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The case of the missing reforms

The second of a two-part series examines key reforms for codification of Muslim personal law, formulated after the Shah Bano verdict, that were never acted upon

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Thirty years ago, when the then prime minister Rajiv Gandhi burned his fingers in the Shah Bano  case by overturning the court verdict through an act of Parliament, his aides mediated with the Muslim clergy to elicit two assurances. Those aiding Gandhi and mediating between the government and top office bearers of All India Muslim Personal Law Board (AIMPLB), including Maulana Abul Hassan Ali Nadvi – known as Ali Mian – and Qazi Mujahidul Islam Qasmi, recall that clergy had agreed to work on codifying the Muslim Personal Law and also initiating over 150 reforms within the community.

Four years later, the clerics set up a think-tank, the Islamic Fiqh Academy, that drew up around 105 reforms in Sharia law, mostly related to marriage and women. Yet, the stamina to actually implement these alterations petered out over the next three decades.

Lawyer, historian and author AG Noorani says that state of affairs was aggravated by Congress’s vote-bank politics. “The truth is that Congress played vote-bank politics. Indira Gandhi made a pact with the Vishwa Hindu Parishad. And, in his end, to please the Muslims, Rajiv Gandhi passed the Muslim Women Bill, leading to the opening of the locks of the disputed structure. The VHP stopped the agitation because of Indira Gandhi’s assassination. The pact was renewed by Rajiv Gandhi,” he says.

He says that he had sent a missive to the then government to open the definition of divorce as per Sharia laws, not according to Anglo-Mohammadan law, which would have meant three periods and conciliation. “Had that been done, all (the) sting would have been taken out. But then Rajiv Gandhi had a deal to protect,” says Noorani.

No madrassa made the reforms already on paper part of their curriculum, nor has any mufti or qazi employed these reforms as a benchmark for his legal and religious opinion, hanging on, instead, to old interpretations. There has also been no step forward to codify Muslim Personal Law, something Zakia Soman, co-convenor of the Bharatiya Muslim Mahila Andolan has been agitating for.

Delhi Congress leader Anees Durrani, member of the All India Muslim Majlis-e-Mushawarat, who was privy to the developments then, of the opinion that Muslim leaders let go of a plum opportunity to introduce reforms in 1986.

“In 1986, after protecting the Muslim Personal Law from the interference of the court, Muslim leaders agreed to specific commitments on the issue of reforms and codification.

Rajiv Gandhi wanted an internal debate within the community. But till date, the Muslim clergy has not initiated any vigorous reforms which is the main reason behind the current crisis and the opening of the room for interpretation by the courts and the government,” he says.

DNA spoke to several people involved with the framing of these original set of reforms to find out exactly what they were and how relevant they are today. It also sought the opinions of experts in Islamic jurisprudence many of who strongly recommended implementing these changes.

Codification of law

When a top cleric from Bihar, Maulana Minnatullah Rahmani, who was at the helm of the

AIMPLB during the 1980s, attempted to codify these reforms, it was drowned under the weight of arguments and disagreements. Rahmani wrote a book called Majmua-e-quanin-e-Islam (compendium of Islamic laws), which was an attempt to codify the personal law. The book was criticised for leaning towards the Hanafi school of thought. Without any codification, the judgement in any case lies at the discretion at the interpretation of the law of the of the maulvi or qazi hearing the matter, compounded by the fact that Sharia law is not a single entity.

Model nikahnama

Another important proposal made in the 150-point internal reforms agenda was a model nikahnama, which was to function as a standard marriage contract for Muslims. It had many progressive features and was a precursor to the prenuptial agreement, which has gained popularity in India only recently.

It proposed a strict method of mediation and arbitration in divorce, and made it mandatory for parents or guardians of couples to be present during the marriage, thus preventing forced marriages.

Triple talaq

The proposed nikahnama also addressed the controversial issue of triple talaq and said any talaq pronounced in one sitting should not lead to dissolution of the marriage. Many Islamic scholars who have been seeking a ban on triple talaq have maintained that it has no mention in Quran.

Islamic scholar

Mohammed Ghitrif, guest lecturer at the department of Islamic Studies at Jamia Millia Islamia, explains that iddat (a waiting period of three months) must precede any separation. If after that, the differences remain irreconcilable, the husband can pronounce talaq a third time and the divorce would then be final.

Mehr

During Muslim marriages, mehr is a sum of money fixed by both families as a security for the woman. The proposal was that the amount should be decided on the basis of the financial status of the man. But mehr continues to be a nominal amount, at least in most Muslim marriages. The model nikahnama was supposed to work out a sum of money which would ensure a comfortable future for the woman.

“Quranic traditions, if implemented well, would ensure that a woman’s mehr is 50% of a man’s assets. The Quran mentions that the Prophet had four wives, and he had a house for each one of his wives,” says Dr Farida Khanam of the department of Islamic Studies at Jamia.

Halala

Under Sharia law, a couple which undergoes a divorce cannot remarry unless the woman marries another man and then her second husband dies or divorces her. Guidelines were also to be laid down in connection with the practice of halala but that too didn’t happen and this practice is often misused in India to exploit women. A renowned Muslim law expert who didn’t wish to be identified alleged that several maulvis provide halala service by charging huge amounts from women.

Faskh

There was also a proposal to the Rajiv Gandhi government to to ease faskh, the procedure by which a woman can initiate a separation from her husband. The proposal remains unfulfilled because faskh is granted only on certain grounds, and if the woman is able to produce eyewitnesses in cases of cruelty.

The Muslim Dissolution of the Marriage Act of 1939 allowed any woman to go to the court seeking divorce under eight clauses, including cruelty, disappearance, imprisonment and for being treated unequally, says Dr Zeenat Shaukat Ali of the Wisdom India Foundation. “The law was brought in as women complained that under the Muslim Personal Law, they were being denied the justice they deserved,” says Dr Ali.

Dr Ali says that in most cases, women had no resources to rely on and were usually rejected by their own parents in cases of separation. The amount of maintenance, too, was usually a meagre amount. In the very first judgement awarded after the act was amended in 1986, Justice Rekha Dixit of the Lucknow High Court awarded a maintenance of Rs.68,000. “The case was a precedent to women seeking maintenance,” she said.

Dowry and polygamy

The nikahnama (Marital law) denounced dowry and even sought to regulate polygamy by putting in a condition that if a man wants to take a second wife, he ought to secure written consent from his first wife, as is the stipulation in many Muslim countries, including Pakistan. Yet, without the adoption of the nikahnama, this too has remained only on paper.

Hazanaah

There was also a proposed modification with respect to hazanah, or child custody. According to traditional views, custody of a male child automatically goes to the father after the boy turns seven, whereas the custody of a girl child remains with the mother. The proposal was to evaluate the social, financial and mental condition of both parents and then decide the custody of the child.

Other developments

Another Islamic scholar, who is also a member of the AIMLB, and wished to remain anonymous, revealed that the board also formed many committees to bring “internal reforms” but added that these committees have been inactive for years now. One such committee was called Tafheem-e-shariyat (Commentary of the Shariat) which was created to create awareness among lawyers about Muslim personal law. The committee met in Bhopal soon after the delegation met Rajiv Gandhi; the lawyers asked for a questionnaire along with correct answers about the Muslim personal law, so as to enable them to fight matrimonial cases. That questionnaire is still not ready.

SHARIA STATS

Citing an internal report on the functioning of his court from 2006-2010, a Sharia court qazi insists that his court is effectively imparting justice. According to this report, 17% of cases were disposed of in a month, 32% cases were disposed of in 3 months, 25% were decided in 6 months, 15% in less than 9 months, while 7% cases took a year to reach their conclusion and 5 % took more than a year.

Reforms in different counries

While India is debating the need to bring reforms to Muslim Personal law or the Sharia, many countries, including Muslim ones, have already enacted reforms in the Sharia.

Though Muslim organisations in India are unanimously against the proposed Uniform Civil Code, many Islamic scholars feel that a reform in the current Muslim Personal Law is essential.

The concept of triple talaq as practiced in several Islamic countries like Tunisia, Malaysia, Egypt and Syria is very different from how it is practiced in India.

Muslim men in India can easily justify marrying four women, citing a provision in Quran, but this can’t be done in several Muslim countries where polygamy is heavily regulated and even banned. “According to Quran, polygamy is conditional and not an absolute right. In India, any Muslim man can keep four wives irrespective of his economic status and irrespective of the whether he actually needs more than one wife. This needs to be regulated,” said Mohammad Ghitrif, an Islamic scholar who is a guest lecturer of Islamic studies at Jamia Millia Islamia University.

Take the case of Turkey, a predominantly Muslim nation. It banned polygamy in 1926, stipulating a punishment of up to two years imprisonment for any man who violated the law. In 1956, Tunisia became the first Arab state to abolish polygamy. Muslim countries like Egypt, Malaysia and Pakistan, polygamy is permitted only with the consent of first wife. Another controversial practice, triple talaq has been abolished in more than 20 countries.

Interestingly, Turkey which a sectarian composition similar to India has seen many reforms.

Even in India, a large section of Muslims has been demanding a ban on triple talaq – a practice which exists only in the Sunni sect of Islam – but the All India Muslim Personal Law Board, an umbrella body of Muslim scholars from all school of thoughts in India, has been strongly opposing the idea.

“India does not need any reforms in the Muslim personal law,” says Asma Zehra, member of the AIMLB. “Polygamy and triple talaq are part of Islamic traditions and if religious entity has a tradition, that needs to be respected. India Muslims have been practicing Islam in the most authentic and traditional manner. India cannot be compared to other countries like Turkey.”

However, Islamic scholar Waris Mazhari, cautions against imposing these reforms. “Internal reforms are the need of the hour just as it has been brought in many Muslim countries. They should not be considered as threat to Islam. However, changes should not be imposed by the government,” said Mazhari, who is also a graduate of Dar-ul-uloom, Deoband.

A day in the Sharia court

Barely 10 kilometres from the busy Patiala House court complex lies Delhi’s oldest Sharia court in Jamia Nagar -- the Darul Qaza. Till October 16, when another court was inaugurated in Mandawali, it was the only Shariah court in the city.

Unlike other courts, there are no queues or rush here; on average, it only gets a couple of cases per week. The 48-year-old qazi, Mohammed Kamil Qasmi, presides over the Sharia court in Jamia Nagar but doesn’t lord over the proceedings. Instead, he sits behind a wooden low-rise writing desk. His courtroom is bereft of a witness box. Qazi Qasmi, who has been pronouncing verdicts in the Sharia court ever since it was constituted in 1994, also does not have a battery of assistants to help him like regular courts do. A solitary young aide usually helps him with the proceedings. The courtroom also houses a library of over 200 books in Urdu, Arabic, English and even Hindi on Indian and Muslim personal law.

Sharia courts don’t take many holidays; they are off only during the 20 days during Ramzan and a week during Eid-ul-zuha. However, the working hours of these courts are between 9 am to 1 pm. There is also a difference in the kind of security and infrastructure that regular courts enjoy. There are around 100 sharia courts across the country and apart from the qazi, most courts have a counseling committee.

On this particular day, as he sits reciting holy verses, a young woman, along with a man, walks in the courtroom. The qazi asks her if she has got her shikaayatnama (complaint). The woman, who seems to be in her early thirties, nods in agreement and hands over a one-page note, written in urdu, to the qazi, who reads it and asks her some questions. Urdu is the official language of the court. “Can this man, who saw the incident, depose about it? Who else can buttress your claims,” the qazi asks.

The case of about cruelty by the woman’s husband and of forced marriage, and so, the woman wants separation from her husband. The hearing lasts for about 10 minutes. The woman tells the qazi that the eyewitness can come, and that neighbours can be also called as witnesses. The qazi then prepares a one-page notice and tells the woman that he will send it to her husband.

He also asks her to bring eyewitnesses and four other witnesses along with her on the next date of hearing, to be held 13 days later. The woman deposits Rs 300 as fees for registering her case, thanks the qazi and leaves.

Soon, two women walk in and the elder woman requests the qazi to provide her copy of an order of her divorce for which she had applied in the year 2003. The qazi asks her to provide the exact date, which she fails to give, and then a brief argument ensues after which he calls her the next day.

Some rules of the Sharia court are common with regular courts, such as the usage of phones is not allowed, bribe is prohibited, etc.

On his opinions on the Uniform Civil Code, the qazi says that the government should not interfere in the Muslim personal laws. “Sharia courts are delivering speedy justice at hardly any cost. We are helping the Indian judiciary which is already overburdened with work,” he says.

When asked if he faces problems in executing or delivering judgments, qazi recalls an incident when got a death threat from a man whose wife wanted him to separate from him and he did not want the qazi to rule in his wife’s favour. “He was a wife-beater and there was no scope of reconciliation between the couple. He threatened me of dire consequences but I did what God wants me to do — justice.”

Most cases in both Sharia court as well as family courts pertain to divorce matters. In the last one year from October 15, 2015 till October 2, this year, the Sharia court in Delhi has received 63 cases and has handled 621 cases since its inception in 1994. However, the cases that family courts get are much more than Sharia courts. Though family courts get cases from all religious communities, at least 5% of these cases are filed by Muslims, said a prominent divorce lawyer from Delhi, who did not wish to be identified.  

—Sana Shakil

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