Muslim personal law, India: Court judgments

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Rajesh Kumar Pandey, Oct 12, 2022: The Times of India

PRAYAGRAJ: The Allahabad high court has said that a Muslim man cannot marry a second time if can't take care of his wife and kids, stressing that 'as per the mandate of the Holy Quran, bigamy is not sanctified unless a man can do justice to orphans'.

"A Muslim man has to prevent himself from performing a second marriage if he is not capable of fostering his wife and children," a division bench of Justice Surya Prakash Kesarwani and Justice Rajendra Kumar has observed. "Besides, a Muslim man, after having a second wife against the wishes of the first, cannot seek decree from a civil court to compel the first one to live with him," the bench added.

While dismissing a first appeal filed by one Azizurrahman for restitution of conjugal rights, the court observed: "The religious mandate of Sura 4 Ayat 3 of Quran is binding on all Muslim men. It specifically mandates that a Muslim man can marry upto four women of their choice, but if he (Muslim man) fears that he will not be able to deal justly with them then can only marry one."

The appellant had contracted a second marriage without informing her first wife and was seeking restitution of conjugal rights with her first wife by filing a suit before a family court.

The high court further opined, "A Muslim husband has the legal right to take a second wife even while the first marriage subsists, but if he does so, and then seeks the assistance of the civil court to compel the first wife to live with him against her wishes, she is entitled to raise the question whether the court, as a court of equity, ought to compel her to submit to co-habitation with such a husband."

The court was dealing with an appeal filed under Section 19 of the Family Courts Act, 1984 challenging the judgment passed by the principal judge, Family Court, Sant Kabir Nagar whereby the plaintiff's (husband) suit for restitution of conjugal rights was dismissed. The high court passed these observations on September 19.

Overriding personal law

Some instances

MR Shamshad, Nov 18, 2022: The Times of India

The Kerala high court's ruling that a Muslim woman has the independence to dissolve her nikah (marriage), and the husband cannot withhold his permission to release her from the marriage, has stirred much debate.

The court in its judgment has criticised the Islamic ‘clergy’, by saying it has no training in ‘ legal science’, and has even accused them of holding ‘hegemonic masculinity’ of the Muslim community, while rejecting a review petition filed by a man challenging the divorce granted to his wife, under the Dissolution of Muslim Marriages Act, 1939.

With these observations, the court appears to have confirmed its earlier judgment, where it held that a wife has an absolute right of khula — a form of divorce initiated by the wife, which is put in effect by the return of her husband's wedding gift — but which needs the court’s go ahead.

Similarly, the Ulemas too agree that khula can only be put into effect by the court or qazis (court or magistrate), but have nonetheless gone on to criticise the judgment. In this case, it is sad to see that both, despite agreeing on the same principles, are contradicting each other.

On the one hand, the court also has no right in calling the Ulemas ‘clergy’, which has Western connotations. However, the Ulemas, too, need to be more precise, clear and sensitive about the issues at hand. 
In this case, the court has also relied upon the texts of Abul A'la Maududi, an Indian Islamic scholar, who says that the qazi is only obliged to ascertain whether dislike (or hatred) has grown in the heart of the wife against the husband. It is, however, not for the court to decide whether the reason for such hatred is sufficient or not for declaring the end of marriage.

In Maududi’s texts, which are aimed at a general audience, the reasons for dislike may not be ‘good enough’, but the same reasons can still be ‘sufficient’ for the wife; after all it is she who has to grapple with the issue day and night. With this in mind, the qazi can launch an investigation to see whether hatred actually exists, and if the wife is unwilling to live with her husband. And even the qazi can only suggest steps for reconciliation, he technically cannot compel the wife against her will to change her mind.

Maududi records the position of Islamic divorce and khula to say that in case a man has pronounced divorce, he cannot take back anything, which he gave or gifted to the wife. And if the woman wants khula then she has to return a part or the entire assets that her husband had given or gifted at the time of marriage.

According to these texts, many matrimonial relationships are doomed to begin with as couples do not have an easy way to be freed from each other. The court has clearly followed the Maududi principle in its view that consent of the husband is only procedural, without the basis of any substantive law.

However, the Islamic concept of divorce, which Maududi has defined very liberally, is way different from the concept of ‘irretrievable breakdown’ theory in sacramental marriages. The core issue hence lies somewhere else.

According to Ameer Ali, a Shia scholar, Sunnis place mutual consent divorce within the category of khula, whereas Shias regard khula as a distinct procedure. In a few Muslim dominated countries, khula (redemption) is kept within the category of talaq and not under dissolution of marriage, while other countries have reversed this category. Muslim divorce from the husband, after effective reconciliation, however, is largely unilateral, but dissolution is with the judgment of court or qazi.

This is why a resolution of this divergent opinion is important. Maududi, himself a Hanafi, one of the four major schools of Sunni Islamic legal reasoning and repositories of Islamic law, is of the opinion that it is a form of divorce and not dissolution of marriage. This judgment, however, quotes Professor Tahir Mahmood’s reading of Maududi to say that “wife’s right to khula is parallel to the man’s right of talaq”.

Accordingly, the consent of the husband is only procedural and that shall not deprive a Muslim woman in freeing herself from nikah. A vast majority of Muslims in India, including the Hanafis, do not agree with khula being parallel to talaq because it needs a third party intervention. After the Quran and Hadith, the Hanafis rely upon the Al-Hidaya, Fatawa-e-Alamgiri, Durr al-Mukhtar, and the like —books of jurisprudence which do not find mention in this judgment.

The other important aspect is that the judgment has given a conspicuous miss to the different denominations within Islam. For instance, in the triple talaq case, it was recorded that 90% of Sunnis in India belong to the Hanafi school of jurisprudence. A detailed argument was advanced as to how the understanding of the authors of different sects and schools of Islam was irrelevant for the other sects and schools.

The SC bench, which was hearing the case, raised a specific query, as to which translation was most appropriate for the Hanafi school as per the understanding of the All India Muslim Personal Law Board. After much deliberation, five copies of the English translation of the Holy Quran by Mufti Taqi Usmani were handed over to the bench the next day. However, the talaq judgment finds no mention of it.

Rather the able translation of Abdullah Yusuf Ali has been relied upon by the court. Who was Abdullah Yusuf Ali ? Well, he was an Indian, born as Dawoodi Bohra in 1872, who went on to become an Indian Civil servant, working for the British as their ambassador. His understanding of Islam was of course vastly different and clearly influenced to create a bridge of understanding between the Islamic and Western philosophy. Protests over the triple talaq bill in 2018. Landmark judgments like this rely upon translations of the Quran. This practice of adopting translations without knowing their context needs to be resolved, says the author.

Undoubtedly, he was a scholar who commanded respect, but he studied Islam with a certain perspective. Landmark judgments in our court system often rely upon his translation of the Quran, including the judgment read as a part of majority view in the triple talaq case.

In many judgments, Maulana Mohammad Ali’s translation has also been relied upon, even though he was a believer of the Qadiani sect, which declared Mirza Ghulam Ahmad to be a prophet even after Prophet Muhammad was declared as the last prophet by the Quran. His understanding of the Quran and translation is simply unacceptable by the larger Islamic community across the world, let alone the Hanfis. This practice of adopting translation and text without knowing their context, to make it ‘suitable’, is another core issue in our court system that needs to be resolved.

Even though there is great criticism and appreciation of the recent khula judgment, it is necessary that the present Ulemas clarify as to what is the correct position of the Hanafi understanding of khula. At the same time, the courts also must not generalise the scholarly written works of the authors of different denominations. After all, a religion has to be understood as per the belief of a believer and not as per the understanding of a believer of another sect.

The writer is an advocate at the Supreme Court of India . Views expressed are personal.

Personal law to be overridden when…

Minor’s welfare is at stake

March 18, 2022: The Times of India

Raipur: The Chhattisgarh high court has held if there is a conflict between the personal law to which a minor is subject, and the consideration of a minor’s welfare, the latter must prevail.

Disposing of an appeal filed by Irfan Ur Rahim Khan, challenging a Bilaspur family court order which gave custody of the child to the mother, a division bench of Justice Goutam Bhaduri and Justice Rajani Dubey said in the order that “under the principles of Muslim law, the mother is entitled to custody of her male child until he completes the age of seven years and of her female child until she has attained the age of 14. However, the principle of law, which is well established, is that in a proceeding for appointment of a guardian, it is not the guardianship of a minor that is of importance, but the welfare of the minor has to be taken into consideration. If there is a conflict between the personal law to which the minor is subject and the consideration of the minors’ welfare, the latter must prevail”.

“Likewise, where the provisions of the law are in conflict with the provisions of the Guardians and Wards Act, the latter will prevail over the former,” the order says. The HC observed that the custody battle of children requires a “human touch”, apart from the statutory obligation. “Therefore, we are of the view that the children’s wish will prevail. The communication will help in maintaining and improving the bond between the children and the parent who is denied custody,” it said.

The order quoted an apex court order that a balance has to be drawn so as to ensure that in a situation where the parents are in a conflict, the child has a sense of security. The interests of the child are best served by ensuring that both parents have a presence in his/her upbringing. According to the appeal, the father and mother, along with the twins, lived together till 2014 when the couple became estranged. The woman, after informing Durg Mahila police station, came to Bilaspur along with the kids and started living separately in a rented house. The kids’ father used to meet the children during their stay at Bilaspur. Since he is a police officer, he was transferred to Sukma and was unable to meet the children.

Khan moved the HC, challenging a family court order, for the custody of children, arguing that his wife does not have any source of income and that he can “maintain children in a better way” since he is an officer.

The court disposed of the appeal after the statements by the children were taken into account. The kids expressed love for their mother and chose to stay with her. The father was given visitation rights.

Sex outside marriage

Islam doesn’t allow sex before marriage: HC, 2023

June 25, 2023: The Times of India

Lucknow: Islam doesn’t allow sexual intercourse before marriage as well as any pre-marital act displaying lust or affection such as kissing, touching, and even “staring”, the Allahabad high court’s Lucknow bench said recently while dismissing a plea from an interfaith live-in couple who had sought protection from alleged police harassment. A division bench of judges Sangeeta Chandra and Narendra Kumar Johari said Islamic law doesn’t recognise sex outside marriage.

The ruling followed the couple’s petition seeking protection from police. They alleged cops were harassing them following an FIR filed by the woman’s mother, who’s said to be unhappy with their live-in relationship. The couple cited a SC ruling on live-in relationships. But the HC bench said the top court’s views “cannot be considered to promote such relationships”. 

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