They say reality is little more than a perception that refuses to go away. Much has been written about the ‘triple talaq case’ by which a Constitution Bench of the Supreme Court declared the practice to be invalid. The judgement was followed by the Muslim Women (Protection of Rights on Marriage) Act, 2019, one of the most absurd legislations in recent times. (I’ve analysed the law separately here.) The entire public discourse around this became an excuse for Muslim bashing and showing Islam out to be a collection of outdated ideas followed by a regressive community. The “left liberals” suddenly found themselves on the same side of the argument as the Hindu right leading to awkward exchanges between bedfellows that would be comic if they weren’t so tragic.
As I set out to examine some persistent perceptions in a new light, I want to make one thing clear for the record. I condemn the practice of the so called instantaneous triple talaq and have consistently taken a stand against it. However, the reason I object to the practice is that I believe it is un-Islamic, being contrary to the manner of divorce prescribed in the Quran, which mandates a period of reconciliation followed by mediation. For this reason, I believe the practice should find no place in the personal law of Muslims.
Although there were a number of proponents of the above view before the Supreme Court and various interpretations of the Quran and Hadith (pronounced Hadees) were debated at length in course of arguments on both sides, however, the debate in popular media has not been about nuances of Islamic jurisprudence so much as it has been about showing that Muslim personal law provides a less just scheme to women than “secular law”. The first idea we must rid ourselves of is that there is a “secular” law of marriage and divorce governing any community in India. Each community in India is governed by its own set of laws in matters of marriage, divorce and succession. The majority of Indian citizens, Hindus, Jains, Buddhists and Sikhs, who are all statutorily covered under the definition of “Hindu”, are governed by the Hindu Marriage Act, 1956. And before we get carried away extolling the virtues of the principles contained in the Hindu Marriage Act, it bears mention that Section 29(2) of the Act saves and continues in force all customs relating to dissolution of marriages prevailing prior to enactment of this statute. The customs that have been recognised by courts under this provision include a custom among the Kummari caste of Andhra Pradesh where a woman eloping with another man constitutes a divorce without anything further being required, and another custom recognising divorces decreed by “caste elders”. This latter, which suggests a possibility of the law recognising divorces decreed by khap panchayats in the name of ‘custom’ is problematic to say the least.
Hence, stripped of its shiny wrapping, this debate is basically the majority community speaking down to a minority from a moral high ground borne of a largely unsubstantiated idea that the Hindu Marriage Act provides a more just scheme to women than Muslim personal law. It is this idea that I seek to analyse, not with the intention of showing down one or the other system of law but to show how this idea evolved.
The Muslim Personal Law (Shariat) Application Act, 1937 was passed by the Central Legislative Assembly and received assent on October 7, 1937. The Act comprises a mere 6 sections the crux of which is that in matters concerning succession, special property rights of women, marriage, dissolution of marriage, maintenance, dower, guardianship, gifts, trusts, trust properties and waqfs, the rule of decision in cases where the parties are Muslims shall be Muslim Personal Law or shariat overriding any custom or usage to the contrary prevailing in any region or among any section of Muslims. Section 5 of the Act also provided Muslim women the right to obtain dissolution of their marriage from a Court on grounds mentioned in that section. Section 5 was subsequently repealed and was replaced by a dedicated enactment for this purpose, the Dissolution of Muslim Marriages Act, 1939.
Muslims in India who had converted from other religions had continued to adhere to practices prevailing in their communities that had been applicable to them prior to their conversion and courts had been enforcing these practices as “customary law”. The stated purpose of the Shariat Application Act as seen in its ‘Statement of Objects and Reasons’ was to give effect to the long cherished desire of Muslim women to be governed by Muslim Personal Law rather the demeaning traditions prevalent in Customary Law. The Statement of Objects and Reasons stated that “All the Muslim Women Organisations have therefore condemned the Customary Law as it adversely affects their rights. They demand that the Muslim Personal Law (Shariat) should be made applicable to them.” Simply put, Muslim women and women’s organisations were objecting to the demeaning customs prevalent among the Hindu communities that they or their ancestors had converted from which were still being applied to them in the name of Customary Law. These women sought that Muslim Personal Law be made applicable to them since “The introduction of Muslim Personal Law will automatically raise them to the position to which they are naturally entitled”.
The debates in the Central Legislative Assembly on “The Moslem Personal Law (Shariat) Application Bill” are indicative of the context in which the Act was passed and the environment and circumstances then prevailing in British India. The Bill was a private member Bill moved by one of the so called “Muhammadan” members of the Legislative Assembly, a large number of who, at that time, were elected from seats reserved for Muslims. It was piloted through the Assembly by leaders of the Muslim League led by Mohammad Ali Jinnah. One of the customs that was repeatedly highlighted in course of the debates as being derogatory to women was one under which upon the death of a man, his wife acquired no rights in his property and merely obtained a life interest that she lost upon remarriage. (Incidentally, this custom was part of Hindu law and continued to be in force after independence and can be seen to be enforced by the courts as in Gurdial Kaur v. Mangal Singh, AIR 1968 P&H 396.)
Mr. Abdul Qaiyum, a lawyer and a member of the Assembly from the North-West Frontier Province, speaking in support of the Bill said:
“I submit, Sir, that the dead hand of customary law must be removed. We are living in an age in which very important changes are taking place. When many other things are going the way of all flesh,…I submit that it is high time that we got rid of this dead hand of custom. After all custom is a horrible thing as far as this particular matter is concerned, and by endorsing the principles of this Bill we would be doing justice to millions of Indian women who profess the Muslim faith.”
And then in parting, he prophetically expressed an aspiration that other communities would follow the lead taken by Muslims and reform their personal laws to safeguard women’s rights:
“I hope, Sir, the day is not far off when other communities will also bring similar measures and when in India women and men will be treated equally in the eyes of the law in the matter of property, political rights, social rights and in all other respects.”
Another member, Sir Muhammad Yamin Khan of the United Provinces, in his speech said:
“If women can adorn the benches in the legislatures and preside over municipalities and district boards and become Presidents and Vice-Presidents of Councils, there is no reason why they should be ignored by this House and their just and legitimate rights be denied to them. This Bill does not seek to give woman anything which is not her due; it only seeks to do away with the injustice done to her for a long time by people who do not want to part with their property. And in that view I hope the whole House will support her case.”
Dr. G.V. Deshmukh, a Legislator from Bombay and an advocate of women’s rights, speaking in favour of the Bill expressed the hope that Hindu society would follow the example being set by the Muslim community and look to reform their own personal laws. He emphatically stated that:
“And in the 20th century, it is up to us, who have any pretentions to call ourselves educated or civilized, to see that the other half of society has an equal status to the male half of the society. If we cannot recognise it, then let us shut up our shop, let us shut up everything that is put forward in the name of civilization and progress. Therefore, I say, Sir, that this Bill which in principle gives economical status to one half of the society has my whole hearted support. What is say is this that, if today the Muhammadan society progresses, in the future every society in India will follow the same example, – not that in Hinduism the principle does not exist. On account of custom, and more even than custom the British Courts’ custom, the customs have crystallised into law, and thus the chilling hand of custom has barred all progress of society of womenfolk so far as India is concerned. I, therefore, think, that unless the female half of society progresses, unless this paralysis, or what we in medical term call hemiplegia, of the Indian society disappears by progressive and enlightened legislation, there is no hope, and it is futile to say we will build up a nation. Therefore, I say, this example will also be followed by other societies, and the women folk will get the same economical status with that of the males in the country, and in this way the future nation of India will be built.”
This, not long before independence, was the stalwarts of our freedom movement lauding the measure to make Muslim Personal Law applicable to Muslim women in matters of marriage, divorce and inheritance overriding the “dead hand” of Hindu customs.
Contrast this a mere decade later with the same Central Legislative Assembly now sitting as the Constituent Assembly debating the Directive Principle now contained in Article 44 of our Constitution, which states the State shall endeavour to secure a uniform civil code throughout the territory of India. Muslim members of the Constituent Assembly opposed this amendment expressing fears that the “tyranny of the majority” would ride rough-shod over the rights of minorities. The arguments made in support of the Directive Principle degenerate at times to the level of ‘Do Muslim countries hold the personal law of each minority above Civil Law? Then why should we?’ and ‘Where were the rights of minorities when Shariat was forced down the throats of communities converted from the Hindu faith who wanted to stick to their old customs?’ When the arguments are more forward looking, Muslims are spoken of as being unwilling to adapt to changing times and standing in the path of progress. The taunts too are now reversed. Mr. Alladi Krishnaswami Ayyar, who’s arguments in defence of the present Article 44 are adopted by Dr. B.R. Ambedkar, says:
“After all, the only community that is willing to adapt itself to changing times seems to be the majority community in the country. They are willing to take lessons from the minority and adapt their Hindu Laws and take a leaf from the Muslims for the purpose of reforming even the Hindu law.”
Muslims were also accused of standing in the way of nation building by wanting to stick to a different system of laws. It was said that having unity in personal laws and in every other aspect of our lives was what would become the basis of India being a strong nation. Mr. K.M. Munshi, who’s speech is again adopted by Dr. B.R. Ambedkar, says:
“There is one important consideration which we have to bear in mind – and I want my Muslim friends to realise this – that the sooner we forget this isolationist outlook on life, it will be better for the country. Religion must be restricted to spheres which legitimately appertain to religion, and the rest of life must be regulated, unified and modified in such a manner that we may evolve, as early as possible a strong and consolidated nation. Our first problem and the most important problem is to produce national unity in this country. We think we have got national unity. But there are many factors – and important factors – which still offer serious dangers to our national consolidation, and it is very necessary that the whole of our life, so far as it is restricted to secular spheres, must be unified in such a way that as early as possible, we may be able to say, “Well, we are not merely a nation because we say so, but also in effect, by the way we live, by our personal laws, we are a strong and consolidated nation”. From that point of view alone, I submit, the opposition is not, if I may say so, very well advised. I hope our friends will not feel that this is an attempt to exercise tyranny over a minority, it is much more tyrannous to the majority.”
So what changed between 1937 and 1948? One thing that certainly did not change was the personal law of either the Muslims or the Hindus. The Hindu Marriage Act was not passed for another eight years after the time that this Directive Principle was debated by the Constituent Assembly and Hindus at that time were still governed by that “dead hand of customary law” spoken of earlier. What did however change was that the country gained independence and the accompanying partition saw a rise in communal sentiment and an alienation of Muslims who chose to stay behind. Muslims lost most of their leaders to partition and those who remained acquired a certain diffidence. Instead of the forward looking leaders who took pride in their religious beliefs and at the same time spoke of women’s right inviting other communities to follow their lead in the emancipation of women, we see a community and its leadership guiltily retreating into its shell pursued by taunts directed at their regressive belief system.
The purpose of revisiting these debates is not to defend one or the other practice, but merely to throw light on how the difference between a set of practices being forward-looking or regressive, pro-women or opposed to nation-building is sometimes merely a function of a community’s bargaining position in the debate. We must bear this in mind before we get carried away by the rising tide of public opinion informed by 140 character expressions of principles that took the God of a fourth of all humanity 6,236 verses and his Prophet 23 years to communicate.
(Nizam Pasha is a Delhi based lawyer. This article first appeared in DailyO in July 2017)
20
