Study – Faizan Mustafa
“Whenever I read statistical reports, I try to imagine my unfortunate contemporary, the average person, who, according to these reports, has 0.66 children, 0.032 cars and 0.045 TVs”, said Kato Lomb. Benjamin Disraeli went a step ahead and said that “there are three types of lies-lies, damn lies and statistics.” This author does not agree with Disraeli’s contempt for the Statistics and believes that statistics do provide good starting point of meaningful debate. But then Statistics deals only with measurable aspects of things and therefore, can seldom give the complete solution to the problem. They provide a basis for judgement but not the whole judgment as 99 per cent of statistics tell only 49 per cent of the story. Data must not be ignored. It must be given due importance after proper scrutiny and examination.
The whole country is debating reforms in Muslim Personal Law (MPL) and the government of India has filed an affidavit supporting these reforms. While All- India Muslim Personal Law Board (established in 1972) is being blamed for all the regressive provisions/ principles of MPL(Hanafi Law) which have been in operation in India for about 1000 years, Bhatiya Muslim Mahila Andolan(BMMA) formed in 2007 is rightly given the credit for aggressively leading the current debate for reforms in MPL. Prime Minister himself few days back spoke on the plight of Muslim women and promised to bring to an end what he called the tyranny of triple divorce.
BMMA deserves full credit for taking the pains of undertaking two major empirical studies on MPL. But BMMA has given quite a few statistics at times contradictory (first study says 88 per cent divorces were unilateral while the second study says 59 per cent divorces were unilateral) in different studies and no one has bothered to minutely study their findings. This author has no quarrel with the BMMA or its founders or their researches. In fact I have a very high respect for these liberal voices. Zakia Somen has done a remarkable work in the relief camps after the Gujrat genocide. My grievance is with the government which proposes to blindly rely on these studies and with the media which has accepted their findings as gospel truth. I am also not opposed either to demands of reforms in MPL or even to uniform civil code. Of course I favour piecemeal reforms rather than enactment of uniform civil code in one go. My only concern in the current debate is that can we really achieve ‘gender justice’ simply by ‘banning’ polygamy and triple divorce and I am frustrated to see that in the ultimate analysis Modi government, BMMA and All India Muslim Personal Law are in fact speaking in almost the same language on the issue of triple divorce. Even Board is now making statements that though the triple divorce would dissolve marriage but the person giving instant triple divorce may be held criminally responsible as was the practice during the second caliph.
BMMA has come up with two researches. The first one is based on 117 case studies on triple divorce (though their study gives details of only 88 cases and from one state they have picked up just three cases) and second is a survey of 4710 Muslim women. The BMMA maintains that it is a democratic organization of ‘Muslim women’ which is led by ‘Muslim women’ and 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 the Muslim women which are given to them by the Quran. Like many others BMMA too erroneously think that the Quran is a code of law or a statute enacted by the Parliament. As a matter of fact Quran is neither legal nor constitutive document. Quran itself is not law. It is the source of law. I have consistently maintained that MPL is not divine. Law is to be extracted from the Quran through interpretation. Jurists have developed a highly sophisticated science called usul -e- fiqh and techniques of interpreting Quran and those not expert in this science cannot extract laws from it and thus the dependence on the jurists.
Moreover BMMA’s position is also problematic on number of points as they do demand several rights which are not there in the text of Quran such as mandatory will or gift in favour of daughters to make their share in inheritance equal to sons. Their definition of term ‘Muslim’ is itself problematic as it does not include finality of Muhammad’s prophethood. This is nothing short of playing with fire. Moreover most constitutionalists would have problems even with the Quranic rights as they do fall short of women rights under modern human rights or Convention on Elimination of All Forms of Discrimination Against Women (CEDAW).
BMMA does run Shariat Courts, of course with some efficiency but no one has bothered to question them on this parallel judicial forum run by them. Just like Muslim Personal Law Board, BMMA too has asserted in the Supreme Court that ‘Muslim Personal Law’ is related to ‘core religious beliefs’ of Muslims and thus is protected by the freedom of religion under Article 25 of Indian constitution read with Article 26. This position excludes possibility of major reform in the MPL as courts have consistently held that freedom of religion under Artcle 26 protects ‘essential or core’ religious practices of both “religious denominations as well as sects thereof”. Thus Hanafi sect and its law stands protected. Similarly just like Personal Law Board, BMMA too opposes Uniform Civil Code and has explicitly asserted in the apex court that the same is ‘neither desirable nor practical.’ Why nation did not confront BMMA team on these issue is surprising.
To be fair to BMMA one must concede that it is not asking for moon. In fact BMAA looks as confused as Shayra Babo. Both of them have asserted in the court that triple divorce as per judicial verdicts is now counted as one and yet ask court to hold is unconstitutional. Those opposing it are also not free from fault. As a matter of fact it is basically asking that instant oral triple divorce must end and Quranic procedure on divorce in three months with prior efforts of reconciliation between spouses is to be strictly followed. Thus they are not asking for any revolutionary change but simply requesting the court something very strange ie islamization of MPL. Most liberal scholars have been making similar demands and are against instant triple divorce. I feel courts have already done so in number of cases and such cases have been quoted by the BMMA in its application in the Supreme Court and therefore current hue and cry is unwarranted.
BMMA study on jurisprudence followed by the respondents is interesting as it reveals that while 4 per cent respondents were Shias ie followers of ithna ashari school and as many as 8.3 per cent did not know their sect. Moreover it seems that researchers were not aware that all members of Sunni Jamat, Barelvi, Deobandi and Wahabi follow only one jurisprudence i.e. Hanafi school and therefore this question was wrongly framed. Ideally the respondents should have been asked which jurisprudence- Hanafi, Shafii, Maliki, Hambali etc. they follow. Ahl e- Hadees of course do not follow any school. Similarly there is clear cut distinction between Dalits and Backward Caste and BMMA has wrongly clubbed them together. There are Scheduled Tribes as well amongst Muslims but BMMA survey talks of only Backward Class.
Two empirical studies were undertaken by the BMMA to substantiate their views and to demonstrate that overwhelming majority of Muslim women too want reforms in MPL; one may raise a lot of questions on the scientific validity of these studies and if they were at all empirical, the arguments and findings should have logically been based on them. BMMA 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 of adopting such a methodology in terms of questionnaire, interview, case studies etc. It is essential for any empirical survey to reveal the sampling methodology so that the reader may understand the representative nature of the sample. An effort is made here to initiate a debate on BMMA’s studies so that informed decisions are taken by the government and the apex court. The idea is not to belittle BMMA’s efforts but to initiate healthy academic discussion on their findings.
There are internationally recognized norms and any research which claims to be scientific must conform to them. Neither the aforesaid survey of 4710 Muslim women of ten states nor the study entitled “No More Talak, Talak, Talak” published in October, 2015 which is based on case studies of 117 Muslim women in eight states mention a word about the research methodology as to how the respondents in the first study and case studies in the second were selected and how BMMA reached them. On what basis certain states or districts were selected and others were excluded? Why and how 4710 or so women were identified and on which parameter? For any authentic case study, evidence from multiple sources is to be collected to verify findings. Why BMMA did not talk to their husbands, family members, neighbours etc. too is not mentioned. BMMA study relies solely on its self-selected respondents. In the absence of answers to these questions, their study cannot be termed scientific study. Ms Noorjehan Safia Niaz who led one of the studies has herself admitted that they prepared the study on the basis of their interaction with the women amongst whom they work. Though as a general rules case studies have to be lengthy and detailed, BMMA studies strangely give very scanty details.
The first major finding of their initial study is that 15.5 per cent women out of 4710 were married below 15 years of age. Why no question was asked as to the “option at puberty” under MPL which entitles a minor to nullify his/her marriage. How many of them exercised it or for what reasons could not exercise it? Why the study does not mention the shocking finding that 1.2 crore children in India are married before they reach age of 10 and whopping 84 per cent of them are Hindus. Eight out of 10 illiterate children so married were girls and therefore they were more disadvantaged. On the other hand only 11 per cent Muslim children were married before reaching 10. Moreover 1.2 crore girls were married below 18 years of age and 1.25 crore boys were married below 21 years of age. Such comparisons would have added value to the BMMA findings. These figures also show the limitation of normative changes in law. Child Marriage Restraint Act,1929 and Prohibition of Child Marriages Act,2006 incorporate the general law of the land and are applicable to Muslims yet these laws have not given desired results in any community.
BMMA does stand for codification. But since their finding is that 83.3 per cent of their respondents thought ‘full codification of MPL was the answer to their fight for legal justice’, Union government should order that a similar study be undertaken about other communities whose law has already been codified to find out how far these communities have really benefitted from the codification of their laws. It is also difficult to accept that with such a low level of education amongst Muslim women, how come as many as 35.2 per cent of respondents were aware of codification in the Islamic countries or how they understood all the implications of codification. BMMA should have asked its respondents how they came to know about the codification in Muslim countries. Even government of India in its affidavit in the apex court favouring ‘banning’ polygamy has quoted example of eight Muslim countries without realizing that most of them have not really ‘banned’ polygamy. What is codification should have been the first question if the intention was to correctly assess respondent’s response to codification in the Muslim world?
Similarly 90 per cent of BMMA respondents wanted Darul Kaza or Shariat courts to work ‘under state’. It is a strange finding as such courts cannot work under state. Under which ministry these Sharia courts would come is not clear. Who will appoint judges or Kazis of these courts, BMMA study does not answer.
Muslim divorce is the central concern of BMMA. It has said in the Supreme Court that in 2014 its Sharia Courts received 219 cases of which only 22 were about triple divorce. Their study found that 22 per cent divorces occur within first year and 22 per cent within first three years. Only 0.2 per cent divorces happen after 15 years of marriage and 0.4 per cent after 20 years of marriage. Shayra Bano got divorce after 15 years. This means hers is an exceptional case like Shahbano. As per BMMA survey divorce rate amongst Muslims is as high as 11.1 per cent. But the 2011 census date says that divorce rate amongst Muslims is just 0.56 per cent (0.53 in 2001 census). Why this disparity has not been explained by the researchers of BMMA. Similarly ideally there should have been comparative analysis with the divorce rates amongst Hindus. If divorce and separation are clubbed together, Hindu rate would be 0.76 per cent. In fact desertion without divorce is more painful for women. Why no one sheds tears for these deserted Hindu wives?
The impression which has been created is that most Muslim women are getting unilateral divorces through phone, email and via SMS. This clearly shows we have not bothered to read BMMA studies and unfortunately BMMA officials too have not tried to correct this wrong impression. According to BMMA case study on triple divorce only one divorce out of 117 was given in the absence of wife. As per BMMA’s own findings, only 0.2 per cent got divorces on phone, just 0.6 per cent received divorce through email and out of 525 divorces only one got via SMS ie only 0.19 per cent. Thus the problem is not as serious as it is made out to be by the media and government. Moreover as many as 220 divorces were given in family home and 110 in the court and 46 through Darul Qaza. Thus as many as 71.6 per cent divorces happened publicly according to BMMA’s study in the presence of family members, judges, lawyers, panchayat, NGOs and Qazis. One is inclined to believe that in most cases there must have been some efforts for reconciliation prior to actual divorce pronouncement and divorce in most cases was just the final act of amicably dissolving marriage.
BMMA study itself reveals that in as many as 40.57 per cent cases divorce was demanded by Muslim women and therefore it is clear that poor Muslim women even under existing and regressive Muslim Personal Law do take the initiative on their own in getting divorce. Thus BMMA has exaggerated the problem of unilateral divorces. A triple divorce at the request of wife or her family or as result of mutual consent between two families may not be that unjust. As compared to this what about Hindu wives who are most unceremoniously discarded on flimsy ground – insufficient dowry, producing girl children or not producing children or on mere suspicions etc. and the husbands remarry thereafter, without divorce leaving these destitute women to fend for themselves. Hindu women’s plight is to be discussed as the current case has started about the rights of Hindu women, of course she did not get property. Even though she had won in the High Court. Law commission should conduct a detailed empirical study on them as well before it submits its report on uniform civil code.
BMMA has powerfully argued for the abolition of polygamy and one may really be inclined to agree with them in the absence of opposition to more nuanced solutions such as restricted polygamy or treating marriage as private limited company. It is a different story no one in this country seems to know that ‘banning’ or ‘prohibiting’ is not the domain of Supreme Court. No court can create ‘offences’. The first principle of criminal jurisprudence is that legislature alone can create ‘crimes’ or ‘prohibit’ or ‘ban’ something. Thus court has no power to either ban polygamy or triple divorce. This is Parliament’s prerogative.
Interestingly BMMA’s case study has not probed the issue of polygamy at all. In an indirect observation it demonstrates extremely low incidence of polygamy amongst Muslims. Here again petitioner Shayra Bano is not victim of polygamy and thus she is not aggrieved party and but still in the very first paragraph of her petition she requests banning polygamy. She has filed her writ petition to get her own divorce deed declared as void ab initio. BMMA study shows that only 2 per cent men had taken a wife prior to divorce with the first wife and as many as 38 per cent preferred to remain single even after the divorce. BMMA researchers cannot complain against the 54 per cent men who married someone after divorce as this cannot be termed as bigamy. Marriage after divorce is not prohibited under any law anywhere in the world and therefore no one can have any complaint on this count. Why BMMA study did not include the question about how many divorced women got remarried?
Domestic violence occurs in every country, culture, class, religion, ethnicity and age group. Globally one out of three women is being physically abused by their partners. Even in United States every nine seconds one woman is assaulted or beaten. Everyday domestic violence hotline receives 20800 calls. In India authentic studies( Rao,1996 and Mahajan,1990) show that domestic violence ranges between 22 per cent to 60 per cent. As many as 53.2 per cent of the BMMA respondents reported that they were victims of domestic violence. India does have a very stringent law on domestic violence. The vital question of how many of BMMA’s respondents knew about this law should have been included in the questionnaire. Why they could not use this law and what improvements they suggested in this pro-women and progressive law has not been investigated. Similarly what help BMMA extended to these victims of domestic violence is not mentioned. It is strange that BMMA is not interested in extending adequate legal help to these women under the existing law but is more interested in getting new laws to achieve gender justice. This glaring omission may be used by their critics and Muslim fundamentalists. They would raise questions about BMMA’s credentials and its genuine interest in the plight of Muslim women. Despite BMMA claiming to have membership of one lakh, there was no one to help these women. It seems these poor Muslim women are mere scapegoats / spectacles on display for the case studies
Similar is the case with the maintenance. BMMA study reveals that only 50 per cent women got maintenance during the ‘subsistence of marriage’. It 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.
BMMA has invented the term nikah halala which most Muslims have not even heard. Most liberal scholars are against halala which they argue is an unislamic practice. Here again though Shayra Bano is not the victim of halala and she is not aggrieved by this practice. How widespread is the practice of halala? BMMA case study mentions just two cases out of 117 where their respondents said that ‘they were asked to undergo halala’. The weakness of their questionnaire becomes clearly evident as there was no follow up question on who asked (suggested) them to undergo halala. In the second study as well they have found just 1.6 per cent women who underwent halala. Thus massive majority of 85.52 per cent divorcees were not subjected to halala. Here also BMMA study does not tell us why these women went back to their husbands who were not giving them maintenance even during marital life and have 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 nikahnama of these marriages? Did they freely consent to second marriage? Were they given triple divorces in these marriages? Did they receive their mehar of these marriages? Unlike authentic case studies, BMMA research does not give us an in depth analysis of any issue covered by their case study. The BMMA in its petition itself admitted that Masroor Ahmad case has now rendered nugatory the effect of so called halala. If so it means problem has been solved by the judiciary.Why BMMA did not include a question on this case in their studies? BMMA has not clarified as to whether it is in agreement with so called halala if the divorce is in ahsan form i.e. just one pronouncement as per the procedure given in Quran.
Let us try to understand this controversial subject of intervening marriage or halala from the perspective of 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, if both husband and the divorcee want to revive their relationship, they may simply remarry with fresh nikah and mehar. If again after sometime there is second divorce, husband may either revoke 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 these husband and wife as within ‘prohibited degrees’ and they cannot now remarry each other. But in case this divorcee contracts another marriage with someone else and this second marriage too collapses in its own natural course or she becomes 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 into a fresh marriage contract. But no intervening marriage is permissible as an arranged device to simply remove the prohibition of marriage. Hindu Marriage Act too talks of ‘prohibited degrees’ within which marriage is not permitted. Even Special Marriage Act which is most progressive piece of legislation also mentions certain ‘prohibited degrees’.
BMMA in their application to the Supreme Court has referred to Shariah courts run by them. They have stated that 219 cases came to these Shariah 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 it end in reconciliation? If yes, can it be presumed that husband 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 ground. Or alternatively, did BMMA use Domestic Violence Act? How many erring husbands were held liable due to BMMA’s intervention is not mentioned? How much money was spent on these litigations by the poor victims of domestic violence and how much time these cases took is also missing from their reports. What difficulties they faced in using criminal justice system particularly Section 498A of Indian Penal Code dealing with cruelty and dowry harassment is also not clear. BMMA gives no data on these vital issues. BMMA shows the deplorable condition of Muslim women. But their condition is the same which Hindu women from the same social class suffer from, including polygamy. The only word that has to be changed is ‘triple talaq’ and replaced with ‘desertion’. Why no one is bothered about the plight of Hindu women on the issues 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 the Muslim women. The class character must be given due consideration in the analysis of any social problem.
Should Supreme Court or Government take crucial decisions of personal law reform on the basis such unscientific researches is the moot question? The apex court may ask the NSSO or Law Commission to conduct a major comparative study on this subject to know the ground realities about the plight of women amongst various religious communities. To begin with let the government release figures of socio-economic- caste census. Let these researches be used as starting point of our debate rather than the end product. These researches do have some relevance and BMMA must be complimented for conceiving these studies.
It is disgusting to note that Government, All India Muslim Personal Law Board and BMMA in a certain way are on the same page ie banning triple divorce. In its affidavit, Modi government has supported BMMA and Shayra Bano’s demand for banning not only triple divorce but also polygamy. By making triple divorce a penal offence (banning generally means making something a crime such as beef ban, liquor ban etc.), we are basically asking our women to go and use our time consuming and costly criminal justice system. How difficult it is to get anyone punished under penal law is probably not known to these crusaders of gender justice. Let them see the conviction rates under S.498A- cruelty and dowry harassment or under S.494 – polygamy. What would a poor victim of triple divorce or polygamy at the end of long drawn never ending litigation with several forums of ‘appeal’ and ‘revision’ get – nothing except few months’ imprisonment for the husband in a rare case? Maximum punishment prescribed in statute is generally not given. Mere punishment of husbands found guilty of indulging in giving triple divorce as demanded now by even senior functionaries of Muslim Personal Law Board will lead to mere retribution not gender justice. Educational and economic empowerment of Muslim women coupled with small and continuous doses of piecemeal reforms in the family laws would be a better strategy if gender justice is the ultimate goal.
The author is the vice-chancellor of NALSAR University of Law, Hyderabad.He has his doctorate in Copyright Law and a diploma from International Institute of Human Rights on International and Comparative Human Rights Law.Besides teaching and research works in the field of law, he has also authored several books and plenty of papers in national and international journals. He has been credited to explore new areas such as HIV Law, etc