Hindu or Muslim, court decision binding on all
By Soli J Sorabjee | Published: 10th November 2012 11:45 PM |
Regrettable Religious Intolerance: Matrimonial disputes between Muslim parties reached the high court of Jammu & Kashmir. The case involved the issue of a Muslim husband’s right to terminate the marriage by pronouncement of talaq. The high court while deciding the case held that “divorce was the last resort and could be administered only after the husband had exhausted other options”. It further held that “a husband’s power to pronounce talaq was ‘not absolute’”. Certain Muslim religious leaders consider the high court judgment as interference in their religion. An assembly of Kashmir’s religious scholars, leaders and legal experts has said that judicial pronouncement about the validity and absoluteness of talaq “cannot be tolerated by Muslims”. This mindset is regrettable. In India, matrimonial disputes between a Muslim husband and his Muslim wife can be adjudicated in a competent civil court. There is no law barring jurisdiction of civil courts and entrusting matrimonial disputes between Muslims exclusively to Sharia courts. If such a law were to be enacted, its validity would be doubtful. If in the course of adjudication, it becomes necessary to pronounce upon the validity of a talaq unilaterally dissolving the marriage, the court cannot shirk the issue and is certainly required to deal with it. There is no question of the judgment not being tolerated. Suppose for a moment, the judgment had upheld the Muslim husband’s absolute right of talaq, would that also be an interference in religious affairs? Such a judgment indeed would have been welcomed and more than tolerated. In essence, opposition to the judgment stems from invincible intolerance.
The statement of Huriyat hardliner Syed Ali Geelani that judgments of non-Islamic courts are not binding on Muslims is shocking. Geelani forgets that India is a secular, not a theocratic, state, and resolution of disputes, including matrimonial, is entrusted to competent civil courts of the land. Let us apply Geelani’s thinking to a case where a Hindu landlord files a suit for eviction against a Muslim tenant. A non-Islamic judge, Hindu or Christian, dismisses the suit and the Muslim tenant succeeds. Would such a judgment be binding according to Geelani’s logic? Or does the binding nature of a judgment depend on the success or failure of the Muslim party? The fallacy of the Geelani school of thought is manifest. Our priority should be to eliminate such divisive mentality which encourages separatism and militates against national integration.
Aung San Suu Kyi’s Statesmanship: Recently, there have been two regrettable outbreaks of violence in Rakhine State in Myanmar between Buddhist and Rohingya Muslim communities. More than 100,000 people have been displaced, several have been killed on both sides and numerous homes have been torched. Myanmar’s 800,000 Rohingya are seen by the government and many in the country as illegal immigrants from neighbouring Bangladesh. They face severe discrimination which according to activists has led to deepening alienation.
Nobel Laureate Aung San Suu Kyi has declined to speak out on behalf of either side. Both Buddhist and Muslim communities are displeased with her stand which has also disappointed her international supporters. What is the rationale for her silence? According to Suu Kyi one has to look into and really understand the sources of the problem. According to her, the topmost priority is for tolerance and “if people are killing one another and setting fire to one another’s houses, there is no scope for arriving at a reasonable settlement”. Suu Kyi’s urgent appeal is that the rule of law should be established as a first step before looking into other problems. Her silence may cause disappointment. On reflection, however, it displays sober far-sighted statesmanship and the will power to resist indulging in popular sensational statements which will not be conducive to solution of the problems which triggered the outbreak of violence. At times, silence can be a salutary option and Suu Kyi has done well to exercise that option in the present case.
Sorabjee is a former Attorney General of India