. The parties have to approach a registered qazi and give a letter of application 30 days prior to the solemnization of marriage. The actual procedure includes the ijaab [proposal] and qubool [acceptance] in one single setting. This is followed by the filling up of the nikaahnama which contains basic details and signatures of the bride, groom and the witnesses.

The draft has also outlined the responsibilities of the qazi which include ensuring the conditions mentioned above before solemnization of marriage. The qazi must also demand authentic proofs pertaining to the date of birth and the place of residence of the parties. The qazi must fill up the nikaahnama which is to be signed by Qazi, the contracting parties and two witnesses and must also maintain proper record of marriage and give duly certified true copies of the nikahnama to both parties.

The minimum mehr as mentioned in the draft should not be less than the groom’s one full annual income. It can be given either in cash/gold/kind. In case it is difficult to fix mehr in this manner then it can be fixed based on the minimum wages of that area and on the basis of the profession pursued by the groom. The mehr must be prompt which means it has to be given to the bride at the time of the marriage. The draft does not give the benefit of delayed payment to the groom. The mehr is the wife’s exclusive property and it is illegal to force, compel or emotionally pressurize her to forego or return the mehr amount.

Registration of the nikaah is compulsory and it is the responsibility of the parties to ensure that their marriages are registered with the relevant state bodies.

The draft makes a distinction between regular and invalid marriage. An marriage is deemed irregular if two adult witnesses are not present at the time of nikaah, if the marriage has been solemnized during the period of iddat, if the marriage has been solemnized without the qazi, if the marriage is not registered as mentioned and if the amount of Mehr as specified is not paid. The said irregular marriage can be regularized within one year of the solemnization of marriage. The rights of women and children are not affected if the marriage is not regularized.

Marriage solemnized under this Act is invalid if the consent of either party has been obtained by force, coercion, undue influence or fraud. Marriage is invalid if the bride and groom are within the prohibited degrees and if the if the bride and groom have not completed 18 and 21 years of age respectively. The second marriage is invalid if the husband has entered into this marital contract in the subsistence of the first marriage.

Apart from recognizing and accepting the provisions of the Dissolution of the Muslim Marriage Act of 1939, the draft recognizes three forms of separation between the husband and the wife. They are khula [demand for divorce by wife], talaak [demand for divorce from husband] and mubarah [divorce by mutual consent]. Irrespective of who raises the demand for divorce the method of divorce would be the talaak-e-Ahsan method which is a divorce over a period of three months with intermittent attempts at reconciliation by the parties and their families. The draft deems invalid any other method of divorce.
9.                                                                                     
The practice of halala is an offence. Halala is a practice where a divorced woman has to undergo a marriage to another man if she or her previous husband or both want to come back together in matrimony. Halala is not only unQuranic but also has been used as one more means to make a woman lead an undignified life.

Any children borne out of either irregular or void marriage are deemed legitimate as per this draft.

Maintenance as per this draft includes food, clothing, residence, educational, medical and personal expenses. It is the legal responsibility of the husband to provide the above even if she has an independent source of income. During arbitration maintenance will be the responsibility of the husband. If custody of child is with mother then the responsibility of maintenance of the child is with the husband. Procedure for obtaining maintenance during subsistence of marriage is as per Section 126 of the CPC, 1908. Maintenance after divorce is governed by the Muslim Women (Protection of Rights on Divorce) Act, 1986.

Both the mother and the father are considered natural guardians of the child. At the time of divorce the decision regarding the custody of all children [male and female] will reside with the mother until they reach the age of 14 when the child can decide for himself or herself. After the age of 14 the other parent can apply for custody of the child to an Arbitrator. The consent of the child will be sought by the Arbitrators. The parent who has lost the custody gets fair visitation rights. If the child is not able to take decision then the Arbitrators will take decision based on the best interest of the child. In the situation of widowhood the mother continues to be the natural guardian of the children. The Arbitrators can take decision about custody based on guidelines which include the quality of upbringing till date and the physical and emotional safety of the child. The custody of the child is not necessarily lost if either parent converts its religion or if either parent remarries.

The draft defines qazi as any person who is registered under the Qazi’s Act of 1880. The Arbitrator of either sex could be a qazi registered under the Qazi’s Act of 1880 as well as under this Act. Arbitrators could also be a registered welfare agency which has atleast 50% women members, preferably Muslim women and which has an impeccable record of social and legal justice. The draft lays down the duties and responsibilities of the Arbitrators as well.

ANOTHER ROUND OF CHALLENGE BEGINS
It is for the first time in the history of independent India that an organized body of Muslim women undertook a mammoth task of drafting a Muslim law by reaching out and consulting a large number of Muslim women.

The release of the draft is only the beginning of a long drawn struggle. With the new right wing government showing its inherent bias towards the Muslim community and insisting on a uniform civil code, the Muslim women’s movement has its role etched out. It is the beginning of a long drawn conflict with the regressive, fundamentalist forces within and outside the community. It is the beginning of engaging with a state which has shown an open bias towards the community. And on a positive note it would also mean flagging off a liberal, progressive and just Islam which is the antithesis of the deeply patriarchal, unjust and undemocratic version of the Mullahs.

References:

1 – 6 Hindu personal law in India - A comparison of its administration by the British and India post independence, by Alun A Preece, Lecturer in Law, University of Queensland and Rishi Mohan, B.Com., LL.B (Queensland)