By Mukul Kesavan
Jun 9, 2012
The Delhi high court's judgment upholding the right of a 15-year-old Muslim girl to stay married and rejecting her mother's claim that she was a minor who had been abducted against her will, has set in motion a drama with which we are familiar. The script was written long ago in the course of the endless argument about Muslim personal law and polygamy and refined during the Shah Bano controversy over a divorced Muslim woman's right to maintenance.
These issues — polygamy, maintenance for divorced women and the legal age of marriage for women — are substantial matters but the debates they set in motion are so rehearsed, they seem like formalist exercises.
On the one side there are always modern-minded people, Muslim and non-Muslim, appalled by the 'medieval' subjugation that Muslim personal law visits on Muslim women. They are joined by feminists who, while sympathetic to the circumstance of minorities in India, feel that the patriarchal biases of all religious establishments need to be resisted in the name of gender justice. These politically correct lobbies are always discomfited when their bandwagon is boarded by unwanted passengers, namely Hindu rashtravadis, revelling in the rare privilege of venting about Muslims in a politically correct way.
On the other side you have another set of secular, pluralist, modern-minded people who are not Muslim, who argue from a chivalric position. The Muslim community in this view needs time and space to reform itself from within. This is, in essence, the same argument that Jawaharlal Nehru employed in the mid-1950s when he exempted Muslims from the reformist republican zeal that resulted in the Hindu Code Bill. Then it was the need to make Muslims feel secure in India after Partition that called for forbearance while now it is the marginalisation of Muslims as documented by surveys and reports that justify tact and patience.
These Galahads find themselves in the company of conservative Muslims like Zafaryab Jilani, executive member of the All India Muslim Personal Law Board, whose main concern is the conservation of Muslim personal law: not with a view to reforming it over time, but as a way of buttressing Muslim identity in India. In this view, Muslim personal law represents a residual link with the Sharia and gives legal substance to the idea of a Muslim community.
Muslim conservatives are sometimes joined, in newspaper reports, by 'moderate Muslims', a peculiarly offensive category that seems to assume that being Muslim is a condition that needs moderation. The term is used for Anglophone, middle-class Muslims who feel that their modernity has alienated them from their community and therefore take conservationist positions for the sake of their own credibility.
These two coalitions confront each other every time an issue relating to Muslim personal law makes headlines. So entrenched are their positions and so rehearsed their rhetoric that the specificity of each issue gets buried.
I want to suggest that this judgment by the Delhi high court raises difficult issues that need to be carefully considered by all of us, Muslims and non-Muslims, regardless of where we position ourselves vis-a-vis these two coalitions.
This ruling on the age of marriage has implications for the age of consent. Till recently, a man who had sexual relations with a non-Muslim girl younger than 16 was guilty of statutory rape. By the logic of the Delhi high court's ruling, the same act within marriage between a Muslim girl who has achieved puberty (and this could happen at 15 or even earlier) and her husband, counts as consensual sex. To a layperson, not trained in the law, this seems to create a circumstance where a conviction for statutory rape, a criminal offence, will be determined by the faith of the girl in question. This seems like a bad idea, if only because the provisions of the Indian Penal Code are meant to apply uniformly to all Indian citizens regardless of their religious affiliations.
At the same time, instead of turning this ruling into an opportunity for Muslim-baiting, this might be a good time to reflect on Parliament's recent decision to raise the age of consent to 18. In a country where underage marriages routinely occur in rural (and urban) India and where teenage sex is likely to become commonplace in certain urban milieus, lawmakers need to consider the implications of criminalising consensual sex amongst young people, regardless of faith.
Finally, a word about the reasoning of the judgment: The high court ruled that since a 15-year-old Muslim girl could legally choose to get married, her marriage could not be declared void. The division bench went on to say that the girl could, however, end the marriage on attaining majority, the age of 18. This is puzzling: if a 15-year-old Muslim girl can legally get married against the wishes of her parents, why does she have to wait till 18 to end the marriage. If she can legally choose to get married at 15, why can't she legally choose to be divorced before attaining majority?
If, instead of the usual stylised acrimony, the Delhi high court ruling stimulates debate about the framing of laws, the wording of judgments and the relationship of both to actual social practice, some public good might yet come out of this 15-year-old's runaway marriage.
The writer is an academic, author and critic.