By Faizan Mustafa
The debate over Muslim personal law (MPL) has taken a serious turn in recent weeks with the government of India filing an affidavit supporting its reform. While the All India Muslim Personal Law Board (AIMPLB) – established in 1972 – is being blamed for all the regressive provisions of MPL (Hanafi Law) in operation in India for about 1000 years, the Bharatiya Muslim Mahila Andolan (BMMA), formed in 2007, is rightly given credit for aggressively leading the current debate to reform MPL. The prime minister himself spoke of the plight of Muslim women a few days back and promised to bring an end to what he called the tyranny of triple talaq.
What’s At Stake?
The BMMA deserves credit for undertaking two major empirical studies on the MPL but its statistical findings have at times been contradictory. The first study says 88% of divorces were unilateral while the second study says 59% divorces were unilateral, to give one example. Both the government and the media have blindly relied on these studies to make the case for reform. I am also not opposed to either the demand for reforming MPL or even to a uniform civil code. My concern in the present context is whether we can really achieve ‘gender justice’ simply by ‘banning’ polygamy and triple Talaq.
The BMMA has come up with two reports. The first one is based on 117 case studies of triple Talaq – though their study details only 88 cases and from one state, they have picked up just three cases. The second is a survey of 4710 Muslim women.
The BMMA maintains that it is a democratic organisation of Muslim women led by Muslim women which fights for the ‘Quranic rights of Muslim women’. Thus the fundamental premise of their argument with which a liberal scholar may disagree is that they simply want those rights for Muslim women which are given to them by the Quran. Like many others, the BMMA erroneously thinks that the Quran is a code of law or a statute enacted by the parliament. As a matter of fact, the Quran is neither a legal nor a constitutive document. The Quran by itself is not law. It is the source of law. Law is to be extracted from the Quran through interpretation.
The BMMA’s position is problematic on a number of points as they demand several rights which are not provided in the Quran, such as mandatory wills or gifts in favour of daughters to ensure that their share of inheritance is more equitable. Moreover, most constitutionalists would have problems with Quranic rights as they do fall short on women’s rights, as judged by modern standards.
The BMMA runs Shariat courts with some efficiency but no one has bothered to question this parallel judicial forum run by them. Just like the AIMPLB, the BMMA too has asserted in the Supreme Court that ‘Muslim personal law’ is related to the ‘core religious beliefs’ of Islam and is thus, protected by the freedom of religion under Article 25 of the constitution read with Article 26. This position excludes the possibility of major reform in the MPL as courts have consistently held that freedom of religion under Article 26 protects the ‘essential or core’ religious practices of both “religious denominations as well as sects thereof”.
Thus the Hanafi sect and its law stand protected. Similarly, just like the AIMPLB, the BMMA too, opposes the uniform civil code and has explicitly asserted in the apex court that the same is ‘neither desirable nor practical.’
To be fair to the BMMA, one must concede that it is not asking for much. In fact, the BMMA looks as confused as Shayara Bano. Both of them have asserted in court that triple Talaq, as per judicial verdicts, is now counted as one and yet asks the court to hold it as unconstitutional. Those opposing it are also not free from fault. As a matter of fact, the BMMA is basically asking that instant oral triple talaq must end and that the Quranic procedure of divorce in three months, with prior efforts of reconciliation between spouses, be strictly followed.
Thus they are not asking for revolutionary change but simply requesting the court for an ‘Islamisation’ of MPL. Most liberal scholars have been making similar demands and are against instant triple Talaq. I feel courts have already ruled on this question in a number of cases and, indeed, such cases have been quoted by the BMMA in its application to the Supreme Court. To that extent, the current hue and cry is unwarranted.
Problems with BMMA’s Research
The empirical studies undertaken by the BMMA to substantiate their views and demonstrate that an overwhelming majority of Muslim women want reforms in the MPL can be questioned in terms of their scientific validity and empiricism. The study titled ‘Seeking Justice Within Family – A National Study of Muslim Women’s Views on Reforms in Muslim Personal Law’ was published in March 2015. Any empirical study must clearly reveal its research methodology and the reasons for adopting the same. The sampling methodology needs to be revealed so that the reader may understand the representative nature of the sample.
There are internationally recognised norms and any research which claims to be scientific, must conform to them. Neither the aforesaid survey of 4710 Muslim women from 10 states, nor the study entitled ‘No More Talaq, Talaq, Talaq’ published in October 2015 – based on case studies of 117 Muslim women in eight states – mention the research methodology. The BMMA study relies solely on its self-selected respondents. What was the basis on which certain states or districts were selected and others excluded? What were the parameters by which the 4710 women were identified? Why did the BMMA not talk to their husbands, family members, neighbours as well to corroborate the accounts? In the absence of answers, their study cannot be termed scientific. Noorjehan Safia Niaz, who led one of the studies, has herself admitted that they prepared the study on the basis of their interaction with women they work with.
The first major finding of their initial study is that 15.5% women out of 4710 were married below 15 years of age. No question was asked about the “option at puberty” under MPL, which entitles a minor to nullify his/her marriage, nor about how many of them exercised it, or why they could not. The study did not mention the shocking finding that 1.2 crore children in India are married before they reach the age of 10 and the percentage of Hindus among them – 84% – is in keeping with the share of Hindus in the population. Eleven percent of Muslim children were married before reaching 10. These figures also show the limitation of normative changes in the law. The Child Marriage Restraint Act,1929, and the Prohibition of Child Marriages Act, 2006, incorporate the general law of the land and are applicable to Muslims – yet these laws have not had their desired effects in any community.
The BMMA, which stands for codification, found that 83.3% of respondents thought ‘full codification of MPL was the answer to their fight for legal justice’. Despite the low level of education among Muslim women, as many as 35.2% of respondents were aware of codified laws in the Islamic countries and understood all the implications of codification. The BMMA should have asked its respondents how they came to know about the codification of law in Muslim countries. Even the government, in its affidavit to the apex court favouring the banning of polygamy has quoted the example of eight Muslim countries without realising that most of them have not really ‘banned’ polygamy.
Muslim divorce is the central concern of the BMMA. It told the Supreme Court that in 2014 its Shariat courts received 219 cases of which only 22 were about triple Talaq. Their study found that 22% divorces occur within the first year and 22% within first three years. Only 0.2% of the divorces happen after 15 years of marriage and 0.4% after 20 years of marriage. Shayara Bano got divorced after 15 years. This means hers is an exceptional case, like Shah Bano. As per the BMMA survey, the divorce rate amongst Muslims is as high as 11.1%. But the 2011 census data says that divorce rate amongst Muslims is just 0.56% (0.53 in 2001 census). This disparity has not been explained by the BMMA’s researchers. Ideally, there should have been comparative analysis with the divorce rates amongst Hindus. If divorce and separation are clubbed together, the Hindu rate would be 0.76%.
Contrary to popular perception that most Muslim women get unilateral divorces through phone, email and via text messages, the BMMA case study shows only one divorce out of the 117 was delivered in the absence of wife. As per the BMMA’s own findings, only 0.2% got divorced over the phone, 0.6% received it through email and out of 525 divorces, only one was delivered via SMS, that is only 0.19%. Thus the problem is not as serious as it is made out to be by the media and the government. Moreover, as many as 220 divorces occurred in family homes, 110 in court and 46 through Darul Qaza. Thus as many as 71.6% of divorces happened publicly, according to the BMMA’s study, in the presence of family members, judges, lawyers, panchayats, NGOs and qazis. One is inclined to believe that in most cases there must have been some effort at reconciliation prior to actual divorce pronouncement and divorce in most cases was just the final act of amicably dissolving the marriage.
The BMMA study itself reveals that in as many as 40.57% cases, Muslim women demanded a divorce and therefore it is clear that poor Muslim women, even under the existing and regressive MPL, do take initiative on their own. Thus the BMMA has exaggerated the problem of unilateral divorces. A triple talaq at the request of the wife or her family or as a result of mutual consent between two families may not be that unjust. As compared to this, what about Hindu wives who are unceremoniously discarded on flimsy grounds? The husbands remarry thereafter, without divorce, leaving these destitute women to fend for themselves. The Law Commission should conduct a detailed empirical study on the plight of Hindu women as well before it submits its report for a uniform civil code.
The BMMA has powerfully argued for the abolition of polygamy and one may really be inclined to agree with them in the absence of a more nuanced solution. ‘Banning’ or ‘prohibiting’ does not fall within the purview of the Supreme Court. No court can create ‘offences’. The first principle of criminal jurisprudence is that the legislature alone can create ‘crimes’ or ‘prohibit’ or ‘ban’ something. Thus the court has no power to either ban polygamy or triple talaq. This is the parliament’s prerogative.
Interestingly the BMMA’s case study has not probed the issue of polygamy at all. In an indirect observation, it demonstrates the extremely low incidence of polygamy amongst Muslims. Here again, petitioner Shayara Bano is not a victim of polygamy and thus she is not an aggrieved party – but still in the very first paragraph of her petition she requests banning polygamy. She has filed a writ petition to get her own divorce deed declared as void ab initio. The BMMA study shows that only 2% of Muslim men had taken a second wife prior to divorce and as many as 38% preferred to remain single even after divorce. The BMMA researchers cannot complain about the 54% who married someone after divorce as this cannot be termed as bigamy. The BMMA study also did not include questions about how many divorced women got remarried.
Maintenance and ‘Nikah Halala’
The BMMA study reveals that only 50% of women get maintenance during the ‘subsistence of marriage’. This means post-divorce, destitution is not the only issue. Even married women during the continuance of their marriage are not being maintained by their husbands. The existing law is absolutely clear on this point. The study does not tell us why they could not use these provisions.
Most liberal scholars are against Halala which they argue is an un-Islamic practice. Here again, Shayara Bano is not a victim of Halala. The BMMA case study mentions just two cases out of 117 where respondents said that ‘they were asked to undergo Halala’ – i.e. marriage to a second husband before they can return to the first. The weakness of their questionnaire becomes evident as there was no follow-up question on who asked them to undergo Halala. In the second study as well, they found 1.6 % of women underwent Halala. Thus, a massive majority of 85.52% of the divorcees were not subjected to Halala. Again, the BMMA study does not tell us why these women went back to their husbands who were not giving them maintenance even during subsistence of the marriage.
Again, the BMMA study does not tell us why these women went back to their husbands who were not giving them maintenance even while they were married and had been subjecting them to domestic violence. Did their parents force them to remarry first husbands? Was this intervening marriage used as a device to facilitate their remarriage with the first husband? Do they have the Nikahnama of these marriages? Did they freely consent to the second marriage? Were they given triple Talaqs in these marriages? Did they receive their Mehr for these marriages? The BMMA in its petition admitted that the Masroor Ahmad case has now negated the effect of so-called Halala. If so, this means the problem has been solved by the judiciary. The BMMA has not clarified whether it is in agreement with so-called Halala in the event that the divorce is in Ahsan form, i.e., just one pronouncement as per the procedure prescribed in the Quran.
Let us try to understand this controversial subject of intervening marriage, or Halala, from the perspective of the MPL. As a matter of fact, a Muslim can revoke his first divorce within three months without doing anything. If three months have passed without revocation, and if both the husband and the wife want to revive their relationship, they may simply remarry with a fresh Nikah and Mehr. If again, after some time, there is a second divorce, the husband may either revoke the divorce on his own within three months or remarry yet again if three months have passed. If the same story gets repeated a third time, then MPL treats the husband and wife as within ‘prohibited degrees’ and they cannot remarry each other any longer. But in case the wife contracts another marriage with someone else and this second marriage too collapses on its own accord or if she becomes a widow, and if her first husband and she, out of their own free will, want to marry yet again, the prohibition stands removed and they can enter a resh marriage contract. But no intervening marriage is permissible as an arranged device to simply remove the prohibition of marriage. The Hindu Marriage Act also talks of ‘prohibited degrees’ within which marriage is not permitted. Even the Special Marriage Act, which is the most progressive piece of legislation, also mentions certain ‘prohibited degrees’.
BMMA and Shariat Courts
The BMMA in their application to the Supreme Court has referred to Shariat courts run by them. They have stated that 219 cases came to these courts in three centres. Again domestic violence, dowry harassment, alcoholism of husbands, suspicious nature etc., appears to be the major problems – and the BMMA claims to have resolved most of them. How these cases were resolved is not clear. Did they end in reconciliation? If yes, can it be presumed that the husbands participated in the proceedings and did not pronounce triple Talaq while the reconciliation procedure was going on? This analysis defeats their case that a Muslim husband pronounces instant oral Talaq on the flimsiest grounds.
Alternatively, did the BMMA use the Domestic Violence Act? How were the many erring husbands held liable owing to BMMA’s intervention, not mentioned? How much money was spent on these litigations by the poor victims of domestic violence and how much time did these cases take? What difficulties did they face in using the criminal justice system – particularly section 498A of Indian Penal Code. The BMMA gives no data on vital issues like how they dealt with issues like dowry and domestic violence.
The BMMA shows the deplorable condition of Muslim women. But their condition is much the same as Hindu women from the same social class. The evil of instant ‘Triple talaq’ need only be replaced with the sin of ‘desertion’. Why is no one bothered about the plight of Hindu women on the issue of domestic violence, desertion and polygamy? The recent film, Parched, highlights this reality. The problems of poor women amongst all religious communities are similar and there is nothing special or distinct about Muslim women. The class character must be given due consideration in the analysis of any social problem.
Should the Supreme Court or government take crucial decisions to reform personal law on the basis of such unscientific research? The apex court should ask the Law Commission to conduct a major comparative study on this subject to know the ground realities of women from various religious communities. On its part, the government should release all the data from the socio-economic- caste census. Let this research be used as a starting point for a truly informed debate on the plight of women in Indian society – all women, regardless of caste, region or religion.
Faizan Mustafa is the vice-chancellor of NALSAR University of Law, Hyderabad