Abolition of Triple Talaq and Uniform Civil Code

               A Bill proposing criminalization of Triple Talaq is listed for introduction in the Lok Sabha on December 28, 2017. Draft Bill, known as 'The Muslim Women (Protection of Rights on Marriage) Bill 2017' is prepared by Ministry of Law under Ravi Shankar Prasad. The Bill seeks to ban pronouncement of talaq in one sitting orally, electronically or by any means whatsoever.  The objective and justification for the Bill have also been listed by the Minister, where it is said that even after Supreme Court's verdict against the practice, incidents of triple talaq have come to notice. Hence, the government, to curb the practice and to do gender justice to the Muslim women has brought this Bill, which criminalises the practice of talaq-i-bidat and made it a cognizable and non-bailable offence with a jail term of upto 3 years.  

So, where is the problem? 

The Bill has been drafted as if the Minister is making a multimedia campaign for some election, the one which we saw during Gujarat elections, where a scarf-clad Gujarati Muslim woman hails the decision of the Modi Government to ban this practice of 'talaq' and ask the men from the 'qaum' (community) to go away from her, who were seeking her vote in the name of 'qaum'. The video portrays that Muslim women are potential voters for the BJP and Muslim men are basically enemy of that potential voter and the BJP herself, the Bill too, treat Muslim men as if they are the enemy of the women of their own family and only the state can protect them from outside. The Bill makes the practice a cognizable and non-bailable crime!  What does it mean?  A cognizable crime invites an investigation without permission from the magistrate; the police officer can make an arrest without warrant. Whereas a non-cognisable offence is considered to be private wrong, the aggrieved party needs to file a complaint before a magistrate and then it is upto the magistrate that he orders arrest and investigation of the matter by a police officer. So, this practice of triple talaq has been placed with rape, murder and theft.  Till now, the matters related to marriages enjoyed judicial oversight on the rationale that the outside world should not punish an errant husband if the wife does not want her husband to be punished (of course, if it is not a matter of physical harm). This can safely be concluded from the fact that the man cannot be punished for bigamy under IPC 494, unless the first wife or her relatives complain before a magistrate against the man. Similarly, under Section 376B of the Indian Penal Code, which makes the act of a husband raping his wife while they are separated a cognizable offence, but that can be prosecuted only if the wife or her relatives lodge a complaint[i]. If this Bill passed, a Muslim married man can be arrested and kept in jail without the consent of his wife.  The draft of the Bill sees Muslim men as an outside enemy of Muslim women and has given no regard to the fact that men are the part of the family itself. The law must be formulated keeping in mind the whole community all the stakeholders must be taken into account. It is unfortunate that women body, Beba

Photo: MapsofIndia

k Collective, the women organisation who were among the parties in the case, in which the Supreme Court held the practice of triple talaq illegal, were not consulted in drafting the Bill. The Organisation is correct in saying that the talaq will happen even if not instant, on the whims and fancies of the husband under the Shariat Act 1937. What can be done for justified and equal treatment of women in the matter of talaq is that the Dissolution of Muslim Marriages Act 1939 be amended. The Act requires Muslim women to approach the court for the divorce. By an amendment to this Act, by making it gender neutral, the problem of whimsical divorce by men can be curbed. ‘The Dissolution of Muslim Marriages Bill, 2016’ was tabled on 5^th August 2016 but nothing has happened till now. The Bill must make it mandatory to go to the Court for seeking divorce by a man or a woman.   

Why not Uniform Civil Code?

The BJP has always been advocating for the Uniform Civil Code in place of different personal laws—Hindu Personal Law, Muslim Personal Law, Parsi Personal Law, Christian Personal Law and Portuguese Personal Law and many more. When the Modi government first came to power with an overwhelming majority in 2014, people were hoping that the BJP will do something in this matter. At least a Joint Parliamentary Committee or a Committee of the legal experts was expected from the present regime. But they, instead chose to target Muslim law and that too with a narrow vision of fulfilling their immediate desire of mobilizing Hindus on communal lines by showing them that the present regime is acting against the ‘privileges’ enjoyed by the Muslim men—of keeping four wives, divorce on their own whims and fancies, no alimony and maintenance to the wife after divorce etc., which the Hindus can’t enjoy under their Personal Laws.  For ‘enjoying’ these ‘privileges’ Hindu man needs to convert to Islam like Film star Dharmendra did to marry actress and now BJP Loksabha MP, Hema Malini (also converted to Islam to marry Dharmendra) and recent high profile drama in Haryana, EX- Dy. Chief Minister Chandramohan had to convert to Islam to marry Anita Bali (Fiza Mohammad). Alternatively, Muslim men’s ‘privileges’ be curtailed to gratify Hindu men’s desire of equality with the Muslim men in not enjoying those ‘privileges’. And this can be done by converting or rather purifying them by ‘shuddhikaran’ to Hinduism. The later act is being aggressively performed by the politically backed hooligans on a regular basis these days. What the present government is now trying to do is that they want to ‘free Muslim women’ from Muslim men so that it can actually serve two supposed purposes, one, Hindu men can feel relief that their Muslim counterparts are now in worst position as against theirs and two, the Muslim women will vote for the BJP and will not listen to their men in voting. (if this is true, I feel pity for the people who call themselves think tanks of the BJP!)

But why this change of heart, when they could have done a great service to the nation by implementing Uniform Civil Code, a dream of our founding fathers of our modern nation? It seems the legal experts have seriously advised the BJP that this is not an easy and simple task. Implementation of Uniform Civil Code requires a uniform set of laws by removing a number of laws prevalent in India to maintain its diversity, uniqueness of different cultures and landscape.

Laws guaranteed by Political Cession Treaties of different states into the Union of India cannot easily be dissolved to pave the way for the Uniform Civil Code, such as Pondicherry Customary Hindu Law (and the Pondicherry (Extension of Laws) Act, 1968, sec. 3 and Sch give uniqueness to the Union Territory of Pondicherry), which is guaranteed by a treaty between Government of India and the Government of France dated 21-10-1954, after which the erstwhile, French Settlement of Pondicherry, Karaikal, Mahe and Yanam was annexed to India. Similarly, Article 370 and 371 (A) of the Constitution of India allow considerable autonomies to the states of Jammu and Kashmir and Nagaland[ii]. Under these Articles of the Constitution (which were added later on to accommodate these states and their uniqueness, when they were made part of the Union of India), any law to come in force in these states needs to be passed by their respective legislature. Similarly, Section 42 of ‘The Manipur (Courts) Act 1955 provides for deciding ‘questions regarding succession, inheritance, marriage or caste or any religious usage or institution’ according to their personal or custom laws.    

Apart from the personal laws based on religion, several district-level Customary Laws are prevalent in India. These laws, many a time, are given precedence over communities’ religious laws in the matters of inheritance, marriages and adoptions. Gujars, Meos and several other tribes/castes have their own district-wise customary laws of inheritance and marriages.[iii] In Uttar Pradesh (erstwhile, United Province and Oudh) have their own Rawaj-i- ‘aum, which is given precedence in the matter of inheritance and succession. Madras and Bombay Presidency High Court Acts provide for ‘giving preference to Customary Laws in Succession and marriage. Hence, many Muslim Communities like, Khojas and Kutcchi Menons are governed under their customary laws which are contrary to the Sharia Laws. Mapillas (Mopla Muslims) of the north Malabar region is governed under the Marumakkathayam law (Mappilla Marumakkathayam Act, 1938), a system commonly associated with the Hindu Nayars and Tiyyans and based on Mitakshara Law[iv].      

Despite the fact that replacing the above personal and customary laws with a Uniform Civil Code is a herculean task, the modern state should try to hold negotiations with the peoples and formulate such a law—one and uniform, which can be acceptable to all the communities to eradicate gender injustice and for promoting personal individuality. This will pave the way for equality in all senses. Tax benefits to the Hindu Undivided Family will either be extended to Muslims, who still practice joint family or will have to be abolished. Peoples—Hindu, Muslim, Christians, Parsis and Jains will be replaced by citizens, thus the state will only recognise its citizens, not their religions, which will result in amendment of ‘The Constitution (Scheduled Castes) Order, 1950 which will abolish the bracket of religions under which a Muslim or a Christian cannot avail the benefit of SC reservations at present. Therefore, the discrimination on the basis of religion will get eradicated automatically. At present, the sweeper caste of Muslim comes under Other Backward Castes, whereas their Hindu counterparts come under Scheduled Castes. This will change.

Muslims, as a community, should give up their irrational and unchanging attitude, especially those who consider themselves to be the guardian of the Muslim umma. Islamic Civil laws (of Shari ‘a) has enough flexibility and it can accommodate and adjust itself to give rights to its own women-folks, especially in matters of marriage and divorce by preparing a standard Nikahnama, which can empower women by including conditions like:

a) Annulment of marriage by a decree of Court

b) Condition of monogamy on husband

c) Conditions against domestic violence

d) Some of the conditions which are enumerated in Dissolution of Muslim Marriages Act 1939 under which a Muslim woman can approach the court for khula or dissolution of her marriage, can also be included here.

The first three conditions were a general feature of the medieval nikahnamas.[v] It is unfortunate, that with the passage of time instead of moving forward in the direction of equality of genders we have actually undone the achievements of the past. Islam was the first religion which provided for a share of a woman, though half of what her brother in the property of her father. But, unfortunately, even this share has been denied to them in modern times. The clerics and their different groups cannot claim themselves to be the true upholder of the Shari‘a. Have they ever raised their voices loud enough to amend Section 2 of ‘The Muslim Personal Law (Shariat) Application Act, 1937’, which limits its (shariat) application in the matter of inheritance in ‘agricultural land’? This particular, section of the said Act has barred women from inheriting their rightful share (which Muslim shariat guarantees them) in their father’s land when a great chunk of the inheritable property is still in land for the large number of the Muslim population. Whatever women inherited in their fathers’ property—known as dukhtari, till now is due to the prevalence of the customary laws of different communities within the Muslim communities. 

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[i] Abhishek Sudhir, ‘The triple Talaq Bill is hasty, impulsive and cruel—much like the act it seeks to criminalise’, https://scroll.in/article/862502/the-triple-talaq-bill-is-hasty-impulsive-and-cruel-much-like-the-act-it-seeks-to-criminalise accessed on December 26, 2017

[ii] See further on UCC, The Nagaland turmoil shows why a uniform civil code is neither possible nor desirable in India, https://scroll.in/article/829884/the-nagaland-turmoil-shows-why-a-uniform-civil-code-is-neither-possible-nor-desirable-in-india

[iii] For a detailed study of Customary Laws of erstwhile territory of Punjab see, Digest of Customary Law, http://punjabrevenue.nic.in/cust20.htm , accessed on December 27, 2017 

[iv]  A Haberbeck, Muslims, Custom and the Courts (Application of Customary Laws to Mappillas of North Malabar, Khojas and Cutchi Memons), Journal of the Indian Law Institute, Vol.24, no.1, pp.132-158, available at http://14.139.60.114:8080/jspui/bitstream/123456789/16784/1/054_Muslims%2C%20Custom%20and%20the%20Courts%20%28132-158%29.pdf accessed on December 27, 2017.

[v] Several Nikahnamas of Emperor Shahjahan’s time are preserved in Blochet Supplement, Bibliotheque Nationale de France, Paris, for the English translation see, Shireen Moosvi, People, Taxation, and Trade in Mughal India, Oxford University Press, 2008, p. 276  

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Power, Piety and Royal Tombs in Pre-colonial India

Premodern states often revolved around the persona of the ruler, who used to define his authority in a complex manner by employing divine and temporal logics. A show of brutality and display of benevolence was a common feature of those times. Court historians have recorded these events over-enthusiastically since this was expected from them. Such displays and descriptions were meant for the people who hang around the king—the courtiers, the nobles and the army generals. For the masses, however, they had created a replica of the royal court in royal tombs, which not only gave a glimpse of the real court but also presented the benevolent side of the ruler.

Lofty buildings and their impressive designs can be found in the Indian subcontinent from the beginning of Muslim political dominance of the region. Most of the royal tombs contained ribat, madrassa or at least a place for the recitation of Quran. A number of officials from hashiya, those who did ‘menial’ jobs to the arbab, imam and reciters of Quran were attached to these tombs. They were made lively by supporting them with a waqf—a legal device, by which the corpus property is tied to the name of God, thus barring its transfer by sale, inheritance or mortgage, and the usufruct of it goes for the purpose enumerated by the Waqif, the creator of the waqf. Thus the tomb and its activities get an institutional character. It seems, apart from the religious buildings, only the royal tombs survived the ravages of time just because of their institutionalization as a waqf. (it is, however, a different matter that the waqf attached to these monuments were seized or the monument was deliberately deinstitutionalized at different points in time.). Ainuddin Mahru[i] and Shamsh Siraj Afif mention creation of waqf for the maintenance of tomb of erstwhile rulers.[ii] Ibn-i Batuta discusses functioning of the tomb in details since he was appointed mutuwalli of such a tomb patronized by Muhammad bin Tughlaq, interestingly, not of his father and predecessor, which one would think could have been an obvious choice, but of his old master Sultan Qutub uddin Khilji (d. 1320), whose murder was avenged by the Ghazi Malik (later Ghiyasuddin Tughlaq) by killing Khusro Khan the Naib of the Sultanate and inaugurated the Tughlaq dynasty.

            The Moroccan traveller says that Muhammad Tughlaq venerated Qutubuddin Khalji, because he had been one of the confidants of the late Sultan. Ibn-i-Batuta, who was serving as the Chief Qazi of Delhi was made mutuwalli (custodian/ manager) of the tomb. He informs us that Qutubuddin’s shoes and other possessions which were required by the dead sultan in his lifetime were kept near the tomb, thus horses and elephants had also to be kept in the tomb. A number of hashiya officers like silahdar (arms-bearer), nezadaar (spearmen), chhatradaar (canopy-bearer), tashtdaar (person responsible for washing hand and feet of the Sultan), hajib (chamberlain), naqeeb and chobdaar (mace-bearer) along with saqqas (water-career), tanbolis (betel-man) and daudis (runners), apart from a band of two hundred and fifty khatmi (reciter of Quran), one imam, many qaris, mu‘azzins and mukabbir (one who recite takbir during the namaz)  were appointed in the service of the tomb. The tomb also housed eighty students and their teachers. The Mutuwalli of the tomb was also responsible for feeding at least eighty sufis’ daily. In total there was a band of four hundred and sixty staff on the payroll of the tomb. Sultan Muhammad bin Tughlaq had ordered distribution of food made of twelve mans of meat and twelve mans of flour, which was not sufficient for the people dependent on the tomb, therefore, the mutuwalli had to increase the quantity to thirty-five mans.  All these expenses were met from the waqf comprising twenty villages, which was purchased by the Mutuwalli on orders of the Sultan.[iii]

            Ibn-i-Batuta, the Qazi of Delhi and a man who was responsible for feeding people from the tomb waqf shot to fame at a time when people were facing scarcity of food in the capital. His fame reached Daulatabad, where the sultan had taken almost a permanent residence, that people like him are boon for the city of Delhi at a time when it was facing severe drought and scarcity. Sultan Muhammad Tughlaq praised him a lot and rewarded him with some money for construction of his house. Further, the Sultan allotted one lakh man of food-grain over and above of the waqf income for the continuing the distribution of food to the people. Ibn-i-Batuta was further made in charge of a khanqah too so that he can feed a greater number of people. However, this inchargeship was a kind of reward for him from the sultan. Batuta himself admits that the responsibility of purchasing the twenty villages for creating the waqf was intentionally meant to reward him with the brokerage in the deal. Likewise, the management of the khanqah was also a way of rewarding him for his good work in the tomb management. The khanqahs of those times were perhaps more than a centre of learning, since Shamsh Siraj Afif says that ‘in Delhi alone, 120 khanqahs were established for ‘people of God’, where three days one could stay as royal guest in each of the khanqah, so in total one can stay for all 360 days of the year if he wishes so, and all these were funded by waqf.’[iv]     

Looking at the number and variety of staff along with those who got their rozinas from the tomb, one can safely say that the tomb must have been a site of different rituals which were identical to that of those performed at the royal court apart from the regular recital of Quran and dissemination of knowledge. The core of the rituals involved officers like the Chhatradar (canopy bearer), Hajib, Naqeeb and Chobdar (mace-bearer) who were also the core of the officers at a royal court—maintainer of the court culture. It seems, in those rituals the reigning Sultan too had some important role to play. Batuta says that the Sultan, whenever visited the tomb, he used to put the shoes of the late Sultan over his head to pay his respect to the Sultan. Special meals were cooked on the death anniversary of the late sultan for the free langar. The practice of cooking special meals on the days of Eid-i-Milad (birthday of the Prophet Muhammad), Shab-i-Barat and on the days of mourning of Muharram was further added by the mutuwalli to benefit the common masses.

            The langar and the celebration of the death anniversaries (urs) of the departed soul are the common sufi feature added to the royal tombs. We notice such activities continuing till the times of the Mughals. Gulbadan Begum talks of the establishment of a waqf consisting ‘whole Sikri together with five laks charged on Byana’ for the maintenance and upkeep of her father, Emperor Babur’s tomb at Ram/Aram Bagh and for the support of the sixty reciters of the Quran & ulema attached to it. And Mohammed Ali Apsas (?) was appointed mutuwalli by Emperor Humayun. She also mentions that Humayun’s mother Maham Begum made an allowance—from “her own estate—of food twice daily: in the morning an ox and two sheep and five goats, and zohar five goats till she remained in the prison of this world (i.e. two and a half years)” for those attached to the tomb.[v] Emperor Humayun’s tomb was looked after by his wife Haji Begum, who ‘in order to perform the duties, taken up her abode near the tomb.’[vi] Akbar paid several visits to his father’s tomb and he used to distribute gifts and charities to the custodians of the mausoleum.[vii] This practice of distribution of langar and celebrations of urs was further institutionalized by Emperor Shahjahan who established a waqf of 30 villages[viii] from the environs of Agra yielding a yearly income of 40 lakh dams (equal to 1 lakh rupees) and rents from the sarais and bazaar of Mumtazabad, also yielding 1 lakh rupees yearly for the famous Taj Mahal. The income from the waqf was to be spent on the maintenance of the rauza-i-mannuwara, annual Urs (death anniversary) and for the payment of salaries to the people attached with the rauza (tomb) and a huge amount in charities were distributed during the Urs.  Apart from the regular expenses whatever surplus might remain were left in the hands of mutuwalli of the waqf, who was Emperor Shahjahan, himself to decide.[ix]  Every Thursday, the poor and indigent were entered into the rauza (Taj Mahal) gallery, where charities were distributed. The sanctum sanctorum (sepulture chamber) was guarded by eunuchs and women like they guarded harem in the royal palace.[x] The sepulture was covered with a sheet made of pearls, whereas the floor of the mausoleum was fully carpeted. The mosque attached to the Taj Mahal had a regular staff where regular prayers were held. On the occasion of the urs of the late Queen, inam and charities were distributed. Even the princes and great nobles were rewarded on that day from the treasury of the Taj Mahal waqf.

            The royal tombs of the erstwhile kings and queens functioned not only as the repository of the legacy from which the reigning monarch drew his own legitimacy but it also worked as the vistas for showcasing his own largesse and benevolence. Rituals of the court were copied in these tombs, the guards, the mace-bearers and those who regulated the protocols were appointed who made these tombs a mini-court by performing similar rituals that performed at the royal court. The monarch and his court basically manifested itself in the public space. The magnificent building of the royal tomb proclaimed the authority and benevolence; the rituals attached to it further dramatized the display. Common people, students, sufis and foreigners were invited as an audience to witness the largesse of the monarch by distributing rich food and charities.

REFERENCE 

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[i] Ainud Din Mahru, Insha-i-Mahru, ed., Shaikh Abdur Rashid,  Lahore, 1965, pp.73-39.

[ii] Afif, Shamsh Siraj, Tarikh-i-Firozshahi, tr. In Urdu by Maulvi Mohammad Fida Ali, Rukn-i-Shoba talif wa Tarjuma Jamia Osmania, Hyderabad, 1938, pp.230-31.

[iii] Ibn-i Batuta, Rehla

[iv] Afif, ShamshSiraj, Tarikh-i-Firozshahi, trans. in Urdu by Maulvi Mohammed Fida Ali, Rukn-i-Shoba Talif  wa Tarjuma Jamia Osmaniya, Hyderabad, 1938, p230-31

[v] Gulbadan Begum, Humayunama, tr. Annette S. Beveridge, Royal Asiatic Society, London, 1902, p.110; also see pp. 25-26 (Persian).

[vi]  Abul Fazl, Akbarnama -III, tr. H. Beveridge, Royal Asiatic Society, Low Price Publicatoins, 2010, p.551

[vii]  Ibid., pp.322, 360 & 547 

[viii] The list consists of names of all the villages and income derived from them in dams; I have been able to find six villages with the same names in the Distt. Gazetteer of Agra by H.R. Neville, 1905, in section of ‘native schools.’

[ix]  Lahori, Abdul Hamid, Padshahnama, Vol.2, pp.329-330 also p.322; for translation also see, The Illumined Tomb, pp. 75-77 & 65.

[x]  Manucci, Niccolao, Storio do Mogor, or Mogul India, transl. by William Irvine, vol.1, Calcutta, 1965, p. 176. 

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