Abolish Personal Law

I am happy that my friend Sadia Dehlvi has called for abolition of personal law in her article published in the centre spread of TOI today. I have  said this several times.

 Islam spread from Spain to Indonesia because of its great message of equality. But Sharia treats women as inferior to men. For instance, the right to oral talaq is granted only to husbands, not wives. Hence Sharia is unislamic

Khula divorce by wife is only permissible if the husband consents, but he may not, whereas oral talaq by a husband does not require consent of the wife

A Brave Initiative of Bhartiya Muslim Mahila Andolan

In today's '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Also, polygamy is a feudal, outdated institution which has no place in the modern world.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 medeival 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 medeival 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 Obviously a law made in Arabia in the 7th or 8th century A.D. is totally outdated and unsuitable for society in the 21st century.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 medeival 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 menfolk realize that the Muslim Personal Law is a law unjust to Muslim women, and demand its repeal.

Abolish unjust Muslim Personal Law

After my earlier post, many of my Muslim friends have criticized me alleging that I have no knowledge of Muslim Law.

Let me answer them by telling that I have studied shariat law first in the Allahabad university as a student of L.L.B. from 1965, then as a lawyer till 1991 in Allahabad High Court, and then as a Judge in the High Court and Supreme Court. Thus I was studying the shariat perhaps even before these critics were born ( I am now 68 years old).

On the other hand, their comments indicate that they have little knowledge of shariat, and have little modesty. Some of them say that talaq requires a long procedure. This is totally false.The truth is that it may require a long procedure for a Muslim woman wanting divroce because she has to file a petition in court under the Dissolution of Muslim Marriages Act, 1939, and it is well known that in our country court cases take several years to decide, and even thereafter there may be appeals and second appeals. However, a Sunni husband can immediately divorce his wife by a triple talaq (talaq ul bidat). Such a talaq is not valid according to Shia law, but it is valid according to Sunni schools of jurisprudence, as held in the Privy Council decision in Rashid Ahmad vs. Anisa, A.I.R. 1932 P.C. 25.

Though the preferred manner of divorce is talaq ahsan or talaq hasan, yet talaq ul bidat is good in law, and is the most common and prevalent mode of divorce in India vide Amiruddin vs. Khatun Bibi (1917) 39 All.371, 375. See in this connection Mulla's Mahomedan Law, 19th edition, p.261, Ameer Ali's Mahomedan Law, 5th edition,p. 1556, etc.

As regards Khula and mubarraat divorce, both require agreement between husband and wife . The main distinction between khula and mubarraat is that in the former the aversion is on the part of the wife alone, but in the latter, the aversion is mutual. In a khula divorce an offer has to be made by the wife to the husband for agreeing to divorce her on payment of compensation by her, vide Ghulam Sakuna v. Umar Baksh, A.I.R. 1964 S.C. 456 at p. 459.

In Mulla's Principles of Mohamedan Law, 19th edition p. 265 it is stated that a Muslim marriage may be dissolved not only by talaq which is done unilaterally by the husband, but also by an agreement between husband and the wife. This agreement to dissolve the marriage may take the form of khula or mubarraat. Thus, in both khula and mubarraat there has to be an agreement between husband and wife. It follows, therefore, that if the husband does not agree there cannot be a khula or mubarraat divorce. In other words, khula and mubbarraat cannot be done unilaterally by the wife, unlike talaq which is done unilaterally by the husband. Hence the wife does not have the right to get a divorce even in khula form akin to the right of the husband.

All this indicates the inequality between man and woman in the shariat law of divorce. The Shariat was a creation of medieval times, when women were regarded as inferior to men. However, when society changes, the law too has to change, because the law reflects the social relations in a society at a particular stage of its historical development. Surely, laws made in Arabia in the 7th or 8th century cannot be applied in the 21st century. In the 7th or 8th centuries women were regarded as inferior to men, but the modern age is an age of equality and now discrimination against women is unacceptable, and has to be abolished.

I have mentioned all this in great detail because most of those who have criticized me have, at least by implication, indicated that a non-Muslim cannot be learned in Muslim Law, while a Muslim , who may not have studied Muslim law at all, by the mere fact that he is a Muslim, is an expert in Muslim law. This is obviously nonsense. Those who know little or nothing of Muslim law, just because they are Muslims, do not become an expert on Muslim law. Such persons need to learn to be a little more modest and polite.

India is a secular country.Non-Hindus have a right to criticize bad and oppressive Hindu customs e.g. the Caste system, and similarly non Muslims have a right to criticize bad Muslim customs or outdated, and oppressive Muslim laws and practices. Such criticism of bad customs and oppressive laws and practices do not amount to an attack on anyone's religion.

Do away with burqa

In my opinion wearing burqa or hijab is a disgusting relic of feudal subjugation and servitude of Muslim women, and should be quickly done away with, not by force, but by educating and enlightening people, including Muslim women.

Some people say that Muslim women wear burqa or hijab of their own free will, and are not forced to do so. My reply is that the force which compels Muslim women who wear the burqa or hijab to do so is the force of feudal customs, habits and practices, which stamp the feudal sign of inferiority on a woman wearing it. If this force of feudal customs and feudal practices did not exist hardly any Muslim woman would wear the burqa, which only imprisons her.

Some people say that not covering the body has led to rapes of women. This is a stupid argument. Nobody is saying that women (or for that matter, men) should go around naked. But if a woman is wearing a sari or salwar kurta, or even jeans and a shirt is she going around naked?

I appeal to Muslim men, particularly the youth, to follow the example of the great Mustafa Kemal Ataturk, the founder of modern Turkey, who abolished feudalism and feudal practices, such as wearing the burqa and following the outdated and oppressive ( particularly to women) shariat law in Turkey and modernized it.
-Justice Katju