Friday, March 13, 2015

Down to earth - Tahir Mahmood on Muslim personal law

What is permissive under scriptures cannot be equated with mandate,” observed C.T. Selvam, judge of the Madurai bench of the Madras High Court, while deciding an appeal against a lower court order disallowing the proposed marriage of a minor Muslim girl. Prominently reported by ETV Urdu, the ruling is likely to be denounced at the Muslim Personal Law Board’s forthcoming meeting in Jaipur. Since its inception in 1972, the board has opposed every legislation and judicial precedent which goes against the traditional understanding of Muslim law and, in its opinion, amounts to “mudakhalat fid-din (interference with religion)”.

For about nine decades, India has been trying to eradicate the evil of child marriage and its ugly consequences. In 1926, the eminent social reformer, Diwan Bahadur Harbilas Sarda of Ajmer, had, as member of the Central Legislative Assembly, piloted a Hindu child marriage bill. The bill’s context was the horrendous problem of infant widows. In many Hindu families, girls were married in their infancy to male children of tender age. Given that the child mortality rate was high, many girls would lose their “husbands” and remain “widows” for the rest of their lives because the remarriage of a widow was supposedly prohibited by religion. 

Seventy years earlier, Pandit Iswar Chandra Vidyasagar had tried to save the girl child from such a plight by securing the enactment of the Hindu Widows’ Remarriage Act of 1856. But the law went against popular religious belief and didn’t have the desired consequences. It was realised that the problem had to be nipped in the bud by the prohibition of the marriage of children, male and female. Diwan Bahadur took upon himself the task of ensuring there was a minimum age for marriage fixed by law. His Hindu child marriage bill was bitterly opposed by the pundits of the time, who accused him of singling out their community for “anti-religion” legal reform. On the advice of a select committee headed by Sir Moropant Joshi, the word “Hindu” was deleted from the bill and, when enacted, it was to apply to all communities.

Under Muslim personal law, marriage is permitted between a boy and a girl who have attained “bulugh (puberty)”. The earliest this could happen is about age 12 and nine, respectively, and unless attained earlier, it is presumed to take place at age 15 for both. Notably, these age limits are not set by the Quran or Hadith but are mentioned in the books of jurisprudence written in the early years of Islam. And yet, when the Hindu child marriage bill, which was popularly known as the “Sarda bill”, was turned into a general law, Muslim religious leaders also jumped into the fray to oppose it tooth and nail.

Overawed by the religious outcry among both Hindus and Muslims, most assembly members were reluctant to support it. But Diwan Bahadur’s emotionally charged appeal on voting day, “I beg you gentlemen to brush aside all objections, sacerdotal or profane, ancient or modern, based on tradition or custom which stint our growth or stand in the way of our achieving our goal”, ensured that the Child Marriage Restraint Act of 1929 was passed.

But the newly introduced law was not accepted by either community. The late Justice V.R. Krishna Iyer had once told me that in 1929 itself there was a child marriage in Diwan Bahadur’s own family. In 2006, the 77-year-old act, which prescribed mild punishments for those guilty of child marriage, was replaced with the new Prohibition of Child Marriage Act. The newlaw prescribes more severe penalties. Also, every child marriage will remain voidable so that the minor party can get it annulled by a court any time up to two years after attaining majority. 

The law also empowers magistrates to issue injunctions to stop a planned child marriage — in the Madurai case, a local magistrate had acted under this statutory provision. The parents of the Muslim girl involved challenged the magistrate’sorder in the high court, claiming that since the 2006 act is repugnant to Muslim religious law, it “cannot apply” to Muslims. But the bench ruled that the act “crossed all barriers of personal laws”.

The judicial dictum in the Madurai case is unassailable. Many merely permissive provisions of traditional Muslim law, including on bigamy and unilateral divorce, are unjustifiably seen as scriptural mandates. This is the premise of stiff opposition to any reform of Muslim personal law. The Constitution, which accords religious freedom equally to all citizens, protects only essential practices of a religion and not practices that a religion may have merely permitted centuries ago in accordance with the prevailing customs of the time. To claim that any professedly heavenly law is supra-constitutional is to live in a fool’s paradise.
The writer is former chair of the National Commission for Minorities