By Markandey Katju
June 19, 2014
In ‘Indian Express’ (issue dated 18.6.2014) at page 15 is a news item that the Bhartiya Muslim Mahila Andolan has finalized a draft Muslim family law which does away with oral divorce and polygamy. I congratulate the organization. They have shown bravery in rising up against an oppressive law.
I am totally against Muslim Personal Law because it oppresses Muslim women and discriminates against them. This is the modern age of equality, and discrimination against women is simply unacceptable in the modern age.
Since a Muslim woman who seeks a divorce has to file a petition in Court (under the Dissolution of Muslim Marriages Act, 1939) making out a ground for divorce (like adultery, cruelty, separation for 4 years, etc), a Muslim man who seeks a divorce should also be made to do the same. Hence oral Talaq is clearly discriminatory against Muslim women. It can even be given whimsically, without any ground.
Also, polygamy is a feudal, outdated institution which has no place in the modern world. Monogamy represents equality between man and woman.
Muslim Personal law was made in the medieval age when women were regarded as inferior to men. Not only Muslim Personal Law but also Hindu Personal Law, Christian Personal Law, etc treated women as inferior in the medieval age.
As society changes, the law, too, has to change, because law is a reflection of social relations in a society at a particular stage of its historical development. Obviously a law made in Arabia in the 7th or 8th century A.D. is totally outdated and unsuitable for society in the 21st century. The modern age is the age of equality, including equality between men and women. Hence Muslim Personal Law, which discriminates against Muslim women, must be abolished and replaced with a modern law giving equality to men and women. This was done in Turkey in 1926 by the great Turkish leader Mustafa Kemal Ataturk who modernized his country.
Some people say that Muslim Personal Law cannot be changed because it is a religious law. There are two answers to this:
(1) All medieval laws are regarded by the orthodox people as religious laws, and therefore unchangeable. Thus, the old (non-statutory) Hindu law was also regarded as a religious law, and therefore unchangeable. However, it was almost entirely abolished by Parliamentary statutes in 1955 and 1956 (the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, etc). The old Hindu law permitted polygamy to Hindu males, but the Hindu Marriage Act, 1955 abolished polygamy and enacted monogamy, which is a modern concept representing equality between men and women. The old Hindu law denied any share to daughters in their deceased father’s property, but the Hindu Succession Act, 1956 gives them a share.
Now by abolishing the old Hindu Law have Hindus been denied the right to practice their religion ? Not at all. Hindus are still going to temples, doing puja, etc. So it is totally false to say that if the Muslim Personal law is abolished Muslims will be denied the right to practice their religion.
(2) In fact Muslim Personal Law has already been largely abolished by the British. The Muslim Criminal Law was abolished and replaced by the Indian Penal Code in 1861, which is a common code for all communities. Now a Muslim woman who commits adultery cannot be stoned to death (Sangsar). In fact to do so would be murder, punishable under section 302 I.P.C.
Also, the personal law has been abolished in relation to land in agricultural areas e.g. by the U.P. Tenancy Act, 1939, and the U.P. Zamindari Abolition Act, 1951 which are common laws for all communities. So only about 25% of shariat actually exists today.
Those who want retention of Muslim Personal law should logically also demand abolition of the Indian Penal Code so far as it relates to Muslims, and restoration of the Muslim Criminal law including punishment of stoning to death for a woman committing adultery.
I have spoken to many Muslim women, and they all support me, obviously because the Muslim Personal law is oppressive to them and discriminates against them. Since half the population consists of women, at least half the Muslim community already supports me on this issue. Only the backward, feudal minded men oppose me. I am confident that among the menfolk, too, the enlightened section (particularly the educated youth) will see the truth in what I am saying and agree with me.
Unfortunately due to vote bank politics political parties which wanted to treat Muslims as vote banks did not allow the Muslim Personal law to be changed. For instance, In Shahbano’s case (1985) the Supreme Court gave a humanitarian and progressive judgment that when a Muslim husband divorces his wife he must give maintenance to her. The wife may have 3 or 4 children, and if she is not given maintenance by her former husband she and her children may starve. So it was a good judgment, and all Muslims should have supported it. But what actually happened was that, probably at the instance of the Muslim clerics, a big hue and cry was raised by a large number of Muslims that this judgment was against the Shariat. Consequently the Rajiv Gandhi government, afraid of losing its Muslim vote bank, legislatively repealed the judgment.
It is time the vast majority of Muslim men folk realize that the Muslim Personal Law is a law unjust to Muslim women, and demand its repeal.
DISCLAIMER: Views expressed above are the author's own