Muslim personal law: the concept in India, Pakistan
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Difference in Indian and Pakistani approaches
From the archives of The Times of India 2010
The Indian approach
A Tale of Two Countries
The Shoaib-Ayesha story exposes key differences in the code that governs marriage and divorce among Muslims in India and Pakistan
Mohammed Wajihuddin | TNN
Mumbai: Never mind who ‘cheated’ whom in the Shoaib Malik-Ayesha Siddiqui story, the buck stops at the relevant provisions of the Muslim Personal Law (Shariat) Act, 1937. It has been rarely — and barely — amended in the 90 years since. This, largely because the ulema is opposed to change and regards a modern interpretation of the law as interference.
Mumbai-based scholar Asghar Ali Engineer is one of many who believe that “the cultural basis of the Muslim Personal Law actually lies in the customary laws of the Arab society”. He questions practices such as marrying and divorcing on the phone. These are not mentioned in the Muslim Personal Law and should be declared invalid, says Engineer. He laments Muslim trivialization of “marriage, meesaq-e-ghaliza (strong covenant between two adults)… a qazi can be bribed to distort the rules laid down for a valid nikah and talaq”.
The law’s most controversial elements include the triple talaq and polygamy.
TRIPLE TALAQ |
Not mentioned in the Quran; an innovation. Most ulema agree that Allah considers talaq the most reprehensible of all that is allowed to man. However, they remain divided on the triple talaq. The Hanafi — one of Sunni Islam’s four schools of jurisprudence — allows the triple talaq. But this practice can lead to absurd scenarios, such as the Oriya man who informed his wife he had said ‘talaq’ three times in his dream the night before. The local maulvis promptly pronounced they were no longer man and wife. The man had to take his fight for the marriage to be restored all the way to the Supreme Court.
Other forms of divorce recognised under the Shariat Act, 1937 and applicable to all Muslims in India are: mubarra (divorce by mutual consent) and talaq-etafweez (delegated divorce).
The subsequent Dissolution of Muslim Marriage Act, 1939 provided some equality as it granted Muslim women the right of khula — or the right to divorce their husbands. Its prime mover was a scholar, Maulana Ashraf Ali Thanvi, who lamented that many Muslim women were converting to Hinduism to get rid of their “cruel” husbands who would neither treat them well nor divorce them easily. While this Act is often called progressive, there have been calls for further change.
Advocate Neelofar Akhtar, president of Mumbai’s Family Court Bar Association, wants urgent amendment of the 1939 Act. This would be in line with reform of other laws dealing with other communities, notably the Hindu Marriage Act, 1955 and Special Marriage Act, 1954. Both were amended in 2001 to allow women to file divorce petitions where they live. In contrast, the Dissolution of Muslim Marriage Act, 1939 insists a woman can file for divorce only where she was married or where her husband lives.
Akhtar describes it as “a discriminatory provision”. She has raised the issue at three All-India Muslim Personal Law Board meetings, the last in Lucknow just days ago. But the mullah-dominated, patriarchal law board has stonewalled the issue. Many point out that the board tried to deny Shah Bano maintenance from the husband who had divorced her in 1978. Subsequently, Rajiv Gandhi’s government diluted the Supreme Court’s judgment that Shah Bano was entitled to alimony. Instead, the government introduced the Muslim Women (Protection of Rights on Divorce) Act, 1986. It is worth noting that the new Act is the only one that is enforceable in a criminal court, rather than in family courts (as are the Personal Law Act and Dissolution of Marriage Act).
The 1986 Muslim Women Act admittedly instituted some reasonable provisions such as maintenance during the iddat period, or three months from the day of divorce. But, it denied — at one stroke — the right to alimony even to destitute divorcees.
Khula, or a woman filing for divorce, has had its share of controversy. Starlet Manyata married Sanjay Dutt after she filed for a khula from then husband Meraj. But Manyata’s first husband challenged the khula she secured from a qazi in Mumbai, saying only a man could give one. He was plain wrong, says lawyer Neelofar Akhtar, who fought and won Manyata’s case. “If the Quran allows men the right to pronounce talaq, it also grants women the right to khula.”
POLYGAMY |
A provision enshrined in the Quran, though hedged around by many conditions; upheld by the 1937 Muslim Personal Law but grossly misinterpreted and misused.
Those partial to the practice quote a Quranic verse as justification but forget that it was revealed during a great and bloody battle, which left many men dead and large numbers of destitute widows and orphans. The flipside is another verse in the same Quranic chapter, which stresses that no man is ever “able to be fair and just between women even if it is your ardent desire.” Senior cleric Maulana Shoeb Koti says it “proves the Quran lays emphasis on monogamy”.
India, unlike Pakistan, does not have legislation such as the Muslim Family Laws Ordinance, 1961, which proscribes marrying a second time without the first wife’s consent. Supreme Court advocate Saif Mahmood admits the lacunae: “An avowedly secular country like India has failed to give Muslim women what many less secular countries have.”
The Pakistani approach
Omer Farooq Khan | TNN
Polygamy
Islamabad: What do Pakistan prime minister Yousuf Raza Gilani and Punjab chief minister Shahbaz Sharif have in common? Both are believed to have more than one wife. Nabeel Gabol, a Pakistan Peoples Party lawmaker, recently told parliament that roughly 80% of the country’s MNAs (Members of the National Assembly) and senators were much-married men. This, despite Pakistan’s Muslim Family Laws Ordinance of 1961.
Supreme Court barrister Gohar Ali says there has to be a valid reason in order for a Pakistani man to marry a second time. For instance, “suppose a woman cannot become a mother due to medical reasons”. The law requires an arbitration council, headed by a local councillor, to identify the ‘reason’, Ali adds.
But nearly half a century later, polygamy is still practised by isolated tribal communities and the feudal classes which dominate parliament.
Parliamentary sources have given TOI a list of prominent politicians and public figures with more than one wife. The list is long. It names Gilani and Sharif, PPP heavyweight Makhdoom Amin Fahim, Sindh chief minister Syed Qaim Ali Shah, and former federal ministers Yar Muhammed Rindh and Azam Khan Hoti.
It is interesting to note that Samina Khawar Hayat of the PML-N supported the practice of polygamy in the Punjab assembly just a few weeks ago. It was subsequently debated in the National Assembly. Are Pakistan’s politicians soft on polygamy?
D ivorce, iddat, mehr
The 1961 law empowered women by giving them the right to seek a divorce. In practice, qazis follow the old ways. Most Pakistani nikah certificates do not mention this specific clause. The law makes it a crime punishable by prison and a fine for a married Pakistani man to take another wife without the consent of his first wife, says Gohar Ali. “If Shoaib Malik and Sania Mirza had tied the knot before he divorced Ayesha, then, under Section 5 of the family laws, he would have been liable for punishment,” he adds.
The divorce meant Ayesha entered the threemonth iddat period, during which Shoaib has to pay her maintenance. There is a simple, scientific and socially responsible reason for this. If a divorced woman menstruates during the iddat, she is clearly not pregnant and iddat lasts just three months. If she is pregnant, iddat continues till the baby is born.
Pakistani legal experts say that in Ayesha’s case, she claimed a physical relationship with Shoaib and must therefore remain in seclusion during the iddat period. Under the West Pakistan XXXV Act, which came into force in 1964, a woman can sue her husband if he refuses to maintain her without lawful cause. Barrister Gohar says that maintenance varies from case to case under the family law. Citing Shahbaz Sharif ’s divorce from his second wife Aaliya Honey, with whom he lived for just one year from 1993, he says: “The CM had to pay more than $1500 per month, during her period of iddat.” Interestingly, Sharif took writer Tehmina Durrani as his third wife soon after divorcing Aaliya.
Hudood horror
The Hudood Ordinances were enacted in 1979 as part of General Zia’s Islamization process. They cover five areas: zina (non-marital sex) and rape; theft and armed robbery; qazf (or false accusation of zina); prohibited use of alcohol and narcotics, and the procedure for whipping. The ordinances made adultery and rape punishable by stoning. But it became difficult to prove rape because a woman was required to provide four adult male witnesses. Failure to provide proof of the alleged rape placed the woman at risk of prosecution for adultery.
The Women’s Protection Act of 2006, brought by the Pervez Musharraf regime, placed rape laws under the Pakistan Penal Code, based on civil law, rather than Sharia. Police no longer had the right to detain people suspected of having sex outside marriage. Adultery and nonmarital consensual sex was still an offence but judges were henceforth allowed to try rape cases in criminal rather than Islamic courts. It did away with the need for four witnesses to prove rape and allowed conviction on the basis of forensic and circumstantial evidence. However, the Hudood Ordinances continue to be a part of Sharia law in Pakistan.
Divorce
From the archives of The Times of India 2010
Divorced from the will of God
India’s Muslims live by legal provisions that sharply violate the spirit — and word — of the Holy Quran
Arif Mohammed Khan
The Islamic idea of marriage is best expressed in the following Q u r a n i c verse: “It is He who created you from a single person and made his mate of like nature in order that he might dwell with her (in love). When they are united she bears a light burden and carries it about. When she grows heavy they both pray to God their Lord: ‘If You give us a goodly child we vow we shall be grateful’.” Elsewhere, the Quran says: “They are your garments and you are their garments.”
On the other hand, in Shariat (Islamic law) marriage is described as aqd (contract) and like any other contract, it requires free consent of the contracting parties. The parents or guardians may act as facilitators but the final decision rests with the man and woman who can propose their own terms and conditions to conclude the marriage.
The Quran views marriage as a source of physical and emotional comfort and a means of perpetuating mankind, so it is necessary both partners intend the bond to be for life. However, in cases where living together becomes impossible, the law permits divorce, described as “the most odious among permissible things”.
The Quran lays down the detailed procedure, which is informed by a strategy that encourages reconciliation and prevents family breakup. The Quran says: “When you do divorce women, divorce them at their prescribed periods and count (accurately) their prescribed periods, and fear God. And turn them not out of their houses nor shall they leave except in case they are guilty of some open lewdness. Those are limits set by God: and any who transgresses the limits of God does verily wrong his soul: you know not if perchance Allah will bring about thereafter some new situation.”
The Quranic procedure of divorce provides that the couple continue to live in their matrimonial home during iddat (the three-month cooling-off period) and the option of reunion and remarriage remains available.
In Islamic legal theory, the Quran is accorded the highest status. It is from this that Sharia laws are extracted and construed. It defies reason that Muslim family laws as practised on the Indian subcontinent are mostly in conflict with Quranic provisions.
Some of the legal provisions with respect to marriage and divorce compiled by the All-India Muslim Personal Law Board (AIMPLB) sharply violate the spirit —and word — of the Quran. On the question of parity between husband and wife, Section 117 (3) of the AIMPLB compendium differentiates between Muslims of Arab and non-Arab origin. It provides that “regard shall be had in respect of descent among the Arabs especially Quraysh and those non-Arab families who have preserved their descent. People in the rest of the non-Arab world are mutually equal”. What a travesty of Islamic egalitarianism and equality.
Similarly, in matters of divorce the compendium makes a mockery of the lofty Islamic principle of ‘no compulsion in matters of religion’. The chapter dealing with divorce not only validates instant divorce but Section 5 (b) says: “For the effectiveness of talaq (divorce) it is in principle necessary that the man pronouncing it should be in his senses. This demands that a talaq pronounced in an inebriated condition should not be effective. However if a person has unlawfully consumed an intoxicant by his own liking and habit, his talaq will become effective by way of punishment”.
Sections (6) and (7) are even more ludicrous. Section 6 says: “If a person under compulsion or duress pronounces a talaq it will be valid if it is verbal but not otherwise.” Section 7 says: “A talaq pronounced in hazl i.e. jest also becomes effective.”
There is nothing Islamic about these laws; in fact they smack of pre-Islamic Arab jahiliyya (ignorance), which thrived on class differences and the use of brute force. Is it any wonder then that many hapless women are exploited through fraudulent marriages and then shown the door with an instant divorce? It is futile to talk of reform so long as the authors of these atrocious laws continue to enjoy political patronage.
The writer, a former Union minister, quit the Rajiv Gandhi government over the Shah Bano controversy
