Shafeeq Rehman Mahajir.The Hon’ble Supreme Court has once again spoken about Muslim Personal Law, in an unconnected matter. The court’s observations have brought into focus Islamic law, the “reform” of which is a pet theme of many..(The following are excerpts from this article on the Uniform Civil Code and Muslim Personal Law).This “reform” of Islamic law is expounded by proponents of a common civil code but with little or no understanding of the jurisprudential issues involved. Flawed notions are bandied about regarding Islamic law including claims that it “permits” child marriage. These claims ignore the fact that in the Islamic system of jurisprudence the concept of majority is linked not with an arbitrary number as age, but (in consonance with nature) with puberty, and two, that capacity for marriage does not mean a requirement of marriage..When the Supreme Court says there is no safeguard for women against arbitrary divorce it fails to recall its own judgements that mandate a settlement mechanism from both sides before a valid divorce can take effect. Why this haste exhibited in such matters? Why do we not see this judicial anguish expressed with the same sense of urgency in matters of mob violence that devastate not just the rights but the very lives of thousands of Muslims at each incident? Casting aspersions on the Constitution bench that delivered the earlier judgements is hardly proper..Let me ask a question – which of these two situations is destructive of a woman’s rights and status? One where she is married to a man as his wife, assuming he already has a spouse, with the relationship affording to her the status of a wife with its attendant legitimacy, legitimacy of the children, right to maintenance for her as well as the children, and acceptance of the group as a family by society.Two, where she is relegated to the position of a mistress or “keep” or a discard-at-will “partner”, with society labelling her immoral, and denied the rights arising out of a marital status..If one answers with sincerity and not to score brownie points, the answer is clear..…..The Supreme Court has said that a common civil code will “help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies”. Was national integration somehow obstructed due to diversity of laws ? .People don’t have loyalty to laws, but to the nation..Following diverse personal laws, operating in a non-secular, personal field, internal to a group, has little to do with loyalty to country. It is not as if a foreign law was being followed, what was being followed was a local law that had evolved locally over the centuries and was not even as originally created In fact, what prevails now is a hybrid version peculiar to the sub-continent..The observation “laws which have conflicting ideologies” implies some “conflict” in the laws’ ideologies. Conflict would arise only if two sets of laws were to be applied to one set of people in a given situation, whereas in personal law matters a particular personal law would find application within a particular group, and not different laws. .…..The burqa is subject of a lot of criticism; but the same voices that condemn the burqa also condemn Western dresses. Those criticising the burqa must remember that their voices are raised against a constitutionally guaranteed right to practice one’s religion, and someone of another religion is hardly going to be the one telling me how to practise mine. I will remind you that what is guaranteed is the practice of religion, not just of worship which forms only a part of religion..Muslim women wearing the burqa have become a favourite target for “oppression” comments, while Christian nuns wearing the dress of their religious calling is perfectly acceptable! If I consider celibacy of Brahmacharis, Sanyasins, nuns, priests etc. oppressive, that would be just my private view. An answer from non-Muslims when religious cloaks of nuns are cited is, “Well, they are women of God”.…...The equal protection of laws does not mean that all laws must be identical. Equality before the law means that among equals the law should be equal and should be equally administered and that likes should be treated alike..In Ms. Aruna Roy & others (2002) 7 SCC 368, the Court said,.“Religion is the foundation for value based survival of human beings in a civilized society. The force and sanction behind civilized society depends upon moral values.”.The importance of religion in regulating human conduct stands recognized. Denuded of its constitutionally guaranteed practices, can religion remain religion?.…..The full article can be accessed here..Shafeeq Rehman Mahajir is an human rights activist, and advocate. You can read his interview with Bar & Bench here.
Shafeeq Rehman Mahajir.The Hon’ble Supreme Court has once again spoken about Muslim Personal Law, in an unconnected matter. The court’s observations have brought into focus Islamic law, the “reform” of which is a pet theme of many..(The following are excerpts from this article on the Uniform Civil Code and Muslim Personal Law).This “reform” of Islamic law is expounded by proponents of a common civil code but with little or no understanding of the jurisprudential issues involved. Flawed notions are bandied about regarding Islamic law including claims that it “permits” child marriage. These claims ignore the fact that in the Islamic system of jurisprudence the concept of majority is linked not with an arbitrary number as age, but (in consonance with nature) with puberty, and two, that capacity for marriage does not mean a requirement of marriage..When the Supreme Court says there is no safeguard for women against arbitrary divorce it fails to recall its own judgements that mandate a settlement mechanism from both sides before a valid divorce can take effect. Why this haste exhibited in such matters? Why do we not see this judicial anguish expressed with the same sense of urgency in matters of mob violence that devastate not just the rights but the very lives of thousands of Muslims at each incident? Casting aspersions on the Constitution bench that delivered the earlier judgements is hardly proper..Let me ask a question – which of these two situations is destructive of a woman’s rights and status? One where she is married to a man as his wife, assuming he already has a spouse, with the relationship affording to her the status of a wife with its attendant legitimacy, legitimacy of the children, right to maintenance for her as well as the children, and acceptance of the group as a family by society.Two, where she is relegated to the position of a mistress or “keep” or a discard-at-will “partner”, with society labelling her immoral, and denied the rights arising out of a marital status..If one answers with sincerity and not to score brownie points, the answer is clear..…..The Supreme Court has said that a common civil code will “help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies”. Was national integration somehow obstructed due to diversity of laws ? .People don’t have loyalty to laws, but to the nation..Following diverse personal laws, operating in a non-secular, personal field, internal to a group, has little to do with loyalty to country. It is not as if a foreign law was being followed, what was being followed was a local law that had evolved locally over the centuries and was not even as originally created In fact, what prevails now is a hybrid version peculiar to the sub-continent..The observation “laws which have conflicting ideologies” implies some “conflict” in the laws’ ideologies. Conflict would arise only if two sets of laws were to be applied to one set of people in a given situation, whereas in personal law matters a particular personal law would find application within a particular group, and not different laws. .…..The burqa is subject of a lot of criticism; but the same voices that condemn the burqa also condemn Western dresses. Those criticising the burqa must remember that their voices are raised against a constitutionally guaranteed right to practice one’s religion, and someone of another religion is hardly going to be the one telling me how to practise mine. I will remind you that what is guaranteed is the practice of religion, not just of worship which forms only a part of religion..Muslim women wearing the burqa have become a favourite target for “oppression” comments, while Christian nuns wearing the dress of their religious calling is perfectly acceptable! If I consider celibacy of Brahmacharis, Sanyasins, nuns, priests etc. oppressive, that would be just my private view. An answer from non-Muslims when religious cloaks of nuns are cited is, “Well, they are women of God”.…...The equal protection of laws does not mean that all laws must be identical. Equality before the law means that among equals the law should be equal and should be equally administered and that likes should be treated alike..In Ms. Aruna Roy & others (2002) 7 SCC 368, the Court said,.“Religion is the foundation for value based survival of human beings in a civilized society. The force and sanction behind civilized society depends upon moral values.”.The importance of religion in regulating human conduct stands recognized. Denuded of its constitutionally guaranteed practices, can religion remain religion?.…..The full article can be accessed here..Shafeeq Rehman Mahajir is an human rights activist, and advocate. You can read his interview with Bar & Bench here.
