Reflections on C.J.I.’s Speech:

Going Beyond Judicial Appointments for Clearance of Cases

(By Kaleeswaram Raj, Advocate, Supreme Court & Kerala High Court)

 

Years ago, Justice Krishna Iyer was received by almost all the Judges of the Allahabad High Court. Looking at the huge crowd of around 100 Judges, Justice Iyer wondered “this is not court; this is population”. But the Allahabad High Court had the highest average pendency of case in India of 1337 days, according to a study by DAKSH, a Bengaluru based organisation. The fact is that even when the biggest High Court in India had 90 Judges, in January 2014, it was running short of 70.

 

The Chief Justice of India (CJI) had reason to be disgruntled when 434 vacancies of High Court Judges remained unfilled. The phenomenal docket explosion in the Supreme Court also is perturbing. The CJI said that as of now, there are 60,260 cases pending before the Supreme Court. The High Courts in India, as a whole, have an incredible 38.68 lakhs of cases awaiting disposal. The backlog of all courts including the lower courts escalates to 3 crores. The subordinate judiciary has 4580 vacancies across the country, awaiting the umpires.

 

The Law Commission’s recommendation (1987) to increase the Judges’ strength is honoured only in its breach. The resolution demanding appointment of retired Judges of the High Court for clearing the cases by invoking Article 224A of the Constitution also is remarkable.

 

The C.J.I. was concerned only with Judges’ strength which is only one constituent of the court performance index, a concept now well accepted worldwide. Maria Dakolias, in a well-researched paper (Yale Human Rights and Development Journal, Vol.2, Issue 1, Article 2, 18.2.2014) puts it vividly: “judicial administration is measured by the concept of efficiency, access, fairness, public trust and judicial independence.” Judges’ strength is not the sole or ultimate criterion that determines the quality of the institution. Maria’s study tells that only France and Peru have a clearance rate of more than 100% which means that they “resolve more cases per year than are filed.” The heaviest workload is borne by the courts in Chile where each Judge has to decide 5000 cases per year. Interestingly, “Chile has an impressive clearance rate” despite the per capita burden on the bench, the study says. The menace of docket explosion finds an answer in her paper which has a strong empirical foundation –"If the courts are well managed, the increase in filings may even result in cases being resolved more quickly”-a lesson that India needs to learn.

 

The Judges have the primary role in judicial management.  Questions about quality need not be always resolved by quantitative inputs to the Bench. There were instances where at least a few Judges indefinitely delayed pronouncement of judgments after the final hearing.  The Supreme Court had to deprecate such “practice” in Anil Rai v. State of Bihar (2001). Also, there were illustrative cases where a Judge had authored only seven reported judgments over a period of three and half years. Such individual aberrations obviously pose serious questions relating to quality rather than quantity.

 

Judicial appointments

 Quality is ensured by way of objectivity, independence and transparency in the process of judicial appointments. A fair appointment process is a condition precedent for a passable and efficient judiciary in any working democracy. India has a failed system for appointment of Judges which neither the court nor the Government could effectively rectify. The National Judicial Appointment Commission(N.J.A.C.) judgment of 16.10.2015 has struck down the 99th amendment to the Constitution together with the NJAC Act and revived the ill-famous collegium system where, again in the words of Justice Krishna Iyer,  “no principle is laid down, no investigation is made, and a sort of anarchy prevails.”(Judicial Appointments and Disappointments, 2012).

 

The C.J.I. did not lament over the slippage in the appointment process about which the entire nation had expressed concern during the post-decisional hearing in the NJAC case. In spite of the initial promises for reforms, when the real issues were placed before the Apex Court by way of legal submissions and public opinion that ran into about 11,500 pages, the Court chose to revive status quo ante with some cosmetic rhetoric on reformation. The tall talk on eligibility practically got reduced to prescription of age. The high decibel demand for transparency just meant publication of judicial vacancies in the official website of the courts without even providing any opportunity to the ordinary mortals in the system even to apply. The Secretariat, which the legal fraternity fantasised as a prestigious establishment for merit evaluation will be brought down to a data collection centre due to the undemocratic NJAC judgments (2015).

 

The tussle between the judiciary and the executive on account of the unwillingness on either side to give way to a better and independent appointment commission continues to be a tragedy in Indian political and constitutional history. At the bottom-line of the Chief Justice’s speech, one may even find a judiciary, which is less assertive and less independent. This predicament is all the more disturbing given the capitalist characteristics prevailing in the Indian courts, especially in the higher judiciary.

 

The CJI spoke less about the common man who is fenced out of the judicial system. On reading Nick Robinson and Marc Galanter, one would be baffled to find how India’s “grand advocates” in the Apex Court and the High Courts charge the litigants. Exorbitant money is required for placing a ‘star lawyer’ with a ‘face value’ in the Supreme Court. On the other end, about one third of the litigants are unable to enjoy bail due to financial or related constraints.

 

In a classic instance of investigative journalism, the Reuters established that the entire legal system in the U S Supreme Court is dominated by a handful of elite lawyers mainly representing the corporate. (The Echo  Chamber, 2014.)

We follow suit.  And no tears!

(This article was originally published in Deccan Herald dated 28.4.2016).

A Real Judge Retires

 

(By K.Ramakumar, Senior Advocate, High Court of Kerala)

 

Sri Justice Bhavadasan, one of the most upright and popular Judges of our High Court (High Court can boast of some excellent Judges now) is demitting office after an illustrious career on the Bench. Though the theory of indispensability is irrelevant for any institution, a real loss is occurring to the High Court of Kerala in his retirement at a time when the High Court needs more of his class and caliber.

 

He had combined in himself character with courage, politeness with sternness, courtesy with commitment and suavity with sturdiness. He was endowed with a phlegmatic temperament which made him an ideal Judge. There was no over-bearing in his court at all. He had no necessity to engage himself in public relation exercises as he neither suffered from any inflated sense of self importance nor inferiority complex. His dignified silence was more eloquent than televised gaffes. He had no craze or craving for sound amplifiers or shining spotlights. Media buzz could never deter him as is evident from one of his noted judgments in which he boldly declared that the allegations of “Sthree Peedanam” were totally unfounded, adopting the acclaimed “amidst the clash of arms” attitude evolved by Lord Atkin. He maintained safe aloofness but all the same friendly, sociable and accessible to all sections of the Bar. He gave respect and reaped back respect with compound interest. Most of the time during his tenure, he dealt with Civil cases, an uncared for branch with even the overactive Media evincing no interest in it.

 

Though he was not given his due in the right time, he took it in its stride and was content without grumble, adjusting himself to the stark reality that no Judge can earn the income of a successful Lawyer, possess powers of the Politicians and preserve the privileges of a Judge, all at the same time. This is because he had abiding faith in the Almighty.

 

He carries along with him the regards, the respect and the reverence of the Lawyer community which now is forced to thrive on unmerited money disabled to give any Quid Pro Quo to the hapless and helpless litigants for whom justice has become a distant mirage.

Non Compos Mentis…..

(By P. Deepak, Advocate, High Court of Kerala)

 

‘The chickens are coming home to roost’, chuckled the old counsel hoarsely as he sidled into the vacant chair beside the reclining figure of his junior in the back row of the near empty court hall. The old man glanced sideways at the lifeless form of his protégé and sighed. He knew that his words were wasted on the young man who was in a state of absolute repose. The old man was in two minds. Undying memories of his own long nights on the tiles and of the chastening mornings that inevitably followed them reminded him that the young man was in the throes of a mortal hangover and rousing him would be far from advisable. Yet, the words in his mouth jostled for utterance and he could contain them no longer. Self-gratification triumphed nostalgia and he prodded the young man in the latter’s lower ribs with the folded newspaper. The result was as explosive as it was anticipated. Recoiling from the recesses of his chair and clutching his head with both hands the young counsel turned a pair of glazed eyes on his insensitive prodder. Choicest expletives unlearnt at his mother’s knee died away without finding speech when his eyes identified the prodder to be none other than his senior and mentor. A near thing, he thought.  

  

‘I said the chickens are coming home to roost. Read this.’ the old man repeated thrusting the newspaper under the young man’s nose. ‘What is this dyed-in-the wool vegan muttering about chicken roast at 10.30 in the morning?’ wondered the young man. Misgivings about the state of his mentor’s mental faculties however melted away as his eyes rested on a photograph in the spread out newssheet. It was the photograph of a churlish looking judge in his mid-fifties. The towering spires of a red-hued court complex could be seen in the backdrop. Seeing the deep-set eyes scowling into the void the young man was reminded of sketches of certain unhinged characters from the works of Dostoyevsky and other Russian masters. The young counsel hastily read the article that accompanied the photograph and turned around to meet his senior’s gaze. A wry smile played at the edges of the old man’s lips as he impersonated Mark Antony…’The evil that men do lives after them."

 

Even as the old counsel was beginning to unravel the folds of the newspaper much like the shrouds from Caesar’s mutilated corpse and continue with his oration he was interrupted by the sight of a long retinue of fawning counsel and media personnel trailing a fast paced man clad in starched whites with an imbecilic grin plastered on his face. The old counsel recognized the man as his bumbling former junior who had wisely traded the black gown for white khadi. ‘Sir, I need your blessings. The party has nominated me again. I am seeking reelection…’ Quickly suppressing a shudder the old counsel wished his old pupil all luck at the hustings and turned to face his present junior whose starry eyes were enviously following his predecessor.

 

‘Now, tell me young man’, quipped the old counsel succeeding in getting his junior’s attention ‘Why should a legislator, the law-maker, be treated any differently from a judge, who merely interprets the law?’ Pointing his finger at the departing legislator the old man continued ‘Now, if that man there started to clutch at imaginary straws in his hair and file complaints before the local police under the Prevention of Cruelty to Animals Act against the Honorable Speaker and other Honorable Members of the House for not endorsing his private bill for providing free noon meals at the expense of the State Exchequer to all the stray dogs in the State would he not be inviting disqualification under Article 191(1) of the Constitution?’ With a mischievous twinkle animating his eyes the old counsel asked his junior friend ‘Would it not be an instance of “non compos mentis”?

 

Sounding to impress his senior the young counsel interjected hastily“Surely, a sitting legislator or an aspiring one cannot be disqualified on the ground of “unsound mind” unless he is so declared by a competent court. Correct? ’ The old counsel was plainly impressed with his protégé. He continued in a provocative vein ‘But who will watch the watchmen? Did the Founding Fathers who authored Articles 191 & 105 of the Constitution fall prey to a cassus omissus when it came to Articles 124 & 217? Or, did they lightly assume that surviving ten years as an advocate of a High Court was adequate proof of continued life-long sanity?’ Resting his gaze on the photograph of the judge in the news report the old counsel gave a snort of patent disapproval. ‘The day is not far away when one of the grounds taken in a memorandum of appeal to impugn a judgment would invariably be that the learned judge was not in his right senses while rendering the judgment.’ The young counsel could not suppress a grin as he listened to his senior’s doomsday rhetoric. It reminded him of the last limb of Section 12 of the Contract Act and the foreseeable ‘ground’ of a futuristic appeal rose before him…’‘The learned single judge, a person who is usually of sound mind, but occasionally of unsound mind, rendered the impugned judgment when he was of unsound mind’.  Thanks to the man in the photograph the contours of an appeal were fast blurring from sight.

 

‘Maybe all that was required was not a NJAC but a PMB’, the old counsel chuckled again. ‘PMB? What do you mean by PMB?’ the young man enquired of his senior. ‘A “Permanent Medical Board” having Constitutional imprimatur to undertake periodical medical examinations of the robed brethren to ensure that a “sound mind” is coterminous with the length of their respective tenures. Overt manifestations of unsoundness can be brought to the notice of the PMB and the concerned judge relieved of all work till the all-clear is sounded by the Board’ the old man concluded.

 

‘What about the constitution of the PMB’ enquired the young man. ‘Lets leave that to the wisdom of the legislature……….two eminent psychiatrists…undoubtedly….,’ the old man’s guffaw resounded through the court hall as he rose to leave.

Permanent Injunction in Relation to A Land Granted against
A Defendant can be Executed against the Assignee of the Defendant

S.146, Order XXI Rule 16, Order XXI Rule 32 of C.P.C. & S.52 of T.P. Act.

 

(By Neenu Pavithran, Advocate, High Court of Kerala, Ernakulam.)

 

 

1. A permanent injunction against a defendant restraining him from doing or not doing anything in relation to his immovable property runs with the land and the assignee from the defendant is also bound by the said covenant.

 

2. Section 146 C.P.C. runs as follows:-

146. Proceedings by or against representatives.--Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him.

 

3. Generally a decree for prohibition restraining a person from doing something  is a personal one and not an order in rem.

 

4. However, when the decree restrains a defendant/judgment debtor from doing something in his own land to the detriment of the plaintiff decree holder and in derogation of the right claim by defendant/judgment debtor to enjoy his own property as an owner, then in such a case the decree should not be understood as merely personal and not binding on the representative or assignee of the judgment debtor/defendant in relation the property in respect of which it is obtained.

 

5. Even if, it cannot be considered as a covenant running with the land, under Section 52 of the Transfer of Property Act the principle of lis pendens will apply; and therefore that decree for injunction could be enforced against the legal representatives or assignees of the defendant/judgment debtor as provided in Order XXI Rule 32 of C.P.C.

 

6. In this connection, the Rule enshrined in Section 146 of C.P.C. which is extracted above, meets such a situation.As His Lordship P.K. Balasubramanian in his researched judgment recorded in 1997 (1) KLT 464 = AIR 1997 Ker. 249 [Chothy Theyyathan v. John Thomas] has gone into this aspect and has detailed the scope and ambit of Section 146 of C.P.C.. His Lordship has relied on earlier decisions of Kerala High Court and that of Supreme Court and has dissented from of Karnataka High Court.

 

7. 1997 (1) KLT 464 mentioned above deals with a case in which a decree has been passed restraining judgment debtor from his property, can be executed against the assignee of the judgment debtor. Fresh suit by the decree holder against the assignee of the judgment debtor is not required.

 

8. Order XXI Rule 16 does not affect Section 146 C.P.C. (AIR 1989 Raj. 23 at
page 24).

 

9. The Karnataka High Court has reversed its earlier view and has ruled that if injunction relates to doing or not doing something in property that is subject matter of the suit, then that will be binding not only against judgment debtor but also to those who claim through him or under him. (2014 (4) CCC 335 Kar. H.C. - Gouri v. Prabha Adiga). The Karnataka HC has followed Kerala HC decision 1997 (1) KLT 464.

Time to Lift the Veil....of Minds

 

(By M.A.Vaheeda Babu, Advocate, High Court of Kerala)

 

Recent decision of the Supreme Court1 to examine the gender discrimination affecting the rights of Muslim Women, taking note of the fact that, the issue relates not merely to a policy matter, but to the Fundamental Rights of Women under Article 14, 15 and 21 of the Constitution of India and the International conventions and covenants, by separately registering the same as a Public Interest Litigation draws once again, our attention to the issue which had been burning, right from the pronouncement of the judgment in Shah Bano Begum’s case 2 by the Supreme Court. Inspite of the several complaints from various corners of the country that the law enacted after the said judgment 3 is highly insufficient to curb the misuse of the Muslim Personal Law as existing, so far, none of the changing ruling parties have shown the political will to touch upon the burning issue once again by making appropriate laws, either at the Central, or State level 4. Let the Judicial will prevail, when the political will failed on this aspect.

Now that, the Supreme Court has resolved to venture into such an attempt, it will be only apposite to present a short evaluation and assessment of the issues.

 

Poligamy and Indiscreet Divorce

History reveals that various kinds of polygamous marriages were prevalent in various communities at various times and is still in practice in certain sects, all over the world. Polygamy is a Greek word which means any form of marriage in which a person has more than one spouse. Mainly, polygamy is of two types: a) Polygyny and b) Polyandry. Polygyny is where a man marries more than one woman, while polyandry is where a woman marries more than one man. Polygyny is the most common form of polygamy while the practice of polyandry is found prevalent only in limited sects/communities in the world like Nomadic Tibetans in Nepal and certain parts in China and Ladak.

 

Since, the present analysis is centered around the issue of arbitrary divorce and polygamy with respect to the Muslim Community, the discussion is now only on its polygynous form. Polygyny was accepted or even preferred in three/fourths of pre-industrial traditional societies, though it was then seldom practiced by the commoners or lower classes. It tended to occur most frequently in societies where the route to winning wealth and political power was through attracting followers or having lots of sons to hunt for the family head or defend the family’s land. In other cases, wealthy men accumulated many wives to produce more sons. It was very common for kings and other royalty to have many wives, both as a way to make alliances with other States or noble families and to ensure that they would have plenty of heirs.

 

For Arabs, until the revelation of Qur’an, during the “Times of Ignorance”5, there was no upper limit as to the number of wives. Many men had scores of wives, some even hundreds, during that time. After the revelation of Qur’an, the number of wives was restricted to four and many Muslim countries still retain the traditional Islamic Law permitting polygamy upto a maximum of four wives, whereas, certain others have strictly regulated/prohibited the same. In ancient India also polygamy was much prevalent in different religious communities.

British India, as a whole, was neither governed by Hindu, Muslim, Sikh, Parsi, Christian, Jewish or any other law except a religious observance, consistent in every case with the personal laws of the concerned community, thereby not regulating/prohibiting the polygamous system of marriage. Under the law imposed by Great Britain in respect of other matters, Hindus, Muslims, Sikhs, Parsis and all others were subjected to equal treatment in the matter of rights, liabilities and obligations.

 

6Till the year 1772, when Warren Hastings made Regulations (also known as Judicial Plan of 1772) for the administration of civil justice for the native population, there was no statutory law which was to be applied for solving problems relating to marriage and other related issues in different communities in India. Section 23 of the said Regulation declared thus “In suits regarding inheritance, marriage, caste and other religious usages and institutions the laws of the Koran with respect to the Mohammedans and those of the Shaster with regard to the Gentoos will be invariably adhered to”, making it clear that, Qur’anic injunctions shall be strictly adhered to. The said egulations was followed by various other Regulations wherein the word “Laws of the Koran” was replaced by the word “Mohammedan Law” and the words “Gentoos” and “Shaster” were replaced with the words “Hindus” and “Hindu Law” respectively. Still later, the principle of priority of custom and usage over Mohammedan law and Hindu laws was incorporated into the laws enacted from 1873 onwards for regulating the working of the civil courts. In view of the aforementioned changes in the law, the personal laws applied by the courts cannot be said to be one in conformity with Islamic principles.

 

Later, by the promulgation of the Muslim Personal Law (Shariyat) Application Act, 1937 7, the Muslim Personal Law (Shariyat) was made the rule of decision, in cases where the parties are Muslims. The principle of polygamy, divorce etc. now being practiced by the Muslim community in India by the name Mohammedan law 8 is evolved in this manner which, according to my humble view, has absolutely no connection with the Qur’anic principles and the stand of a section of the Community that it is unalterable is incorrect.

 

While framing the Constitution of India after Independence, Article 372 thereof was introduced, giving continuity to all the then existing laws in India, until the same is altered or repealed or amended by a competent legislature or competent authority, but, subject to the other provisions of the Constitution. It was also thought fit to constitute India as a secular State and to include Article 13 providing that, all laws in force in the territory of India before the commencement of the Constitution, in so far as they are inconsistent with the provisions of Part III dealing with the Fundamental Rights, shall, to the extent to such inconsistency be void, further prohibiting the State from making such laws in future.

 

Article 25 which speaks about the right to free profession, practice and propagation of religion specified that, it shall not prevent the State from making any law, regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice. Our Constitution also gives power to the Parliament and Legislature of every State to make laws with respect to various matters, including the items in the Entry 5 (“marriage and divorce; infants and minors; adoption; wills, intestacy and succession, joint family and partition, all matters in respect of which, parties in judicial proceedings were immediately before the commencement of the Constitution, subject to their personal law”), in the Concurrent List 9 given in Schedule VII of the Constitution.

 

After independence also, in the case of other major religions, the polygamous system10 of marriage and limited estate of females continued, which were later appropriately dealt with by various central and state legislations11 imbibing the spirit of the Constitution, codifying the Hindu Law as then was applicable to the largest religious community of India, to achieve a better social order and to strive for an ideal society by eradicating gender discrimination, by introducing Hindu Marriage Act, Hindu Succession Act etc., inspite of the fact that, there were different schools of thoughts in existence concerning matters like marriage, succession etc., and Hindu Law, as that was then in existence concerning these aspects, were considered to have a sacramental origin. The central Acts, Hindu Marriage Act 195512, [applicable to Hindus, Buddhists, Sikhs and Jains],Christian Marriage Act 187213, Parsi Marriage and Divorce Act 193614 (both before independence) prohibited polygamy of those who follow these religions and they accepted the same for an egalitarian society.

 

The remaining major sect (the second largest religious community in India) is Muslims, for whom their personal law, in terms of Holy Qur’an permits polygamous marriage with conditions and limitations and divorce, also in unavoidable circumstances. But, unfortunately as far as Muslim Personal law as applied in India is concerned, it gives the Muslim male unrestricted and indiscreet powers to divorce his wife and to contract polygamous marriage which, goes against the real spirit of the Qur’an, as analyzed hereunder.

 

Although Muslim Law contains several positive provisions that would safeguard women’s rights and enjoins a duty to treat them with dignity, these provisions have deteriorated due to socio-cultural reasons and patriarchal subversions of a later period. As a result of the distortion made by and unfortunate metamorphosis that had undergone at the hands of Indo-Anglican Courts, the Muslim Law, as it is now in existence and administered by the Indian Courts does not appear to be that rational and sensible15.

 

Actually, the issue regarding indiscreet marriage, divorce and other related problems prevalent in Muslim community in India had come up for judicial scrutiny several times before the various Courts in India16 which necessitated the Courts to remind the legislatures, the need to have a codification/modification of the laws concerning the issue. But, unfortunately, no positive steps are seen taken in this line to codify/regulate the laws except for the enactment of Dissolution of Muslim Marriage Act, 1939 and The Muslim Women (Protection of Rights on Divorce) Act, 198617 (which is far to meet the requirements of the society and also devoid of many women favored provisions in Holy Qur’an), because of the strong objections from some unscrupulous section of the community, who had not understood Islam as a pious, progressive and respected religion with a rational outlook18, putting the life of their own sisters in misery. The imputable dignity attached to womanhood in Islam is lost sight of them.

 

Although Muslim Law as contained in the Holy Qur’an has several positive provisions that would safeguard women’s rights and provide absolute protection to women, the present pitiable state of Muslim women, most of them in their teens with children astride their waist, who throng in Court varandas seeking alimony, maintenance- both to her and her children, fair treatment etc, from their husbands who had contracted 2nd, 3rd or 4th marriage neglecting them and putting them in utter penury, does not show any kind of protection, but sheer persecution, in the name of Islam.

 

The community, which had earlier renounced English Education as part of our independence struggle and later issued ‘fatwas’ against the education on the wrong misconception that it is a sin, which is not in tune with the Qur’anic injunctions had to heavily pay for the same, in later years. The community is yet to recuperate from its ill-effects and its social backwardness.

 

The problem underlying in this issue is that, a large sect of people including some community leaders in India consider Muslim Personal Law, as it now stands in India, as divine and immutable. But, with regard to Criminal Law and Jurisprudence, this sect has absolutely no qualm or complaint in as much as, Indian Penal Code and allied Laws are applicable to all, irrespective of the religion, may be because, the punishments as provided in Islamic Law are more severe.

 

19Till the death of Prophet Mohammed (PBH) in 10AH (10 years after Hijra migration to Madina), he was the sole interpreter of the Holy Qur’an. After His death, his companions and later various religious scholars including Imam Abu Haneefa, Imam Malik, Imam Shafi, Imam Ibnu Hanabal etc., did the said task by codifying the Muslim Personal Law (Shariah Laws20),touching various aspects of human life. That is the reason why different interpretations of the Qur’anic verses which favour different schools are in existence. Had these interpretations been immutable, the Shariah would not have been different from one school to the other, which were later followed in different parts of the world, by the spread of Islam. But, as far as India is concerned, as already noted, it has lost its originality and still no positive steps are taken so far for codification of laws in consonance with the Qur’anic injunctions, which will suit the social fabric and remove the ill-effects of the present laws in the society by regulating/annulling the provisions which go clearly against the spirit of Islam and the Constitutional scheme.

 

19Islamic Shariah (laws), as codified by the various religious scholars are all derived basically from the Holy Qur’an and the Sunnah (which are the Prophet’s is sayings, deeds and approvals recorded to its finest detail by his companions in the form of Hadith (books)). Islam is an Arabic word which comes from the root word ‘silm’, which means obedience or submission. ‘Islam’ also comes from the root word ‘salm’ or ‘salaam’ which means ‘peace’. So the word Islam in context means attaining peace by submitting or being obedient to the will of Almighty God. Muslims believe that the Holy Qur’an is the last and final testament of Almighty.

 

God revealed to mankind till eternity, through the last and final messenger of Almighty God, Mohammed (PBUH). So, the Qur’anic injunctions are divine and immutable and reveal the will of God Almighty. It touches all aspects of human life, both as an individual and as a social being. So Islam is thus, a way of life for the whole mankind for all times to come. Holy Qur’an is revealed as a complete, structured formula touching all aspects of human life which would meet any contingencies.

 

So, there will be a solution in Holy Qur’an to meet any remote kind of contingencies, which may occur till the end of this world. Shariah tries to understand this by applying its injunctions to a particular problem in question. On going through Holy Qur’an, one can see that, for refining mankind, God Almighty had revealed 5 categories of Do’s and Don’ts:

    1.           ‘Fard’- compulsory or obligatory.

    2.           ‘Mustahab’- recommended or encouraged.

    3.           ‘Mubah’- permissible or allowed.

    4.           ‘Makruh’ – not recommended or discouraged.

    5.           ‘Haram’-prohibited or forbidden.

 

Principles of Fiqh(jurisprudence), Qawaidh-ul-fiqh (Rules of Fiqh), Qiyas (analogy), Ijtihaad (Legal reasoning), custom of the local people etc., are used by the scholars of their times to come to a solution to any problem in question, while interpreting the respective Qur’anic verses relating to the same.

 

Unfortunately, there comes the difference of opinion as to what is the injunction relating to the problem in question, as revealed from the verses in Holy Qur’an. It cannot be lost in sight that several such interpretations maintain the feudal formula of superiority of the male and subordination of the female which is not at all contemplated in the Qur’anic injunctions.

Viewed from this angle, one can better understand indiscreet divorce & polygamy and its related evil effects which prevail in the present day society, in the name of Islam. As already noted, the polygamous marriage in all other communities in India has been prohibited and made punishable under law and only on satisfying the conditions and provided in the statutes applicable to them, a man can divorce his wife.

 

Family and marriage are two basic concepts that pivot the society, in general, and the human civilization, in particular. The bottom line in the marriage relationship is good morality and happiness, creating a just and cohesive society where, the needs of men, women and children are well taken care of. In Holy Qur’an, marriage is a fortress of chastity19. It prescribes strict adherence to morality and sexual discipline, both to men and women. It strictly prohibits extramarital conjugal relationship or in other words it permits sexual relationship only through marriage. Moreover, the fine thread that runs through all its injunctions is protection and compassion to the weaker and poorer section of the people in the society, thereby achieving the goal of equality among all.

 

Holy Qur’an reads21

 “And if you fear that you will not deal justly with the orphan girls, then marry those that please you of (other) women, two or three or four. But if you fear that you will not be just, then marry only) one or those your right hands possess (i.e. slaves). That is more suitable that you may not incline (to injustice)22

 

In the same Chapter, verse 12923 says;

“You will never be able to be equal (in feeling) between wives, even if you should strive (to do so). So, do not incline completely (toward one) and leave another hanging24. And if you amend (your affairs) and fear Allah – then indeed, Allah is ever Forgiving and Merciful”

 

From the above verses, one can clearly understand that polygamy in Islam is not a rule but an exception in as much as, among the five categories of Do’s and Don’ts, polygamy falls in the category of things that are permissible, i.e., Mubah. It is even not in the 2nd category which is recommended. You do not become a better Muslim, by marring more than one or be sinful, if you do not. But, even though Holy Qur’an is the sole religious book which prescribes monogamy as a rule, many people are under the misconception that it is compulsory for a Muslim to have more than one wife. Some others have taken it as a privilege granted to men to have more than one wife.

 

Yet another sect, many members of which we meet in our daily life consider it as a way for easy money25 and for quenching sensual lust26, or consider it as an unlimited right ordained to them by God Almighty.

 

Yet another sect remarries by accepting dowry which is unknown to Islamic law, for the purpose of settling the issues in the earlier marriage. Actually, these people are making the women’s life a hell, by marrying them only for their material gain and pleasure, throwing the real spirit of the Qur’anic injunctions to the wind. By doing so, they are sinning against their religion itself, without understanding the goal behind the revelation of Qur’an to mankind i.e.,, upbringing the mankind from the state of darkness and to strive for an ideal society based on equality and social justice to all. It came to serve and increase people’s best interests, both as an individual and in community level too, to reduce harmful things and render them ineffective.

 

We could see from its entire fabric that the revelations are meant for full and complete protection of women. In the system of marriage also, apart from its initial goals of purity of sex, prevention of fornication, procreation of children etc, in effect, protection of women is what, that is meant by the Islamic Law. This is more clear when we scrutinize the marriages contracted by Prophet Mohammed(PBUH), who had a monogamous marriage with Khadeeja [He was 24 and she was 50 at the time of marriage], for 25 years and almost all his later wives were either orphans or war widows, who were left with nothing. We can also better understand the provision for polygamy by examining the context for such Revelation27. For eg. Wars cause the number of women to greatly exceed the number of men. In a monogamous society, these women, left without husbands or support, resort to prostitution & illicit relationships with married men resulting in illegitimate children with no responsibility on the part of the father, or thrown to lonely spinster hood or widowhood.

So, the men, who under compelling circumstances, take more than one wife, are taking higher risk and bigger responsibility than acting for his own gain, when we take into consideration the spirit of Verse 129 of Chapter 428.

 

Verse 33 of Chapter 2429 which reads,

 “But let them who find not (the means for) marriage abstain (from sexual relations) until l Allah enriches them from His Bounty”.

 

Fortifies my humble view, as mentioned above.

With regard to the indiscreet divorce prevalent in Muslim Community also, we can see that, the procedure followed by many are not in accordance with the Qur’anic injunctions in as much as, it is common in the community that Muslim males divorce their wives and throw them out of their houses at their slightest fancy or on petty altercation.

Verse 19 of Chapter 430 reads “And do not make difficulties for them, in order to take (back) part of what you gave them unless they commit a clear immorality (i.e. adultery).And live with them in kindness. For if you dislike them – perhaps you dislike a thing and Allah makes therein much good” Explaining this verse, one of the classical compilations of the Hadith reads that, “no believing male should hate a female, if one particular trait of her character is disliked by him, for, (possibly) another trait would be liked by him31. Another Hadith reads, “The Prophet said, Allah did not make anything lawful, more abominable to Him than divorce” and that, “of all the act, the most detestable to Allah is divorce.”31

 

So, it is clear that, Holy Qur’an expressly forbids a man to seek pretext for divorcing his wives, so long as she remains faithful and obedient to him. And, even if it has become inevitable to venture into divorce, the same has to be preceded by an attempt for reconciliation by two mediators/arbitrators nominated by the families of both the parties (one from the husband's side and one from the wive's side).33 The practice of Tripple Talaq as prevailing in India has absolutely no support from the Holy Qur’an.

But, we can painfully realize that the interpretations and understandings of a large sect of people are totally against the spirit of the revelations contained in the Holy Qur’an and Sunnah. Why is this happening in India when even Islamic countries are far ahead of us in this aspect, by regulating the divorce and polygamous system of marriage imbibing the true spirit of Qur’an?

 

34The codification and reform of Personal Law in the Muslim world (almost 50 sovereign states, spread over the continents of Africa, Asia and Europe, in which, the followers of Islam constitute a majority of the local population and other Muslim minority regions like India, Burma, Philippines etc), had begun during 1915-1917, in Turkey-then seat of the Ottoman Empire. Now, in major parts of the Muslim world, the Islamic Personal Laws stand codified or partly reformed. So far as others are concerned, statutes regulating selected aspects of Islamic Law, with varying scope and content are in operation. To rebuild the community in conformity with the socio-legal principles of Islam, codification of Personal Law covering all aspects of it, incorporating the neglected principles and striking out the so called principles, which go against the spirit of Islam, is absolutely necessary, so as to avoid misinterpretations and misapplications of the Sharia, which one can see in abundance in our present Indian society.

 

Let us examine as to what extent, the other Islamic countries had been successful in this respect, specifically confining to our topic:

In Jordan, Lebanon and Morocco, the legislation specifically recognizes right of every women to stipulate at the time of marriage, against her husband’s possible second marriage, while she remains his wife, entitling her to seek for a divorce, in case of violation of such stipulation. In Syria and Yemen also, such pre nuptial agreement is provided under law. Algerian Family Code permits marriage with more than one wife, within the limits of the Sharia (i.e. up to four only) if there is a just ground and the condition of equality can be fulfilled-provided that, the previous and future wives are duly informed of the other marriages. Either wife can bring a judicial action against the husband and demand divorce if the second marriage takes place without her consent.

 

In Egypt and Morocco, the marriage officials should be given the full details of the existing marriages, if any, of a man intending to marry and if the second marriage causes any kind of injury to the first wife, she can seek for divorce. In Egypt, the second wife can seek for divorce, if she has been deceived into a bigamous marriage. In Iraq, Syria, Afghanistan, Bangladesh, Indonesia, Iran, Malaysia, Philippines, Pakistan and Somalia, prior permission of the Court/quasi judicial body like arbitration council/Khazi is necessary for a married man to contract another marriage.

 

Special mention about the Pakistan Laws are absolutely necessary because, before partition, The Dissolution of Muslim Marriage Act, 1939 was enacted and made applicable to the whole undivided India, since under strict Hanafi Law, there was no provision enabling a Muslim woman to obtain a decree dissolving her marriage on the failure of the husband to maintain her or on his deserting her or maltreating her and as such, the absence of such a provision entailed unspeakable misery to Muslim women. After the constitution of independent Pakistan after partition, the Dissolution Muslim Marriage Act,1939 was amended by the Muslim Family Law Ordinance, 1961, bringing about radical and progressive changes in the Family Laws, whereby marriages are to be compulsorily registered, consent of the existing wife, permission from the arbitration council etc., are necessary to contract another marriage. Section 28 of the 1939 Act was amended by Section 13 of the 1961 Ordinance in such a way that, any Muslim wife, on the ground of her husband’s taking of additional wife without written permission of the arbitration council can seek for dissolution of her marriage.

 

In Jordanian, Lebanon and Syrian Code, independent matrimonial home is to be provided by the husband who is entering into a subsequent marriage. In Syria and Indonesia, the permission for polygamous marriage can be given by the Court only in genuine cases and subject to specified conditions. In Yemen, there is provision for enforcement of the Qur’anic condition of equal justice between co-wives in polygamy. In Iraq, such permission from the Khazi shall depend on the financial position of the man and the Khazi shall determine whether it is for any lawful purpose. In Iraq, by an exceptional provision, bigamous marriage to a widow is permissible even without the Court’s permission. In Iran, concealment of earlier marriage is a matrimonial offence and by the 67th amendment, for contracting polygamous marriage, stringent conditions are provided. In Malaysia, it is to be further assured that second marriage would cause no legal injury to the first wife.

 

In all these countries, the permission for a subsequent marriage can be given only after a proper enquiry in its financial implications. In Tunisia and Turkey, polygamy is strictly prohibited and made a matrimonial offence, since, the State had observed that, nobody can fulfill the conditions stipulated in strict Islamic principles for the same in the modern social circumstances.

 

As far as the issue of divorce is concerned,35in Egypt, Iraq, Jordan, Kuwait, Lebanon, Morocco, Sudan, and Syria, a Talaq is no more effective if pronounced by a person who is not in his normal senses, like Talaq pronounced in drunkenness, insanity, angry state etc. The laws in Egypt, Iraq, Jordan, Kuwait, Morocco, Philippines, Sudan, Syria, UAE and Yemen, have totally derecognized the concept of Triple Talaq.

 

In all these countries every Talaq, even though repeated thrice or qualified with the word “three”, shall effect only as a single revocable Talaq.

 

In Malaysia, revocation of Talaq by the husband is to be duly registered with State authorities. If the wife refuses cohabitation after such a step by the husband, reconciliatory process is to be initiated, but the wife cannot be forced into resumption of marital relationship.

 

In Iraq, Jordan and Syria, a husband wanting to effect a Talaq has to approach the court. The court shall then make all efforts to ensure that divorce is avoided, and failing such efforts, can eventually permit only a single divorce. If a person does not go to a court for Talaq and effects it privately, he must register the Talaq with the court or the local registry which shall make sure that, the Talaq to be registered is in fact ,effective in law and cannot be avoided.

 

In Algeria, Indonesia, Malaysia, Somalia, Tunisia and Yemen a Talaq can be effected by a husband only with the prior permission or through intervention of the court which must first try to effect reconciliation, direct or through arbitrators. In Morocco, court’s permission for divorce is required.

 

Under the laws of Pakistan and Bangladesh every Talaq is to be notified by the husband to a local government official to enable him to set up an Arbitration Council consisting of himself and one representative of each of the parties. The council will make all possible attempts at reconciliation.

 

Thus, the decision whether a person does fulfill the Qur’anic conditions for divorce and polygamy as the case may be, which the ancient Muslim jurists had left to his own subjective satisfaction, are now been vested in the Court or another agency, in a number of other countries, especially Muslim countries considering the large scale misuse of the provision for indiscreet divorce and polygamy.

 

Inheritence

“Prescribed for you when death approaches (any) one of you if he leaves wealth (is that he should make) a bequest for the parents and near relatives according to what is acceptable – a duty upon the righteous.36

 

“And when (other) relatives and orphans and the needy are present at the (time of) division, then provide for them (something) out of it (i.e. the estate) and speak to them words of appropriate kindness”.37

 

As per Islamic law of Inheritance, if a son or daughter of the deceased had died before him, their children (orphaned grandchildren of the deceased) do not get any share in his (their grandfather’s) property when he dies. This has now been taken care of imbibing the spirit of the above verses, in several countries through a device called Obligatory Bequests.

 

38In Algeria, Jordan, Morocco and Syria, a person whose son has died during his life time leaving behind his own children must make in favour of such children a will in order to give them the share which their deceased father would have inherited from him if he had survived him.

 

In Egypt, Iraq, Kuwait, Tunisia and UAE, a similar bequest must be made in favour of children of a predeceased child of either sex. In Egypt, Jordan and Kuwait such a bequest has to be made also in favour of great-grandchildren found in a similar situation. No bequest made under these provisions will, however, override the rule of Islamic law under which nobody can ordinarily make a will of more than one third of his total heritable property. If the grandchildren concerned have already got their due otherwise (by gift, etc) the obligation will lapse; and if the gift, etc. meets only part of this obligation or serves only some of those entitled to it, the obligation shall have to be discharged as far as necessary to comply with the law. In all the aforementioned countries such a bequest if not made in fact, is to be presumed by the law to have been made, and it shall be enforced in preference to other bequests made voluntarily, if any.

 

In Bangladesh and Pakistan, under a direct reform of the inheritance law introduced by the Muslim Family Laws Ordinance of 1961 children of a predeceased child – son or daughter – of the deceased shall inherit the share which that son or daughter would have received if alive at the opening of succession. In the Philippines the surviving child of a predeceased son would get one-third of his father’s notional share in the estate.

 

In Iraq and Tunisia, if the daughters are the only ones among the Quranic heirs, they will take the whole estate in equal shares; no part of it will go to the remoter relatives of the deceased.

 

As I have already noted the problem underlying in this issue in India is that, a large sect of people including some community leaders, consider the Muslim Personal Law, as now applicable in India, as divine and immutable, without understanding its historical evolution and its pitfalls, which still remain un-repaired, because of the averse attitude of the Muslim community to reforms. They fail to understand that the Muslim Personal Law now followed is not divine in the sense that, they are not in terms of the Qur’anic injunctions. Shariah can, at the best, be said to be based on human interpretations of the injunctions in Holy Qur’an as an endeavor to understand the divine will. Interpretations are human and what is human admits of change with the need of the time and whenever it is felt that it affects the spirit, goal and ideal of Holy Qur’an, making an adverse effect on the society. The present pitiable condition of Muslim women in India, especially in the lower strata of the society, who are indeed the real sufferers of these kind of misinterpretations and misapplications, point its accusing finger to the fact that the society had committed some mistake in understanding the real spirit of Qur’anic injunctions and warrants a re-thinking on this aspect and it is high time that Muslim Personal Law as applicable in India is to be fundamentally changed upgrading the status of Muslim women, putting an end to the centuries long suppressed and tormented life, in the name of Islam. Expecting positive steps, either from the part of the legislature or from the judiciary in this line, in tune with the spirit of the times and changing needs of the community and the society…

 

Foot Note:

1.     Prakash v. Phulavati.(2016 (1) KLT SN 7 (C.No.9) SC = (2016) 2 SCC 36.

2.     Mohammed Ahmed Khan v. Shah Bano Begum (1985) 2 SCC 556 = AIR 1985 SC 945.

3.     The Muslim Women (Protection of Rights on Divorce) Act, 1986.

4.     In the year 2009,though steps taken by the Kerala Law Reforms Commission headed by its then Chairman, Late Justice V.R.Krishna Iyer to have a new State Legislation regulating the Muslim Marriage and Dissolution by preparing a draft bill, The Kerala Muslim Marriage and Dissolution by Talaq (Regulation) Bill, which was proposed to be progressive and consonant with the noble principles of Qur’an, in accordance with the two rulings of the Kerala High Court (Shahul Hameed v. Subaida Beevi. (1970 KLT 4), Saidali v.Saleena.(2008 (4) KLT 885) and though there were several debates and discussions at various levels on the topic,nothing concrete has been materialized, till today.

5.     Time before the revelation of Holy Qur’an is described as Times of Ignorance.

6      Dr.N.V.Paranjape, Indian Legal and Constitutional History, 5th Edition, Central Law Agency.

7.     Section 2: Application of Personal Law to Muslims- "Notwithstanding any customs or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, illa, zihar, lian khula and Mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)”.

 

8.     Late M. Hidayatullah, former Chief Justice of India states in the preface that, (“Mulla's Priciples of Mohammedan Law-16th Edition, N.M.Tripathi.Ltd.) the Expression Mohammedan Law was “ coined by the English. Islamic Law was not Mohamed’s Law. The expression Mohammedan and Mohammedanism are not correct and, in a sense, are even objectionable. The proper expression are Islamic law and Muslim law.

9.     Article 246 of the Constitution of India

10.  Section 430 of Mulla's Principles of Hindu Law, 15th Edition by Sunderlal.T.Desai.

11.  The Bombay Prevention of Hindu Bigamous Marriage Act, 1946, The Madras Hindu (Bigami Prevention and Divorce) Act, 1949.

12.  Section 5 r/w Section 17.

13.  Section 60.

14 Section 4 r/w Section 5.

15.  See the evolution of the Sharia Application Act, 1937 mentioned supra 7 & 8.

16.  Danial Latifi v. Union of India (2001 (3) KLT 651 (SC) = (2001) 7 SCC 740), Ahmedabad Women Action Group (AWAG) v. Union of India ((1997) 3 SCC 573), Mohammed Ahmed Khan v. Shah Bano Begum (1985) 2 SCC 556 = AIR 1985 SC 945, Lily Thomas & Ors. v. Union of India & Ors.(2000 (2) KLT SN 53 (C.No. 62) SC = (2000) 6 SCC 224), Sarla Mudgal (SMT), President, Kalyani & others v. Union of India & Ors. (1995 (2) KLT 45 (SC) = (1995) 3 SCC 635), A.Yusuf Rowthar v. Sowramma (1970 KLT 477 = AIR 1971 Ker.261), Fazlumbi v. Khader Vali (AIR 1970 SC 1730), Mohammed Haneefa v. Pathummal Beevi (1972 KLT 512) etc.

17.  It does not deal with the procedure to be followed, if Talaq is at the instance of the Husband.

18.  Quoted from the words of late Justice V.R.Krishna Iyer

19.  Resources:(1) http://www.altafsir.com/ (2) http://www.searchtruth.com/tafsir/tafsir.php

        (3)http://www.onlineislamicstore.com/b7775.html (4)http://www.islamicawareness.org/Quran/Tafseer/Ulum/Defnffor6.html#Tafsir (5) www.aml.org.uk.

20.  Shariah literally means ‘clear path’.It is the body of legislations referring to all branches of Islamic Science of knowledge including Aqeedah (Islamic creed), Tafsir (explanations/meanings of Qur’an), Hadith (words and deeds of Prophet (PBUH), history Arabic language etc.-Resource The compilation from U.K.Tertiary University level weekend courses on “Chronicles of Sharia”

21.  The explanation of the meanings/translation of Holy Qur’an (tafsir) quoted in this article are from the revised and edited English version of Holy Qur’an by Saheeh International – Riyad published in the year 1997 by Abulquasim Publishing House, revising the works of many others including the works of Abdulla Yusuf Ali which are usually referred by Indian Courts. The Editor of the book speaks that, for preparing the translation, each verse was reviewed in Arabic with reference to several works of tafsir and grammar and where differences arose, explanation given in an authentic Hadith or in the absence of such, those by the most knowledgeable of the Sahabah (companions) and Tabiun (followers/students of Sahabah) are taken and accepted, upon the literal and logical meanings understood in the Arabic language. These were again stated to be compared with the translation of others including that of Al-Hilali & Khan, A.Yusuf Ali, M.Picktal etc.

22.  Al-Qur’an Chapter 4 (Surah Nisa) Verse 3

23.  Al-Qur’an ibid:129

24.  Which means, neither divorced nor enjoying the rights of marriage.

25.  Where have these people put, the clear mandate in the Holy Qur’an to give dower to the women for whom they choose to marry, as a mark of respect to her? Al-Qur’an 4:4
“and give the women (upon marriage) their (bridal) gifts graciously”

26.  Reccollect the renounced Malayalam Movie ‘Padham Onnu Oru Vilapam’ (Lesson one: A Wail) of the year 2003- story written and directed by Mr. T.V. Chandran, which one the National Film Award for the best film on Family Welfare and several other awards in State level.

27.  The Verses regarding Polygamy was revealed after the battle of Uhud, in which a significant number of Muslim men were martyred and as a consequence, many women were widowed and their children orphaned. See paragraph No.11 of Saidali v. Saleena (2008 (4) KLT 885) – Ibid 4.

28.  Ibid 23.

29.  Al-Qur’an 24:33 (Al-Noor).

30.  Al-Qur’an 4:19 (Surah Nisa)

31.  Muslim - One of the 6 classical compilations of Hadith

32.  Abu Dawud-Hadith

33.  Al-Qur’an 2:228,229,230, 231,236–237&241 (Surah Al-Baquara), 4: 20-21(Surah Nisa), 65:1-7 (Surah Attalaq).

34.  Resource – “Personal Laws in Islamic Countries” by Tahir Mahmood, 1987, Eastern Book Company, Lucknow.

35.   Muslim Law in India and abroad by Tahir Mahmood and Saif Mahmood, Universal Law Publishing Co.2012.

36.  Al-Qur’an 2 : 180 (Surah Al Baqarah) – i.e., those who do not inherit by law/obligatory shares may be remembered in a bequest, in as much as only after fulfillment of debts and bequests, the remainder of the estate is to be divided – Ibid 21

37.  Al-Qur’an 4 : 8 (Surah Nisa).

38. Ibid.35.