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)
