New Delhi:
Delhi High Court has ruled that a minor Muslim girl can marry if she has attained puberty. The court cited the Muslim Personal Law for allowing a minor to continue to live in her husband's home and rejecting her mother's plea to declare the marriage void. The judgement has, and rightly so, sparked outraged and much debate. But the court ruling should not come as a surprise as courts have without failing sided with the personal law whenever it has clashed with the law of the land. Ideally the court should have ventured out of the shadow of Muslim Personal Law and treated a child as a child, and not as a 'Muslim girl' who has attained puberty and is marriageable in the 'Mohammedan Law'. And in all likelihood the court will give the same ruling if another such case were to come to today.
This ruling, if one wants to look for a positive, offers an opportunity to revisit Muslim Personal Law and try to bring it in sync with the modern, secular law, compatible with the law of the land on issues such as marriage, inheritance and rights of women.
This is a great moment for law minister Salman Khurshid to start process for a Muslim Family Personal Law, which has been a demand of Muslim women for long. Muslim Family Personal Law should outlaw triple, instant divorce and halala, polygamy, meher, mandate marriage registrations, raise the marriage age to 18, establish child custody and adoption, and guarantee post-divorce maintenance for women and their children.
The political class and the community need to rise to the occasion and end the injustices being meted to Muslim women in the name of personal law. It has to be a concerted, social effort. The Muslim Personal Law Board and the ulemas can't be expected to take the lead. They have zealously guarded their regressive turf. Their partner in crime is the political class, which only believes in keeping these elements in good humour for their perceived, cynical electoral gains.
The Muslim Personal Law Board is lauding the latest HC ruling. Its member Kamal Farooqi justified the marriage of the 15-year-old girl saying "kids today are very mature, know a lot about sex and can make their own choices". Wonder Mr Farooqi and company will put the same logic in case of homosexuals and age of consensual sex?
In any case, people take refuge in personal law only when it suits them. In the current case, if the family had married off the girl against her will, they would have invoked personal law to justify it if challenged in court.
The government and law minister Salman Khurshid in particularly must take the lead. Set up a committee of eminent people from legal and other fields with equal representation from women to draft a 'just' code for matters pertaining to relationships, marriage and inheritance for Muslims.
The ulemas and community leaders have delayed the much needed reforms for long. This is a great moment to set at least some wrongs right. Time to call so called 'ulemas' bluff. Raise the age for marriage of women to 18 years for the starters and then move forward.
The Jamiat-e-ulema Hind at its recent conference made all the right noises on the rights of Muslim women, but their track record doesn't inspire much confidence. So, let's wait and watch.
The self-proclaimed caretakers of the divine law have refused to hear the reformist voices. The current personal laws do more damage to the community than good. After every such ruling by any court, the personal laws appear like albatross around whole community's neck. The very outdated and patriarchal reading of the shariah has led to it being viewed as a regressive order. And it wouldn't take a revolution to set it right. All that's needed is an unbiased and honest interpretation. And if that's done, it'll certainly be revolutionary.