Published On:12 June 2012
Posted by Indian Muslim Observer

What religion, Balika Badhu?

By Zia Haq

Muslims, like Hindus and Sikhs, will not like to surrender their personal laws because they are just that: personal. But these laws seldom remain a private affair. When they concern Muslims, they tend to be played up in the news media with an element of “eek!”. The intent — I could daresay – is still largely to highlight the antediluvian nature of Islam.

In its last session, Parliament passed a law allowing Sikhs to register their marriages under the Anand Marriage Act instead of the Hindu Marriage Act, fulfilling a long-standing demand of the Sikh community. Sikhism doesn’t countenance the concept of divorce, celebrating rather an ideal nature of marriage, referred to as Anand Karaj (blissful event). This was just a blip on our television screens or was never reported. Newspapers that did, buried it mostly.

Contrast this with the Delhi High Court’s recent ruling that according to “Mohammedan Law, a girl could marry once she attains puberty”. It made it to the front page of a leading daily this past week. It picked the judgement well after a leading news agency had reported on it.
The ruling was first reported several days after it had been delivered. I mean the legal correspondent who reported it first pounced upon it, as a tiger would leap at its prey. Then, television – although people think it is a step ahead of newspapers – picked it up, with NDTV holding a panel discussion.

The NDTV anchor who hosted the discussion clearly lacked the domain knowledge, about Muslim laws and their applicability.

The anchor’s handling of the discussion reminded me of what sitting Delhi High Court judge, Hon’ble Justice Badar Durrez Ahmed, had recently said (speaking at the launch of legal academician Tahir Mahmood’s Muslim Law in India and Abroad): “There’s a lot of problem understanding Muslim law. In fact, there’s a lot of problem understanding Muslims.” He of course wasn’t speaking specifically about Muslim marriage laws but in the context of Mohammedan Law as a whole.

Most missed a crucial point: that a marriage solemnized cannot be declared void under Indian laws, even if the girl is a minor, and this applies to both Hindu and Muslim girls. The marriage remains illegal but not void.

On the face of it, personal laws, rooted either in religion or customs, are needed for meeting the social needs of a truly multicultural society. Without them, society would become a monolithic framework representative of a pre-determined value-system. Many wouldn’t agree to such a framework.

Islam began as a reformist movement, gave women rights to divorce and re-marry and work. The Prophet had married his boss, to whom he was employed and who was older to him by several years. Nearly 1,400 years ago, this must have been incredible: being able to fall in love, despite the veil; marrying some one well older (something any parent will disapprove even today), and working under a woman.

Yet, the Hadith and sunna (Prophet’s ways) and qiyas (analogy) as distinct sources of Muslim personal laws must be viewed in the context of their time. In the early phases, the Qu’ran and the Hadith were the sole sources of a Muslim’s social rules. For codified law, you needed something more. Therefore, the qiyas and ijma (or consensus) were used.

Changing the personal laws itself is difficult. Could one rewrite the shashtras for instance? But even a change in the law may not sometimes be the solution at all. Child marriages are more a manifestation of lack of education and low-income levels, rather than a religious requirement.

Assuming that Muslims agree to this law being changed, child marriages will continue if girls stay out of school and parents look to get rid of them by giving their hand in marriage at the first possible opportunity.

Conversely, Muslim laws recognizing the right of a woman to marry upon attainment of puberty simply has not resulted in Muslims compulsorily marrying off their daughters by that threshold.

What is the explanation for the well-documented high prevalence of female foeticide and child marriages among Hindus, despite Hindu personal laws requiring a girl’s age to be 18 for marriage? The reason for baalika badhu (a child bride) is social.

Attempts to reconcile personal laws with present-day social realities are not easy but have been on. People have a notion that Muslims can have up to four wives. In Pakistan, a serving government employee cannot marry a second time without prior approval of the government. In Indonesia, all Muslims need the court’s permission to do so, which is very difficult. The onus is on the applicant to prove why he needs a second wife. In Tunisia, you can’t just marry more than once, if not divorced.

Justice Ahmed says there are “no hidden monsters” in the Shariah. But surely there are inadequacies in the context of our times. Ways have to be found out. Yet, popular understanding of Muslim law may not be correct, constitutional or in consonance with Islam.
Fallacies are rampant. One of my favorites is this. The standard iconic textbook of Mohammedan law in India was written by the late DN Mulla. It is still by far the best and the most-prescribed book. Most people assume Mulla to be a Muslim, probably some greybeard mullah from a madrassa. DN Mulla was a Zoroastrian and one of India’s finest jurists! I didn’t know this until Soli Sorabjee, yes good old Soli, pointed it out to me. By the way, Mulla, unlike Soli, is not on Wikipedia.

(Courtesy: Hindustan Times)

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Posted by Indian Muslim Observer on June 12, 2012. Filed under , , , , , , . You can follow any responses to this entry through the RSS 2.0. Feel free to leave a response

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