Wednesday, August 6, 2014

Flavia Agnes - A Fatwa on all Fatwas

At the centre of the controversy around the recent Supreme Court ruling which is popularly re-ferred to as the “fatwa ruling” is a Muslim woman from a village in Muzaffarnagar, who was raped by her own father-in-law. She was brave enough to file a criminal complaint against him, something most women would hesitate to do.

She and her poor labourer husband were ostracised by her father-in-law’s neighbours who accused her of filing a false complaint. In spite of all hardships she continued her pursuit for justice. Finally, the father-in-law was convicted. The courage of the then 28-year-old mother of five in lodging the complaint against all odds, and the support she received from her husband needs to be applauded.
In response to a query by a journalist to the Darul Uloom Deoband, whether the woman could continue with her marriage after she has been raped by her father-in-law, the Darul Uloom issued a fatwa stating that in view of the rape, the woman has become “haram” to her husband and would now have to live with the rapist father-in-law. This decision was endorsed by the All-India Muslim Personal Law Board.
The fatwa received wide media publicity. Despite this, the woman and her husband continued to live together as husband and wife.
As a reaction to this fatwa, an advocate, Vishwa Lochan Madan, filed a broad spectrum public interest writ petition in Supreme Court in 2005, requesting that all Dar-ul-Qazas (Sharia courts which mediate over family disputes) and fatwa-issuing Islamic religious institutions should be banned. The Supreme Court, on July 7, 2014, ruled that fatwas are not binding and have no legal validity, and no one is bound to follow them, including the one who seeks such fatwas, but did not ban the Sharia courts and did not invalidate the fatwa issuing religious institutions.

While the ruling has aroused a great deal of interest, contradictory opinions have been expressed by legal scholars and other experts as to whether the ruling is in the right spirit and will empower Muslim women or it will adversely impact their rights.
Constitutional law expert and senior advocate Rajeev Dhavan has expressed concern that the judgment has not explored the terrain of Article 25 — freedom awarded to minorities to follow their religious practices. Both he and advocate Irfan Engineer have questioned the locus standi of the petitioner. Dhavan contends that delivering a judgment without questioning the locus standi of the petitioner of the absurd writ was faulty. Engineer, who is also the director of Centre for Study of Society and Secularism, says that the petition appears to be biased as the petition is directed only against Muslim religious institutions, leaving our similar institutions of other communities.
I would like to go one step further and state that instead of calling the fatwa an “eye opener”, the Supreme Court ought to have chastised the journalist who obtained the fatwa as a mere publicity stunt. As a rape survivor, the woman’s privacy was invaded and her confidentiality betrayed not just by the media, but also by the court. There is no accountability for such intrusion into the private lives of women, especially Muslim women. It seems as though they are not entitled to the privacy, dignity and confidentiality awarded to other rape survivors. They can be hounded by journalists and advocates and rendered media spectacle.
On the other hand, legal scholars such a Prof. Upendra Baxi as well as some Muslim women groups have criticised the ruling for not going far enough and banning all fatwas.

My own reading of the judgment is that it is balanced and will help bolster Muslim women’s rights without encroaching upon the freedom awarded to minorities under Article 25 of the Constitution. Aggrieved persons have the right to approach a civil court for appropriate remedies. One always knew it, but this ruling has helped bring clarity.
Even if the Supreme Court had banned fatwas, a woman would still have to go to the police or the court against a fatwa issued on her to enforce her rights. Supreme Court rulings are not magic wands that can overnight change realities. Women’s groups need to work in creating awareness among Muslim women, as well as help women aggrieved by such fatwas to challenge them. Only then will the situation change. The constant refrain that Muslim women have no rights, only serves to reinforce the misconceived notion.
A common myth that prevails is that Muslim women do not or cannot approach courts. To dispel this myth, I need to state that almost 50 per cent of the cases filed by our team of women lawyers concern Muslim women. For over two decades now, we have been able to effectively use the provisions of the Muslim Women (Protection of Rights on Divorce) Act, 1986, and the Protection of Women from Domestic Violence Act, 2005, to secure “fair and reasonable settlement” for Muslim women seeking maintenance or custody.
In the same vein, we have challenged divorce pronounced in an arbitrary manner or talaqnamas sent through post, fax, email or served on the woman during court proceedings, even when it was validated by a fatwa.
General, umbrella fatwas barring women from voting, restraining them from seeking employment, forbidding the use of mobile phones or banning women from movie theatres etc. violate fundamental rights of freedom and liberty and are not binding. Criminal action needs to be initiated against anyone forcing women to obey these fatwas. Muslim women need to stand up for their rights just the way the rape survivor withstood all pressures and proceeded with her criminal case and continued to live with her husband despite the fatwa and the countrywide furor created over the fatwa.
While we were always convinced that fatwas are not binding, this ruling has further strengthened our hands and relieved the trial courts of the burden of examining the validity of a fatwa. The Supreme Court has given a clear direction that fatwas are not binding, even on the person who seeks it and this unequivocal message needs to go down to the community.

The writer is a women’s rights lawyer and director of the Legal Centre of Majlis