Published in The Wire. 29 March 2016
Justice B. Kemal Pasha, a sitting judge of the Kerala high court, was recently in the spotlight for comments made at a seminar in Kozhikode organised by the Punarjani Charitable Trust, a women lawyers collective, and Nisa, a progressive Muslim women’s forum. He called for the reform of Muslim personal law, spoke against dowry and asked rhetorically why a Muslim woman could not have four husbands. The last remark in particular generated a controversy and was greeted with open hostility by a broad section of the Muslim clergy in Kerala.
To understand the uproar over his comments, The Wire spoke to Zakia Soman, co-founder of the Bharatiya Mahila Muslim Andolan (BMMA), a rights-based mass movement led by Muslim women. Soman places the judge’s remarks in context, explains why they can be deemed historic and exposes the patriarchal mindset of those attacking the judge. She also explains how the resistance to codification of Muslim personal law is a denial of the constitutional rights of Muslim women.
Justice Pasha’s comments, especially that a woman should be allowed to have four husbands, have come in for severe criticism. What is BMMA’s response?
The statement attributed to him – that a woman should have four husbands – has been converted into a headline by the media. But that’s not the point. He said a lot of substantive things. For example, he said that despite Quranic rights, Muslim women have not got justice as far as personal law is concerned. He spoke a major truth and we welcome it. He also called for a reform of Muslim personal law. When a sitting judge says this, that too male, it is important. In fact, it is historic. Every democratic person who believes in the constitution, and anyone who is a Muslim, and has read the Quran should support this. Islam considers men and women equal. The misinterpretations of the text, owing to patriarchal mindsets in the last 1400 years, have resulted in women being treated as second class human beings. Although there have been scholars who have written about men and women being equal in the Quran, few people, especially men, have publicly spoken for gender justice in Islam.
What kind of organisations are attacking Justice Pasha? Some of his opponents have even claimed that his views on divorce and maintenance echo those of the RSS.
They go after anyone who speaks of reform. They resort to personal attacks as in our case too, and anyone who talks about reform is an RSS stooge – there must be a limit to conspiracy theory!
As far as I know, these organisations include Samastha Kerala Jamiyathul Ulama, a body of male clerics from Kerala holding extremely conservative and patriarchal worldviews, despite Quranic injunctions on gender justice. They have a limited perspective on these issues, which is solely their own, and does not draw legitimacy from the Quran.
What gives them the power and legitimacy to spread their ideology?
They are self-appointed male custodians of religion. The religion of Islam has no place for intermediaries, institutionalised clergy or leadership; the rapport between a Muslim and Allah is direct. They also draw their legitimacy from the overall patriarchy prevalent in all faith communities.
These self-appointed custodians claim the sole right to speak on behalf of all Muslims and insist that they are the only arbiters of Islam; no change can happen without their will. The misinformation spread by them has led to a sense that men are superior to women in the Muslim community. This is absolutely untrue. Again, the Quran has to be read in the context of the time we are living in. For example, what was permission for polygamy at a given time in history cannot be stretched as a licence in modern day. Permission under certain circumstances with strict conditions is certainly not encouragement. Nowhere does the Quran encourage polygamy.
The stranglehold of patriarchy is visible in all faiths. Take the Sabarimala temple, the Shani Shingnapur temple or any other temple. They are run by temple trusts, but the respective deity cannot belong only to the trust. The god belongs to all devotees, who should have equal rights of access. But some people have appointed themselves trustees and administrators as in Sabarimala or the Haji Ali Shrine, and these orthodox men decide who will be included or barred, whether women and girls, those in the menstruating group, or Dalits.
Conservative Muslim clergy frequently make statements that infringe on and curb the rights of Muslim women, whether with regard to divorce, education, work or inheritance. How important is it to codify Muslim personal law?
The long term solution is the codification of Muslim personal law within the Quranic framework. This is in consonance with the Indian constitution, which upholds the right of religious freedom through Article 25, 28, 29 and others. Different faiths, including religious minorities, have their respective family laws which are periodically amended. It is only Muslims whose family laws are from the British era, dating back to 1937 and 1939. They are highly incomplete and do not address questions on age of marriage, triple talaq, polygamy, inheritance, property rights and the custody of children.
If Muslim personal law is codified, would it prevent the likes of Samastha Kerala Jamiyathul Ulam, All India Muslim Personal Law Board and others from making anti-women statements publicly?
Yes, it will break the hegemony and stranglehold over the lives of ordinary women and men. Currently, Muslim personal law is open-ended and subjective since the British era legislation from which they stem is incomplete and silent on many issues. If a comprehensive law is written down and passed by parliament, their stranglehold will disappear. Muslim women will get justice since violators can be punished. Triple talaq and halalah, which are un-Islamic practices, would be banned. This is why orthodox forces are resisting the codification of Muslim personal law. In many Muslim countries where the personal law is codified, triple talaq is not a valid form of divorce.
The clergy claims that the source of personal law is Sharia, which is also stated by the 1937 Act. The meaning of Sharia is Islamic law. But where is it written down? Every maulvi or qazi has his own interpretation of Sharia, and all malpractices are passed off as Islamic. Qazis validate oral divorce, polygamy or halalah instead of pointing out their invalidity as per the Quran, since these are barbaric practices. It is high time the Muslim personal law is codified. BMMA has even prepared a draft law following consultations over five years.
Justice Pasha also said that it was unfair to oppose the Uniform Civil Code (UCC). BMMA has a different view on the UCC. Can you elaborate?
Jawaharlal Nehru and Ambedkar initially proposed the UCC as they were concerned about gender justice. They feared that the religious orthodoxy would not permit justice and equality for women despite the Constitution. The idea of the UCC was rejected as an attack on ancient Indian tradition and heritage largely by sadhus and sants of the day. The idea was dropped and the Hindu marriage and succession Acts were passed in the 1950s. Even Parsis and Christians, whose family laws were already existing, amended their laws from time to time. The right to personal laws based on religion is a constitutional entitlement that all communities have. Muslims are the only community who have been denied their legal rights, thanks to the opposition of patriarchal forces who have stonewalled any change in the area of personal law, and the government’s informal alliance with them. The most affected have been Muslim women who have been discriminated against and denied justice.
In the last decade, the UCC has been mired in so much politics. The Hindu right has revived the demand for a UCC, but have never brought a draft before the public. They are throwing it like a gauntlet. Do they mean to say that post-UCC, a Hindu marriage will take place without saptapadi, saat phera or kanyadan?
The UCC debate concerns all communities and not just Muslims. Our concern is legal justice and equality for Muslim women as guaranteed by both the Quran and the constitution.
Read the original article: https://thewire.in/gender/resisting-codification-of-muslim-personal-law-denies-muslim-women-their-constitutional-rights