At the outset, let me start with the caveat that laws are not necessarily just and they are not meant to be just. They reflect the social and political order of the day. So, it is naïve to juxtapose the idea of justice with law. Therefore, the best way to analyze a functional judiciary on a scale of justice is not how they implement black lettered law, but rather on how they tackle unjust laws, for the judiciary is limited by the paradigm of existing legal frameworks and should not and cannot go out of it to satisfy populist whims of people while delivering its pronouncements. However, the problem is that most people tend to criticize or praise the judiciary purely based on their perception of what should or should not be justice and not through what is the law and its effect on justice.
Having said this, Justices Ramana and Shantanagounder of the Supreme Court have come under a lot of flak especially from the liberals for their judgment in a case that was to settle inheritance in a disputed inter-religious marriage. Most newspapers and social media commentators reported the judgment as having called marriages between Muslim men and non-Muslim women as “irregular” – thereby giving the impression that the judges were being deliberately misogynist and in the process adding substantially to all-pervasive Muslimophobia – spreading a false impression that legally Muslim men can “irregularly” marry non Muslim women – a completely false claim – and this was being spread because of shoddy and lazy reportage apart from of course Muslimophobia which is ever ready homogenize Muslims and ready to accept anything that paints Muslims as backward readily.
This essay will try to unravel this case and put things in their correct political, legal and justice perspective. To understand this case – Mohammed Saleem vs. Shamsudeen, one needs to go into the history of the case itself. Mohammed Ilias married a Hindu woman Valliamma as his second wife and lived with her till he passed away. They had one progeny Shamsuddeen, while he had no children from his first wife Saidat. So after the passing away of Mohammed Ilias, his son had filed a suit for inheriting 14/16th of the property that his grandmother had gifted to Mohammed Ilias and half of the ancestral property after the demise of the grandmother as there was only one other son. The calculation of 14/16th part of the property is through a chart of inheritance and differs under different schools of Islamic jurisprudence, the rest of 2/16th being the compulsory inheritance of the widows left behind by Ilias. In an effort to disinherit Shamsudeen, his uncle and cousins claimed:
1. That Shamsudeen was born two years after the death of Ilias and therefore cannot be his biological son.
2. The marriage between Ilias and Valliamma was invalid because at the time of the contacting of the marriage Valliamma was still a Hindu
On the first contention, the court decided on the basis of evidence on record including Shamsudeen’s birth certificate which had Ilias as his father and Ilias’ death certificate showing that he died two months after Shamsudeen was born. So, then the moot question that the court had to decide was the validity of the marriage. Apart from several precedents that are quoted in the judgment, the decision was based on existing Muslim laws that govern marriages.
Here it is necessary to make a diversionary note about the jurisprudence of Muslim personal law strictly for the purpose of explaining this judgment to a lay readership. While everybody knows that Shariah is the broad term for Islamic law – however there are different legal schools of interpretation both among the Shias and the Sunnis. In this case, the litigants followed the Shafi school of jurisprudence.
Apart from precedents, the court relied heavily on the authoritative “Mulla’s Principles of Mahomedan Law”, which is considered an authoritative and secular compendium on Muslim law as applicable in India. Before people again jump into conclusions, this is a Parsi Mulla called Sir Dinshaw Fardunji Mulla, who has written treatises on Hindu law and other areas of law as well. Under Muslim law marriage is a contract and what the court had to do was to see what constitutes a valid contract for the purpose of validity of marriage. In that sense, there are three types of marital contracts viz. sahih (valid), fasid (irregular) and batil (void). Till the ninth edition of Mulla’s book, Fasid was translated as invalid. Since the tenth edition, the translation was changed to irregular and that is what the court has used with an explanatory note.
Fasid marriages essentially are those marriages that have restrictions on being contracted, but the restrictions are such that they can be rectified and the marriage be made Sahih at any point of time – unless the parties decide to separate before such rectification. Under Shariah, a Muslim may marry another Muslim or a Kitabia (of the book – which includes all Semitic religions) and such marriage would be valid. But if a Muslim marries a worshipper of idols or fire worshipper, then the marriage is irregular unless the irregularity is removed and the idolater spouse converts to Islam or any of the Kitabia faiths and then the marriage becomes valid. In the case of an irregular marriage it gets legal validity as soon as it is consummated, but still remains fasid – inasmuch as the wife is entitled to dower, but both the spouses don’t have inheritance rights. However all children born out of such a relationship are legitimate with full inheritance rights to be computed according to the particular school of law governing the Muslim parent. It is on this the Supreme Court adjudicated and held in categorical terms that the son has complete rights over the father’s property even if he is born out of an “irregular” wedlock!
I do have a quarrel with the judgment. That being the reading of the marriage as fasid, for though Valliamma was a Hindu when the marriage was contracted, the irregularity had been rectified when she converted and changed her name to Souda Beebi and remained the lawful wife of Ilias till his demise. It was only after his demise and the idda period that she remarried. Given that the irregularity had been rectified, the marriage whould have automatically become sahih or valid, giving her the same inheritance rights as Ilias’ first wife Saidat. I believe that the finding of the marriage to be fasih, when the irregularity had been rectified wrong in law. But, beyond that the court had delivered justice to a person whose relatives were trying to dispossess him of his rightful inheritance because his mother happened to be from a different faith within the legal system that it operates in and that is definitely laudable!
Unfortunately most people who reported it found it convenient and easy to latch on to the use of the word “irregular” in the judgment and since in a virulently Muslimophobic world, it is presumed that all Muslim women are victims and need saving from a medieval patriarchal religion and the possibility of empowered practicing Muslim women communities don’t even fall within the imagination of prejudiced and lazy reporters – the judgment was sold and consumed as regressive. The flak against the learned judges was only collateral damage of this in-the-face Muslimophobia!
I am not at all surprised by these knee jerk responses to save inter-religious marriages where no saving was required in the first place. For many a self-professed liberal, Islam is limited to saying namaz 5 times, fasting during Ramzan, biriyani, burqa and of course the very controversial talaq. However, it is much more complicated and is located in a patriarchal and hegemonic world subject to strengths and weaknesses that all human institutions have. And if there is any need for saving anybody from anyone – from Women to Muslims to Dalits – it is from quick-read-Sitarams who conveniently homogenize everything to fit into their theoretical prejudices!!