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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Sufi visions of Lord Rama and Krishna

In a discussion with one of my senior colleagues on growing intolerance between Hindus and Muslims recently, it was almost a consensus concluding point that this has begun since the Emperor Aurangzeb seated himself on Mughal throne.  It was agreed that Emperors Akbar, Jahangir and Shahjahan had engaged themselves in interacting culturally with the Hindus. Arguments of patronage to different shrines, Hindu sciences, Sanskrit and Hindavi were surfaced. Though, I pointed out Shahjahan’s orthodox attitude and his demolition of Bundela temple but that was swept under the carpet since he was a romantic person and had a sense for aesthetics. It was Aurangzeb who did all wrongs and divided the Hindus and the Muslims. I don’t know why, I felt uncomfortable with the opinion. First of all, Akbar’s idea of tolerance was not monolithic and had shades and phases into it. Mughals were very much a believer in the ideas of Hellenistic philosophical ideals of kingship (as represented by Akhlaq-i Nasiri and Akhlaq-i Humayuni), which required them to be a philosopher king, who had to create harmony and cooperation among his subject communities (ta'aif). As recent researches show, Akbar believed himself to be the Promised Messiah (Mehdi) not only for Muslims but he considered himself to be ‘final embodiment of King Manu’ (as explained in Razmnama, the Persian translation of Mahabharata) and an incarnation of god Rama. However, at times Akbar too used intolerant languages against idolatry and the 'kafirs' and how one can forget his butchering of common masses during the battle of Chittor (1567-8).

Lord Rama killing Ravana: Persian Ramayana

               We have evidences that Aurangzeb too had good relations with several akharas of Saivites in Punjab, Banaras and Bihar. He advised his sons to take care of the Rajputs since they are valiant and loyal supporters of the house. However, no one can deny the bigotry and orthodox attitude of Aurangzeb, his some of the orders unprecedented in the history of the Mughals, of excluding Hindus from madad-i ma‘ash grants. But at the same time the grants of Saivites of Jangambari and Bodh Gaya were allowed after the very period.  If we see political history of the time, it appears that it was a period of suffocation for the Hindus. Did this period really draw a thick line between the two communities? Then how one should interpret the event narrated by Bernier? He says that one of his Muslim servants killed a peacock for consumption and a local Hindu reported the matter to the shihna of the locality (Bengal). Killer of the peacock was arrested and was reminded of the rule of the Mughals that killing a peacock since Hindus consider it to be holy is a crime. Bernier argued with the shihna that Islam does allow eating a peacock, but the officer did not pay any heed to him since the crime was of hurting the sentiments of a Hindu neighbor.  How should one see the administration of Aurangzeb? Seeing the bigotry of the emperor that Muslim shihna should have acted like an orthodox Muslim and released the accused since it is no sin to eat peacock in Islamic sharia?

Silver Medallion of Jahāngīr depicting Ram and Sita [1610 AD]

 Let us now see away from the power circle of the time. The domains of sufis and bhaktas, though not completely free from the politics, can be explored for having an idea of the Hindu-Muslim relations during late seventeen and early eighteenth century. It is an Islamic belief that no land has been left without a prophet of Allah and Lords Rama, Krishna and Buddha were Prophets of India. It would be proper to note here that when Mohammad bin Qasim occupied Sindh, the Umayyad caliphate recognized Hindus as ahl-e kitab (the people of  the book) considering the four Vedas to be the divine books like Quran.  Mrigawati, Padmavat and Madhumalti based on the Hindu folklores taught nuances of Sufic love not only in khanqahs of different sufis, but Muslim theologians also quoted verses from these texts from the pulpits of the mosque, exclusively meant for the Muslim audience.  Abdul Wahid Bilgrami (Haqaiq-i Hindi) sees Prophet Muhammad in Lord Krishna; gopis are the angels to him; Braj and Gokul his ‘alam (the world); while the Yamuna and the Ganga rivers are the sea of wahidiyat (unity). Abdur Rahman Chishti, writing in the mid-seventeenth century, says that he read most of the Hindu history books written in the era of the ‘jinns’ (used for devatas) but he did not find mention of Adam anywhere. Finally, he found malfuzat (collection of table talk of a sufi/prophet) of Bashisht (Rishi Vashisht) where he found mention of Mahadev, rasul-i mursal (greatest prophet), who was the Abu’l jinn (the progenitor or Adam). (Here I have left most known characters like Syed Ibrahim Raskhan)

               With this kind of religious understanding of earlier centuries let us now move to the next century, i.e. the eighteenth century. Abdur Razzaq Banswi (spiritual master of Mullah Nizamuddin of Dars-i Nizami fame) had two Bairagi friends, Chait Ram, and Paras Ram. Banswi used to attend the dance-drama party of Krishna bhakti. Once, while in a similar party to celebrate the appointment of the successor of Chait Ram at his place Banswi fell into trance. Banswi claimed that Lord Krishna was present there. After the play was over, Banswi retired to rest. Some of the chelas then asked their bairagi guru, if they too could have the vision of the Lord. The guru replied that the person who just has left, if wishes, can you have the Lord’s darshan. The chelas then approached Banswi, who managed them a vision of the Lord. Even theologians like Mullah Nizamuddin was blessed by his pir to see  Lord Krishna and the gopis. Mulla Nizamuddin, his brother Mulla Muhammad Raz, and their nephew Mulla Kamaluddin saw the Lord in their way from Lucknow to Bansa. Initially, the mullahs mistook Lord Krishna and his gopis for an ordinary man and his womenfolk. But as they approached near the Lord, who said: Convey my salam to your pir. In another case Banswi had a vision of Lord Rama and Lakshman in a jungle of Deccan when he lost his way; it was Lord Rama and his brother, who showed him the way since Banswi was from Lord’s “Own Lachhnau”. (Shahjahanpuri, Muhammad Khan, Malfuz-i Razzaqi and Manaqib-i Razzaqiya of Mullah Nizamuddin Farangimahalli)

It is highly unlikely that Banswi’s vision of Lord Krishna and Rama was a personal spiritual experience. These visions were the tools used for communicating his world view to his disciples as well as to a wider audience of Awadh region. The sufi functioned within the inclusive spiritual geography of the region and was like any other spiritual gosain guru, who acted on the stage of spirituality.  It seems even during the eighteenth century, even though the political landscape appears divided, the contact-cooperation between the two communities were intact. It seems the divide permeated into the masses from above at a later stage.  I propose to see this in changing notions of ‘proprietary rights’ and processes of individualization.   

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