LAW WHICH IS IS NOT SECULAR

Free India's Constitution pledged to make everyone equal. But Shariat courts turn this belief on its head.

India is not alone in feeling threatened by the operation of Shariat courts, which negate modern secular jurisprudence, hinging on equality of all citizens. Britain too is grappling with the disastrous fallout of mediation by these religious bodies, particularly in marriage and divorce-related problems.

‘Inside Britain's Sharia Courts', an article by Jane Corbin in the Daily Telegraph, details how Shari’ah councils' rulings are contrary to national law, tilting in favour of men while delivering verdicts on cases of marital discord and violence against wives by spouses, and custody of children. The saving grace is that Shari’ah councils lack legal status in Britain. The article states: “If decisions made by these councils conflict with national law, then national law will always prevail”.

It is the very opposite in India. Muslim Personal Law (Shariat) Application Act, 1937 under the British raj had allowed Islamic code to apply in personal matters. Free India's secular and democratic Constitution pledged to make everyone equal. But this was not quite true. Hindu laws were changed to ensure parity among women and men and different communities while the personal code of Muslims was retained. They were the largest minority segment, to be wooed for support in elections.

Hindus were amenable to change. Sati was banned by the British in December 1829 in Bengal Presidency and gradually elsewhere. Christian missionaries and Hindu reformers pushed through the ban. Polygamy was rampant. Manusmriti allowed Brahmins to take a wife from each of the four castes, the best being from their own. Kshatriyas could have three wives and Vaish two. In reality, Bengal's Kulin Brahmin males, for instance, married numerous little girls for dowry and abandoned them. A mid-19th century report claimed that 10,000 of the estimated 12,000 whores in Calcutta were Kulin Brahmin widows and destitutes. Ishwar Chandra Vidyasagar, a Kulin Brahmin himself, knew intimately the evils of the system, and struggled to get polygamy banned. He also fought for girls' education.

The Child Marriage Restraint Act was passed in 1929. And, polygamy was outlawed in 1955-1956, with the enactment of the Hindu Code Bill. It covered Sikhs, Jains and Buddhists too. Earlier bans in this matter applied to Christians and Parsis. Monogamy was enforced; divorce and widow remarriage allowed; alimony provided to women by former spouses; daughters accorded coparcenary right, along with sons, to father's self-acquired property, and in 2005, in ancestral property; and demand and giving of dowry made cognisable offences.

Muslims firmly resisted change, and the Congress played along by ignoring the constitutional directive to introduce a uniform civil code. The constitutional guarantee of freedom to every religious denomination to manage its own affairs gave Muslims the right to establish Dar-ul-Qaza or Nizam-e-Qaza. These were Shariat courts. Muslim Personal Law gave men the right to have four wives. They could also divorce via talaq-ul-bidat, irregular divorce. It did not have the sanction of Prophet Mohammad or Quran. The man obtained divorce simply by uttering ‘talaaq' thrice in person or over the phone, or relaying it in a telegram and now via email. Wives' right to divorce through khula was hardly ever invoked.

Before marriage, the groom was required to fix mehr, a security amount that would accrue to the woman if he divorced her. This amount was often withheld. Demanding and receiving dowry, an alien custom, became common, as did the ensuing harassment of the bride and her natal family.

The Supreme Court's attempt in 1985 to standardise application of civil law by conceding the plea of the aged Muslim divorcee Shah Bano, mother of five children, for payment of maintenance by her husband was aborted by the expeditiously passed Muslim Women (Protection of Rights on Divorce) Act, 1986.

The Court invoked Section 125 of Code of Criminal Procedure to rule that Shah Bano be given maintenance. The Act pushed through by the Congress Government re-stated the Islamic position of paying the divorced woman maintenance for only the ‘iddat' period, the three months after divorce. She was then left to fend for herself.

Many Islamic nations are more progressive, with Turkey adopting a modern civil code. Laws have been modified in Egypt, Sudan, Lebanon, Jordon, Syria, Tunisia, Morocco, Algeria and Iran. Indonesia, Malaysia and Brunei have outlawed polygamy, which is strictly monitored by our neighbours Pakistan and Bangladesh. These two countries route divorce through an arbitration council. The warring couple is made to undergo a reconciliatory process.

India seems to one of the last bastions of aggressively patriarchal Islamic law. Here, Shari’ah panchayats freely mediate in disputes and clerics issue fatwas, thereby, superseding constitutional provisons and modern laws that prevail in State-run courts.

The All India Muslim Personal Law Board, set up in 1973, zealously ensures the application of personal law to Indian Muslims. It has resisted more equitable divorce laws for women; and supports child marriage. It also favours madarssa education over secular learning under Right to Education Act. This negates the secular ideal.