How the triple talaq case became an excuse for Muslim-bashing

The first idea we must rid ourselves of is that there is a 'secular' law of marriage and divorce governing any community in India.

 |  18-minute read |   01-07-2017
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They say reality is little more than a perception that refuses to go away. Much has been written about the "triple talaq case" now awaiting the Supreme Court judgment. Outside of court, the case became an excuse for Muslim-bashing and showing Islam out to be a collection of outdated ideas followed by a regressive community.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 Muslim personal law. Although there were a number of proponents of this view before the Supreme Court and various interpretations of the Quran and "Hadith" were debated at length in course of arguments on both sides, 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”.

muslims-body_070117075031.jpgThe triple talaq case became an excuse for Muslim-bashing and showing Islam out to be a collection of outdated ideas followed by a regressive community.

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 married woman eloping with another man constitutes a divorce without anything further being required, and another custom recognising divorces decreed by “caste elders”. The 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 out of a largely unsubstantiated, but dearly held idea that the Hindu Marriage Act provides a more just scheme to women than Muslim personal law. I have attempted here to examine the historical basis of this idea, 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 merely six 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 they or their ancestors had followed 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, which was considered a far more progressive body of law concerning women’s rights, compared to the demeaning traditions prevalent in “customary law”.

The "statement of objects and reasons" of the act state: “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 castes and 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 the 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.

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 even after Independence and can be seen to be enforced by the Indian courts as in Gurdial Kaur versus Mangal Singh, AIR 1968 P&H 396.)

Abdul Qaiyum, a lawyer and a member of the Assembly from the North-West Frontier Province, speaking in support of the bill, had 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 GV 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: “And in the 20th century, it is up to us, who have any pretentions to call ourselves educated or civilised, 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 civilisation and progress."

jinnah_gandhi_070117075707.jpgMohammad Ali Jinnah piloted the Moslem Personal Law (Shariat) Application Bill through the Central Legislative Assembly. 

He continued: "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 I 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.”

Responding to questions about the Kutchi Memons of Bombay and other minorities within the Muslim community, Mohammad Ali Jinnah, who piloted the bill through the Assembly, assured the House that under the provisions of the bill, they would be given the option of whether they wanted to be bound by the law of Shariat or not, and only if they signed a declaration choosing to be bound by the Act would it apply.

He said that a majority of the Kutchi Memons of Bombay (900 out of a community 1,500 or 1,600) had already signed the declaration and the remaining portion was so small that given the equitable nature of the measure, they should also be brought under the act.

Speaking about the Khojas, Memons, Maplas, Baluchis and other Muslim minorities generally who were bound by the customary law of their ancestors, he said that “however much they may want to change, they are governed by it; and, therefore, something has to be done in order that they should be brought under some other system of law if the customs and usages are not desirable, and the customs and the usage which have the force of law are certainly unjust and particularly unjust with regard to the female heirs as to their succession in the property".

George Joseph, a legislator from the modern-day Madurai and Tirunelveli, said that it was a misfortune that in the year 1937 there were still people who wanted to maintain personal laws for Hindus, Muslims and other communities instead of the House taking up the responsibility of codifying the law of succession for the whole of India without reference to the religion of the person concerned.

Responding to him, Jinnah said that George Joseph is an idealist who wants to have a utopia where there is only one system of law in the world but we have not achieved that ideal yet.

He said that different people have different codes of law and cited the example of Europe, where also the rules of succession differ. Jinnah concluded by saying that he does not believe in visionary ideas and dreams and cannot wait for utopia.

"I find, I have no hesitation in saying this, that the Islamic code of law with regard to succession is the most just and equitable, the most advanced and progressive. I, therefore, say, let the Muslims at least be governed by it," he said. 

This, not long before independence, were the representatives of the Indian people, many of them 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 and hoping that Hindus would follow suit.

Contrast this a mere decade later with the same Central Legislative Assembly, reconstituted as the Constituent Assembly, debating the directive principle now contained in Article 44 of our Constitution.

Article 44 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?

Alladi Krishnaswami Ayyar, whose arguments in defence of the present Article 44 were adopted by Dr BR Ambedkar, had said, “A further argument has been advanced that the enactment of a civil code would be tyrannical to minorities. Is it tyrannical? Nowhere in advanced Musim countries the personal law of each minority has been recognised as so sacrosanct as to prevent the enactment of a Civil Code. Take for instance Turkey or Egypt. No minority in these countries is permitted to have such rights.”

The discussion around minorities within the Muslim community is also dramatically different from what it had been at the time of the passing of the Shariat Application Act.

While at that time, the desire of these communities to rid themselves of the dead hand of custom and come within the fold of Muslim Personal Law had been cited and demonstrated, Alladi Krishnaswami Ayyar suggested that Shariat was forced down the throats of communities converted from the Hindu faith who wanted to stick to their old customs by the Muslim majority. He then used this as a basis to ask the question, where were the rights of minorities then?

“When the Shariat Act was passed or when certain laws were passed in the Central Legislature in the old regime, the Khojas and Kutchi Memons were highly dissatisfied. They followed certain Hindu customs; for generations since they became converts they had done so. They did not want to conform to the Shariat; and yet by a legislation of the Central Legislature certain Muslim members who felt that Shariat law should be enforced upon the whole community carried the point. The Khojas and Kutchi Memons most unwillingly had to submit to it. Where were the rights of minorities then?”

Jinnah, a leading lawyer of his time, had during the debates on the Shariat Act cited laws of Europe to show that even in more advanced legal systems, the rules of succession applicable to different communities is different.

The example of Europe was now given by Alladi Krishnaswami Ayyar to show the exact opposite, that advanced jurisdictions do not allow different laws of succession that India was being asked to perpetuate (even though specific examples of some European constitutions had already been cited in the Constituent Assembly, where the personal laws of minorities were granted protection).

He posed a rhetorical question and proceeded to answer it: “I should like to know from Mr Pocker whether different personal laws are perpetuated in France, in Germany, in Italy and in all the continental countries of Europe, or whether the laws of succession are not co-ordinated and unified in the various states. He must have made a detailed study of Muslim jurisprudence and found out whether in all those countries, there is a single system of law or different systems of law. Leave alone people who are there. Today, even in regard to people in other parts of the country, if they have property in the continent of Europe, where the German Civil Code or the French Civil Code obtains, the people are governed by the law of the place in very many respects. Therefore, it is incorrect to say that we are invading the domain of religion.”

sc_070117075232.jpgThe "triple talaq case" now awaiting the Supreme Court judgment.

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 were now reversed.

Ayyar went on to say: “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. KM Munshi, who’s speech was also adopted by Dr BR Ambedkar, said: “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 the Muslims who chose to stay behind.

Muslims lost most of their leaders to partition and those who remained acquired a marked diffidence in voicing the concerns of India’s Muslims.

Instead of the forward-looking leaders who took pride in their religious beliefs and at the same time spoke up for 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 that they 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, revered by a fourth of all humanity, 6,236 verses and his Prophet 23 years to communicate.

Also read: How triple talaq helped my friend escape an abusive marriage

Writer

Nizam Pasha Nizam Pasha @mnizampasha

The writer is a lawyer based in New Delhi.

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