Codification of Islamic Law of Marriage: Policy and Politics

The rights of Muslim women under Islamic law relating to marriage, divorce, maintenance, and succession have been fiercely scrutinized on several occasions, but a consensus could not be reached probably because of a mental blockage, a defensive approach to problem-solving resulting from severe media criticism, and a feeling of insecurity amongst Muslims. An undercurrent of contempt and the ‘Otherness’ flows amongst Muslims today. This may be one of the several reasons for the vehement opposition to a uniform civil code.

The constitutional feasibility of a uniform civil code is primarily a function of its content and substance; but most debates on uniform civil code have ignored this substantive aspect and have focused more on political feasibility. It must be noted that a uniform civil code would not ipso facto guarantee rights and equality to women. Much would depend on the content of the code. If the objectives of such content could be achieved by means otherwise than enactment of a uniform civil code, then the politico-legal debate on Fundamental Rights versus Directive Principles of State Policy could be avoided. Any such debate is more likely to derail any attempt to pragmatically secure rights for Muslim women.

Solutions to controversial issues are possible within the precincts of Islam. There is no reason for unnecessarily insisting on a political hot-pot of uniform civil code. Preemptively, it must be clarified that the ‘Islamic personal law’ is not synonymous with the ‘Muslim personal law’. They may appear to be semantically related and are used interchangeably, but in reality they connote different meanings.  While the ‘Muslim law’ finds it source in the practice of Muslims, the source of Islamic law is the Holy Quran, the Hadith, Ijma and Qiyas. It is not what Muslims do, but what these sources say that constitutes Islamic personal law. Succinctly, Islamic personal law is distilled form of Muslim personal law, i.e. purified of vices gained by decades of influence from contiguous local cultures and digression from the true path.  Since, Muslims seek to be governed by Islam, the system of law applicable to them would be one that emanates from Islam and not from deviant practices of contemporary fellow Muslims. There may be a fair degree of correspondence between the two, but they are not the same.

A close reading of religious text in context would reveal that Islam believes and promotes equality in marriage, equity in relationships, and proscribes polygamy. However, Islam is rarely followed in true spirit, and is frequently abused by patriarchs. Having no statute or positive law, there is no hard basis for women to approach the courts for enforcement of such rights. Using Henry Shue’s concept of positive and negative rights, the conferral of equal rights on women by the Islamic personal law, in absence of a positive legal basis to approach a judicial or a quasi-judicial body for their enforcement, becomes infructuous. There is, thus, a need to codify the true Islamic law.

While the active role played by the judiciary may be desirable in other areas of law, it is certainly not desirable in the area of uncodified personal laws. It could lead to unnecessary politicization. At a preliminary stage, the competence of judges and their locus standi to interpret and to apply religious text could be disputed by proletariat. This happened in the Shah Bano case ((1985) 2 SCC 556) where interpretation of the Quran by the Supreme Court lead to nation-wide violence. Even if we assume that the judges may interpret the divine text to further the ends of justice, such an attempt will not be of a great help because judicial decisions by their very nature are merely curative, and not preventive. They are volatile and reflective of judge’s predilection; sometimes described as ex post facto rationalization of a choice.

Given the demographical, political, and social setup of this country, legislation as a means to grant locus standi and competency to the courts for enforcing the rights conferred by God would be more efficacious. The objective of such legislation would be to codify by consolidating (though not exhaustively, for pragmatic reasons) the rights that Muslim women have under the true Islamic personal law, and not to create any new right.  Such consolidation of rights would include right against concurrent marriages by their husbands, right to obtain divorce more fairly, right against arbitrary divorce, right to maintenance during the continuation of marriage, et al. A perusal of Islamic legal text would make it clear that these rights are recognized in existing Islamic law; the only thing that the legislation would seek to do is to place them in black letters to provide ‘hard basis’ for its enforcement.

The Supreme Court has settled maintenance issue in Danial Latifi case (((2001) 7 SCC 740) by holding that fair and reasonable maintenance must be provided to all divorced Muslim women. Now, issues of triple talaaq and that of polygamy remain alive as contentious ones.  According to the Islamic religious texts, divorce, even though lawful, is despised by Allah and the Prophet (pbuh). Divorce is permissible as a measure of last resort when alternative methods of dispute resolutions have failed. This being the case, there is a basis within the limits of Islamic jurisprudence to restrict the right to exercise the option of divorce. Some countries have taken this as a starting point and have enacted laws to safeguard women from arbitrary divorce. Section 30 of the Tunisian Law of Personal Status 1957 provides: ‘Divorce outside a court of law is without legal effect’. This legislation also provides that the court must dissolve the marriage if the husband persists in his repudiation, and that the court has power to grant unlimited compensation to the wife for any damage that she might have suffered because of such divorce. Section 7 of The Pakistan Muslim Family Laws Ordinance, 1961 lays down that a divorcing husband shall send notice of divorce to the union council and supply a copy of it to the divorcee wife, after which the arbitration council would try for reconciliation between the two parties. Divorce is activated only when reconciliation efforts have failed and three months from the date of divorce have lapsed.

Such an approach, requiring exhaustion of alternative dispute methods before granting a divorce, has been judicially recognized by the Allahabad High Court. In Sadqunnisa v. State of U.P. (Criminal Revision No. 327 of 2002, order dated 02.08.04), Justice Quddusi of Allahabad High Court sitting at Lucknow, held that only those divorces which are in accordance with law shall be recognized as valid and operative in the eyes of law. The Court further said that the talaaq as ordained in the Holy Qur’an “must be pronounced in three different sittings, it must be for a reasonable cause and must be preceded by an attempt of reconciliation between the husband and the wife by two arbiters, one chosen by the wife’s family and the other by the husband and if their attempts fail then the talaaq might be effected and has to be proved by the husband before the court.” There is no reported political fallout of this decision. Having such a precedent in law, the same must be legislatively provided for.

With respect to polygamy, as has been observed earlier, the Quran does not permit polygamy. As a pre-condition for subsequent concurrent marriage, the Quran requires that the man should treat both his wives equally in all matters. It is not humanly possible for a man to treat two women equally, and so polygamy is implicitly proscribed (The Quran, 4:3 read with 4:129).  Incorporation of the Quranic requirement of absolute equal treatment would implicitly make monogamy the rule. Thus, the general right of protection from polygamous marriages as embedded in Islam can be legislatively provided for. In jurisprudential terms, a legislation that proscribes polygamy statutorily amongst Muslims by imposing such precondition would be merely providing a hard basis in law to enforce such a right and would not amount to creation of a new right. The Tunisian Law of Personal Status, 1957 prohibits polygamy, while the Syrian Law of Personal Status, 1953 places a precondition of obtaining permission before solemnizing the next concurrent marriage, and requires its registration as well. Section 6 of The Pakistan Muslim Family Laws Ordinance, 1961 lays down that no married man shall contract a second marriage without the permission from the arbitration council which shall ensure that the man had good grounds for second marriage and had obtained his first wife's permission to do so. These examples establish that there are precedents in other countries that could be emulated by India. In as much as the objective of the legislation would be to safeguard the rights of Muslim women, registration of marriages may also be provided for. While it is desirable to codify the law of marriage amongst Muslims, as a pragmatic approach there is no need to codify procedural matters and they should be expressly left to be governed by their respective schools.

Existence of irreconcilable differences between Shia and Sunni laws of marriages is a big hurdle for a consolidated code on Muslim marriage. For instance, Muta’h marriages (temporary marriages) are permissible under the Shia law but not under the Sunni law.  It is argued that on grounds of public policy there is a clear case to prohibit temporary marriages. However, any such attempt to do away with it would mean inviting political troubles which would eventually lead to an impasse in the whole process.  In such a case, either the law should be silent on this or should expressly say that Muslim marriage is a civil contract. In the event of it being silent, a provision similar to the Section 4 of the Hindu Marriage Act, 1955 may be provided for which would save custom on matters on which the legislation is silent. In the event of it mentioning that Muslim marriage is a civil contract, it would do no harm, as under the Islamic law it is a contract; at the same time it would also not lead to the express recognition of muta’h marriages. Once declared that it is a civil contract, the general principles of contract nullifying the contracts that are opposed to public policy may be invoked by the courts relying on Hadith and other sources. In any case, Muta’h marriages, even though allowed in law, have withered away in practice. It can be reasonably expected that such marriages would further lose their significance in future. To let go of an opportunity to legislate on Islamic law of marriage to attain larger objectives for an obsolete and out of practice provision of law would be nothing short of foolishness. This example also emphasizes on the point that an exhaustive code on Muslim marriage is unwarranted at this juncture, what is required is merely a starting point for judicial enforcement of religiously recognized rights and principles.

Certainly, there is going to be politics around the issue, as the boundaries of law and politics are not clearly defined. Since, the basis for law is jurisprudence and not politics, once the Parliament has a jurisprudential basis to proceed, interference from politicians should not preclude the Parliament from legislating on it. In fact, if possible, the means of politics should be deployed to achieve the jurisprudential end. One must keep in mind that the politics of religion, even at the time when Pakistan was being demanded, was circumvented by dedicated jurists who wanted to provide Muslim women with a hard basis to exercise their rights. In 1930s, Asif Ali Fyzee and Maulana Ashraf Ali Thanavi had spearheaded the campaign to recognize the right of Muslim women’s to approach a civil court for divorce. This campaign resulted in the enactment of The Dissolution of Muslim Marriages Act, 1939, which provided a legal basis for Muslim women to exercise their right. Extensive assistance must be sought from Muslim scholars in drafting the suggested statute to avoid political friction and confrontation on the floor of the house, and outside. To achieve the ends of social reform, one needs to act like Machiavelli’s Prince, combining the values of a lion and of a fox.

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Reform of the Legal Profession

In this article published on myLaw.net, I argue that mere reforms in the legal education in India do not mean much unless they are accompanied by concomitant reform of the legal profession, inter alia, through enforcement of ethical rules of practice. This article provides another perspective in trying to understand why the top law schools have not been able to motivate its law graduates to join litigation.

Service Tax on Lawyers - What is the State taxing?

In this piece, I argue that imposition of service tax on representational service and on arbitral tribunals may not have necessary degree of coherence with rule of law and forward policy. 

Anna's fight against 'Corruption' - What it means?

Professedly, Anna's 'movement' (I intend to analyse at a later stage whether the stir qualifies as a movement, or it was merely a 'mass protest'), and support lent to him by the opposition was against 'corruption'. I am not aware if any participant in the movement, either from the civil society or from ‘Team Anna’ has attempted to define ‘corruption’.  This concern has been expressed in an EPW editorial.

The definition of ‘corruption’ is rather important, because it would determine how inclusive the support from the demos of India would be. Having said this, I do not mean to undermine the importance of economic corruption. We really need to ensure is that there is no corruption in terms of restrictions to access to opportunity. This access to opportunity can be impeded also by demand of money; but that is not the only way. Therefore, the word ‘corruption’ has to have a broader and more inclusive definition including denial of rights and impeding access to opportunity either for personal gain or for furtherance of a personal agenda or political views. Such an approach is sine qua non because anything else would leave the pot only half filled that too with leakages.

The above approach is to deal with the situation of systematic denial of rights by plugging in the systemic deficiencies. A situation of the nature highlighted by Sachar Committee Report is what I am trying to cover in the definition of ‘corruption’.  For example, when the people in charge of affairs of government abuse their position not for their personal financial gains (but for other reasons) and keep a rightful candidate out of the (participative) government (because of religion, race, caste or kinship), they should be held accountable.  

The conversation between a father and his son in The Kite Runner by Khaled Hosseini is instructive on this point: “There is only one sin, only one. And that is theft. Every other sin is a variation of theft. Do you understand that?When you kill a man, you steal a life. You steal his wife’s right to a husband, rob his children of a father. When you tell a lie, you steal someone’s right to the truth. When you cheat, you steal the right to fairness. Do you see?”. This analogy can be extended to ‘corruption’ as well.

In this sense, the proposal under the Draft Communal Violence Bill (also see comments here) to criminalize dereliction of duty by state machinery during communal violence which is also based on some evidence is an attempt to remedy one species of the genus that is ‘corruption’. 

Respecting the Dissent: Fairness of the methods of Anna's followers

The Times of India dated August 31, 2011 carries a report on how a youth who refused to participate in the anti-corruption stir was chased by the crowed and left to drown in a river in which he had jumped to save himself from being lynched. Here is the news piece.

Assuming that it is true, ruthlessness of those carrying out anti-corruption stirs in support of a 'Gandhian' perhaps evidences that unlike the Gandhian movements, Anna's movement was unable to integrate to the moral behaviours of those following it. There was support from all section of the society; many of whom were also the source of corruption. On the otherside, Gandhiji  had spent decades together connecting personally with the masses and therefore his movement was able to motivate the moral side of the people in the real sense.

 While it has been acknowledged that the movement had been driven by urban middle class, there is no concurrence on the reason for why the minorities and the rural poor had not engaged in the movement. 

Based on the above news article, and the support of right wing forces to Anna's movement (including of the admitted deployment of saffron cadres in the movement), one could deduce that the movement in its approach had been a right winged one, with little or no room for dissent and disagreement. Those who disagreed had to pay. Such an approach to any movement is clearly against the tenets of India's constitution, where freedom of expression allows a person the liberty to or not to participate in public discourse, of any kind. 

Lawyers' boycott and the accused persons’ right to be defended in court

While ANHAD's Report and other events raise concern about release of Muslim youths wrongfully detained in the police custody in relation to alleged acts of terrorism, a cognate issue that should not be missed is that of access to sound legal advice at the appropriate time. 

Some bar associations (such as that of Pune and  Faizabad) have passed resolutions to not defend any person accused of terrorist acts, it particularly affects minorities as they are 'labelled' as terrorists. Some lawyers who withstood by the ethics of the legal profession in such hard times had also filed writ petitions in before the High Court challenging such resolutions passed by the bar association. However, a recent decision passed by the Supreme Court is instructive on this point.

 In A.S. Mohammad Rafi v. State of Tamil Nadu, AIR 2011 SC 308, the Supreme Court of India observed that “several Bar Associations all over India… have passed resolutions that they will not defend a particular person or persons in a particular criminal case… Sometimes the Bar Associations passes a resolution that they will not defend  a person who is alleged to be a terrorist or a person accused of a brutal or heinous crime or involved in a rape case...” . Further that “such resolutions are wholly illegal, against all traditions of the bar, and against professional ethics. Every person, however, wicked, depraved, vile, degenerate, vicious or repulsive he may be regarded by society has a right to be defended in a court of law and correspondingly it is the duty of the lawyer to defend him.”

Resolutions similar to the resolution of the Coimbatore Bar Association are known to have been passed by the Bar Association of Faizabad and apparently also by the Bar Association of Pune that prevented the alleged ‘terrorists’ from having any legal representations. The impact of absence of effective legal representation and denial of right to have a counsel of one’s choice would probably be assessed when these cases reach the appellate stage. One can hope that decision would be handy in at least ensuring persons branded as terrorist merely by virtue of their religious and social association have access to a lawyer.

I have commented on this aspect earlier and at length on the Law and Other Things which is available here and more recently here.  

Report: What it means to be a Muslim in India today

Act Now for Harmony and Democracy ("ANHAD"), an organisation and a platform for action on the issues of peace, communal harmony and secularism  has published a report titled "What it Means To Be a Muslim in India Today", which is a combined report on  Peoples Tribunal on the Atrocities Committed Against Minority In The Name of Fighting Terrorism & the National Meet on the Status of Muslims in Contemporary India Delhi 3 to 5 Oct 2009.

The report inter alia seems to set out issues concerning wrongful arrest and detentions of Muslims, especially the youths in connection with alleged acts of terrorism. 

Religious Ceremonies when performed in rem are secular

The Law and Other Things discusses a judgement by the Gujarat High Court, which has held that performance of religious ceremonies such as bhumi pujan which are for the benefit of the whole society cannot be regarded as being against the principles of secularism.   The PIL challenging participation of constitutional functionaries in bhumi pujan and performance of bhumi pujan in respect of government projects was dismissed with exemplary costs.

Scholars have argued that this is one the methods in which majoritarianism is colouring the definition of secularism as understood in the Constitution of India.

This aspect has been discussed here also.