Consultation on Codification in Mumbai

On 7th April 2012, Bharatiya Muslim Mahila Andolan [BMMA] and Muslims for Secular Democracy [MSD] organized a one-day consultation on codification of Muslim family law. The consultation was part of the campaign initiated by BMMA to codify the Muslim law. The consultations were guided by Dr. Zeenat Shaukat Ali, Adv. Kirti Singh, Zakia Soman and Javed Anand. The draft law was read out by Noorjehan Safia Niaz who has been coordinating this campaign on behalf of BMMA. 
Through a long series of consultations with Muslim women, lawyers, academicians and civil society groups BMMA since the last 5 years has been working on the draft of Muslim personal law. In the consultation held in Mumbai, more than 100 women and men participated. Organizations like Stree Mukti Sanghatana, SNEHA, Navnirman Samaj Vikas Kendra, Muslim Samanway Samiti, WISDOM Foundation, Hukook-e-Niswan Sanghatana, Mahila Shakti Mandal, Samjhauta Mahila Mandal, Sahyog Mandal, BMMA District leaders from Nasik, Sholapur and Pune, AIDWA, Jagruti Kendra, Hamraaz Legal Cell, Research Centre for Women’s Studies-SNDT Women’s University, Centre for Study of Social Exclusion and Inclusive Policy-SNDT  Women’s University, Action Aid, Don Bosco, NEEDs and Vikas Adhyayan Kendra. Adv. Nirmala Sawant Prabhavalkar, member of National Commission for Women and former Mayor and Chairperson of State Commission for Women. She attended this consultation as a member of the women’s movement and extended her support to the process.
Although not invited 7-8 women and men members of Jamaat-e-Islami Hind, attended the workshop. They raised many questions on many clauses and on many other they agreed with the draft.
Salient features of the consultation:
Age of marriage
Barring a few conservative voices the gathering agreed to the age of marriage to be 18 and 21 for a Muslim girl and boy. Some members wanted the age of marriage to be 21 or 18 for both. The justification for considering not just physical maturity for marriage but also emotional and mental comes from the quranic verse which says that a person can inherit property on attainment of maturity. The person must be mature enough to be able to manage his or her property. Based on the principle of qiyas which implies that one can use one law of a particular situation to support laws in another situation. If mental maturity is required to manage property, is it not required to enter into a marital contract?
It was also suggested that underage marriage cannot be made irregular as that would affect the legitimacy of the offspring. An underage marriage must be made regular and hence valid before the court as soon as it is performed and reasons for early marriage must be furnished before the court. There must be a penalty for underage marriage.
As expected a heated discussion happened on this issue. The women who have faced the brunt of polygamous husband or who handle the cases of women whose husbands have been polygamous vehemently demanded the abolition of polygamy. They demanded that Muslim man should not have the legal liberty to marry more than once. But participants from the Jamaat-e-Islami said that if Quran has made polygamy difficult and not illegal, how can we call for its abolition? It would be unQuranic to ban polygamy. The argument in favour of ban was that we are in peaceful times and the sex ratio is also not in favour of women. Polygamy was relevant at the time when battle of Uhud was fought and many women had become orphans and widows. To provide support to such women, men were asked to marry widows and orphans. But men today are marrying women of very young age with audacity as if it is their right. There was also a discussion that instead of banning polygamy, it should be made conditional. Those conditions could be a medical condition of women, her inability to bear a child. But questions were raised that if men suffer from a medical condition or if he is unable to support in conception of the child than should a women also have another husband? There were no clear cut answers to these important questions. The men in the audience were asked by women as to how would they feel if their daughter or sister were to face a situation of polygamy. No woman wants her husband to marry another woman. And it is quranically established that even if it is his ardent desire to maintain all wives equally he cannot do it, so he should marry one. It was only in war times, which were the special times that men were asked to marry more than once and that too to support orphans and widows.
Irregular/void/voidable marriage
It was suggested that consent obtained by coercion or fraud is not voidable but a null and void marriage. It is punishable under the law.
Depending on how polygamy is tackled in this draft finally, it was suggested that if this proposed Act bans polygamy then the second marriage will be null and void.
In case this draft makes polygamy conditional, and then if any of the conditions are violated than the marriage is null and void.
Those who had a conservative outlook were not in favour of arriving at any method by which the amount of mehr can be fixed. Many agreed to the mehr to be 100% of the man’s annual income. Some suggested 75% of his income. A few suggested 2/3 of his annual income. The suggestion about keeping the state minimum wages in mind while deciding the mehr was not welcome.
The gathering agreed that it is the responsibility of the husband to maintain the wife and manage the household expenses, even if the wife has an independent source of income. The gathering also agreed that even if the wife has an independent source of income it is the responsibility of the husband to provide for her personal expenses
After divorce the Muslim Women’s [Protection of Rights on Divorce] 1986 is applicable to the Muslim community. The interpretation of this Act by the Supreme Court allows fair and reasonable provision and maintenance to be made and paid to the divorced wife within the iddat period. There is a need to amend some provisions in the 1986 Act but that is not within the purview of this consultation.
The gathering agreed that Ahsan and mubarah form of divorce as mentioned in the Quran should be the method of divorce for both man and woman.
Incompatibility of temperament must be added as a ground of divorce. ‘Any other’ must be added as the final clause.
It was also suggested that in the clause, ‘grounds for divorce’ the period of desertion, the period during which whereabouts of the spouse are not known, period of imprisonment and period of insanity should be uniform at 2 years.
The practise of halala has to be declared illegal and invalid
Oral or written unilateral divorce is an invalid form of divorce
Although there was no time left for discussion on this crucial issues, a few comments were made by the key speakers:
The value of the domestic work done by women must be counted in economic terms. A woman gives up her work outside, looses out on income and promotions, and sacrifices her career and economic independence for the family. Whatever a man earns in the married life is also because of the sacrifice and the unpaid, unrecognized contribution of his wife. And this contribution must be acknowledged by sharing the marital property equally. This issue which has been in the news recently must be discussed further as we discuss the codification of Muslim law.
It was also shared by one of the participants that the grand children must have their share in the property of their grandfather in a situation when their father has expired.
Gains from the consultation:
• The number of people who turned up for the consultation was beyond expectations. This indicates that people are interested in the issue and want to be part of the process.
• Although there were differences and heated arguments on many points, all of us lasted out for the entire 8 hours, discussing, debating, agreeing and disagreeing on many key points. This open and frank discussion has been the success of this consultation.
• There is a dire need to understand the laws of inheritance as the Muslim law of it is very complicated and there are many community practices which are contrary to the spirit of the Quran. For instance one participant shared that her father died before her grandfather and the grandfather was made to sign a will which debarred the grandchildren from the family property. These and other aspects of Islamic law of inheritance must be studied, understood and debated for reforms.
These and many other suggestions from the participants will be incorporated in the draft.

One Comment Add yours

  1. afthabh khan says:

    i want to join bharathiya muslim mahila sangh


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