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Published in the 1-15 Mar 2004 print edition of MG; send me the print edition

LAW WATCH
Women's laws and Islamic values
By Tahir Mahmood

Tahir MahoodCan the laws relating to women's rights in force in the subcontinent be showcased with some pride before the contemporary human fraternity deeply concerned with gender justice? Thinking of this question on the eve of the SAARC Law Conference beginning in Karachi on 20th February, my attention is attracted by two lead articles published in two prominent English dailies of India just a day before. "Being a Woman in Pakistan" is the caption of an article written by a Pakistani lady, reproduced in The Asian Age from Karachi's Dawn; while the other article appearing in The Hindu under the title "Women and the Law" is a recent address delivered by a former Supreme Court judge at a seminar of the Indian National Commission for Women. Both present a gory picture of the failure of State laws to ameliorate the lot of women in various aspects of life. Whether the SAARC Law Conference, which is going to have a full session on "Woman in the SAARC", will deliberate on the issues of the kind raised in these thought-provoking pieces and make any headway towards initiating any effective proposals is yet to be seen.

"Whenever a law is made very stringent under the pressure of emotionally surcharged social reactions there is the danger of its misuse", said Justice KT Thomas in his lecture, talking of the fast-developing anti-dowry legislation of India. The Dowry Prohibition Act 1961, which made an outright declaration that 'demanding, giving and taking' of dowry would all be punishable offences, has indeed been made truly stringent by repeated amendments and additions introduced in subsequent years not only in its own text but also in the Indian Penal Code, the Evidence Act and the Code of Criminal Procedure. And yet the social evil of dowry remains rampant throughout the country. Having its origin in a widely prevalent Hindu custom, the canker has gradually percolated through the other communities of India too. Even the Muslims whose religious law has absolutely no space for dowry and regards it haram have not remained, in this part of the world, away from the abominable dowry practices -- constant preaching of their ulama and muftis regarding their wholly un-Islamic nature notwithstanding. 

In India the anti-dowry legal provisions, of course, apply to the Muslims as well as to any other community. That dowry has yet remained a hot favourite also with the Muslims of the entire subcontinent is evident from the fact that the "Islamic Republic" of Pakistan had to enact in 1976 a penal law called the "Dowry and Bridal Gifts (Restriction) Act" containing provisions somewhat more stringent than those of the Indian law. Five years later the second Muslim-majority State of the subcontinent, Bangladesh, also followed suit by putting on its statute-book its own "Dowry Prohibition Act" - a cocktail of the Indo-Pak laws.. In all three countries these grand anti-dowry laws have, however, remained mere showpieces having no noticeable impact on the society. On top of their failure to achieve their purpose, their provisions are in fact often, as hinted by the Indian judge, misused to settle personal scores and pressed into service to add fuel to remorseless family feuds. 

The dowry prohibition laws enacted in all the three countries in the subcontinent did fully protect the Muslim socio-legal institution of maher (dower). They had to, since this unparalleled concept of Islam's family jurisprudence is indeed entirely different from dowry. This statutory protection of the institution is, however, hardly of any use as the Muslims themselves have distorted the concept beyond recognition. The right of the married woman to receive and of her husband to pay the maher, as stipulated or otherwise due under the law, is an inseparable ingredient of the very concept of marriage in Islam. In the Indian subcontinent, however, maher is wrongly regarded as an attribute of divorce. In the first place the maher is from the very beginning kept ridiculously low under the excuse of following the Sunnah of the so-called Mahr-e-Fatimi - going by the value of Bibi Fatima's maher at the time when it was actually settled over fourteen hundred years ago, and never caring to know its present value. On top of that, nobody pays the maher to the wives during the subsistence of marriage even if by the terms of a marriage any part of it be mu'ajjal (prompt). People generally believe that the liability to pay maher can arise only if a marriage ends up in divorce. Years ago when I was once advising a newly married groom in the family to pay his bride's maher described in the nikahnama as "prompt", a 12-yaer old Bihari domestic help overhearing me intervened to pronounce his verdict : "Saheb, abhi nahin jab chhorein tab dein (not now Sir, he will pay it when he divorces his bride)". This is the widely prevalent misconception due to which maher has been listed among the "divorcee's rights" even in the Muslim Women (Protection of Rights on Divorce) Act enacted in India in 1986. Often in the case of divorce too the liability of maher is sought to be avoided by having recourse to lame excuses. And a widow's maher, which legally becomes due the moment the husband breaths his last, is never paid - she is invariably presumed to have magnanimously agreed to forego it in his last moments. No law has ever been enacted in India or elsewhere in the subcontinent to implement the true Islamic principles of maher. On the contrary an old law in Kashmir, still in force on both sides of the LOC, empowers the courts to slash the stipulated amount of maher if it appears "excessive".

A number of State-appointed women's-rights commissions in Pakistan have failed to make any change in the ground reality, laments the Dawn article. In India the erstwhile Committee on Women's Rights and its statutory successor, the National Women's Commission, have performed no better. The criminal laws relating to rape developed in this country have miserably failed to save women from that heinous crime still occurring every now and then; and many thinkers have demanded adoption of more severe anti-rape provisions - similar to the traditional Islamic punishments. In Pakistan, however, even the Zina Ordinance of the late General Zia's regime has yielded no results. On the contrary, as the Dawn article points out, it is often misused against the interest of women themselves.

"The Prophet of Islam was so humane that his law if insightfully interpreted lends its weight to gender justice", exclaims a great non-Muslim Indian judge of our times. Let the Muslims in the subcontinent live up to this realistic description of the law of their noble religion, generously made by an outsider, by translating it into their day to day practices. They will be doing a great service to their noble faith and may be emulated also by their fellow citizens everywhere in the subcontinent.
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