On Muslim personal law: Stories of Shah Bano and Ayesha bi
Humans are storytellers, and quite often we understand complex issues through the stories of people. An excellent example of this is the story of Shah Bano. The story that we know is that the Supreme Court passed a judgment allowing for some alimony to a poor Muslim woman divorced by her husband.
In response protests were organised by some Muslim groups, and the Rajiv Gandhi government passed a law, overriding the Supreme Court ruling, and denying an old woman some minimum justice. On the face of it this story sounds horrible, but if you know the details, it becomes even worse.
One of the details is that Muslim groups were not protesting the judgment, so much as the Supreme Court interpreting the Quran. In the judgment, worth reading in full, the court stated,
There can be no greater authority on this question than the Holy Quran,
"The Quran, the Sacred Book of Islam, comprises in its 114 suras or chapters, the total of revelations believed to have been communicated to Prophet Muhammad, as a final expression of God's will". (The Quran- Interpreted by Arthur J Arberry). Verses (aiyats) 241 and 242 of the Quran show that according to the Prophet, there is an obligation on Muslim husbands to provide for their divorced wives… The correctness of the translation of these aiyats is not in dispute except that, the contention of the appellant is that the word 'mata' in Aiyat No 241 means 'provision' and not 'maintenance'. That is a distinction without a difference. Nor are we impressed by the shuffling plea of the All India Muslim Personal Law Board that, in Aiyat 241, the exhortation is to the 'Mutta Queena', that is, to the more pious and the more God-fearing, not to the general run of the Muslims, the 'Muslminin'. In Aiyat 242, the Quran says: "It is expected that you will use your commonsense".
In essence what the "Muslim leaders" were protesting was not the first part - after all, how could they go against the Quran. What they were protesting was the Supreme Court interpreting the Quran. The ulema want to be the only interpreters of Muslim law.
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| If the first wife does not protest, the police cannot arrest you for breaking the law. (Reuters) |
This is nonsense - and it is nonsense primarily because ulema also campaign that Muslim personal law should remain part of the Constitution. If the Muslim personal law is part of the Constitution then it is not just the right, but the duty of the interpreter of the Constitution - the Supreme Court - to pass judgment on it.
As Ronojoy Sen showed in his brilliant book, Articles of Faith, examining the Supreme Court judgments on religion, the apex court has passed judgment in much greater detail on Hindu personal law than on any other - primarily because there are more Hindus in the country and the court cases merely reflect the number of people affected.
In fact, if the ulema could look at the leadership of the Prophet Mohammed, they would have a very different example. As my sister reminded me who, when a Zoroastrian woman approached him when she was denied her rights, tried the case under Zoroastrian law. Under the Constitution of Medina he was the constitutional authority, very much like the Supreme Court has the authority to interpret the law in India.
If the ulemas do not want the court to pass judgment on Muslim personal law, they have an obvious choice. They should support the Uniform Civil Code. Of course, there is no self-interest in the self-proclaimed leadership of the Muslim community to do this.
After all, if the Muslim personal law was not on the law books, what would be their worth? They would be out of jobs. In other words, the law passed by Rajiv Gandhi's government was nothing about to do with women's rights, but the wish of keeping a bunch of old misogynists employed.
If Shah Bano's story explains the hypocrisy and prejudices of the so-called Muslim leadership and Rajiv Gandhi's government, Ayesha Bi's story reveals why nobody trusts the BJP to be the party that will behave in any decent way.
Ayesha bi is a second wife. This is not legal in India (except for Muslims), but there is one more detail. Under the Indian Penal Code bigamy is a non-cognisable offence (except in Andhra Pradesh).
In other words, if the first wife does not protest, the police cannot arrest you for breaking the law. In fact, when I was researching an article on bigamy in India, and broke down the Census figures, I found that there were more than three times as many Hindus with second marriages than Muslims. The thing is that if a first wife complains the person will go to jail.
In Ayesha bi's case, she was a Hindu who wanted to marry another Hindu man, who was already married. To circumvent the legal right of the first wife to protest - in other words to ride roughshod over a woman's basic rights - both Ayesha bi and her husband, converted to Islam (incidentally this no longer applies after the 1995 Sarla Mudgal judgment).
There are few more egregious examples of misusing Muslim personal law to deny equal rights. Of course, both Ayesha bi and her husband, are BJP politicians. You may know them by their old names, Dharmendra and Hema Malini.
If the BJP believed in women's rights at all, it would have denied them tickets. Maybe they would have done so when Outlook revealed this sordid history. Of course, the BJP has not.
It reveals exactly how little the leadership of the BJP believes in the Uniform Civil Code. For the BJP talking about Muslim personal law is an excuse to vent its bigotry, not an opportunity to create a republic of equals. It remains a party of prejudice rather than of principle, and Ayesha Bi is the perfect posterchild of its hypocrisy and why nobody trusts it.