In a progressive and bold step towards the reform of Muslim Personal Law, the Kerala Law Reforms Commission has drafted a bill which will curb and check the practices of polygamy and divorce through Talaq among Muslims in the state.
Essentially neither is it a bill with radical stand nor is it revolutionary in terms of its features. In fact almost all of its features are there in the Shariah law. For instance it doesn’t ban polygamy nor does it ban the concept of talaq among Muslims. The only thing that it does that it tries to regulate the indiscreet marriages and divorces in the community.
One has to understand that the legal issues related to Muslim personal laws like that of divorce, marriage, inheritance are usually dealt with by the respective Shariah bodies. There is no mechanism in Shariah framework (as it is being practically implemented in India) where the people who violate the Shariah laws are held accountable to their misdeeds and punitive measures are applied to them.So if a person remarries or misuses the provision of talaq he can and in most of the cases, he does easily get away with this because there is no effective mechanism in the existing Shariah based Muslim Personal Law Board which could ensure that he is punished as per the existing punitive measures available in the Shariah.
The Indian Constitution doesn’t provide the organizations like Muslim Personal Law Board (who claim to have the exclusive rights of representation of personal law related issues of Indian Muslims) legal legitimacy. So this Bill seeks to address the implementation of the punitive aspect in the cases of all the discreet remarriage and divorces
The draft Bill titled “The Kerala Muslim Marriage and Dissolution by Talaq (Regulation) Bill” seeks to legislate that ‘monogamy shall be the rule’ and that ‘marrying again during the lifetime of husband or wife is an offence.’ However, the proposed Bill provides for remarriage by husband in exceptional cases “with the (wife’s) consent in writing before a notary public or a judicial officer expressing her consent to the second marriage and briefly giving her reasons for the consent.”
The Law Reforms Commission’s proposed law aims to “declare that, among the Muslims in Kerala, monogamy is the general rule and polygamy a just exception, permissible only in socially exceptional circumstances and that also subject to compassionate conditions, and to provide further that divorce by talaq can be effected only subject to special conditions.” It wants that “if any married Muslim, man or woman, marries again during the subsistence of the first marriage, the party who violates shall be guilty of bigamy under the Indian Penal Code and punishable as such.”
The proposed law makes it mandatory that all Muslim marriages and divorces be registered with the local registrar of marriages. The most important provision in the proposed law is the constitution of a ‘conciliation council,’ to be set up in each district, to regulate Muslim remarriages and divorces. The council, to be set up by the State government, will have a retired district judge or magistrate from the Muslim community as its head.
The man, permitted to take a second wife, “shall be liable to provide reasonable accommodation and privacy as well as just alimony or maintenance sufficient for the wife to sustain herself in reasonable comfort.”The proposed law also says that marriage of Muslim shall be contract. It also says that “the female spouse shall be entitled to divorce only through court or with the approval of the conciliation council on grounds of irretrievable breakdown irreparable by conciliation
It has sought a variety of responses from the Muslim community be it the common masses or its intellectual class. Moreover it has created a debate in the community to ponder over the effects of polygamy and talaq on the community.
The bill has sought positive responses almost from all the women’s activists across the religious, political and ideological divides. They have been pitching for the bill and mobilizing forces to pressurize the government to legislate the bill.
According to Febeena Seethi, the president of Kerala Women’s Front, polygamy is a double edged sword in the sense that it can be useful but it can also be a way to exploit women. Usually it becomes a way of exploitation of women where their lives are made miserable because of it. “There should be a women and a religious scholar in the conciliation councils.” She explained that the representation of women and a religious scholar is very important. The religious scholar will help in avoiding any kind of controversy and the woman member will .
A big section of all the people who support the Bill feel that it is high time that reform must happen in the Muslim Shariah law or Muslim Personal Law. So their support of the bill can be seen as motivated by an effort to bring about some kind of balance between the Shariah laws and changed circumstances of the modern times. Likewise Dr. Feebina also expressed an urgent need for the reforms in the Muslim Personal Laws.Finally she pointed out that it has been experienced that legislations alone have never been sufficient to control some practice or any person. For instance – dowry. Since the first legislation on Dowry many more laws have been made but only to increase the number of dowry cases.
The misuse of Talaq and polygamy can only be stopped with a change in the attitude of men and for this we need a war like campaigning against the both practices by every medium and every suitable platform. Dr. Seethi also pointed out that almost every woman’s organization has supported the bill.As far as most of the Muslim organizations are concerned they favor the bill in some cases with few suggestions and concerns to be addressed and included in the bill. So to a large extent there is no opposition to the Bill, in fact he went on to the extent of saying people have hardly opposed the bill on religious grounds at least. The reason is that today most of the progressive organizations want the reform in the Shariah Laws.
There hasn’t been any strong opposition to the bill as such except by few orthodox Muslim organizations like Samastha Kerala Jamiatul Ulama and Kerala Jamiatul Ulama. Both these organizations are completely rejecting the Bill. They have termed it as interference in the Shariah Laws by the secular Indian law.But their opposition also is complicated by the fact that their office bearers and some leaders have supported the Bill individually. In their religious lectures these people have accepted the problems created by the polygamy and expressed the need for the law to check those problems as pointed out by Mr. M Ebrahim of the Madhyamam daily.
As far as the coverage of this issue by the mainstream media in Kerala is concerned, Mr. Shareef refers to a very dangerous precedent; which is to sensationalize and controversialize every issue related to Muslims even if the issue is very simple.
So in spite of the fact there hasn’t been a strong opposition to the Bill by the Muslims in the state except few orthodox organization, instead of highlighting the moderate voices media is trying to pick up the few voices of opposition to the Bill and portray the whole community as backward and non-progressive.
People in the Sunni Cultural Centre pointed out that the main reason for the opposition by A.P. Aboobaker Musliar (yeah,the same old guy whom we discussed here) is the fact that for them the bill seems to be an attempt to encroach and “interfere” in the area which otherwise has been the exclusive domain of the Muslim religious bodies like All India Muslim Personal Law Board.They accept that there should be reforms in the Shariah laws but that reform should be initiated from within the Shariah law and by people in who are expert in the Shariah laws: because they want the reforms to be essentially within the framework of Islamic Shariah.
A very interesting answer to the argument of the Shariah bodies lies in the fact that in several Muslim countries triple talaq has been banned or restricted.
And what the Muslim women’s rights and progressive sections of the community like Dr. Feebina Seethi say is that the Muslim bodies on the Shariah laws have been hearing the calls for reforms since a very long time but they haven’t yet come up with any kinds of plan and strategy for the reforms in the Shariah laws which is actually one of the most important demands of the modern times.So when there is no hope of reform from within the clergy fraternity then the bill represents a saner and sensible attempt to bring about that reform.
I didn’t write this article..I just gathered information from different sources,from links provided.All I intend is to spread the word..Thanks for reading and Good day to o all..