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June 3, 2006

India: Islamic Laws Deny Women Basic Rights

India is a secular country. Let me repeat that. India is secular, with secular laws, and a secular constitution, drawn up on 26 January 1950, shortly after independence in 1947, with subsequent amendments. But amongst India's population of 1,095,351,995, there are an estimated 134 million Muslims, or 13.4% of the total.

And for the Muslim population, in issues of family law, there is also Muslim or Shari'a law. This is not legally binding, as the secular laws have official primacy. But because of the bullying nature of Islam and its followers, in many areas of India, the rule of the Imams comes before the law of the land. Those who transgress against the Islamic law are bullied into submission by their peers and neighbours.

Take for example the case we described on May 20, of 19-year old Mafia Khan, who was promised in marriage at the age of two. She had married on March 17th of this year in her home state of Rajasthan in northwest India. Imams declared her new marriage invalid, because her nikanamah marriage vows made at the age of two took precedence.

Mafia had to submit to local Muslim pressure and reside at her father's house, unable to live with her husband because the Mullah's decree and community pressure. Unable to divorce under Islamic law (that is the privilege of the man alone), she has to wait until an imam declares that she is divorced. Marriage of a two year old is illegal under Indian secular law, but valid under Islamic law.

And the act of divorce requires from the man only the words "talaq, talaq, talaq" to be binding under Islamic rules. We reported on April 3 on the bizarre case of a couple living in Jalpaiguri, West Bengal state. Aftab Ansari was asleep when he uttered the words "talaq, talaq, talaq" with his wife of 11 years, Soheb, sleeping at his side. According to Ananova at the time,

The couple were told the only alternative under Muslim law was a temporary separation of 100 days during which the wife would stay at her father's house and spend a night with another man who she must marry.

Sohela could then remarry Aftab after obtaining a divorce from her second husband.

But the mother of three has threatened to commit suicide if forced to marry someone else: "I love him and I don't want to leave him in any case," she said.

Mr Ansari and his wife had argued fiercely before sleeping, and maybe in his sleep Aftab had meant those words. When Sohela told a friend the following day, the subject became a point of gossip, until the local Muslim religious leaders heard of it, and made an issue of the affair.

But Aftab and Sohela are not the only couple wherein the man has uttered "talaq, talaq, talaq" in his sleep. According to Women Living Under Islamic Law recently Sheikh Mohammed, a man living in Bhadrak district, Orissa also muttered these words while sleeping next to his wife Najma Bibi. He was aware the following morning and decided to ignore the fact that he had subconsciously divorced Najma, and decided to stay with her and their three children.

But Mullahs in Bhadrak got wind of what had occurred, and issued a fatwa, declaring that the pair were now officially divorced. They forced Najma Bibi to take all three children and live with at her father's home.

According to the fatwa, for the pair to remarry, as in the case of Sohela Ansari, Najma Bibi had to perform Halala. That is, to marry some-one else and consummate the marriage, and then get herself divorced. She refused, and took the matter to court. She also asked for police protection, as the local community were threatening her and her husband. Their neighbours ostracised them.

In April, the Supreme Court of India ruled that "no one can force them to live separately. This is a secular country. All communities - Hindus or Muslims - should behave in a civilized manner."

As a response, the Orissa branch of the Jamait-ul-Ulema (an imams' council) said: "The Supreme Court has no power to intervene in religious matters. It should confine itself to other litigations and should have consulted religious institutions and clerics before taking such a decision."

The issue of imams deciding that they are above the secular law is not new. We reported on a bizarre case from Khargone in Madhya Pradesh state on November 9. Here a woman named Arzmand had been married in 1996 to Anwar Khan, a labourer for the Public Works department. Apparently he had lied about his job status and also demanded that Arzmand's family pay him a dowry for the privilege of being his wife. After only 15 days of living with the man, Arzmand packed her bags and went back home. For ten years she had nothing to do with Anwar Khan.

She gained a divorce finally in 2004, issued by a civil judge, Nirmala Chavda. When Anwat recently heard of this, he trotted off to the additional sessions court, to challenge the ruling. It was then that he found out that not had Arzmand gained a secular legal divorce, but that she had subsequently married a teacher. In his frustraion, he approached the local Deobandi leader of a madrassa, Mufti Mohammed Rafiq Kasmi.

The Mufti agreed that it was Islamically illegal for a woman to divorce a husband, and issued a fatwa, delivered personally to the court, stating that shariat law does not recognize the verdict given by a non-Muslim magistrate, and that the woman could not marry until her husband gave her talaq.

And Anwar was not willing to part with the spouse he had separated from nine years earlier. He whined: "The fatwa clearly states that only a man can give talaq. I am not ready for talaq because I want her back."

Arzmand was not prepared to let her reputation, or marriage, be sullied so she then sued Anwar for contempt of court, and also told police about his dowry demands. Dowry is illegal in India under the Dowry Prohibition Act, though the practice continues.

The affair caused dissent among the Hindu politicians in the region who demanded that the Mufti be arrested and prosecuted for insulting the Indian Constitution and the judiciary. Their wishes were granted shortly after, on November 17, when Mufti Kasmi was dragged before Chief Judicial Magistrate S R Bamania, who released him on a bail bond of 10,000 rupees.

A very famous case in India happened 21 years ao, when Shah Bano, a Muslim woman was given the "talaq, talaq, talaq" divorce by her husband, to whom she had been married for 43 years. She was left destitute, thrown out on the street. She pursued the case to India's Supreme Court, which ruled that her husband's divorce was legally meaningless, as only Indian law applied. The court ruled that a husband must financially make provisions for his wife if she has no means of support or financial independence.

Various Muslim leaders protested the ruling so strongly that in 1986, the Indian parliament (then under Rajiv Gandhi) lessened the ruling by legislation. This then meant that in several Indian states, Islamic rules meant that a divorced woman should only be maintained for three months, a period known as "Iddal", which is three menstrual cycles. The financial recompense and its duration is called mehr.

The Indian Muslim Law Board was apparently controlled in its actions by the hardline Sunni theologians of Deobandi persuasion, centered at the Darul Uloom (house of knowledge) in Deoband, northern India.

There are varying schools of jurisprudence within Islamic Law. Hanifi law states that a child born following a divorce will still be legitimate up to two years after the marriage's termination. But under Maliki and Shafi jurisprudence, this period goes up to 4 years. For Shias, the period during which a subsequent child can be considered "lawful" is 10 months. So as well as running contrary to secular law, Islamic law of itself is contradictory and uncertain. If one lives in a region controlled by one Islamic school, one's Islamic legal system can differ in its severity.

An article by Erica Lee Nelson was published today in the World Peace Herald, originally from the Washington Times. She states that in 1937, when India still had British colonialism, a law was passed called the Shariat Application Act. This allowed Muslims the right to follow religious rulings based n Islam, including polygamy and the talaq divorce.

Last year, another peculiar Islamic ruling was announced which led to the Supreme Court to order one form of Islamic body to be subject to investigation. As reported originally by the BBC, a woman in a village court in Lucknow had been raped by her father. In January, the village council (panchayat) which comprised Muslim clerics, ordered the woman to marry her father-in-law. She was already married to the man's son, whom she was ordered to subsequently treat as a "son".

According to the clerics, the act of rape had annulled the marriage. The woman and her "son"/husband had brought forth five children up until the rape. But following the involvement of the secular authorities, the rapist father-in-law was arrested and thrown in jail.

The most powerful Muslim law body in India, the All India Muslim Personal Law Board (AIMPLB), states Nelson, supported the decision of the panchayat, and went as far as to claim that the woman had lied about the rape. The examination of system of "Islamic courts" known officially as Dar-ul Qaza, with a view to potentially disbanding them was the subject of a public interest lawsuit brought to the Supreme Court following the Lucknow ruling.

AIMPLB does not represent the views of all Muslim imams in India. The Lucknow case was opposed by three women's groups, the All-India Muslim Women Personal Law Board, the Awaz-e-Niswan and the National Commission of Women.

In May last year, the AIMPLB decided to issue a set of formal guidelines in cases of divorce. Here they recommended that should a couple feel they wish to separate, they should then consult a Dar-ul Qaza to seek arbitration.

Abdul Rahim Qureishi, spokesman for the AIMPLB said: "There is an attempt to instil the fact that Sharia [Islamic law] is supreme and all Muslim marriages will be governed by it. In keeping with this philosophy, the AIMPLB has laid down that all divorce and marital discords will have to be referred to the [Muslim clergy] and not the civil courts."

This issue of itself caused consternation both among women's groups and also amongst Hindus, who are duty-bound to follw secular law. Women's rights campaigners had pushed for AIMPLB to throw out the "triple talaq" altogether, which the guidelines did not rule out.

Erica Lee Nelson states that the AIMPLB is not a legally binding entity, and all it can do is make recommendations. But in practice, this group runs most of the Islamic courts in India. They are cheaper and quicker than the civil courts for poor Muslims, she says.

India is the only country in the world where triple talaq is actually legal, due in part to the British. The Shariat Application Act 1938 was passed under colonial governance. But it was in the 19th century that a British colonial court dirst allowed a triple talaq to be issued without the wife being present, and after India's Independence, the ruling managed to still be regarded as a legal precedent.

However, a women's rights advocate, Nilofar Akhtar, of the Bombay Law Court has started a campaign in which women are able to draw up their own marriage vows or nikanamah, which can include a woman's right to instigate Talaq.

In Akhtar's alternative recommendations, it is advised that mehr, is not just something to be given at the end of a marriage, but it is an amount which is legally due to the wife, and can be written into the marriage contract. Effectively, this allows dowry (forbidden under secular law), to be legal for Muslim couples, and to benefit the wfe. Akhtar claims that virtually anything can be written into a nikahnama.

An American initiative from the Washington-based International Federation of Electoral Systems (IFES) helps groups of women in India to be trained in their Koranic rights, and also their constitutional rights. So far, about 70 groups for women are in existence, in Rajasthan state and Karnataka in the south. The information groups also hold sessions for men.

The initiative is positive, but fundamentally it is wrong to allow sharia law in a country with a secular constituton. The law of the land, as judges have tried to impress upon Mullahs, will always come first, if the two are pitted against each other. But Muslims want to be given special privileges in India, and they already had "quota" schemes introduced by the state government of Andra Pradesh, where five per cent of jobs and education places were to be reserved for economically deprived Muslims.

The Andra Pradesh quotas were later deemed unconstitutional, but this has not stopped the imam of the Jama Masjid in New Delhi from petitioning the Prime Minister of India, Manmohar Singh, to institute national quota systems for Muslims.

Muslims always seem to want to portray themselves as needy minorities when they are not in the majority. We have seen from examples like Pakistan, Indonesia and Malaysia that when they become the majority, they impose their Islamist rules on non-Muslims. Hindus in India are 80% of the population, and have only one set of secular laws. Muslims should have no right to practise sharia law as something legally valid. Divisions and resentments always follow when one group is not treated equally. There should be one law for all in India, and that law should not be based upon the auditory hallucinations of a 7th century paedophile "prophet".

Posted by Giraldus Cambrensis at June 3, 2006 9:46 PM

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Posted by: John Sobieski at June 4, 2006 9:37 PM

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