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.

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