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Faulty model

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The draft model nikahnama proposed by the All India Muslim Personal Law Board denies women a fair deal, says AIDWA

January 30, 2004
The Chairman
All India Muslim Personal
Law Board
Nadwa Sharif
Lucknow

Sir, We write this memorandum to you on behalf of the All India Democratic Women’s Association (AIDWA) representing 7.5 million women of all communities and regions. In particular AIDWA has a substantial membership among Muslim women and is deeply involved in many of the issues of specific concern to Muslim women in the economic, social and political spheres. We believe that there is discrimination against Muslim women by the State reflected even in government statistics on employment, credit, education, and so on. At the same time, similar to women in other communities, Muslim women also suffer from the lack of substantial reform in personal laws applicable to them.

In this context our association has had several rounds of discussions with the Muslim Personal Law Board officials. You will also recall that our members had participated in the meeting called by the MPLB on Muslim women’s issues in April 2001. On that occasion we had submitted a memorandum to you endorsed by almost all the women present requesting you to initiate certain important reforms in Muslim Personal Laws. The then chairman of the Board, the (late) Qazi Mujahidul Islam Qasmi had given us a sympathetic hearing and assured the women present that the Board would prepare a model nikahnama to bring relief to Muslim women.

Unfortunately, it has taken four long years for the draft to be prepared. We have studied the draft now prepared by the MPLB. We would like to express our deep disappointment with the contents of the draft. Since the draft is to be ratified in the general body meeting of the Board at a later date, we are taking this opportunity to bring to your notice certain infirmities in the draft which we hope will be rectified by you.

A marriage performed under Muslim Personal Law, which recognises marriage as a contract between two persons, gives the Muslim woman certain rights not available to other women. She can draw up a nikahnama which guarantees her rights within the marriage. A model nikahnama must necessarily be framed in a way to safeguard the welfare and rights of the bride. It is then up to the groom to accept the conditions. Once the conditions of the nikahnama are accepted it is binding on both parties. Unfortunately, the model nikahnama circulated by you does not at all protect the interests of the bride, nor does it give her the right to put her own conditions for the marriage. Most Muslim women in our country are not even aware of the fact that they have the right to frame the nikahnama and impose conditions on their husbands. This is a very important right that Muslim women have been given which is, unfortunately, being withheld from them by keeping them in ignorance. The Muslim Personal Law Board must necessarily educate the community that the woman under personal law does have the right to frame conditions in the nikahnama.

Unfortunately, instead of making this right of Muslim women central to the concept of a model nikahnama, the MPLB draft is discriminatory against women: everything that is favourable to women has been included only as a pious piece of advice, on the other hand, everything that militates against woman’s rights has been described as Islamic injunctions.

At the outset we would like to express our strong disagreement with the directive in the draft that in case of any unresolved dispute between the two parties, they should appeal to a Shari’ah court. This directive impinges on the rights of Muslim women to appeal to secular courts on issues of direct concern to them. Clearly, this cannot be accepted. This also seems to be part of the long-standing demand of the MPLB for the establishment of Shari’ah courts. Without going into the demerits of this demand we emphasise that it should not be included in the nikahnama. In case of an unresolved dispute either side has the right to go to court as is the right of all Indian citizens.

One of the major issues before Muslim women is that of arbitrary triple talaq in one sitting. This practice exists only in India. Everywhere else in the world, including in Islamic States, there are conditions for talaq. We had expected that the Board would have taken a clear and strong position against this retrograde practice. However, the wording of the sentence "to avoid talaq in one sitting" or to "avoid talaq without compulsion" is far too vague and will not give any relief to women victims of this practice. We therefore request you to declare that arbitrary triple talaq is impermissible and is banned. This is essential to protect the rights of women.

We welcome your suggestion in the section on instructions to the bride and

groom that cash, dowry and feast for the baraat should not be demanded by the groom or his parents. You have stated that it is against Shari’ah and is a great sin. Perhaps you could add that it is impermissible. Please also think of ways that those who demand dowry should be punished by the community.

We list some of the other points below:

In the section entitled ‘Instructions to the maulvi performing the nikah’:
1. It is stated in the MPLB draft that if the couple are both minors or if one of them is a minor, the guardian’s/guardians’ consent must be obtained. This is extremely unfortunate since it condones marriage of minors. The Child Marriages Restraint Act based on the protection of the rights of children must be the guiding point on this issue.

2. It is stated that the woman should not be the divorcee of the same man, even mitigating circumstances are not mentioned. This is giving sanction to the humiliating practice of ‘halala’.

3. The draft states that Shari’ah has permitted second marriage or polygamy with the condition of all wives being given equal and just treatment. Instead of discouraging polygamy and putting it in the context when it was first permitted, the draft thus sanctions polygamy. How can the maulvi know whether the second or polygamous marriage will not lead to discrimination against the first wife or that all wives will be given equal and just treatment?

4. In this section, maulvis are asked not to permit certain types of marriages. However, a marriage of a man with another woman even while his divorced wife is in iddat is permitted. This is extremely unjust to the divorced woman and should not be permitted. In any case, instructions to maulvis cannot and should not form part of the nikahnama, which is between the husband and wife. If found necessary, the instructions to the maulvis can be issued separately.

In the section ‘Instructions for the bride and bridegroom’:

We are glad that the MPLB has addressed the issue of violence. However, the phrasing that "the wife should be treated justly" and that "violence should be avoided" is again far too vague. It could be interpreted to mean that violence is permissible but better avoided. There should be a categorical instruction against violence.

Shockingly, the right of a wife to a divorce is not even mentioned. Even ‘khula’ is omitted in the draft. It would have been better if you had included the right of talaq-e-tafwid for the wife so that she could demand a divorce if the husband violated the conditions laid down by her, e.g. fails to maintain her and their children, takes another wife, etc. There must be a section on the rights of a wife including the right to divorce. A section on the rights of divorced women and children, their right to residence, to maintenance, education and inheritance rights of children should also be included.

In the sections ‘Rights of the husband and wife on each other’:
This section has a series of instructions for the wife – i.e. she cannot visit anyone without her husband’s permission; she must safeguard her modesty and look after the children. Even the visits of the wife to her own family are circumscribed by what is considered "necessary". The wife’s freedom of movement is curtailed while there are no such restrictions on the husband’s movements. These sections are heavily weighted against the wife and need to be rewritten entirely. One of the increasing problems is that of alcoholism and gambling among men. These should be specifically mentioned and disapproved.

It is mentioned that mehr should be paid at the time of the nikah in part or in full. If it is paid later then it should be paid in silver or gold. This again does not guarantee payment of mehr to the wife as it should but, in fact, provides a loophole for the husband. It should be made clear that it is incumbent for the husband to pay the full mehr at the time of marriage.

Conclusion:

Sir, these are a few of the objections and suggestions we have on the MPLB draft. We would like to point out that in the given situation of the various levels of discrimination that Muslim women face including being made the targets of communal forces, it is extremely important for the rights of Muslim women within the community to be strengthened. It is our belief based on experience that fundamentalists of all communities misuse religion and so-called religious sanction to protect their own sectarian and hidebound views which in fact have no religious sanction and in fact militate against the Constitution of India. The need for reform in Muslim Personal Law is apparent and much delayed. You are also aware that when there is little hope within the community for reform, individual Muslim women have been approaching various courts of law for redressal of their grievances. We believe that personal law reform that is initiated from within the community has a lasting effect. We hope that you will not delay the processes of justice to Muslim women any further. The framing of a model nikahnama provides you with the opportunity to send a strong message for personal law reform to the community. We hope you will consider our views based on the experience we have with working with Muslim women from all sections across the country and redraft the nikahnama accordingly.

Yours,

Anwara Mirza
Zarina Khursheed
Maimoona Mollah
Rehana Sayeed
Mariam Dhawale
PK Zainaba
aidwa@ndb.vsnl.net.in

Of human compassion

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Adversity, it is said, brings out both the best and the worst in us. So it has been with the tsunami tragedy. It will no doubt be a long, long time before near and dear ones of the over 162,000 people who were swept away by the killer waves, and the hundreds of thousands of survivors, can overcome their grief and trauma. Meanwhile, however, we can draw some inspiration from the numerous accounts of individuals who risked their own lives to rescue others. And some comfort from the fact that in India and elsewhere the response to the urgent relief needs of the victims has been spontaneous and generous with both commoners and celebrities contributing.

As in case of the devastating earthquakes in Maharashtra in 1993 and Gujarat in 2001, or the Orissa cyclone in 1999, the print and electronic media promptly put out appeals and started their own relief funds in aid of the devastated survivors. That’s our better side, which we can all, in some quiet way, celebrate. Sadly, however, even in times that cry out for a show of basic humanity, some of us cannot help but display the darker side of human nature. So we have had reports about those whose first concern it was to snatch what they could of the personal belongings of those no longer alive. There were reports in the past of how the sangh parivar used the opportunity to weave their network of hate into the post-cyclone relief work in Orissa and how caste discrimination was built into the post-quake rehabilitation efforts in Latur (Maharashtra) and Kutch (Gujarat). Yet again, within days of the tsunami striking, the national and international media and Dalit organisations were sending out alerts on how in the dispersal of relief Dalits were being sidelined in the tsunami hit coastal zones of Tamil Nadu.

Of course, "we" can distance ourselves from such disturbing accounts and tell ourselves that, thank god, "we" are not like that. But while we give ourselves credit for responding promptly to natural disasters as in 1993, 1999 or 2001, should we not ask ourselves, yet again, what happens to our human compassion and sense of social responsibility in the face of man-made calamities as in 2002 (Gujarat genocide)? In the aftermath of a State-sponsored carnage, where were celebrities and common folk and where were the media’s relief funds?

Over the years, we have published several cover stories and special reports highlighting the hijacking of the movement in Kashmir by Pakistan-aided Islamic extremist outfits and also focussed on the plight of Kashmiri Pandits forced to become refugees in their own land. In our cover story in this issue, Anuradha Bhasin Jamwal, the Jammu-based executive editor of Kashmir Times takes us back to the time of India’s bloody partition and forces us to re-examine the roots of communal prejudice in the Valley. Delving into the past she raises some uncomfortable questions that we need to face up to if we are to have a proper appreciation of how this paradise on earth so rapidly deteriorated into hellish conditions within a few short decades.

Among other things, the tortuous trail of the ongoing Best Bakery trial has once again highlighted how judicial delays and the absence of a proper witness protection programme subvert the judicial process in India. Similarly, the commencement of the trial in the case of the 1991 massacre of Dalits of Tsundur in Andhra Pradesh, 13 years after the carnage, makes a mockery of the justice process. But it is also a tribute to the entire community of Tsundur’s Dalits who have stood rock-like behind the surviving witnesses in their resolve to ensure that the guilty are punished. We have a special report on this along with an appeal for solidarity support from groups and individuals during the trial. We also have an accompanying report from Kerala that clearly shows how, in the absence both of a witness protection programme and a community that is at once vigilant and supportive, politicians with criminal antecedents continuously threaten and bribe victims and use devious means to discredit human rights defenders fighting for justice.

Meanwhile, there is some very good news from Karnataka. The Karnataka Communal Harmony Forum offers an excellent case study on how the hate-mongers can be put on the back foot given persistence and an action plan that appeals to ordinary citizens. Thanks to the Forum’s unique mobilisation, the sangh parivar’s determination to convert the Baba Boudhangiri Dargah into an ‘Ayodhya of South India’ stands frustrated, at least for the moment.

– EDITORS

Archived from Communalism Combat, January  2005,  Year 11  No.104, Editorial

1984, 1992-93, 2002…

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It was some weeks before the recent developments in the Best Bakery case that we had
resolved that our next cover story would commemmorate the 20th anniversary of the anti-Sikh massacre of November 1984. Written by senior lawyer, HS Phoolka, who has been at the forefront of the legal battle for the victims of that carnage, the facts, dispassionately narrated, log serious black marks against our system.

Phoolka, incidentally, was publicly threatened in the course of a live programme on national television on September 7, 2004 by Union Minister Jagdish Tytler, a man who continues to face the charge of leading and inciting a mob during the anti-Sikh carnage in Delhi. This speaks volumes for the impunity that our system gives to those charged with serious mass crimes. On the basis of the evidence placed before it, the ongoing Nanavati Commission has issued notice to Tytler, on the prima facie ground that there was a case against him. The Commission relied on the eyewitness report of Surinder Singh, a head granthi (priest) of a Sikh gurdwara, who had said in his affidavit that during the November 1984 carnage he saw Tytler incite and lead a mob of rioters to burn the gurdwara and kill Sikhs.

Of the 2,000 prosecutions launched in courts arising out of the massacre of Sikhs, only nine convictions have resulted. None involved prominent politicians or members of the police force who hold command responsibility and need to be directly held responsible and culpable when mass crimes against sections of the population take place.

Eighteen years after Delhi 1984, the Gujarat genocide of 2002 shocked the conscience of the people, including jurists, profoundly. A historic verdict delivered on April 12, 2004 not only attempted corrective justice but in scathing, no-nonsense terms, squarely detailed the hell let loose on the soil of Gujarat by the political leadership. Just as a corrective process was underway and the re-trial had begun in Mumbai in accordance with the historic verdict, (see Special Report in this issue), a serious attempt to challenge these remedial attempts is afoot. Since the day that Zahira Sheikh held her press conference in Vadodara on November 3, 2004, at which she rubbished the historic steps underway to renew faith in the judicial process and hurled baseless allegations at us while declaring herself as a hostile witness, we have maintained that she is a pawn for those who would like to see justice subverted in Gujarat.

In a system and society that grapples with the reality of interminably long drawn out criminal trials, a very low conviction rate (a mere six per cent in criminal cases) and a huge backlog of cases, the phenomenon of witnesses being made to turn hostile is unfortunately routine. Radical reform and corrective measures that include both police and judicial reform, witness protection schemes and a new law to prevent and punish genocidal killings are the crying need of the hour.

Between Delhi 1984 and Gujarat 2002, the mapping of violent internal conflict includes the Meerut-Malliana (UP) massacre in 1987, where Provincial Armed Constabulary (PAC) jawans lined up and shot dead in cold blood 53 Muslim youth and the Bhagalpur massacre of 1989 during which an overnight slaughter of the minority (nearly 1,000 were killed) was organised. In one gruesome incident, bodies were buried and vegetables planted over them in a unique cover-up operation. There have been no convictions worth the name for these crimes. In the post-Babri demolition violence in Bombay 1992-1993, despite the publication of the Srikrishna Commission report in February 1998, no significant prosecutions have followed.

The message is therefore clear. For the perpetrators of a pogrom or genocidal killing, impunity from prosecution and punishment appears to be guaranteed in advance. Armed with this impunity, the mass murderers have mastered techniques of subversion of investigation. And the destruction of evidence is now ‘in-built’ into the very modes of killing adopted. This was clearly visible in Gujarat where a chemical powder was extensively used while burning people so that no trace of the victims remained and which made it all the more difficult to ‘count the dead’.

Demonisation of sections of the population through hate speech and hate writing are a vital ingredient of the genocidal plan. Delhi 1984 and Gujarat 2002 displayed this tendency in full as did the pogroms in between. Economic crippling and cultural humiliation wrap up the picture. If 270 dargahs and masjids were destroyed in the first 72 hours in Gujarat (see Genocide; Gujarat 2002), 450 gurdwaras (nearly 75%) were destroyed or seriously damaged in 1984.

Each or all of these elements have been visible on Indian soil for well nigh a quarter of a century. Nineteen-eighty-four constitutes a watershed in the history of communal violence in post-Independence India. While earlier there were riots, what we have been witnessing with frightening frequency since 1984 are one-sided pogroms and genocidal assaults with the active connivance of, if not brazen sponsorship by, the State. Even as justice eludes the victim-survivors of 1984 (Delhi) and Mumbai (1992-93), the post-2002 attempts to subvert investigation and justice for the victim-survivors of the Gujarat genocide are a new challenge to Indian democracy. Will it respond?
— Editors

Archived from Communalism Combat, November-December 2004. Year 11    No.103, Editorial