Showing posts with label personal laws. Show all posts
Showing posts with label personal laws. Show all posts

Wednesday, February 26, 2014

The Right to Adopt

The Supreme Court of India in its recent decision in the Shabnam Hashmi case took another step towards the harmonization of family law in India by holding Muslims too could adopt under the Juvenile Justice Act. The decision was clearly a product of very cleverly crafted legal strategy which would allow adoption by Muslims and Christians, without raising the UCC debate. The decision has been celebrated for recognizing rights of both parents and children.

The decision is a curious combination of judicial activism and self restraint. Prof Upendra Baxi in a recent editorial notes what the decision failed to do, namely recognize the right to adoption as an integral part of the right to life in Article 21. Prof Baxi castigates this incongruous judicial self restraint and failiure to meet obligations under the UN Convention on the Rights of a Child by asking "How long will Indian Muslim children have to wait till they can rightfully be adopted by other pious Muslims"?. However, as he himself notes, the court while rejecting calls for an UCC also doesn't heed the arguments made by the All India Muslim Personal Law Board. Baxi argues for a more determined robust engagement with "social action litigation" rather than the more cautious managerialist approach it seems to be adopting. 

Wednesday, August 21, 2013

The Changing Debate Over Personal Laws in India

The current issue of the Frontline magazine focuses on the changing debate over personal laws. In the lead story, I argue that the fragmentation of religious authority, greater debate within communities, and growing awareness of women have made the older debates over the Uniform Civil Code largely irrelevant.

The story also follows litigation by Goolrookh Gupta, who has challenged the decision by the local Parsi Panchayat to exclude women married to non-Parsis from entering the fire temple. An interview with Goolrookh provides an insight into how individual litigants take the decision to take on their community leaders.

V.Venkatesan writes on the recent judgments on live-in relationships and its implications for marriage, maintenance and prevention of domestic violence. This is followed by an interview with Justice Karnan who gave the judgement on pre-martial sex.

Another story focuses on the diverse strategies adopted by various Muslim women's groups in Tamil Nadu, including petitioning the High Court to curb the rights of qazis, pushing for greater codification of Muslim law (as opposed to an UCC) and the creation of all-women jamaats to resolve disputes. Finally, I write on the growth of Dar-ul-Qaza's, and draw on recent research by Prof Jeff Redding, to argue that institutional pluralism is compatible with the constitutional order.

Sunday, February 28, 2010

Adoption Rights of non-Hindus and Constitutionality of Personal Laws

Shabnam Hashmi has filed a PIL in the Supreme Court challenging 'a law which denies a child a right to inheritance if s/he is adopted by non-Hindu parents.' The case is surely going to be contentious, given its implications for personal laws.

I am grateful to a reader for drawing my attention to the case of Manuel Theodore, where 'in the absence of legislation', the Bombay High Court recognised the right of a Christian parent to adopt a destitute and orphaned child. Justice Rebello interpreted Article 21 to hold that 'the right of the child to be adopted and consequently to have a home, a name and a nationality has to be considered as part of his right to life.' [para 19] What is more interesting, to my mind, is that the Court goes on to recognise a right to adopt on part of the parents flowing from Article 14:

In so far as the adoptive parents are concerned, it flows from the right of such parents from Article 14 of the Constitution of India even amongst those couples whose belief or customs do not provide for adoption. They cannot be discriminated from adopting a child without the State being accused of arbitrariness and infracting Article 14 of the Constitution. Once a couple is permitted under the Guardians and Wards Act of being capable of taking a child in guardianship the consequence must follow that the legal guardian can move the Court for adoption of the child in order to fulfill the constitutional objective of such a child to have a home, a name and a nationality. The Court no doubt has strayed into the area of personal law in what I may describe as the post adoption stage. Though adoption by itself is a fundamental right of an orphaned, abandoned or destitute child, the legal consequence of being given in adoption will entail application of Family Law or what we term as Personal law. This to my mind will not have the effect on the rights of any citizen to profess his religion guaranteed under Article 25 of the Constitution. The Special Marriage Act is in force. Any citizen of the country can marry under the said Act. Marriages and Divorce of those who marry under the said Act are governed by the said Act. Succession by the Indian Succession Act. People professing different faiths marry under that said Act. The vision of the new millennium must guide our religious leaders. Their broad vision can lead their flock to understand religions, as the founders of Religions would have wanted their followers to follow, love and tolerance must be the cornerstone. Religious teachings must undergo the same interpretative processes much as Judges to through for finding answers to justice social, economic and political. [Para 28]

Without referring to it directly, Bombay High Court appears to have overruled its decision in Narasu Appa Mali by holding that:
'the right of such child to be adopted, is not pursuant to any personal law. The right of the child is independent, as a human being, and flows from his right to life as contained in Article 21 of the Constitution. Any eligible parent or parents irrespective of religion can apply to adopt a child. Personal laws, as pointed out earlier, have to meet the test of Part III of the Constitution, if they are to be saved.' [para 30]

But as the discussion in the comment section of this post shows, it is still arguable, Manuel Theodore notwithstanding, that Mali continues to be good law. One hopes that Hashmi's petition will force the Supreme Court to take note of all precedents and arguments on both sides to rule clearly on the constitutionality of personal laws.

Wednesday, December 16, 2009

Subsidiarity and state formation

Since my previous post highlighting the role that the principle of subsidiarity can play in devolving power, there have been three excellent columns in the Indian Express dealing with precisely the same question. Bibek Debroy makes a case for small states, Karthik Muralidharan weighs up the pros and cons of smaller states, and Pratap Bhanu Mehta underscores the need to consider state 'building' alongside state creation. What is striking in all of these commentaries is that they ignore sub-nationalism as a possible basis for further state-formation. Instead, each of them analyses different aspects of democratic representation and efficiency---the twin pillars that underpin the principle of subsidiarity. The Telengana issue could well trigger the second wave of state formation in India: if this happens, subsidiarity should be a useful guide for the second states reorganisation commission. Of course, subsidiarity will also require far stronger local governments than we have at the moment--will our policy makers travel that far?

On an unrelated matter, Flavia Agnes draws attention to a recent judgment of the Supreme Court in Shabana Bano case, which will have important implications for a divorced Muslim woman's right to maintenance.

Friday, September 11, 2009

Ijtihaad by the courts

Tahir Mahmood responds to the criticisms made by Javed Anand of the 227th Law Commission report.

He makes two interesting points. The first that the Law Commission since its inception in 1955 has never been consulted on any legislation dealing with Muslim Law. Even the infamous Muslim Women's (Protection of Rights on Divorce) Act was drafted by the Law Ministry. Secondly, noting the failure of the Indian state and Indian ulama to initate reform, he argues that "in some recent cases the courts have made admirable efforts to read principles of Muslim law in their correct perspective. Religious circles see these rulings as mudakhalat fid-din or interference in religion. That perception might continue, but so must the on-going process of judicial restoration of true Islamic law.". The latter is perhaps an interesting evolution of Dr Mahmood's views since in the past he had been fairly critical of courts which sought to offer "progressive" readings of Islamic law.

Sunday, August 30, 2009

Conversions and Bigamy

The 227th Report of the Law Commission of India on “Preventing Bigamy Via Conversion to Islam: A Proposal for giving Statutory Effect to Supreme Court Rulings” was published earlier this month. The report suggests amendments to the Hindu Marriage Act, the Special Marriage Act, the Indian Christian Marriage Act, the Dissolution of Muslim Marriages Act and the Parsee Marriage and Divorce Act which would provide that “a married person whose marriage is governed by this Act cannot marry again even after changing religion unless the first marriage is dissolved or declared null and void in accordance with law”. The recommendation challenges a well established principle dating back to the Privy Council that the “no court can test of gauge the sincerity of religious belief” i.e enquire into the motives behind a conversion.

It is a little problematic to see the quesiton of bigamy only in terms of conversion to Islam. As media reports suggest that the "conversion" for the sake of marriage is done by relatively wealthy urban men who want to escape the prosecution from bigamy or live in a milieu where the state's recognition of marriage . In a lot of India, polygamy is still not seen as against a social milieu, therefore there is no incentive for a person to "convert" to gain a cloak to legality. As a recent study shows, in South India polygamy is more common amongst Hindus than Muslims. By framing the problem of bigamy through the question of conversions, the report seems to imply that Muslim personal law is to blame for this problem.

Javed Anand, President of Muslims for Secular Democracy and editor of Communalism Combat ,takes the Commission to task for the last paragraph of the report, ie “Although we fully agree with the fact that traditional understanding of the Muslim law on bigamy is gravely faulty and conflicts with the true Islamic law in letter and spirit, to keep our recommendations away from any unhealthy controversy we are not recommending any change in this regard in Muslim law.” Anand systematically documents how Muslim women in India have fewer rights under Islamic law than women in other Islamic states. As he points out

Algeria, Indonesia and Tunisia do not recognize talaq (a husband’s unilateral right to end a marriage). Divorce is possible only through the courts. In Morocco, talaq is subject to strict judicial control. In Jordan, Lebanon, Malaysia and Syria you have to apply for permission to divorce. Besides, in most of these countries, a reconciliation attempt is mandatory prior to divorce. In Iran, two witnesses are essential for a talaq. Only in India does the Muslim male enjoy the unquestioned right of instant (triple) talaq. Whether sober or dead drunk, in a fit of anger or on a mere whim, he can do so when he likes, how he likes: orally face-to-face, letter, telegram, telephone, fax, e-mail or SMS.

He charges Dr. Tahir Mahmood, the only permanent member of the Law Commission (also former Chairperson of the National Commission of Minorities and Dean of the Delhi Law Faculty) for failing in his duty. Muslims for Secular Democracy, have been arguing that media and the government treats Muslims as a monolithic block and privileges "the hotheads and muckrakers, while moderate, liberal voices find little mention".

A point Anand misses is that the only effective statutory change that the report suggests pertains to Muslim family law. The report intends to give statutory effect to a position laid down by the Supreme Court in Sarla Mudgal (1995) and reaffirmed in Lily Thomas (2000). As a decision of the Supreme Court is law of the land, most of the proposed amendments appear superfluous since there is nothing under the Hindu, Parsee, Christian or Special Marriage Acts which cannot be harmoniously construed with the judgments.

The amendment which might prove contentious is that the Proviso to Section 4 of the Dissolution of Muslim Marriages Act 1939 – saying that this Section would not apply to a married woman who was originally a non-Muslim if she reverts to her original faith – be deleted. As I have mapped out elsewhere, the DMMA was a revolutionary piece of social legislation enacted due to the efforts of a coalition of Muslim ulama, nationalist leaders and women’s groups which gave Muslim women rights to divorce which were significantly greater than those enjoyed by Hindu, Christian, Parsee and even British women of the period. Since Hanafi law (followed by most Muslims in India) provided very few possibilities for a wife to dissolve her marriage at her own imitative, the legislatures and ulama borrowed principles from Maliki law (which was largely limited to Algeria, Morocco and parts of Egypt) and gave it statutory force in India.

Section 4 and its proviso have a particularly interesting history. A major reason for its support from the ulama was s.4 which provided that following this legislation, a Muslim woman could not dissolve her marriage by the fact of apostasy, thus calming the fear that Muslim women might seek to convert to escape bad marriages. Again, the irony being that ulamas had used the act of a secular legislature was being used to reverse what had been settled consensus over a rule of Shariat law. However, the more conservative Hindu members of the legislature stated that this clause prevented the reconversion of women who had been abducted/enticed/forcibly converted into Islam. In order to reach a compromise, the Select Committee carved out an exception to the clause, which now provided that ‘it would not apply to a woman converted to Islam from some faith who re-embraces her former faith’. Soon after, Bhai Parmanand, President of the Hindu Mahasabha, was thanked profusely by Quazi Ahemd Kazmi, the author of the Bill, for his crucial support. Some scholars have suggested that the Bill, like a lot of social reform legislation, was a product of a communities need to control its women. While women’s rights to dissolve their marriages through conversion were blocked by statute in 1939 and by judicial decisions in the 1940s, men’s rights to convert and have second marriages was only challenged in 1995. The effect of this amendment would in effect destroy the comprise (questionable though it may be) which led to the enactment of this quite revolutionary piece of legislation in the first place.

More disturbingly, the report, and the preceding Supreme Court judgments express little ‘sympathy’ for the position of the second wife. Refusing to recognize the second marriage often leaves the other woman vulnerable and without rights.

Saturday, July 11, 2009

Naz, minorities and personal laws

In this Telegraph piece, I have argued that given the innovations under Article 15 in Naz Foundation, all vulnerable groups now have unprecedented protection under law, and therefore all minorities, including religious minorities, should welcome it. Swapan Dasgupta interestingly argues that
If the criminal ban on homosexuality violates the fundamental rights and dignity of some individuals, it follows that all personal laws must be tested against this principle. If equality becomes the litmus test, can the existing Muslim personal laws relating to divorce and polygamy withstand impartial judicial scrutiny? Can the principle of inclusiveness extend to gays but not to Muslim women? Can the government enact Shah Bano-type legislation if it violates a fundamental right of the Constitution? The Supreme Court will have to consider these questions when it hears Baba Ramdev’s appeal against the high court verdict.

I agree that the reasoning is impeccable, but for a perverse ruling of the Bombay High Court in Narasu Appa Mali, and affirmed by the Supreme Court in Krishna Singh v Mathura Ahir, that personal laws are not 'law' under Article 13 and therefore need not satisfy the fundamental rights test. (I have discussed this jurisprudence here). Many aspects of personal laws will not even need this heightened scrutiny under Article 15. They are unconstitutional even under the more deferential Article 14 inquiry of reasonableness. So, Naz may only make a rhetorical (and political) difference to personal laws (though these can make a huge difference too). Legally, the Supreme Court needs to overrule Mali and Singh. How can any law be above the Constitution?

There is another legal aspect to this debate: are only uncodified personal laws barred by Article 13 or all personal laws? Supreme Court has often invoked constitutional guarantees against codified personal laws, but Narasu Appa Mali was also dealing with a codified law. Does it mean that Mali is impliedly overruled? What to make of Krishna Singh then?

Thanks to Sundeep Dougal for pointing this out.