Shoaib-Ayesha farce is legal disgrace for India

This is the kind of pressure that needs to be exerted by all members who are being falsely accused of 498a and DV 2005, if the international  community is aware of Draconian laws like 498a it would be a Black mark on India's face and a major disgrace. The day the International Media gets wind of these backward laws is the day change will happen, take the Shoaib case as and example, this is like throwing crap on the face of India.

RIGHT & WRONG

April 11, 2010

Now that the decks have been cleared for the Sania Mirza-Shoaib Malik marriage on April 15, it is worth reflecting on the controversy that riveted the subcontinent for a week. Was it, as the brigade of the superior feels, a classic case of the media pandering to the base voyeuristic instincts of the great unwashed? Or, was it a contrived and cynical controversy that led to free publicity for two individuals, much to the embarrassment of two respectable families?

There is virtue in both assertions. The aam janata are conditioned to equate the private lives of celebrities with public interest and Sania was a star whose glamour quotient equalled Bollywood and cricketing greats. Her decision to marry Shoaib was governed by personal choice, but it didn’t distract from a widespread perception that the groom was unworthy of the iconic Hyderabad girl. It was this undercurrent of disapproval for the interloper, also seen as a habitual predator, which fuelled gory interest in the charges of duplicity levelled by the proverbial ‘other woman’. In the dogfight of reputations, Shoaib emerged as the clear loser and this ignominy may, unfortunately, rub off on his fiancé.

Yet, there was more to the filmi melodrama played out in Hyderabad than mere salacious titillation. The relationship of Shoaib and Ayesha Siddiqui has raised disturbing questions that centre on the cavalier misuse and manipulation of the laws and institutions governing the family. A marriage is governed by welldefined laws or social and religious customs. That Shoaib could persistently deny the fact that the nikahnama involving him and Ayesha was valid suggests that there is a huge grey area surrounding non-codified practices. In Pakistan, a marriage has to be registered — which this nikahnama was not — to be valid, while there is as yet no obligation to do the same in India. Second, the nikah was conducted over telephone, an unusual practice that Shoaib seized upon to contest the reality of the marriage to Ayesha. Indeed, had it not been for some telltale archival TV footage, the threat of non-bailable arrest under the draconian Section 498(a) of the Indian Penal Code and the intervention of community elders, the cricketer may have raised the pitch, claimed harassment and turned the whole incident into an emotive but ugly Indo-Pak spat.

Yet, Shoaib’s grudging admission of his marriage to Ayesha has in turn raised awkward questions. The elders in India upheld the legitimacy of an unregistered nikahnama contracted in Pakistan, where registration is obligatory. More to the point, they upheld a telephonic nikah — something clearly not anticipated in the religious texts. In the process they have opened the floodgates of dodgy, long-distance marriages where the bride and groom don’t even have to be physically present. The scope for misuse is profound and equal in scale to the fixed-term muta marriages that are a cover for prostitution.

The disturbing implications of the Shoaib-Ayesha marriage don’t stop here. The talaqnama negotiated between Shoaib and the Siddiqui family may have freed Ayesha from the unenviable status of a deserted wife and put an end to all criminal proceedings but the speed with which it was concluded is ominous. It suggests that the prescribed waiting period between the first two talaqs and the final divorce is largely illusory and can be circumvented according to convenience. In view of earlier rulings by Indian Muslim clerics that a peremptory triple talaq is valid even if the husband is either drunk or in a rage, the sanctioned fast-track divorce of a celebrity is certain to become a precedent, just as the telephone talaq by Chand Mohammed to Fiza in Chandigarh last year gave ideas to many.

It may interest Indians to note that Shoaib wouldn’t have been able to secure such a speedy divorce in Islamic Pakistan. Ayub Khan’s Muslim Family Law Ordinance, 1961, set out a 90-day timetable, including written notice and a formal hearing by an Arbitration Council, as the procedure for divorce. Even polygamy, a step Shoaib implicitly contemplated, involves cumbersome procedures in Pakistan, the violation of which could lead to imprisonment; in India, he could have had up to four wives quite casually.

Untainted by Zia-ul Haq’s subsequent tweaking and some perverse court judgments, Pakistan has relatively more equitable laws governing Muslim marriages and divorce. In India, as the Shoaib-Ayesha tangle has so vividly demonstrated, Muslim personal laws are an unregulated open market, prone to arbitrariness, theological hair-splitting, expediency and social pressures. The shifts in social consciousness and perceptions of justice that have accompanied economic growth, women’s empowerment and globalization are insufficiently reflected in India’s patchy Anglo-Mohammedan law. The bizarre Shoaib-Ayesha face-off was a legal farce and a national disgrace. In its elusive quest for a consensus, India can’t afford to shelve personal law reform.