Islamic Lifestyle 

INTERVIEW - Yasmin Ali Shaikh, the lawyer harmonising Shariah with civil law to seek justice for India’s Muslim women

| 18 April, 2018 | Interview
 Syed Ameen Kader and Mohammad Azam Khan
INTERVIEW - Yasmin Ali Shaikh, the lawyer harmonising Shariah with civil law to seek justice for India’s Muslim women
Photo for illustrative purposes only. A Muslim woman prays after having her Iftar (breaking of fast) meal during the holy month of Ramadan inside the shrine of Muslim Sufi Saint Nizamuddin Auliya in New Delhi, India June 19, 2017. REUTERS/Adnan Abidi

Mumbai-based Yasmin Ali Shaikh believes that marginalised Muslim women can take advantage of the best of both judicial worlds.

The world’s second largest Muslim population is going through one of its most volatile phases in recent times as the constitutional or legal validity of many of the traditional practices of the community are being fiercely debated or challenged in the courts.

India’s 172 million Muslims are constitutionally permitted to follow the Muslim Personal Law, some of whose provisions are being perceived as regressive or out-dated by many, and are seen to be in confrontation with the country’s civil law. In this climate, one lawyer, Yasmin Ali Shaikh, is trying to make the best use of both and works as a bridge between the two to seek justice for thousands of marginalised Muslim women.

Yasmin Ali Shaikh has around three decades of experience as a lawyer and has so far handled close to 25,000 cases. She is also in charge of Mahila Takrar Nivaran Kendra (MTNK), a Complaint Centre for Women set up by Mumbai Police in the Muslim-dominated Nagpada area.

In India’s biggest city, hundreds of women flock every day to Shaikh’s private offices near the Bombay High Court, or to a tiny women’s cell at MTNK, to seek justice for various family and matrimonial matters including triple talaq (instant divorce), maintenance, dowry and polygamy.

Shaikh often finds herself in a situation when she has to take the help of civil law to protect the interests of her Muslim clients. For example, she says, a man gives talaq to his wife orally but refuses to give it in writing out of sheer malice. Though talaq is valid as per tradition, she elaborates, the woman’s family finds it difficult to find another husband for her.

India lawyer Yasmin Ali Shaikh

Lawyer Yasmin Ali Shaikh at her office in Mumbai, India

“Prospective husbands insist on written documentation of talaq just to be sure the first husband doesn’t later deny having given talaq, in which case she would end up living in ‘zina’ (adultery),” says Shaikh. In such cases, she has to resort to the civil law.

A large proportion of the cases she handles are settled through mediation. “Helpful police, sympathetic judges and some astute use of civil law can ensure that both parties to the dispute agree to what may be a more liberal interpretation of Shariah,” says Shaikh.

While she agrees there are points of harmony between the civil and Shariah laws, many in the Muslim community feel there is an increasing polarisation between the two in India, especially under the current nationalist Hindu government, which last year passed a bill – The Muslim Women (Protection of Rights on Marriage) Bill, 2017 – in the Lower House to make triple talaq a punishable offence. The bill is still to be passed by the Upper House for it to become law.

Although Shaikh has long led the opposition to the practice of triple talaq and other regressive interpretations of Shariah law, she believes not enough is being done currently.

MUSLIM WOMEN ‘IN THE DRIVING SEAT’

“Discussions on public forums on legal matters in relation to Muslims in India remain largely confined to instant triple talaq and polygamy, both of which in public perception make Islam out as being regressive, cruel to women and against gender justice. Not much thought is given to how the existing laws can be harnessed to provide justice to Muslim women,” says Shaikh.

Legally, she says, India’s Muslim women are “in the driving seat”, referring to the fact that they have at their disposal both the Muslim Personal Law as well as other civil laws, and a sympathetic judiciary to fall back on.

“We can approach the courts appealing to the egalitarian aspects of the Muslim Personal Law that gives us the right to property, consent in marriage and the right to divorce. At the same time, we can summon the civil laws like the Dowry Prohibition Act, 1961, or Protection of Women from Domestic Violence Act, 2005, to hammer sense into recalcitrant opponents,” Shaikh explains.

She is helped by the courts that are being increasingly sympathetic to women in general and go to great lengths to apprise themselves of the finer points of Shariah to provide justice to Muslim women.

India Muslim women protest triple talaq

Photo: Not all Muslim women agree with the government's 'triple talaq' law. In this photo, Muslim women hold placards during a protest rally against the bill passed by India's lower house of Parliament that aims at prosecuting Muslim men who divorce their wives through the "triple talaq," or instant divorce, in Ahmedabad, India, January 9, 2018. REUTERS/Amit Dave 

COMMUNAL HARMONY

Shaikh was initially looking for a platform to address the grievances of her Muslim community, but her association with people working at the complaint centre MTNK made her realise that there were many Hindus who were also working for Muslims and towards the objective of communal harmony.

“So, I thought I would rather be a good human being working for a wider community,” she says.

Her community work soon led her to take up various public issues as a means to sustain a closer bond between the people and the Mohalla Committees, or localised action groups, which were set up to promote communal harmony after the communal riots in Mumbai in 1992.

One of the issues she took up was the “rampant use of triple talaq” in the Nagpada neighbourhood of South Mumbai. Since then, she has been at the forefront of the fight against triple talaq and communal harmony through her Mohalla Committee Movement Trust.

HAMPERED BY SOCIO-ECONOMIC CONDITIONS

However, more than regressive laws, says Shaikh, it is the social condition of Muslim women that hampers their efforts to get justice. “There is pressure on women to adjust with their in-laws as they are often economically dependent on their husbands.

“Even when they face physical or mental suffering, the social stigma in approaching the police with family matters is such that they don’t come out and complain, and those who dare to do so are confronted with indifferent and sometimes rude police personnel,” says Shaikh.

“Very often, women procrastinate in demanding justice fearing that approaching the law itself will exacerbate the dispute irrevocably as in-laws do not want a woman back who has brought shame to the family’s name by  going to court,” she says.

‘TAKE ENCOURAGEMENT’

While some of these problems are not restricted to any particular community, Muslim women have the extra pressure of dealing with the vice-like grip of the clergy, who still have a major say in matters relating to matrimony and inheritance.

However, in spite of all this, Shaikh says, Muslim women are not living in some forsaken world of stifling oppression, totally at the mercy of clerics mired in regressive interpretations of Shariah laws.

“[The women] approach Darul-Qaza [Shariah courts] when they think it suits their cause, but are also increasingly knocking at the doors of the civil courts, appealing to the egalitarian aspects of Muslim Personal Law (Shariah Law) Act, 1937. They do not hesitate to invoke the civil law when they feel an injustice is being done,” says the lawyer.  

Once they step out, Shaikh insists, Muslim women can take encouragement from the knowledge that there are enough officers of the law in Indian courts who can walk a fine balance between Shariah and civil law to ensure justice for them.

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Aug 30, 2017: India's Muslims have mixed feelings about Supreme Court ruling on 'triple talaq'

(Reporting by Syed Ameen Kader and Mohammad Azam Khan; Editing by Emmy Abdul Alim emmy.alim@thomsonreuters.com)

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