Judge Pasha said that Muslim Personal Law discriminated against women

Reactions to Kerala judges call to reform Muslim personal law show why we need more like himRepresentational image/Jamin Gray via Flickr
news Personal Law Monday, March 07, 2016 - 20:32

The cause of Muslim womens’ rights received a strong endorsement from Kerala High Court Judge Kemal Pasha this past Sunday, when he said that Muslim Personal Law discriminated against women, and exhorted women to fight for their rights.

Inaugurating a seminar on “Protecting Women from Domestic Violence”, he tackled a range of issues from domestic violence and dowry to the triple talaq.  Several of the shortcomings of Muslim Personal Law arise from improper codification, he said. “What is being implemented is not fully as per Quranic verses. Let the personal law be codified as per the principles Quran which had expounded equality for man and woman.”

Taking divorce as an instance, he said that while the Quran granted women the right to extra-judicial divorce through Faskh, Muslim Personal Law did not validate this right in the same way that it did the right of men to pronounce talaq.

On dowry, he said that although the Quran only validated the provision of “Mahr”, this does not apply in India because “womanhood was weak”. He also took a strong stand against religious authorities, saying that "Religious heads should go for a self-introspection on whether they are eligible to pronounce a verdict or not."

The speech was not without its rhetorical flourishes, as Justice Pasha asked, “If a man can have four wives, why can't a woman have four husbands?”

The speech has been well received by Muslim women’s groups. Hailing Justice Pasha’s statements, Zakia Soman, co-founder of Bharatiya Muslim Mahila Andolan (BMMA), a rights-based mass organization led by Muslim women, said that it could make a "significant contribution" towards their agitation.

 The BMMA, which works towards securing equal rights for Muslim women, has been advocating a ban on triple talaq and seeking gender-just reform in Muslim Personal Law based on the Quranic values of equality and justice. 

 "It is a very positive statement. It just goes to show that the momentum is building up and time has come for reform. That a sitting judge says it is wrong, is a very welcome statement," Soman said. 

 She also goes on to mention a recent incident which ironically brings out the polar opposites that exist within the judiciary in India. 

 A district court judge in Aligarh divorced his wife through triple talaq in a fit of anger last month.  When asked to respond to the allegations made against him, the judge told TOI, "We could not reach a compromise, so according to sharia I gave her divorce."

 Soman further says, "All this while women had been leading the agitation. We hope Justice Pasha's statements will encourage more men to come forward and join this fight."

 Noorjehan Safia Niaz, another co-founder of the BMMA, added, "Now muslim women don't even get the rights offered by the Quran. We need proper law, properly mentioning the marriage age, divorce rules, etc. We need law which gives space for Muslim women in the whole system."

Not all reactions to Justice Pasha’s statements have been as laudatory.  ​Reacting to Kemal Pasha's statements,  Maulana Maqsood Imran, Imam of Jama Masjid in Bengaluru said that Pasha's statements indicate an ignorance of Islamic law.

Reacting to the judge’s rhetorical question of why women are not allowed an equal right to polygamy as men, he said: "Justice Kemal Pasha has made statements without reading the Islamic law. Islamic law does not allow a woman to indulge in polygamy because she would not know whose child she is bearing. There would be unnecessary fights over the real father of the child, and eventually it would only affect the child's future. However, it does not work like that with men."

Similarly, Khalid Saifullah Rahmani, the Secretary of the All India Muslim Personal Law Board, argued that statements such as Pasha’s misconstrue the nature of many provisions in Islamic law. “The presence of provisions on polygamy or divorce do not mean that such things are encouraged. The provisions for divorce are there in order to give legal provision for a man to leave a marriage when there is hatred, so that men may not turn to other illegal measures.”

Women activists, however, are not demanding a complete abolition of the system. “We cannot abolish Muslim personal law, but we need amendments to it,” says Noorjehan Safia Niaz.

(WIth inputs from Haritha John, Monalisa Das and Sarayu Srinivasan)

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