If any person re-marry as per the divorce passed by the foreign country and the same is not validated as per the provisions of Section 13 of Civil Procedure Code 1908. Remarriage will be considered as committing an offense of bigamy as per the provisions of Indian Penal Code.
Please read the below mentioned judgment to clarify the above mentioned position of law.
Equivalent Citation: 2003IIAD(Delhi)14, 102(2003)DLT822, I(2003)DMC443, 2003(67)DRJ58
IN THE HIGH COURT OF DELHI
Suit No. 108 of 2003 and I.A. 576/2003
Decided On: 23.01.2003
Appellants: Harmeeta Singh
Vs.
Respondent: Rajat Taneja
Hon'ble Judges:
Vikramajit Sen, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Geeta Luthra and Sanjeev Sahai, Advs
Subject: Family
Catch Words
Mentioned IN
p>Acts/Rules/Orders:
Hindu Adoptions and Maintenance Act, 1956; Hindu Marriage Act; Contempt of Courts Act; Specific Relief Act - Section 41
Case Note:
Civil Procedure Code, 1908 - Section 13--Foreign judgment--Applicability--In the event the marriage is dissolved by a decree in America, in consonance with principles of Private International Law which are embodied in Section 13 of the Code of Civil Procedure, 1908, inter alia, this decree would have to be confirmed by a Court in this country--If the Husband were to remarry in the United States of America on the strength of the Decree of Divorce granted in that country, until this Decree is recognized in India he would have committed the criminal offence of bigamy and would have rendered himself vulnerable to be punished for bigamy.
Hindu Law - Scope--Plaintiff and Defendant were married which was performed and celebrated in style according to Sikh rites and ceremonies, thereforee, it is the Hindu Marriage Act which would govern all disputes between them pertaining to their marriage, division of properties and maintenance.
Matrimonial disputes--Jurisdiction--Conflict of law between two countries--Husband initiated proceedings for obtaining a Decree of Divorce in America--Marriage performed in India--Even if the husband were to succeed in obtaining a Decree of Divorce in America, it would be unlikely to receive recognition in India--Courts in India would undoubtedly have jurisdiction over the disputes between the present spouses since the marriage was performed in India--Husband restrain from continuing with the proceedings in the United States of America till further order.
JUDGMENT
Vikramajit Sen, J.
I.A. 577 OF 2003
1. Allowed, subject to all just exceptions. The Court Fee be filed within a week from the date of its receipt by the Plaintiff.
Suit No. 108 OF 2003
2. Plaint be registered as Suit.
3. Issue summons to Defendant in the ordinary process, by registered A.D. Post, electronic mail as well as facsimile, returnable for 12th March, 2003. Service be effected on all the addresses disclosed in the plaint.
I.A. 576 OF 2003
4. Issue notice of this application to the Defendant, returnable on 12th March, 2003.
5. Matrimonial disputes between estranged spouses are the most bitterly fought litigation raising myriad awkward questions. Not unoften, the jurisdiction of more than one Court can be invoked where the husband and wife have started residing in different territories, either nationally or internationally. It must then be decided that from amongst them which Court should be best suited and thereforee competent to exercise jurisdiction. Where the choice is between forums within the same nation or Community of countries, the difficulty is usually easily resolved. Judges within the same national boundaries tend to be open to relinquishing their jurisdiction in favor of the Court most conveniently placed, keeping the parties in view. Regretfully, this does not happen where trans-border challenges are laid by the sparring spouses, as even Judges who are normally intellectually liberated and not parochial, succumb to innate chauvinism. The endeavor of Judges in every corner of the world should be to look only towards alleviating the human suffering that is endemic in every matrimonial dispute, since persons who may otherwise be willing to forgo their rights and go a long way to arrive at a compromise in other litigation, would fight to the very end. I have passed these Orders after fresh reflection, and would be subject to modification after hearing the Respondent.
6. A startlingly similar situation to that in the present case had arisen before me over three years ago in the dispute between the newly married Anubha who was domiciled in India till her marriage to her husband Vikas, who was gainfully employed and resident in the United States of America. Shortly after their marriage in India and their departure to United States of America, she was allegedly compelled by the conduct of Vikas to leave the matrimonial home. Lacking necessary financial resources, and other support, she was compelled to return to India. She filed an action in the High Court of Delhi, for Maintenance under the Hindu Adoptions & Maintenance Act, 1956, in the course of which the following Orders were passed on 5.11.1999.
" I.A. 10872/99 in S. No. 1966/99
Arguments in this case had been heard on 1.11.1999 and orders were reserved by me. Since I had intended to research the matter particularly in regard to the position prevailing in the EEC Countries the orders could not be pronounced. It will also be appropriate to mention that there has been a delay in hearing the matter for the reason that the Defendant Mr. Vikas Agrawal had not filed his Replies in this court within the time permitted to him.
The matter was mentioned before me in the morning and pursuant to notice issued to the Defendant, Mr. S.D. Singh, learned counsel for the defendant is present in court. The next date of proceedings in the United States of America are scheduled for 9.11.1999 and due to the Court vacations it is not possible to pronounce the orders before that date. It is submitted that if hearing takes place in the Courts at Connecticut, U.S.A. these proceedings may be rendered infructuous.
I feel compelled to record that the Plaintiff before me is undoubtedly residing in India and has neither submitted to the jurisdiction of the American Courts nor is presently represented by counsel before that Court. She is, thereforee, not in a position to draw the attention of that Court to the fact that, since the parties have married in India, Indian Court would definitely and indisputably have jurisdiction in deciding matrimonial issues at least under the Hindu Marriage Act. No doubt, it has been contended before me that the Hindu Adoption & Maintenance Act may not be available to the Plaintiff, but a decision on this issue will be given by me later. Whether the Courts in America have jurisdiction or not would undoubtedly be considered by Courts in that Country. Without in any manner desiring to interfere with the judicial proceedings in the United States of America, the question of jurisdiction of Courts in Connecticut, USA, is at least debatable; for the reason that, on undisputed facts, neither of the parties is presently residing in Connecticut, U.S.A., and their joint residence within the territorial jurisdiction was for a significantly short period of two months.
It has become fashionable to speak of our world as a global village. There is bound to be a manifold increase in cross border disputes such as the present one, and the question of which is the appropriate forum/Court to decide the lis is certain to remain a vexed one. In every such dispute, a Judge is bound to reflect on this point, at the very threshold. But I have the comparative advantage of hearing counsel for both parties. Because of economic constraints, the Plaintiff may not be able to make any representation on her behalf in the U.S.A. Mindful of judicial comity I am passing these orders with responsibility, as I am sure, would the Superior Judge seized with the Divorce proceedings.
For the present, in the interest of justice, and since no permanent prejudice is likely to be caused to the Defendant if the hearing in divorce case pending in the Superior Court, State of Connecticut, U.S.A. is deferred for a short period, I restrain the Defendant from proceeding further in the Superior Court, State of Connecticut, U.S.A for a period of thirty days from today."
7. On 9.3.2000 lengthy Orders were again passed after hearing the Husband's counsel, the relevant portion of which is extracted below:
"On further reflection I am also satisfied, prima facie, that the defendant appears to have committed contempt of this Court. When the matter came up for hearing on 18th August, 1999 notice, simplicitor, was issued to the defendant. It will be relevant to mention that the present suit is for the grant of maintenance under Section 18 of the Hindu Adoption and Maintenance Act and that, through a string of judgments of this Court as well as of other courts, it is well settled that interim orders of maintenance can be granted. On the following date of hearing, that is on 6th October, 1999 the defendant was represented by Mr. M.D. Adkar with Mr. S.D. Singh, Advocates. The learned counsel for the plaintiff had pressed for an injunction restraining the defendant from proceedings with divorce proceedings in the United States. On the request of learned counsel for the defendant arguments were deferred for a period of three weeks in order to enable him to file a reply. It is unfortunate that after obtaining the indulgence of this court the Defendant has attempted to over-reach this court. On 5th November, 1999 orders were passed in the presence of the counsel for the parties. The following extract of those orders is extremely relevant:
"For the present, in the interest of justice, and since no permanent prejudice is likely to be caused to the defendant if the hearing in divorce case pending in the Superior Court, State of Connecticut, U.S.A is deferred for a short period, I restrain the Defendant from proceeding further in the Superior Court, State of Connecticut, U.S.A for a period of thirty days from today."
These orders had been passed by the Court fully mindful of the vexed position of law pertaining to the jurisdiction of courts in different countries. On 18th November, 1999 as also on subsequent dates, learned counsel for the defendant did not disclose that the defendant had continued, in contumacious violation of the order of this Court, to prosecute the divorce proceedings in the United States of America . The divorce petition appears to have been concluded ex-parte. There is adequate reason for me to believe that this was achieved without the learned Superior Judge having any knowledge of these proceedings. Mr. S.N. Kumar, learned Senior Advocate appearing for the defendant states that the orders dated 5th November, 1999 had been brought to the notice of the American Court. But conspicuously there is nothing in writing, emanating from the defendant, to support this contention. It has also not been disputed that the father of the defendant has no personal knowledge of the proceedings in the United States since he was not present there. Significantly he has verified his affidavit, which is heavily relied upon by Shri S.N. Kumar, on the basis of knowledge whereas it could only have been on information received by him and, theoretically possibly, believed by him to be true. He can scarcely be considered an appropriate person to assist the Court on the facts and proceedings of the case. For these reasons I consider it proper to issue notice to show cause to the defendant as to why proceedings under the Contempt of Courts Act should not be contemplated against him. Notice to this effect shall be issued by the Registry of this Court through registered post as well as through the Indian Embassy in the United States of America.
Renotify on 1st May, 2000 for further proceedings, inter-alia for recording of the Defendant's statement under Order X of the Code of Civil Procedure and for consideration of cause, if any, is shown, in respect of contempt of court proceedings."
8. In those previous proceedings, the husband, Vikas had assailed the Orders before the Appellate Division Bench without success. He thereupon took the matter up before the Hon'ble Supreme Court, the highest and final Court of this Country. The views of the Apex Court can be found in the case reported as Vikas Agrawal v. Anubha MANU/SC/0316/2002 : [2002]2SCR1084 . The husband's appeal against the Order striking out the defense was dismissed with costs. Paragraph 9 of that Judgment is instructive for the present controversy and hence is reproduced:
"Shri Shanti Bhushan, learned Senior Counsel appearing for the respondent submitted that the questions raised by the learned counsel for the appellant are not relevant, since undisputedly there is non-compliance with the order passed by the Court requiring the defendant to be personally present in the Court. It is submitted that Sections 41(a) and (b) of the Specific Relief Act would not bar passing of an order as passed on 5.11.1999 by the learned Single Judge of the Delhi High Court since such a bar is in relation to the superior courts i.e. to say the courts in India, it would not apply to courts outside India and next that the restraint order is against the party, namely, the defendant, who was restrained from proceeding in the matter for a period of one month (reliance has been placed on Oil and Natural Gas Commission v. Western Co. of North America). It has been held in an appropriate case, it is open to pass a restraint order against a party in proceedings pending in foreign courts. It is further submitted that the learned Single Judge had passed the injunction order on 5.11.1999 for a period of one month, but the decree was granted on 23.11.1999. The defendant was bound by the order and should not have taken any steps in furtherance of the proceedings pending in the American court. On the other hand, the decree of divorce shows that the decree was sought and passed on agreement (no-fault divorce) between the parties, which is described as fair and equitable. The agreement is also stated to be attached with the decree. It is also to be seen that columns meant for alimony etc. were left blank. The defendant was restrained by the learned Single Judge of the Delhi High Court, at the instance of the wife, the respondent from further proceeding in the divorce case. It is submitted that this itself shows that the divorce was far from one on the basis of agreement. In this view of the matter, learned counsel for the respondent submits that the Court rightly felt the need for personal appearance of the defendant for clarification. The defendant failed to appear on one ground or the other and lastly on the ground of apprehension of losing job in America."
9. In the present case the Plaintiff (Wife), namely, Harmeeta Singh and the Defendant (Husband) Rajat Taneja were married in New Delhi. Their marriage was performed and celebrated in style on 24.3.2002 according to Sikh rites and ceremonies. thereforee, it is the Hindu Marriage Act which would govern all disputes between them pertaining to their marriage, division of properties and maintenance. Where a divorce is not prayed for, maintenance can be granted by the Court in terms of the Hindu Adoption & Maintenance Act. The spouses departed for the United States of America on 27.3.2002. The Plaintiff (Wife) has alleged that she was compelled to leave matrimonial home on 27.8.2002 and that her husband had initiated proceedings for obtaining a Decree of Divorce in America on 20.9.2002. They lived together as husband and wife, thereforee, for about six months of which three months only was in the United States of America.
10. The law on the vexed question of conflict of law and on the appropriate Court for deciding disputes pertaining to divorce of this genre has undergone substantial changes. The old law in Britain was that the wife would be deemed to have the same domicile as her husband and would, thereforee, have to seek relief in the Court where the husband was domiciled. This almost inflexible rule, not taking into account difficulties faced by the deserted wife, has given way to preference for the Court which is most convenient to both parties. Conventions in the European Community have since been negotiated.
11. This conundrum of competing jurisdictions and laws, has been carefully considered in a number of decisions of the Hon'ble Supreme Court of India. A foreign decree is recognized in India, as in most legal systems, but would have to be jurally investigated before it is given legal efficacy. In Y. Narasimha Rao and Others v. Y. Venkata Lakshmi and Anr., MANU/SC/0603/1991 : [1991]2SCR821 , the Apex Court declined to give its imprimatur to a foreign decree which did not take into consideration the provisions of the Hindu Marriage Act under which the parties were married. In Satya v. Teja, MANU/SC/0212/1974 : 1975CriLJ52 where the husband set up domicile only to perfunctorily fulfill the domicile requirements of ninety days, the foreign decree was not accepted. In Veena Kalia v. Dr. Jatinder Nath Kalia and Anr., MANU/DE/0012/1996 : AIR1996Delhi54 , the Court held that since the wife was not in a position to contest the proceedings in a foreign Court as she had no means to go there, the rules of natural justice stood violated and the foreign decree was held to be a nullity. This brief analysis would lead to the conclusion that even if the husband, namely, Rajat Taneja were to succeed in obtaining a Decree of Divorce in America, it would be unlikely to receive recognition in India. It needs to be emphasised that the marriage was performed in India and was subsequently merely registered in the United States of America. The parties lived together for a very short time in the United States of America. The wife who has lived in India for almost her whole life is presently domiciled in India. The Defendant (Husband) is of Indian origin and his parents and family members are Indian citizens and are domiciled in India. It is alleged and is likely that Rajat holds substantial interests in immovable properties in India. In the event that the marriage is dissolved by a decree in America, in consonance with principles of private international law which are embodied in Section 13 of the Code of Civil Procedure, 1908, inter alia, this decree would have to be confirmed by a Court in this country. Furthermore, if the Defendant (Husband) were to remarry in the United States of America on the strength of the Decree of Divorce granted in that country, until this Decree is recognized in India he would have committed the criminal offence of bigamy and would have rendered himself vulnerable to be punished for bigamy. The confusion would be confounded insofar as the parties are concerned.
12. On the contrary, however, Courts in India would undoubtedly have jurisdiction over the disputes between the present spouses since the marriage was performed in New Delhi. Having financial as well as family support in this country it would be comparatively easy for the Defendant (Husband) to initiate divorce proceedings in this country. The Plaintiff (Wife) would not be in a position to challenge the jurisdiction of Matrimonial Courts in New Delhi. The forum of convenience, which is a concept well recognized and implemented in the United States of America, would thus be New Delhi. The Plaintiff (Wife) has not submitted to the jurisdiction of the Courts in the United States of America. In the context of their residing together as husband and wife, the Plaintiff's stay in the United States of America could well be viewed as transient, temporary and casual. I am quite clear that some of these factors can apply to the husband also in regard to New Delhi, but the fact remains that he could quite conveniently prosecute litigation in New Delhi, whereas it is financially impossible for the Plaintiff (Wife) to do so. Having not received the Spouse Visa she may not even be in a position to enter the United States of America.
13. It is in the above circumstances, till the next date of hearing, I restrain the Defendant (Husband) from continuing with the proceedings in the United States of America arising out of File No. 2-3-06139-1SEA pending in the Superior Court of Washington County of King, Judge / Commissioner Richard D. Eadi / Richard A. Jones. I further direct the Defendant to place a copy of this Judgment before the Judge of the Superior Court of Washington County of King for his worthy perusal.
14. A copy of this Judgment be given dusty under the signature of the Private Secretary of this Court to the counsel for the Plaintiff.
____________________
Jai Bansal
Advocate
Supreme Court/High Court/District Court
Delhi, Mobile 9868566649
Mr.Rebates
Thursday, April 15, 2010
India is worst than Guantanamo Bay(GTMO/GITMO).
This is a Comparison between India and Guantanamo Bay(GTMO/GITMO) .
Source : http://mynation. net/voice/ gitmo/
Reason :
Guantanamo Bay : Terrorism
India : IPC 498A (section 3 of Dowry prohibition Act, 1961.) Section 498A was inserted into the penal code in 1983/4
Area Covered :
Guantanamo Bay : 45 square miles (116 km)
India : 3,287,263 km (1,269,219.3 sq mi)
Accusation :
Guantanamo Bay : Detainees accused of supporting Terrorism and involved in Terrorist Activities.
India : Charged under False Accusation of Dowry Law (498A IPC) and treated as guilty till proven innocent.
Detainees:
Guantanamo Bay : Around 619 (estimated)
India : 79860 Per Year( 2008 NCRB data )
Location :
Guantanamo Bay : Camp Echo and Camp Delta. US Naval Base in South Cuba
India : Every Police Station of India.
Facilities :
Guantanamo Bay : Delta facility allows detainees to
consult with lawyers. which have a shower and lavatory, plus four
communal living rooms for 10 detainees each. In Camp 4, each detainee
has a bed and a locker. Camp 4 detainees may eat their meals together.
India : As soon as FIR filled men are arrested and
dumped in crowded locker where there is no place to sit and its
stinking with Urine.(no need to tell there is no lavatory) one meal is
Provided even it says Vegetarian but you can find fried / boiled
worms.(Mostly half boiled) Most of the victims are not allowed to talk
to lawyer or relatives till they secure bail bribing officials.
Rights :
Guantanamo Bay : International Organizations and Human rights activist fight for detainees.
India : Victim is Branded as criminals till he prove
False case as False and that take not less than 10 years (As per Author
experience). Here Men do not have any rights as Indian Judiciary is not
treating them as Humans at all.
Victims :
Guantanamo Bay : Accused who involved in Terrorists and they have intelligence report and tracking of most of the Detainees.
India : Any Married Man, his Parents / Relatives / Friends / Children and even breast fed Babies.
Current Status :
Guantanamo Bay : 530 out of 619 of them are
released in few Years and Allowed Petition to sue United States of
America and President Obama Signed it to Close down this facility
within a Year.
India : No sign of Amendment instead
Feminists(NCW/ WCD) demanding to make it more stringent. As per 2008
NCRB data 79860 Men are arrested (Plus at least 4 of his Family
Members) per year. (Count 79860 + 4 each family Members X 26 years) and
no report on any damage or defamation awarded for those Falsely accused
after clearing their Accusations.
Now you decide which is Better…
and Now you know Guantanamo Bay(GTMO/GITMO) is better than India.
Ref :
http://en.wikipedia .org/wiki/ Camp_Delta
http://en.wikipedia/ .org/wiki/ Camp_Echo_(Guantanamo)
http://mynation/. net/dowryact. htm [ About IPC 498A ]
http://mynation/. net/pil/ [ PIL against IPC 498A ]
Study Report on Indian Men
Study Report on IPC 498A
AutoBioGraphy of a Dowry Law Victim [ Guilty till Proven Innocent ]
Indian
For: MyNation
We Speak The TRUTH, Do you Dare
MyNation Foundation
Source : http://mynation. net/voice/ gitmo/
Reason :
Guantanamo Bay : Terrorism
India : IPC 498A (section 3 of Dowry prohibition Act, 1961.) Section 498A was inserted into the penal code in 1983/4
Area Covered :
Guantanamo Bay : 45 square miles (116 km)
India : 3,287,263 km (1,269,219.3 sq mi)
Accusation :
Guantanamo Bay : Detainees accused of supporting Terrorism and involved in Terrorist Activities.
India : Charged under False Accusation of Dowry Law (498A IPC) and treated as guilty till proven innocent.
Detainees:
Guantanamo Bay : Around 619 (estimated)
India : 79860 Per Year( 2008 NCRB data )
Location :
Guantanamo Bay : Camp Echo and Camp Delta. US Naval Base in South Cuba
India : Every Police Station of India.
Facilities :
Guantanamo Bay : Delta facility allows detainees to
consult with lawyers. which have a shower and lavatory, plus four
communal living rooms for 10 detainees each. In Camp 4, each detainee
has a bed and a locker. Camp 4 detainees may eat their meals together.
India : As soon as FIR filled men are arrested and
dumped in crowded locker where there is no place to sit and its
stinking with Urine.(no need to tell there is no lavatory) one meal is
Provided even it says Vegetarian but you can find fried / boiled
worms.(Mostly half boiled) Most of the victims are not allowed to talk
to lawyer or relatives till they secure bail bribing officials.
Rights :
Guantanamo Bay : International Organizations and Human rights activist fight for detainees.
India : Victim is Branded as criminals till he prove
False case as False and that take not less than 10 years (As per Author
experience). Here Men do not have any rights as Indian Judiciary is not
treating them as Humans at all.
Victims :
Guantanamo Bay : Accused who involved in Terrorists and they have intelligence report and tracking of most of the Detainees.
India : Any Married Man, his Parents / Relatives / Friends / Children and even breast fed Babies.
Current Status :
Guantanamo Bay : 530 out of 619 of them are
released in few Years and Allowed Petition to sue United States of
America and President Obama Signed it to Close down this facility
within a Year.
India : No sign of Amendment instead
Feminists(NCW/ WCD) demanding to make it more stringent. As per 2008
NCRB data 79860 Men are arrested (Plus at least 4 of his Family
Members) per year. (Count 79860 + 4 each family Members X 26 years) and
no report on any damage or defamation awarded for those Falsely accused
after clearing their Accusations.
Now you decide which is Better…
and Now you know Guantanamo Bay(GTMO/GITMO) is better than India.
Ref :
http://en.wikipedia .org/wiki/ Camp_Delta
http://en.wikipedia/ .org/wiki/ Camp_Echo_(Guantanamo)
http://mynation/. net/dowryact. htm [ About IPC 498A ]
http://mynation/. net/pil/ [ PIL against IPC 498A ]
Study Report on Indian Men
Study Report on IPC 498A
AutoBioGraphy of a Dowry Law Victim [ Guilty till Proven Innocent ]
Indian
For: MyNation
We Speak The TRUTH, Do you Dare
MyNation Foundation
Monday, April 12, 2010
Man alleging misuse of dowry act performs 'shraadh' for self
Apr 10, 2010
LUCKNOW: Former state government employee and a resident of the Old City, Pandit Ram Shankar performed a shraadh ceremony on Friday that was 'different'. Shankar performed the ceremony for the 'departed soul' of Akhil Dubey, a Lucknow-based pharma executive. But here's the catch. Dubey, alive and kicking, was part of the ceremony. As for why he felt the need for performing the 'shraadh' — Dubey was commemorating his 'death' as a common man, on the same day, exactly one year ago.
Here's what prompted such extreme action. After tying the knot on November 2008, Dubey alleges that he discovered that his wife was already married and also had a child. Shocked on making the discovery, he attempted to "resolve" the issue but met with little success.
"Two months later, when I moved divorce proceedings against her, she slapped a case of dowry harassment against me under section 498 A of the Indian Penal Code," says Dubey. Under this section, on April 9, 2009, an FIR was registered against Dubey. "That day marked my death as a common man. In the eyes of the world, I became branded as a criminal," adds Dubey.
And to commemorate his 'criminal status' one year on, the 'shraadh' ceremony respectfully remembered Dubey for the 'decent and common man' that he used to be.
As for the sanctity of such religious rites, Shankar defends the act saying the Indian scriptures allow a living person to perform his 'shraadh'. "The 'Garud Puran' allows people to do their own 'pind daan' while they are alive. Especially those who do not have children and cannot perform the rites after their death. Similarly, the ceremonies for the 10th and 13th day can also be performed in advance," says Pandit Ram Shankar.
The unique event was organised by a Lucknow-based NGO, Pati Parivar Kalyan Samiti (PPKS), a group of "afflicted" husbands who have been protesting the misuse of section 498 A of the IPC by women.
According to this section of the IPC, if the husband or his relative subjects a woman to cruelty, he shall be punished with imprisonment for a term which may extend to three years and is also liable to pay a fine. The offence is cognizable, non-compoundable and non-bailable. Interestingly, the protest against the misuse of the law by women has been gaining ground across the country. Seeking to be absolved from the status of 'criminals' and to voice their protest, over 2,000 members of PPKS Lucknow, routinely, bail out other aggrieved husbands and also instruct them on how to get out of the procedural tangles involved in the issue.
LUCKNOW: Former state government employee and a resident of the Old City, Pandit Ram Shankar performed a shraadh ceremony on Friday that was 'different'. Shankar performed the ceremony for the 'departed soul' of Akhil Dubey, a Lucknow-based pharma executive. But here's the catch. Dubey, alive and kicking, was part of the ceremony. As for why he felt the need for performing the 'shraadh' — Dubey was commemorating his 'death' as a common man, on the same day, exactly one year ago.
Here's what prompted such extreme action. After tying the knot on November 2008, Dubey alleges that he discovered that his wife was already married and also had a child. Shocked on making the discovery, he attempted to "resolve" the issue but met with little success.
"Two months later, when I moved divorce proceedings against her, she slapped a case of dowry harassment against me under section 498 A of the Indian Penal Code," says Dubey. Under this section, on April 9, 2009, an FIR was registered against Dubey. "That day marked my death as a common man. In the eyes of the world, I became branded as a criminal," adds Dubey.
And to commemorate his 'criminal status' one year on, the 'shraadh' ceremony respectfully remembered Dubey for the 'decent and common man' that he used to be.
As for the sanctity of such religious rites, Shankar defends the act saying the Indian scriptures allow a living person to perform his 'shraadh'. "The 'Garud Puran' allows people to do their own 'pind daan' while they are alive. Especially those who do not have children and cannot perform the rites after their death. Similarly, the ceremonies for the 10th and 13th day can also be performed in advance," says Pandit Ram Shankar.
The unique event was organised by a Lucknow-based NGO, Pati Parivar Kalyan Samiti (PPKS), a group of "afflicted" husbands who have been protesting the misuse of section 498 A of the IPC by women.
According to this section of the IPC, if the husband or his relative subjects a woman to cruelty, he shall be punished with imprisonment for a term which may extend to three years and is also liable to pay a fine. The offence is cognizable, non-compoundable and non-bailable. Interestingly, the protest against the misuse of the law by women has been gaining ground across the country. Seeking to be absolved from the status of 'criminals' and to voice their protest, over 2,000 members of PPKS Lucknow, routinely, bail out other aggrieved husbands and also instruct them on how to get out of the procedural tangles involved in the issue.
Divorced from the will of God
WAITING FOR REFORM
April 11, 2010
India’s Muslims live by legal provisions that sharply violate the spirit — and word — of the Holy Quran.
The Islamic idea of marriage is best expressed in the following Q u r a n i c verse: “It is He who created you from a single person and made his mate of like nature in order that he might dwell with her (in love). When they are united she bears a light burden and carries it about. When she grows heavy they both pray to God their Lord: ‘If You give us a goodly child we vow we shall be grateful’.” Elsewhere, the Quran says: “They are your garments and you are their garments.”
On the other hand, in Shariat (Islamic law) marriage is described as aqd (contract) and like any other contract, it requires free consent of the contracting parties. The parents or guardians may act as facilitators but the final decision rests with the man and woman who can propose their own terms and conditions to conclude the marriage.
The Quran views marriage as a source of physical and emotional comfort and a means of perpetuating mankind, so it is necessary both partners intend the bond to be for life. However, in cases where living together becomes impossible, the law permits divorce, described as “the most odious among permissible things”.
The Quran lays down the detailed procedure, which is informed by a strategy that encourages reconciliation and prevents family breakup. The Quran says: “When you do divorce women, divorce them at their prescribed periods and count (accurately) their prescribed periods, and fear God. And turn them not out of their houses nor shall they leave except in case they are guilty of some open lewdness. Those are
limits set by God: and any who transgresses the limits of God does verily wrong his soul: you know not if perchance Allah will bring about thereafter some new situation.”
The Quranic procedure of divorce provides that the couple continue to live in their matrimonial home during Iddat (the three-month cooling-off period) and the option of reunion and remarriage remains available.
In Islamic legal theory, the Quran is accorded the highest status. It is from this that Sharia laws are extracted and construed. It defies reason that Muslim family laws as practised on the Indian subcontinent are mostly in conflict with Quranic provisions.
Some of the legal provisions with respect to marriage and divorce compiled by the All-India Muslim Personal Law Board (AIMPLB) sharply violate the spirit —and word — of the Quran. On the question of parity between husband and wife, Section 117 (3) of the AIMPLB compendium differentiates between Muslims of Arab and non-Arab origin. It provides that “regard shall be had in respect of descent among the Arabs especially Quraysh and those non-Arab families who have preserved their descent. People in the rest of the non-Arab world are mutually equal”. What a travesty of Islamic egalitarianism and equality.
Similarly, in matters of divorce the compendium makes a mockery of the lofty Islamic principle of ‘no compulsion in matters of religion’. The chapter dealing with divorce not only validates instant divorce but Section 5 (b) says: “For the effectiveness of talaq (divorce) it is in principle necessary that the man pronouncing it should be in his senses. This demands that a talaq pronounced in an inebriated condition should not be effective. However if a person has unlawfully consumed an intoxicant by his own liking and habit, his talaq will become effective by way of punishment”.
Sections (6) and (7) are even more ludicrous. Section 6 says: “If a person under compulsion or duress pronounces a talaq it will be valid if it is verbal but not otherwise.” Section 7 says: “A talaq pronounced in hazl i.e. jest also becomes effective.”
There is nothing Islamic about these laws, in fact they smack of pre-Islamic Arab jahiliyya (ignorance), which thrived on class differences and the use of brute force. Is it any wonder then that many hapless women are exploited through fraudulent marriages and then shown the door with an instant divorce? It is futile to talk of reform so long as the authors of these atrocious laws continue to enjoy political patronage.
April 11, 2010
India’s Muslims live by legal provisions that sharply violate the spirit — and word — of the Holy Quran.
The Islamic idea of marriage is best expressed in the following Q u r a n i c verse: “It is He who created you from a single person and made his mate of like nature in order that he might dwell with her (in love). When they are united she bears a light burden and carries it about. When she grows heavy they both pray to God their Lord: ‘If You give us a goodly child we vow we shall be grateful’.” Elsewhere, the Quran says: “They are your garments and you are their garments.”
On the other hand, in Shariat (Islamic law) marriage is described as aqd (contract) and like any other contract, it requires free consent of the contracting parties. The parents or guardians may act as facilitators but the final decision rests with the man and woman who can propose their own terms and conditions to conclude the marriage.
The Quran views marriage as a source of physical and emotional comfort and a means of perpetuating mankind, so it is necessary both partners intend the bond to be for life. However, in cases where living together becomes impossible, the law permits divorce, described as “the most odious among permissible things”.
The Quran lays down the detailed procedure, which is informed by a strategy that encourages reconciliation and prevents family breakup. The Quran says: “When you do divorce women, divorce them at their prescribed periods and count (accurately) their prescribed periods, and fear God. And turn them not out of their houses nor shall they leave except in case they are guilty of some open lewdness. Those are
limits set by God: and any who transgresses the limits of God does verily wrong his soul: you know not if perchance Allah will bring about thereafter some new situation.”
The Quranic procedure of divorce provides that the couple continue to live in their matrimonial home during Iddat (the three-month cooling-off period) and the option of reunion and remarriage remains available.
In Islamic legal theory, the Quran is accorded the highest status. It is from this that Sharia laws are extracted and construed. It defies reason that Muslim family laws as practised on the Indian subcontinent are mostly in conflict with Quranic provisions.
Some of the legal provisions with respect to marriage and divorce compiled by the All-India Muslim Personal Law Board (AIMPLB) sharply violate the spirit —and word — of the Quran. On the question of parity between husband and wife, Section 117 (3) of the AIMPLB compendium differentiates between Muslims of Arab and non-Arab origin. It provides that “regard shall be had in respect of descent among the Arabs especially Quraysh and those non-Arab families who have preserved their descent. People in the rest of the non-Arab world are mutually equal”. What a travesty of Islamic egalitarianism and equality.
Similarly, in matters of divorce the compendium makes a mockery of the lofty Islamic principle of ‘no compulsion in matters of religion’. The chapter dealing with divorce not only validates instant divorce but Section 5 (b) says: “For the effectiveness of talaq (divorce) it is in principle necessary that the man pronouncing it should be in his senses. This demands that a talaq pronounced in an inebriated condition should not be effective. However if a person has unlawfully consumed an intoxicant by his own liking and habit, his talaq will become effective by way of punishment”.
Sections (6) and (7) are even more ludicrous. Section 6 says: “If a person under compulsion or duress pronounces a talaq it will be valid if it is verbal but not otherwise.” Section 7 says: “A talaq pronounced in hazl i.e. jest also becomes effective.”
There is nothing Islamic about these laws, in fact they smack of pre-Islamic Arab jahiliyya (ignorance), which thrived on class differences and the use of brute force. Is it any wonder then that many hapless women are exploited through fraudulent marriages and then shown the door with an instant divorce? It is futile to talk of reform so long as the authors of these atrocious laws continue to enjoy political patronage.
More Hindus than Muslims have 2 wives
Even if
this is the Case, where is the solid proof of the fact that more Hindu's have 2 wifes then Muslims, the author provides no solid evidence, only retoric, and the Media swallows it?
Just look at the figures below that the author presents, for one thing he once again doesnt provide citations on where he gets this chart, for all we know he could have made them up himself. This chart is showing figures from 1961, he may as well given it from 1861. Readers are taken for fools in this case.
The Shoaib-Ayesha-Sania drama, played out live on TV for days, has enhanced the image of Ayesha and her family. The same cannot be said of the former Pakistan captain who sold himself short by denying his first marriage. But, Indians and Pakistanis alike can now heave a sigh of relief the controversy is settled. But the entire saga offers important lessons. First, although Muslim Personal Law allows a man to take a second wife during the lifetime of the first, it cannot be a license to commit injustice. Under Islamic tenets, a man is allowed to take a second wife only if he is in a position to provide equal partnership and amenities to both.
However, if you were to carry out an honest survey across the country, you would find that more Hindu men than Muslims have more than one wife. In such cases, the second wife is neither recognized by society nor given the legal status of ‘wife’.
It’s interesting to note that throughout the controversy — and despite Sania’s wholehearted support for Shoaib — the Muslim community in particular and Indian society at large was solidly behind Ayesha, who was seen as the victim in the whole saga.
Perhaps that’s why Shoaib did not succeed in his attempt to cover up his first marriage.
Also, Ayesha’s acceptance of a divorce without preconditions sends out a strong signal to the Pakistani people — the people of India are forgiving if you make amends.
But I am still intrigued about the most important aspect of this drama — the basis of the divorce. Under Islamic law, a husband has to give a reason for divorcing his wife and if she is not satisfied with it, she can ask for divorce under the khula rights. What reason did Shoaib give for divorcing Ayesha? That is still not clear.
this is the Case, where is the solid proof of the fact that more Hindu's have 2 wifes then Muslims, the author provides no solid evidence, only retoric, and the Media swallows it?
Just look at the figures below that the author presents, for one thing he once again doesnt provide citations on where he gets this chart, for all we know he could have made them up himself. This chart is showing figures from 1961, he may as well given it from 1861. Readers are taken for fools in this case.
The Shoaib-Ayesha-Sania drama, played out live on TV for days, has enhanced the image of Ayesha and her family. The same cannot be said of the former Pakistan captain who sold himself short by denying his first marriage. But, Indians and Pakistanis alike can now heave a sigh of relief the controversy is settled. But the entire saga offers important lessons. First, although Muslim Personal Law allows a man to take a second wife during the lifetime of the first, it cannot be a license to commit injustice. Under Islamic tenets, a man is allowed to take a second wife only if he is in a position to provide equal partnership and amenities to both.
However, if you were to carry out an honest survey across the country, you would find that more Hindu men than Muslims have more than one wife. In such cases, the second wife is neither recognized by society nor given the legal status of ‘wife’.
It’s interesting to note that throughout the controversy — and despite Sania’s wholehearted support for Shoaib — the Muslim community in particular and Indian society at large was solidly behind Ayesha, who was seen as the victim in the whole saga.
Perhaps that’s why Shoaib did not succeed in his attempt to cover up his first marriage.
Also, Ayesha’s acceptance of a divorce without preconditions sends out a strong signal to the Pakistani people — the people of India are forgiving if you make amends.
But I am still intrigued about the most important aspect of this drama — the basis of the divorce. Under Islamic law, a husband has to give a reason for divorcing his wife and if she is not satisfied with it, she can ask for divorce under the khula rights. What reason did Shoaib give for divorcing Ayesha? That is still not clear.
Sunday, April 11, 2010
A Tale of Two Countries
The Shoaib-Ayesha story exposes key differences in the code that governs marriage and divorce among Muslims in India and Pakistan
Mumbai: Never mind who ‘cheated’ whom in the Shoaib Malik-Ayesha Siddiqui story, the buck stops at the relevant provisions of the Muslim Personal Law (Shariat) Act, 1937. It has been rarely — and barely — amended in the 90 years since. This, largely because the ulema is opposed to change and regards a modern interpretation of the law as interference.
Mumbai-based scholar Asghar Ali Engineer is one of many who believe that “the cultural basis of the Muslim Personal Law actually lies in the customary laws of the Arab society”. He questions practices such as marrying and divorcing on the phone. These are not mentioned in the Muslim Personal Law and should be declared invalid, says Engineer. He laments Muslim trivialization of “marriage, meesaq-e-ghaliza (strong covenant between two adults)… a qazi can be bribed to distort the rules laid down for a valid nikah and talaq”.
The law’s most controversial elements include the triple talaq and polygamy.
TRIPLE TALAQ
Not mentioned in the Quran; an innovation. Most ulema agree that Allah considers talaq the most reprehensible of all that is allowed to man. However, they remain divided on the triple talaq. The Hanafi — one of Sunni Islam’s four schools of jurisprudence — allows the triple talaq. But this practice can lead to absurd scenarios, such as the Oriya man who informed his wife he had said ‘talaq’ three times in his dream the night before. The local maulvis promptly pronounced they were no longer man and wife. The man had to take his fight for the marriage to be restored all the way to the Supreme Court.
Other forms of divorce recognised under the Shariat Act, 1937 and applicable to all Muslims in India are: mubarra (divorce by mutual consent) and talaqe-tafweez (delegated divorce).
The subsequent Dissolution of Muslim Marriage Act, 1939 provided some equality as it granted Muslim women the right of khula — or the right to divorce their husbands. Its prime mover was a scholar, Maulana Ashraf Ali Thanvi, who lamented that many Muslim women were converting to Hinduism to get rid of their “cruel” husbands who would neither treat them well nor divorce them easily. While this Act is often called progressive, there have been calls for further change. Advocate Neelofar Akhtar, president of Mumbai’s Family Court Bar Association, wants urgent amendment of the 1939 Act. This would be in line with reform of other laws dealing with other communities, notably the Hindu Marriage Act, 1955 and Special Marriage Act, 1954. Both were amended in 2001 to allow women to file divorce petitions where they live. In contrast, the Dissolution of Muslim Marriage Act, 1939 insists a woman can file for divorce only where she was married or where her husband lives. Akhtar describes it as “a discriminatory provision”. She has raised the issue at three All-India Muslim Personal Law Board meetings, the last in Lucknow just days ago. But the mullah-dominated, patriarchal law board has stonewalled the issue. Many point out that the board tried to deny Shah Bano maintenance from the husband who had divorced her in 1978. Subsequently, Rajiv Gandhi’s government diluted the Supreme Court’s judgment that Shah Bano was entitled to alimony. Instead, the government introduced the Muslim Women (Protection of Rights on Divorce) Act, 1986. It is worth noting that the new Act is the only one that is enforceable in a criminal court, rather than in family courts (as are the Personal Law Act and Dissolution of Marriage Act). The 1986 Muslim Women Act admittedly instituted some reasonable provisions such as maintenance during the Iddat period, or three months from the day of divorce. But, it denied — at one stroke — the right to alimony even to destitute divorcees. Khula, or a woman filing for divorce, has had its share of controversy. Starlet Manyata married Sanjay Dutt after she filed for a khula from then husband Meraj. But Manyata’s first husband challenged the khula she secured from a qazi in Mumbai, saying only a man could give a khula. He was plain wrong, says lawyer Neelofar Akhtar, who fought and won Manyata’s case. “If the Quran allows men the right to pronounce talaq, it also grants women the right to khula.”
POLYGAMY
A provision enshrined in the Quran, though hedged around by many conditions; upheld by the 1937 Muslim Personal Law but grossly misinterpreted and misused. Those partial to the practice quote a Quranic verse as justification but forget that it was revealed during a great and bloody battle, which left many men dead and large numbers of destitute widows and orphans. The flipside is another verse in the same Quranic chapter, which stresses that no man is ever “able to be fair and just between women even if it is your ardent desire.” Senior cleric Maulana Shoeb Koti says it “proves the Quran lays emphasis on monogamy”. India, unlike Pakistan, does not have legislation such as the Muslim Family Laws Ordinance, 1961, which proscribes marrying a second time without the first wife’s consent. Supreme Court advocate Saif Mahmood admits the lacunae: “An avowedly secular country like India has failed to give Muslim women what many less secular countries have.”
Islamabad: What do Pakistan prime minister Yousuf Raza Gilani and Punjab chief minister Mian Shahbaz Sharif have in common? Both are believed to have more than one wife. PPP lawmaker Nabeel Gabol recently told parliament that roughly 80% of the country’s MNAs (Members of the National Assembly) and senators were muchmarried men. This, despite Pakistan’s Muslim Family Laws Ordinance, 1961.
Supreme Court barrister Gohar Ali says there has to be a valid reason in order for a Pakistani man to marry a second time. For instance, “suppose a woman cannot become a mother due to medical reasons”. The law requires an arbitration council, headed by a local councillor, to identify the ‘reason’, Ali adds. But nearly half a century later, polygamy is still practised by isolated tribal communities and the feudal classes, which dominate parliament.
Parliamentary sources have given TOI a list of prominent politicians and public figures with more than one wife. The list is long. It names Gilani and Sharif, Pakistan Peoples Party (PPP) heavyweight Makhdoom Amin Fahim, Sindh chief minister Syed Qaim Ali Shah, and former federal ministers Yar Muhammed Rindh and Azam Khan Hoti.
It is interesting to note that Samina Khawar Hayat of the PML-N supported the practice of polygamy in the Punjab assembly just a few weeks ago. It was subsequently debated in the National Assembly. Are Pakistan’s politicians soft on polygamy?
The 1961 law empowered women by giving them the rights to seek a divorce. In practice, qazis follow the old ways. Most Pakistani nikah certificates do not mention this specific clause. The law makes it a crime punishable by prison and a fine for a married Pakistani man to take another wife without the consent of his first wife, says Gohar Ali. “If Shoaib Malik and Sania Mirza had tied the knot before he divorced Ayesha, then, under section 5 of the family laws, he would have been liable for punishment,” he adds.
The divorce meant Ayesha entered the threemonth Iddat period, during which Shoaib has to pay her maintenance. There is a simple, scientific and socially responsible reason for this. If a divorced woman menstruates during the Iddat, she is clearly not pregnant and Iddat lasts just three months. If she is pregnant, Iddat continues till the baby is born. Pakistani legal experts say that in Ayesha’s case, she claimed a physical relationship with Shoaib and must therefore remain in seclusion during the Iddat period. Under the West Pakistan XXXV Act, which came into force in 1964, a woman can sue her husband if he refuses to maintain her without lawful cause. Barrister Gohar says that maintenance varies from case to case under the family law. Citing Shahbaz Sharif ’s divorce from his second wife Aaliya Honey, with whom he lived for just one year from 1993, he says: “The CM had to pay more than $1500 per month, during her period of Idaat.” Interestingly, Sharif took Tehmina Durrani as his third wife soon after divorcing Aaliya.
Hudood horror
The Hudood Ordinances were enacted in 1979 as part of General Zia’s Islamization process. They cover five areas: zina (non-marital sex) and rape; theft and armed robbery; qazf (or false accusation of zina); prohibited use of alcohol and narcotics, and the procedure for whipping. The ordinances made adultery and rape punishable by stoning. But it became difficult to prove rape because a woman was required to provide four adult male witnesses. Failure to provide proof of the alleged rape placed the woman at risk of prosecution for adultery.
The Women’s Protection Act of 2006, brought by the Pervez Musharraf regime, placed rape laws under the Pakistan Penal Code, based on civil law, rather than Sharia. Police no longer had the right to detain people suspected of having sex outside marriage. Adultery and non-marital consensual sex was still an offence but judges were henceforth allowed to try rape cases in criminal rather than Islamic courts. It did away with the need for four witnesses to prove rape and allowed conviction on the basis of forensic and circumstantial evidence. However, the Hudood Ordinances continue to be a part of Sharia law in Pakistan.
Mumbai: Never mind who ‘cheated’ whom in the Shoaib Malik-Ayesha Siddiqui story, the buck stops at the relevant provisions of the Muslim Personal Law (Shariat) Act, 1937. It has been rarely — and barely — amended in the 90 years since. This, largely because the ulema is opposed to change and regards a modern interpretation of the law as interference.
Mumbai-based scholar Asghar Ali Engineer is one of many who believe that “the cultural basis of the Muslim Personal Law actually lies in the customary laws of the Arab society”. He questions practices such as marrying and divorcing on the phone. These are not mentioned in the Muslim Personal Law and should be declared invalid, says Engineer. He laments Muslim trivialization of “marriage, meesaq-e-ghaliza (strong covenant between two adults)… a qazi can be bribed to distort the rules laid down for a valid nikah and talaq”.
The law’s most controversial elements include the triple talaq and polygamy.
TRIPLE TALAQ
Not mentioned in the Quran; an innovation. Most ulema agree that Allah considers talaq the most reprehensible of all that is allowed to man. However, they remain divided on the triple talaq. The Hanafi — one of Sunni Islam’s four schools of jurisprudence — allows the triple talaq. But this practice can lead to absurd scenarios, such as the Oriya man who informed his wife he had said ‘talaq’ three times in his dream the night before. The local maulvis promptly pronounced they were no longer man and wife. The man had to take his fight for the marriage to be restored all the way to the Supreme Court.
Other forms of divorce recognised under the Shariat Act, 1937 and applicable to all Muslims in India are: mubarra (divorce by mutual consent) and talaqe-tafweez (delegated divorce).
The subsequent Dissolution of Muslim Marriage Act, 1939 provided some equality as it granted Muslim women the right of khula — or the right to divorce their husbands. Its prime mover was a scholar, Maulana Ashraf Ali Thanvi, who lamented that many Muslim women were converting to Hinduism to get rid of their “cruel” husbands who would neither treat them well nor divorce them easily. While this Act is often called progressive, there have been calls for further change. Advocate Neelofar Akhtar, president of Mumbai’s Family Court Bar Association, wants urgent amendment of the 1939 Act. This would be in line with reform of other laws dealing with other communities, notably the Hindu Marriage Act, 1955 and Special Marriage Act, 1954. Both were amended in 2001 to allow women to file divorce petitions where they live. In contrast, the Dissolution of Muslim Marriage Act, 1939 insists a woman can file for divorce only where she was married or where her husband lives. Akhtar describes it as “a discriminatory provision”. She has raised the issue at three All-India Muslim Personal Law Board meetings, the last in Lucknow just days ago. But the mullah-dominated, patriarchal law board has stonewalled the issue. Many point out that the board tried to deny Shah Bano maintenance from the husband who had divorced her in 1978. Subsequently, Rajiv Gandhi’s government diluted the Supreme Court’s judgment that Shah Bano was entitled to alimony. Instead, the government introduced the Muslim Women (Protection of Rights on Divorce) Act, 1986. It is worth noting that the new Act is the only one that is enforceable in a criminal court, rather than in family courts (as are the Personal Law Act and Dissolution of Marriage Act). The 1986 Muslim Women Act admittedly instituted some reasonable provisions such as maintenance during the Iddat period, or three months from the day of divorce. But, it denied — at one stroke — the right to alimony even to destitute divorcees. Khula, or a woman filing for divorce, has had its share of controversy. Starlet Manyata married Sanjay Dutt after she filed for a khula from then husband Meraj. But Manyata’s first husband challenged the khula she secured from a qazi in Mumbai, saying only a man could give a khula. He was plain wrong, says lawyer Neelofar Akhtar, who fought and won Manyata’s case. “If the Quran allows men the right to pronounce talaq, it also grants women the right to khula.”
POLYGAMY
A provision enshrined in the Quran, though hedged around by many conditions; upheld by the 1937 Muslim Personal Law but grossly misinterpreted and misused. Those partial to the practice quote a Quranic verse as justification but forget that it was revealed during a great and bloody battle, which left many men dead and large numbers of destitute widows and orphans. The flipside is another verse in the same Quranic chapter, which stresses that no man is ever “able to be fair and just between women even if it is your ardent desire.” Senior cleric Maulana Shoeb Koti says it “proves the Quran lays emphasis on monogamy”. India, unlike Pakistan, does not have legislation such as the Muslim Family Laws Ordinance, 1961, which proscribes marrying a second time without the first wife’s consent. Supreme Court advocate Saif Mahmood admits the lacunae: “An avowedly secular country like India has failed to give Muslim women what many less secular countries have.”
Islamabad: What do Pakistan prime minister Yousuf Raza Gilani and Punjab chief minister Mian Shahbaz Sharif have in common? Both are believed to have more than one wife. PPP lawmaker Nabeel Gabol recently told parliament that roughly 80% of the country’s MNAs (Members of the National Assembly) and senators were muchmarried men. This, despite Pakistan’s Muslim Family Laws Ordinance, 1961.
Supreme Court barrister Gohar Ali says there has to be a valid reason in order for a Pakistani man to marry a second time. For instance, “suppose a woman cannot become a mother due to medical reasons”. The law requires an arbitration council, headed by a local councillor, to identify the ‘reason’, Ali adds. But nearly half a century later, polygamy is still practised by isolated tribal communities and the feudal classes, which dominate parliament.
Parliamentary sources have given TOI a list of prominent politicians and public figures with more than one wife. The list is long. It names Gilani and Sharif, Pakistan Peoples Party (PPP) heavyweight Makhdoom Amin Fahim, Sindh chief minister Syed Qaim Ali Shah, and former federal ministers Yar Muhammed Rindh and Azam Khan Hoti.
It is interesting to note that Samina Khawar Hayat of the PML-N supported the practice of polygamy in the Punjab assembly just a few weeks ago. It was subsequently debated in the National Assembly. Are Pakistan’s politicians soft on polygamy?
The 1961 law empowered women by giving them the rights to seek a divorce. In practice, qazis follow the old ways. Most Pakistani nikah certificates do not mention this specific clause. The law makes it a crime punishable by prison and a fine for a married Pakistani man to take another wife without the consent of his first wife, says Gohar Ali. “If Shoaib Malik and Sania Mirza had tied the knot before he divorced Ayesha, then, under section 5 of the family laws, he would have been liable for punishment,” he adds.
The divorce meant Ayesha entered the threemonth Iddat period, during which Shoaib has to pay her maintenance. There is a simple, scientific and socially responsible reason for this. If a divorced woman menstruates during the Iddat, she is clearly not pregnant and Iddat lasts just three months. If she is pregnant, Iddat continues till the baby is born. Pakistani legal experts say that in Ayesha’s case, she claimed a physical relationship with Shoaib and must therefore remain in seclusion during the Iddat period. Under the West Pakistan XXXV Act, which came into force in 1964, a woman can sue her husband if he refuses to maintain her without lawful cause. Barrister Gohar says that maintenance varies from case to case under the family law. Citing Shahbaz Sharif ’s divorce from his second wife Aaliya Honey, with whom he lived for just one year from 1993, he says: “The CM had to pay more than $1500 per month, during her period of Idaat.” Interestingly, Sharif took Tehmina Durrani as his third wife soon after divorcing Aaliya.
Hudood horror
The Hudood Ordinances were enacted in 1979 as part of General Zia’s Islamization process. They cover five areas: zina (non-marital sex) and rape; theft and armed robbery; qazf (or false accusation of zina); prohibited use of alcohol and narcotics, and the procedure for whipping. The ordinances made adultery and rape punishable by stoning. But it became difficult to prove rape because a woman was required to provide four adult male witnesses. Failure to provide proof of the alleged rape placed the woman at risk of prosecution for adultery.
The Women’s Protection Act of 2006, brought by the Pervez Musharraf regime, placed rape laws under the Pakistan Penal Code, based on civil law, rather than Sharia. Police no longer had the right to detain people suspected of having sex outside marriage. Adultery and non-marital consensual sex was still an offence but judges were henceforth allowed to try rape cases in criminal rather than Islamic courts. It did away with the need for four witnesses to prove rape and allowed conviction on the basis of forensic and circumstantial evidence. However, the Hudood Ordinances continue to be a part of Sharia law in Pakistan.
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.
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.
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