(This interview first published on Scroll.in in May 2015 is being republished here in view of the shrill campaign launched by the All India Muslim Personal Law Board and other Muslim bodies any any reform in Muslim Personal Law)

Former Dean of Delhi University’s Law Faculty and former Chairman of the National Commission for Minorities Prof Tahir Mahmood is an internationally recognised expert on Muslim Law. He speaks on the system of divorce among Muslims and how maulvis and the All India Muslim Personal Law Board have thwarted reforms that could have benefited the community. Excerpts from an interview:

In your book, Introduction to Muslim Law, you have written, 'In India Muslim law is applied as a part of the country’s civil law, and not as part of the Muslim religion. It does not enjoy any special status so as to be protected by the religious-liberty provisions of the Indian Constitution.' Are you saying Muslim Law is subject to changes?
Muslim Law, as also Hindu Law, Christian Law and Parsi Law have been chapters of Indian Family Law. They continue to be applied even now, subject to changes, amendments, alterations, deletions and abolitions made by the competent authority, that is, Parliament and the Supreme Court. There is absolutely nothing, not even a word, in the Indian Constitution protecting the personal law of any community, nor exempting it from the jurisdiction of Parliament or state Assemblies or any higher courts.

On the contrary, there is a specific provision in the Constitution giving power to Parliament and state Assemblies to amend and repeal existing laws or pass new laws in all those matters which were on August 15, 1947, governed by personal laws. This is Entry V in the Concurrent List.

But Muslim leaders and clerics insist that Muslim Personal Law is derived from the Quran and, therefore, cannot be altered.
Well, it is absolutely foolish to say any personal law is protected by the Constitution. None of the freedom of religion clauses in the Constitution, from Article 25 to Article 28, even remotely talks of personal law. On the contrary, an explanation in Article 25 says that freedom of religion will not preclude the state from introducing social reforms and enacting laws on subjects traditionally associated with religion.

Muslim Personal Law has changed in other countries, hasn’t it? Why are clerics in India so resistant to change?
I suppose this question is best asked to them. But ignorance, obstinacy, blind belief in religion and morbid religiosity are undoubtedly the factors.

Muslim Law is viewed to be tilted against women. The most evocative symbol of this view is triple talaq, namely, that Muslim men can divorce women by simply pronouncing talaq three times. You have rejected the concept of triple talaq, saying that it doesn’t adhere to the correct Islamic procedure. What is the correct procedure?
The law on this point is absolutely clear in the Quran. There are two verses in the Quran pertaining to talaq. One verse says, “Divorce is only twice.” The background to this verse was the social condition prevailing in the pre-Islamic period – husbands would divorce their wives temporarily, because every divorce was revocable till the iddat period [This corresponds to roughly three months, the expiry of which leads to couples separating]. They would divorce their wives, revoke it on the last day of iddat, enjoy them for some time and again divorce. Basically, they kept playing hide and seek with wives all their lives.

To stop this devilish practice, the Quran declared that a person can revoke his divorce only once. This means if the husband divorces his wife the second time in his life, the marriage is instantly dissolved. She will not remain his wife, iddat or no iddat.

The other Quranic verse says a person can’t divorce his wife unless there is an arbitration or reconciliation process, which requires representations from both sides. The maulvis have assumed the power of deciding that the first verse is Quranic law and the other is just Quranic morality, not law. Who has authorised them to make this distinction? The Quran does not speak of law and morality. Whatever the Quran says is Quranic.

So how did this practice of triple talaq come to India and why is it entrenched in India?
It was there everywhere. But, other than India, it has been reformed elsewhere. Islam didn’t introduce this practice of triple talaq. Islam, on the contrary, tried to stop this, as I have already explained. But custom was deeply rooted and it continued thereafter.

Since triple talaq doesn’t have the Quranic sanction, would you say this practice should be banned in India?
Triple talaq has been banned all over the Muslim world. Why should India be sticking to this 7th century law?

I assume you must have spoken to the supporters of triple talaq and tried to make them see reason.
I have spoken to them enough. I don’t want to waste my time anymore. I can’t convince the fanatics. They will remain what they are.

What arguments did they cite to you for insisting on continuing with triple talaq?
These people say they are not competent to understand the Quran. They say they are bound by the interpretation of the Quran by this or that Imam who lived in the first 100 years of Islam’s advent. Just as the Constitution is what the Supreme Court of India says it is, the Quran is what Imam Abu Hanifa (699-767 CE) or Imam Shaefi (767-820 CE) said it was. It doesn’t matter to them that the Quran at the outset asks the reader to go deep into its meanings and decide it for himself. Nor does it matter to them that the revered Imams cautioned people against following them blindly. Read the Quran and decide for yourself, they said. Unfortunately, we in India are going in the contrary direction.

Islam enables couples to divorce without having to go to the court. Do you think it leads to exploitation of women, even though not taking recourse to the legal system is inexpensive?
There is a concept of divorce by mutual consent that is embedded in modern law. The policy behind [it] is that if both the husband and wife want to divorce through mutual consent, the court isn’t allowed to probe their decision. Similarly, Prophet Mohammad wanted couples who thought their marriage had broken beyond repair to walk away from it, either together or alone, by following the prescribed procedure. This procedure is separate for men and women, and there is also one by which couples can divorce through mutual consent. Prophet Mohammad didn’t want such couples to go to courts.

Under Islamic law, is it possible for couples to stipulate in the marriage agreement that the wife shall have the right to dissolve the marriage by her own action?
Yes, it is called contractual divorce.

But do wives have equal rights to divorce under Islamic Law?
Wives have equal rights through khula, which is the counterpart of talaq by men. Khula is divorce at the behest of women. She can tell her husband that she does not want to live with him. The husband can’t even ask her why. Khula is her decision. So if the husband agrees to give divorce, it is well and good. The only thing he can ask for is that he wouldn’t pay her mehr or dower. It is possible the husband might not listen to her and agree to divorce her. In that case, the woman can go to the qazi to have khula enforced.

But muftis say that if the husband doesn’t agree to divorce her, then the wife has to stay with him.
Rubbish, the law has already been interpreted by the Supreme Court of Pakistan that in khula the decisive voice is that of the wife.

So is the woman’s right to divorce equal to that of the man in Islamic Law?
Almost equal. In fact, the wife has more powers than the husband, who can divorce through the process of talaq only. The wife has khula, contractual divorce, and, on top of it, the power of faskh, by which she can approach the court for divorce on a ground or allegation and prove it. These grounds have been codified in India, through the Dissolution of Muslim Marriages Act, 1939. In contrast to faskh, khula is unilateral.

Under Islamic law, is maintenance to a divorced woman after the iddat period recognised?
Yes, it is. I have been asking the maulvis to cite me any verse from the Quran or any Hadith [tradition of the Prophet] that says paying maintenance after iddat is haram [forbidden]. The Quran says maintenance has to be paid to the divorced woman during the iddat period. Since she can’t remarry during iddat, maintenance for this period is mandatory. After the expiry of iddat, in the Arabic society during the Quranic days, the woman used to get remarried immediately.

The correct interpretation of the law is that maintenance up to the iddat period is mandatory, but if she gets remarried then the liability is of her new husband. Otherwise the maintenance continues. So maintenance during iddat is the minimum period, not maximum.

But are there examples of husbands paying maintenance to their divorced wives beyond the iddat period in earlier centuries?
Under the law of contractual divorce heavy amounts were paid even in early times. This is known as mata or compensation for arbitrated divorce.

Why did the Shah Bano case then trigger such a controversy?
The Shah Bano case wasn’t on Muslim Law. The simple issue before the Supreme Court Bench was whether the CrPC [Code of Criminal Procedure] law is applicable to Muslim divorcees. The Bench should have simply said, yes, it is applicable. Instead of saying that, the Bench tried to prove that the law is in accordance with the Quran, conveying the wrong impression that the Bench was reinterpreting the holy text. Then in its judgement, as it always happens, the Bench ended with a lament for the Uniform Civil Code.

What is your position on the Uniform Civil Code?
If the UCC means modern Hindu law, then I’d say no. In fact, 99% of people use the UCC as a synonym or euphemism for modern Hindu law. The minority communities, not Muslims alone, will never accept it. The lady sitting there [in his drawing room, where the interview was conducted] is a Christian. Can you ask her not to go to the church to get married, that she should instead do so under Hindu Law, with pheras and all?

Secondly, Hindu Law is itself not a modern law – it is full of gender- and religion-based discrimination. For instance, if a married Hindu woman were to become a Sikh or Buddhist or Jain, she continues to enjoy all her rights against her husband. But if she were to become Muslim or Christian, she instantly loses all her civil rights. It is a bias of Himalayan proportions. Or if the husband wants to give his child in adoption to someone else, he needs the consent of his wife, provided she hasn’t converted to Islam or Christianity. If she has converted to Buddhism or Sikhism or Jainism, her consent is still mandatory.

Under the Hindu Succession Act, 1956, if a son becomes Muslim or Christian and he dies in the lifetime of his father, then whether the son’s children can inherit from their grandfather depends on whether they were born before or after their father’s conversion. This was enacted by Parliament of modern, secular India six years after the adoption of the Constitution of India. What is the fun in talking about the UCC?

What about that Muslim law which treats two female witnesses as equal to one male witness?
This is a non-existent provision which maulvis cite. It is a concoction. There is no Quranic sanction.

How come nobody attempts to address the anomalies that have crept into Muslim Law?
It has been answered by the state all over the world. India is the only exception.

How do we get out of this rut?
We can’t, as long as we have the minority syndrome. Bangladesh has 12% Hindu population, but Hindu Law there remains where it was on August 15, 1947. By contrast, Muslim Law has undergone changes in Bangladesh and Pakistan. In the subcontinent there is a minority syndrome, which is deepest here in India. The hold of maulvis over the community is so strong that there is absolutely no scope for reform of Muslim Law in any foreseeable future in India. For any reform, we will have to look at the judiciary, which has been introducing it through a circuitous way. The judiciary is the only hope.

Do you think the All India Muslim Personal Law Board has been an agent of change?
Frankly, I want the Board to be abolished. Its members are paranoid and they speak rubbish. Every time the Supreme Court delivers a judgement, the Board members say it is interfering with Shariat. They are doing disservice to the community. They have succeeded in making the community believe that Muslim Personal Law means the Quran and that there is no difference between the two, and that both are divine.

In my autobiography, Amid Gods and Lords, which was recently released, I have cited an anecdote. A maulvi and a pandit go to God and both complain that their communities don’t accept social reform. After a long argument, God counsels them to be patient with their community and that a time would come when they would accept reform. The pandit asks, “When would that time come?” God said, “Not in your lifetime.” Then the maulvi asked, “When would that time come for my community?” God said, “Not in my lifetime.”

Every sensible Hadith is declared false, every sensible verse of the Quran has been abrogated.

How do you abrogate a verse of the Quran?
I will give you an example. There is a verse in the Quran which says that every person who is dying must make a will in favour of his wife. There is also a verse fixing the wife’s share in the husband’s property. The maulvis say the verse relating to the husband’s will has been abrogated and the share of wife is just 12.5%. They quote a Hadith which says the wife’s share can’t be augmented even through the husband’s will. Whatever is convenient to men the maulvis say that is law.

I must tell you about a seminar in Chennai. It was on false Hadith. In one session there was a question, why do maulvis say Muslims shouldn’t keep dogs as pets? The maulvis cited a Hadith to back it, while others claimed that this particular Hadith was a concocted one.

I was chairing the session. There was an hour of discussion. Several reasons were cited, the principal one being that the dog is a dirty animal, etc. At the end of the discussion, I gave my opinion: “Dog is the only animal bestowed by God with common sense. But maulvis can’t tolerate common sense. That’s the only reason why they don’t want dogs to be kept as pets.”

Ajaz Ashraf is a journalist from Delhi. His novel, The Hour Before Dawn, published by HarperCollins, is available in bookstores.

The post Ban Triple Talaq, Abolish Muslim Personal Law Board, says former Minorities Commission Chairman appeared first on SabrangIndia.

Even as the Muslim Personal Law Board continues with an archaic, rigid and untenable view on triple talaq,  Sabrangindia reproduces an article by legal expert and jurist Tahir Mahmood that exposes the argument

Image: AFP

“The Supreme Court cannot test the validity of Muslim law on the touchstone of fundamental rights guaranteed by the Constitution since it is not a State-made law.” This is what former Chief Justice Aziz Ahmadi’s lawyer-son Huzefa Ahmadi has reportedly told the court the other day. The constitutional tenability of his contention needs to be examined in its proper perspective.
 
In October 2015 a Supreme Court Bench was hearing arguments in the case of Prakash v Phulwati in which gender discrimination under the Hindu Succession Act 1956 had been challenged for its constitutional validity. As the lawyer opposing the challenge argued that similar discriminations under Muslim law had been allowed by the courts to stay, the Bench directed that a PIL be registered suo motu for the consideration of that matter by an appropriate bench to be constituted by the Chief Justice.
 
In a bid to preempt any further proceeding in the matter, the Maharashtra unit of the Jamiat-ul-Ulama has now filed a petition in the court arguing that non-statutory Muslim law is outside the ambit of fundamental rights. Huzefa has made the contention referred to above as the petitioner’s lawyer.       
 
In Part III of the Constitution guaranteeing fundamental rights Article 13 says that any past or future law made by the State, as also any custom and usage, going against its provisions would be void. As it does not specifically mention personal laws, there has been a controversy whether this prefatory declaration in Part III covers also the personal laws [which are claimed to be something different from custom and usage].

All religious communities in India are governed by their respective personal laws which, with the sole exception of Muslim law, are now found in legislative enactments.  While these codified personal laws can be seen as State-made laws, for the uncodified Muslim law it is claimed by the community leaders that not being a “State-made law” it is beyond the scope of Part III.

The contention is clearly erroneous. The uncodified Muslim law is in force in India not as part of Muslim religion [as Muslim religious leaders presume] but because of its recognition by state legislation, mainly the Muslim Personal Law (Shariat) Application Act 1937. Particular chapters of Muslim law are protected by specific provisions of several other statutes – law of gifts by the Transfer of Property Act 1882, of wills by the Indian Succession Act 1925 of dower by the Dowry Prohibition Act 1961, and so on.

Jurisprudentially, no difference can be made between a personal law incorporated in some legislative enactments and another applied by the courts under the authority conferred by some other legislative enactments.

Even if it is presumed that personal laws are covered by the fundamental right to religious freedom under Article 25 of the Constitution, that Article itself emphatically says that this right will not prevent the State from introducing social reforms. In any case the Constitution does not exempt any personal law from the legislative powers of the State – on the contrary it specifically puts all personal law matters, without exempting any community, within the competence of Parliament and state legislatures [Schedule VII, List III, entry 5].  Further, all personal laws are administered in the country by State courts and nothing in the Constitution exempts any of them from the higher courts’ power of judicial review.

I am not saying that Muslim law should not be retained in force and  have always loudly said that the State cannot repeal Muslim law without first repealing the four Hindu law Acts enacted by Parliament in 1955-56 [ignoring the civil laws of marriage and succession which were already available as a secular option].  My stand that if the personal law system is to be abandoned in favour of a common law the lead must come from the majority community was cited in the Shah Bano case (1985) with a rider “lead or no lead the State must act.”

The Muslim law claimed to be of “divine” origin is practised in India in an awfully distorted way going in a direction diametrically opposed to clear teachings of the Holy Quran and the Holy Prophet who was indeed one of the greatest social reformers in human history.

Disagreeing with it, I maintain my considered opinion that repealing the traditional Muslim law while retaining the modern Hindu law – which also, like the former, is replete with religious and gender discriminations — will be repugnant to the Constitution.    

The Muslim law claimed to be of “divine” origin is practised in India in an awfully distorted way going in a direction diametrically opposed to clear teachings of the Holy Quran and the Holy Prophet who was indeed one of the greatest social reformers in human history. For sixty-eight years since independence religious leaders have succeeded in preventing any legislative reform. In the absence of any corrective legislation the apex court of the country has cautiously tried to retrieve the original principles of Muslim law and apply them in their true letter and spirit. Religious leaders always deprecate such rulings too, sometimes in words bordering on contempt of court. 

Those who claim immunity for Muslim personal law from the jurisdiction of the country’s apex court must read the writing on the wall and let it remain in force as a matter of state policy, without questioning its judicial interpretations. Invoking the Constitution for its protection is an utterly unwise move which may prove fatal for its continuation in force.  

(The writer is Professor of Eminence & Honorary Chairman, Institute of Advanced Legal Studies, Amity University, former Chairman, National Minorities Commission, former Member, National Human Rights Commission and the Law Commission of India)
 

The post Invoking the Constitution to Save Muslim Law Unwise and Erroneous appeared first on SabrangIndia.

 
Will Secular India Survive

The constitution ‘enacted, adopted and given to ourselves’ in November 1949 did not declare that India would be a secular state. Constituent assembly leaders like Nehru and Ambedkar were sure that by not proclaiming any ‘state religion’ and by enshrining in the constitution principles of citizen’s equality and non-discrimination on the ground of religion they had put India on a secular footing.

To make things clearer, they had added a few more provisions in the constitution – religious freedom allowed to individuals and communities subject to specified conditions, no compulsion to pay tax for promoting any particular religion, no religious instruction at all in educational institutions wholly maintained out of state funds, and no compulsory religious instruction or worship in other recognized and aided institutions.

Democracy being a game of numbers, to protect religious minorities from a highly probable hegemony of the predominant majority in respect of educational development they included in the constitution a fundamental right – notably, unlike other such rights, unqualified – to establish and administer educational institutions of their choice.

The constitution-makers did not enshrine in the charter of governance produced by them any ‘non-establishment’ clause or a ‘wall of separation’ between religion and state, as under the US constitution. On the contrary they included in it a number of provisions essentially creating religion-state links — theological restrictions on entry into Hindu, Buddhist, Jain and Sikh religious institutions to be removed by law, cow and its progeny to be meticulously protected [due to the majority community’s reverence for the bovine as later acknowledged by the apex court], and the religious practice of wearing and carrying kirpans to be respected as a fundamental right of the Sikhs.

The party now ruling at the centre is translating into practice its own well known ideology. Communal vituperation by its partners in governance and atrocities by its followers in the society are being met with a calculated silence.

Within six years the constitution was amended to obligate the states of Kerala and Tamil Nadu to provide specified annuities for the maintenance of local dewasom temples. In the eyes of the constitution-makers these selective religious and community-specific provisions had no adverse effect on the secular character of the state. In 1976,  fully retaining all of these, the constitution was amended to add the word ‘secular’ to the description of India in the preamble. From a sovereign democratic republic the nation was upgraded to the status of a ‘sovereign socialist secular democratic republic.’.

It was thus restrictive secularism, not absolute or unqualified, that the founding fathers of the constitution had opted for. From the very beginning the Congress party pursued this hybrid concept without caring for its inherent limitations.  As a matter of its policies the community-specific religious provisions of the constitution gained an upper hand at the cost of diluting its mandatory principles of equality of, and equal protection of laws, for all citizens irrespective of religious persuasion.

The frequency of communal riots was not controlled with an iron hand. Educational rights of religious minorities were given the treatment of ‘constitution proposes government disposes.’ In mid-1960s the Congress government deprived the Aligarh Muslim University of its statutory autonomy and, on its action being challenged in the apex court, convinced the court  that the institution had not been established by the Muslims. The process of social reform was restricted by it to some chosen communities, on the pretext that others were yet not ready for change.

The party now ruling at the centre is translating into practice its own well known ideology. Communal vituperation by its partners in governance and atrocities by its followers in the society are being met with a calculated silence.

There are no foolproof safeguards against these in the constitution; and there are precedents in the policies and practices of the Congress party which ruled the country for long years since independence, claiming exclusive credit for winning freedom from British raj. Its criticism of the present government is an instance of pot calling the kettle black.
 
(The author is Professor of Law & Former Chair, National Minorities Commission)

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