The Law Commission of India in its Suo Motu 212th report submitted on the 17th October 2008 to the Honourable Law Minister, made some recommendations
expecting that these would resolve certain conflicts between personal marriage laws and the Special Marriage Act 1954.The entire 212th Report is available in www.lawcommissionofindia@nic.in/reports/report 212th .In this paper I have shown that
(i)as far as the muslims are concerned, the conflict between Shari’at , the Human Rights of Muslims and Sections 153A / 298 of Indian Penal Code on one hand VS
Special Marriage Act 1954 on the other hand is irreconcilable;
(ii)the Commission has not at all considered the destructive effect of inter-religious marriage in our society ;
(iii) only reversion to the Act III of 1872 in the original form shall eliminate conflict between Civil Marriage and Personal Laws.
1.(i)Shari’at ( Ref. 2 and 3) is the code of Islamic cannon laws derived from Holy Qur’an, and the teachings and examples of the Prophet Mohammad (SAW).The Highest source of Shari’at is the Holy Qur’an, which as per muslim belief, comprise the message of God revealed through the Prophet Mohammad (SAW).Every Arabic text of the Holy Qur’an in existence any where ( or which ever existed) is identical with one another, letter for letter, word for word and in the meanings of every word. And every Muslim must totally ( NOT selectively, NOT as per convenient interpretation) comply with each and every injunction laid down in the Holy Qur’an in exactly the identical sense, irrespective of the situation, or he becomes an apostate. For apostacy, severe punishment in this and in the next world has been ordained, which is an integral part of a muslim’s faith.
(ii)Shari’at , complete code of a muslim’s life,covers marriage, maintenance of families, guardianship, inheritence, gift, charity and many other matters.
2.(i) In the context of Human Rights of the muslims, the supremacy of the Shari’at over all other rights and freedoms, has been clearly declared in articles 24 and 25 of Cairo Declaration of Human Rights in Islam ( 5.8.1990. )Reference is also invited to legal scholar and philosopher Mr.A.K.Brohi’s views on the subject (Ref 4)
(ii)Vide article 27 of UN Covenant on Civil and Political Rights, (minority ) muslims (in India), have the right, inter alia, to profess and practise the supremacy of the Shari’at over all their rights and freedom. Our state is obliged to protect this right , instead of opening up a road to apostacy .Unfortunately, this is precisely what has been done via Special Marriage Act 1954 , and what the 212th report of the Law Commission proposes to promote.
(iii)Direct or implied enticement of Muslims to abandon their faith amounts to offences under sections 153A/Section 298 of Indian Penal Code, to be enforced by the State. Unfortunately, the State via the Special Marriage Act, and the so called progressive media are glorifying apostacy via inter-religious marriage route.
3.Special Marriage Act (Act III) of 1872, allowed civil marriage between parties who did not profess Christian, Jewish,Sikh, Hindu, Muslim, Parsi, Buddhist or Jain faith.Thus the British did not disturb the personal marriage laws of these faiths. And indirectly, they required that those belonging to any one of the above mentioned faiths ,opting for Civil Marriage, must have the courage of conviction to openly renounce their faiths.
4.By an amendment in 1922, the Act opened the doors of Civil Marriage if both the parties professed the Hindu, Buddhist, Sikh or Jain Religions. Here again , the British left undisturbed , the personal laws of marriage of Muslims.
5.What the British did not attempt in 1872 and then very cautiously approached in 1922, was (Lo and behold!) done by Special Marriage Act ( No.43 ) of 1954 .Religion of the parties was made immaterial in this deeply religious country, just 7 years after the land was partitioned by blood and fire on religious consideration, and was still convulsing with after shocks. Perhaps the Central Government leaders on those days, might have felt that bed-sharing by the two communities on the pretext of article 44 of the Constitution, would join up the communal divide. Their expectation did not materialize.
6.The Act as it stands today violates the Shari’at in the following ways:
( I have intentionally refrained from giving a detailed account of dos and don’ts about marriage as prescribed in the Shari’at because, torn out of context, wrong impression may be created):
(i)Shari’at totally, absolutely prohibit marriage between a muslim male and non-muslim female without converting her to Islam. Exception has been made in the case of females of a few specified religions ( “Kitabia” e.g.Christian, Jewish).Some schools of jurists prohibit marriage even with unconverted “Kitabia” females. And marriage between a non-muslim male (even “Kitabia”) and muslim female is totally prohibited. But Special Marriage Act 1954 facilitates transgression! And Law Commission ignored this transgression.
(ii)Shari’at has a list relatives who must not marry one another. Every society has such prohibitions. These are based on rough ideas of genetics and also consideration of stability of families and society as a whole. These are time tested. The list of prohibited relationship of Holy Qur’an is not identical with the list as per first schedule of the Special Marriage Act 1954.The commission in its 212th report recognized divergence only in respect of items 34 to 37 of the list with personal laws of certain faiths. The Commission has greatly underestimated the divergence. Just three examples:
The first schedule of the 1954 –Act does not prohibit marriage of father’s divorced wife (divorced step-mother) or own son’s divorced wife or one’s own mother-in-law. But all such marriages are prohibited in Shari’at .And the Special Marriage Act 1954 facilitates and encourages transgression. It does more. It is a potential explosive to tear apart the very structure of family. Consider, for example, the pre- and post marriage effect of marrying one’s son’s divorced wife! Further mischief is facilitated by the proviso clause (d) u/s 4 of the Act.
(iii)As per Shari’at, it is irregular to marry a woman during Iddah ( compulsory waiting period after a woman’s dissolution of marriage by widowhood or divorce ).(Ref 5 )This prohibition is based on deep genetic and social reasons. But the 1954-Act facilitates transgression by allowing marriage during this period. The Commission’s has not recognized this conflict.
(iv)Shari’at ordains that before a male can remarry his own divorced wife, she must go through another marriage which must be consummated, and then get divorced. This strict rule is to ensure that divorces are not lightly taken. But the 1954 Act has no such provision. Facilitates transgression. And divorces made playful activities. The Commission has not recognized this conflict.
(v)Shari’at requires marriage witnesses to be Muslims. Special Marriage Act 1954 allows transgression. Commission has not recognized this conflict.
(vi)Explicit or implicit dower (Mehr) is an essential ingredient of a muslim marriage contract as per Shari’at.The 1954-Act allows transgression. Commission has not recognized this conflict.
(vii)The Act as amended in 1976 stipulates that for a muslim opting marriage even within own community,via Special Marriage Act 1954, succession will be as per Indian Succession Act 1925 and NOT as per Shari’at.A road to transgression. Commission has not recognised this conflict.
7. In para 6, I have shown 7 conflicts between Shari’at and the Special Marriage Act 1954 . Commission tried to resolve 2 out of 7 conflicts, vide para 8 and 9 below. The Commission has ignored the other 5. The Commission also ignored most serious implication of conflict between Civil Marriage and Shari’at. Every muslim who abandons any single one of the Shari’at ordained “DOs and DON’Ts” in the matter of marriage (or in any other matter) automatically becomes an apostate. And apostacy auto-activates unpardonable severe punishments in both this and in the next world.
8. The Commission tried to resolve the conflict between the Shari’at and the Special Marriage Act 1954, in the matter of the degree of prohibited relationships. The Commission proposed that in this matter, the personal laws of the parties shall prevail. If the proposal materializes, conflict will be rare, but the possibility can not be totally ruled out.
9.The Commission in vain tried to resolve the irreconcilable conflict between the 1954-Act and personal laws of succession ,which (personal laws of succession ) in case of the muslims is part of Shari’at.The Commission proposed that the personal succession laws of the husband and the wife shall prevail. The Commission visualized no intractable complication to arise out of this proposal, because the commission erroneously assumed that
“….since in this country there is no concept
of a married couple’s joint property” (p 25)
The error of the Commission’s assertion is clearly established by the following two examples:
(i) Term Deposit Receipts in a Bank, or investment in a mutual fund, in the joint names of Hindu husband Debabrata and muslim wife Ayesha, payable jointly;
(ii) A house purchased (or received as gift ) in the joint names of the husband Debabrata and wife Ayesha .Debabrata is rooted in “Dayabhaga” school of Hindu Law of inheritance.
In the case of death of one or both the parties, whose law of succession shall prevail ? Such nightmarish questions shall haunt judges and honest advocates once the Commission’s proposal is accepted in law.
10. I submit two other forms of complications about succession overlooked by the Commission :
(i)Under Civil Marriage Act proposed by the Commission, one muslim Rizwanur Rahman marries a Hindu Priyanka and thus clearly transgresses the explicit injunction of the Holy Qur’an. He thus opts to be an apostate. Will muslim personal law of succession apply to the apostate?
(ii)Will Rizwanur Rahman in the above example, be competent to create valid “ Hiba” (immediate , unconditional transfer of property without consideration, Ref 6 ) in favour of Priyanka ?
11.(i)Both the Special Marriage Act 1954 and the Commission’s proposal are based on implicit assumptions
that marriage is a legal biological arrangement between two consenting adults of opposite sex,
who are not posited in their respective extended families,
who are not destined to create their own families, and
not rooted in any specific religion.
That these assumptions are totally wrong in our society needs no sociological research to establish. Unfortunately , even judiciary is also being misled to be propelled by these assumptions.
(ii)In reality, in our society, and in many societies, marriage is a sociological phenomenon between two social beings, rooted in immediate and extended families of both sides, having distinct social norms, ideas about taboos, sacred and profane, rituals in the matters of birth/marriage/death, forms of obligatory worship. Marriage gives rise to subjects of lineage, succession of religion, family name, maintenance, protection of families, adoption, dissolution of marriages. ( Purpose of marriage in Islam : see Ref 3, 5 ) . Inter-religious marriages between two extremely diverse faiths ( even between two sects of the same religions ) and cultures generate serious, constant, intra-family stresses and conflicts . The following illustrative examples of muslim Rizwan and vegetarian Hindu Priya establish this point:
(a)Priya becomes the proud mother of his son. Will Rizwan perform Aquiqah (Islamic ritual for new borns See reference 3 ) on the 7th day, sacrifice two rams or two goats, and will vegetarian Priya cook and serve the family portion of the meat
or will she take the boy to Tirupati and perform Hindu ritual?
(b)Will Rizwan eat at home, non-vegetarian food, at least meat gifted on Idu’l Azha and Aquiquah of his and his family members’ children?
©Will Rizwan’s son have a muslim or a Hindu name?
(d)Considering that any form of idol worship is totally prohibited in Islam, should Priya be allowed to install in their cosy Home, an icon of Hanumanji, audiably recite her prayers, and tell her son the stories from Ramayana?
(e)Will the little fruit of Civil Marriage go to temple with mom and bow down or
will he go with his papa, to witness bullock-sacrifice on the day of Idu’l Azha ( the great muslim festival of sacrifice ) ?
(f) Priya comes to stay with the deeply religious family of Rizwan in a conservative muslim locality. Can she wear low-waiste, butt-cleavage revealing jeans and apology of a top, with no head-covering, dresses she was all along comfortable with ?
(g) Should Rizwan touch the feet of his father and mother –in-law and other senior-in-laws when face to face with them, an obligatory Hindu gesture totally taboo for muslims?
(h) Brahmin’s daughter Priya, and her Brahmin parents want sacred thread ceremony for the young boy, but Rizwan and his family members want the boy’s cicumcission.
Examples can be multiplied.
12. The Commission has overlooked:
(i)That family the building block of a society , issues from and remains embedded in marriage as a social institution , in every society:
(ii)That tinkering with such a vital institution is most likely to collapse the society as a whole;
(iii)That in India, and in many other societies, marriage means two immediate and extended families of both sides tie knots; new relationships are created, with reciprocal obligations and expectations;
(iv)That violation of social norms about marriage, evolved and practiced over may be thousands of years, leads to violent response from societies of either or both parties ; (Has some one of the research staff of the Commission heard about Honour Killings?)
13. (i) The Commission has ignored the conflict between the 1954-Act and its own proposal on one hand VS
the Human Rights of born-muslim women , “often called a minority within a minority” (Ref 7).
“ It is certainly true that muslim women are more likely to be illiterate than Hindu women ( Ref 8 ).’’ They are also most likely to be steeped into own religion and culture, unfairly perceived as signs of “backwardness”.
(ii)Due to the double handicaps ( illiteracy and perceived “backwardness”) of born-muslim women, acquiring a Hindu wife has become a matter of status symbol for upwardly mobile muslim males.
(iii)Every Rizawan exercising freedom to marry a Priya , ipso facto means his rejection of a born –Muslim Ayesha or Fatima as a wife.
(iv)Every Rizwan-Priya marriage is thus a religion and culture based discrimination against Ayesha or Fatima and their unfortunate born-muslim sisters, amounting to violation of article 2 of UN Declaration (25.11.1981) on the Elimination of all Forms of Intolerance and Discrimination Based on Religion and Belief.
(v)What the born-muslim Ayesha or Fatima must do get a muslim computer graphic artist , or a muslim medical doctor or a muslim MBA or even a muslim cricketer or vocal artist as a husband , or not get divorced to be replaced by the husband’s newly acquired born –Hindu wife ?
(vi) One may argue that if Rizwan is free to marry Hindu Priya, and to reject born –muslim Fatima or Ayesha, then Fatima and Ayesha are equally free to reject Rizwan and marry Brahmin Debabrata. It is not happening. And this is a satanic argument to create apostates on both the genders.
CONCLUSION
1.The 212th report of the Commission be immediately be recalled.
2.The Special Marriage Act 1954 be immediately scrapped .
3.The 1872-Act with the 1922 amendment be restored. Those who want to violate Shari’at for inter-religious marriage should have the courage of conviction to openly renounce their faith and face consequences.
4.Any glorification or enticement to violate Shari’at via inter-religious marriage route must automatically activate action u/s 153A /298 Indian Penal Code.
REFERENCES
1. www.lawcommissionofndia@nic.in/reports/report212
2.www.thefreedictionary.com/Shariah
3.http://banglapedia.search.bd
4. A.K.Brohi quoted in pages 288 and 289 of Fatima E.Siddiqi Handbook of Woman and Human Rights (2001 edn) Kanishka Publishers, New Delhi
5. www.legalserviceindia.com/articles/1162-Concept-of-Marriage-in-Muslim- Law
6. www.legalserviceindia.com.articles/transfer article Comparative Study of Gift.etc by K.Rao NLU Jodhpur.
7 Frontline Vol 21 , Issue 19 Sept 11-24 2004 Jayati Ghosh’s critique on “Unequal Citizens:Muslim Women in India “ by Zoya Hasan and another. Reproduced in www.hinduonnet.com/fline/fl2119/stories/2004
8 Article “Fighting the Veil” India Together New Delhi 5August 02 (IPS)available www.indiatogether.org/women/articles/veil/0802
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