Sunday, April 11, 2010

Shoaib-Ayesha farce is legal disgrace for India (April 11, 2010)

By Swapan Dasgupta

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 well-defined 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 indefinitely.


Sunday Times of India, April 11, 2010


ramya said...

It is very strange that personal law for muslims in india is so flexible and leaves so much scope for arbitration by their religious institutions but not so with hindus.But then the Bjp govt had its chance and didnt even make an attempt for a uniform civil code.

ramya said...

In fact thats one of the reasons for the bjps never stood upto its allies and for itself, as demonstrated by rahul and sonia led congress

khush said...

I agree its a disgrace and ramya its not the question of flexibility for personal law for muslims, its about self respect and integrity and Shoiab and Sania don't have one. It was like a open market.
And Ramya I totally disagree with you just narrowing muslim institutional law to BJP defeat. In fact muslims are a vote bank for the congress led government who have constantly exploited them for just votes all these years.

ramya said...

no khush I said "one of the reasons for the bjps defeat".I did'nt narrow it.

khush said...

Anyways I dont feel that this is the reason for BJP defeat. BJP didnt loose its votes, it was just that the congress got all the votes of left parties. India desperately needs change and Congress with their cheap politics is no good to the nation.

ramya said...

I just thought of bjp as a more universal and assertive party. That wud stand up for what it believed in,this was so under vajpayee.But then yes I cud be wrong.

khush said...

Yeah true under the leadership of Vajpayee BJP were wonderful but anyways they aren't down and out. They have so many good poeple in their party and I surely believe they will rise again.

Anyways its great you are interested in politics as today's intelligent youth try and shy away from politics or analyze politics and parties in a very wrong way.

Being a youth myself I feel we should understand and analyze politics from within unlike many who just judge the book by its cover without knowing facts.