Muslim immovable gifts: to register or not to register… that was the question. Recent developments following ‘Hafeeza Bibi v. Shaikh Farid’

As it was previously mentioned in an earlier post, Muslim gifts (hiba or ariya – the latter only concerning the usufruct of a property) do not have to be registered in order to be valid. The reason behind this exemption was mainly that Muslim gifts can be made orally, hence not requiring any written instrument to complete the transaction.
I am using the word ‘transaction’ specifically because Muslim law considers gifts as part of contract law. Muslim authors (which are in this instance scrupulously followed by Indian Courts) only require three conditions:

1. a declaration by the donor (offer)
2. an acceptance by the donee (acceptance)
3. the delivery of the property (transfer)

A contentious issue however arose relating to immovable property, and what to make of a Muslim gift deed. The problem revolved around the compatibility of two statutes.

Section 123 of the Transfer of Property Act, 1882 (TPA) disposes that:

“For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.”

As aforementioned, Muslims are exempted from this obligation by Section 129 of the same act:

“Nothing in this Chapter relates to gifts of moveable property made in contemplation of death, or shall be deemed to affect any rule of Mohammedan law.”

…hence paving the way for Muslim oral gifts to be valid whether they relate to moveable or immovable property…

IF it wasn’t for section 17 of the Registration Act, 1908 (RA) disposing that:

“(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877 or this Act came or comes into force, namely:-
(a) instruments of gift of immovable property; (…)”

This time, no exemption has been made for Muslim law, Section 49 dealing with the consequences of non-registration:

“Effect of non- registration of documents required to be registered.- No document required by Section 17 or by any provision of the Transfer of Property Act, 1882 (4 of 1882), to be registered shall-
(a) affect any immovable property comprised therein or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:
Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882 ), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877 ), or as evidence of any collateral transaction not required to be effected by registered instrument.”

The question of whether the first exemption was constitutionally valid in regards to the right to equality (article 14 of the Indian Constitution) was rather rapidly solved by the Courts, validating the disposition on the grounds of ‘reasonable classification’ [1] .

However, the compatibility between Section 129 of the TPA and Section 17 of the RA has led to diverging rulings between High Courts and most importantly to a paradoxical situation where an unregistered written deed could potentially invalidate the gift, while on the other hand a sole oral transaction would stand. Bearing in mind that Muslims increasingly tend to write down gift deeds in the prospect of legal security… little did they know that this could in fact prove to be a disservice.

Several key points need to be examined in order to understand the Supreme Court’s final decision. Jurists love definitions and taxonomy; in this case… judges had quite a lot of fun.

1. Muslim gift deed: document or instrument?

The question was how to legally qualify a Muslim gift reduced in writing: is it a mere document only confirming what has taken place and is already effective, or is it the instrument by which the gift becomes complete and legally binding?

In Nasib Ali v. Wajed Ali (1926) [2] the Calcutta High Court observed that Section 17 of the RA mentions “instruments” and considered that a Muslim gift deed was not one of those. The validity of the gift lies in the fulfillment of the 3 aforementioned conditions, none of them requiring writing. If these conditions are not present, the deed (even registered) would not validate the gift for it “doesn’t create, makes or completes the gift” by itself. Therefore, a written document is just a mere piece of evidence and not an instrument requiring registration. This position was followed by the Gauhati High Court in Md. Hesab ud din & Ors v. Md. Hesaruddin & Ors. (1983) [3] , the single judge reiterating that a Muslim gift transaction is essentially immaterial.

In Inspector General of Registration and Stamps, Govt. of Hyderabad v. Smt Tayyaba Begum (1961) [4] , the full bench of the Andhra Pradesh High Court begged to differ, and actually concluded that a written Muslim gift could be both an instrument and a document. In order to differentiate between the two, they applied a rather subjective test. It consisted in determining whether the parties intended for the written document to be a “receptacle and appropriate evidence of the transaction” that would constitute the gift or simply “a record of a past event”. In the latter case, registration was not compulsory, but the former would have to comply with Section 17 of the RA.
The Madras High Court in Amirkhan v. Ghouse Khan (1983) [5] was even blunter. If it recognized that Muslim gifts could be made orally, it went on to consider that any reduction in writing of such a gift would become a legal instrument conferring de jure a title of property, and could only become complete once registered under Section 17 of the RA.
In Ghulam Ahmad Sofi v. Mohd. Sidiq Dareel and others [6] the Jammu and Kashmir High Court was more subtle, and although applying the Tayyaba Begum dichotomy, tried to render it more objective. Hence, they replaced the subjective intention of the parties with the contemporaneity of the written deed:

“… if there is executed an instrument and its execution is contemporaneous with the making of the gift then in that case the instrument must be registered under Section 17 of the Registration Act.”

This issue of registration was indeed causing some mayhem, and even traditional references relating to Muslim Law within the Sub-Continent seemed to disagree. If Mulla’s Principles of Mohammedan Law [7] considers that registration is a non-requirement for a Muslim gift, for only the three conditions suffice to validate it; Fyzee [8] on the other hand does operate a difference between a written document that merely records a prior transaction (no registration) and the one that is actually its instrument (registration).

It is but only recently that the Supreme Court was able to tackle the issue in Hafeeza Bibi and Ors. vs. Shaikh Farid (dead) by L.Rs. and Ors. (2011) [9].

2. Muslim gift deed: a simple document which doesn’t require registration.

As it is usually the case, the issue arose out of an inheritance dispute. Shaikh Dawood died intestate (in 1968) leaving a certain number of children and relatives behind. As the partition of the estate was organized, one of his son claimed that an immovable property should not be part of the succession, for it had already been gifted to him by his late father (with whom he stayed and cared for until the end), and that this gift had even been reduced into writing… but had neither been stamped [10] nor registered.
The Trial Court (in 1988) concurred with the view that Muslim gifts were oral in nature and that even reduced in writing were exempt from registration, hence validating Shaikh Dawood’s gift to his son [11] . On appeal however, the Andhra Pradesh High Court (in 2004) followed its own precedent. Applying the Tayyaba Begum test, it considered that in this instance the parties intended for the deed to be the instrument of the transaction, and having failed to register it, could not convey any property title.
The matter finally made its way up to the Supreme Court (in 2011) which sided with the High Courts of Calcutta and Gauhati on this issue. Oral gifts being permissible under Muslim Law, no writing is required to either create or complete them; hence even reduced in writing, a Muslim gift deed could not be defined as the instrument by which the gift becomes effective, it is but a mere evidence that the gift has taken place, but does not confer any title to the donee, for the creation and completion of a gift lie elsewhere.
Indeed, the two judge bench cited the High Court of Kerala, which in Makku Rawther’s children: Assan Ravther and Ors. vs. Manahapara Charayil (1971) [12] was quite critical of the Andhra Pradesh High Court distinction between instrument and document, considering it irrelevant:

“In the context of Section 17, a document is the same as an instrument and to draw nice distinctions between the two only serves to baffle, not to ill mine. Mulla says: “The words ‘document’ and ‘instrument’ are used interchangeable in the Act”. An instrument of gift is one whereby a gift is made. Where in law a gift cannot be effected by a registered deed as such, it cannot be an instrument of gift. The legal position is well-settled. A Muslim gift may be valid even without a registered deed and may be invalid even with a registered deed. Registration being irrelevant to its legal force, a deed setting out Muslim gift cannot be regarded as constitutive of the gift and is not compulsorily registerable.”

It took more than a century for this issue to be finally settled by the Supreme Court, which in this instance considered that the exemption of Section 129 of the TPA superseded the dispositions of the Registration Act.
The spirit and letter of Muslim personal law were upheld and indeed this decision, while homogenizing the law throughout India, might also discourage certain frivolous law suits based on a technicality and challenging otherwise accepted situations (as the facts of this particular case demonstrates).

The State appears however to be losing from this decision, as the latter hampers its current efforts to promote registration (especially for marriages) [13] . It might also reveal to be problematic for the collection of Estate Duty, due to incomplete records and the possibility to falsely “create” a gift in order for its object to be left out of succession.
The Legislator could however abrogate Section 129, at least as immovable property is concerned. There is no reason to believe that Muslim law would be particularly affected, if the three requirements are upheld. The fact that a Muslim gift can be oral does not mean that it has to be defined as such, as long as the deed clearly states that the necessary conditions under Muslim law have been met.

For a more complete analysis of this case, and particularly the genealogy of the judgments revolving around this issue, I can only suggest Justice (ret.) Hakim Imtiyaz Hussain’s [14] article on Muslim oral gifts, which can be found in the Srinagar Law Journal [15] .

[1] Mt Bibi Maniran vs. Mohammad Ishaque (1962), AIR 1963 Pat 229

[2] AIR 1927 Cal 197.

[3] AIR 1984 Gauhati 41.

[4] AIR 1962 A.P. 199.

[5] (1985) 2 MLJ 136.

[6] AIR 1974 J&K 59.

[7] Mulla, Dinsha Farunji. Principles of Mahomedan Law. 19th ed. Bombay: Tripathi, 1990.

[8] Fyzee, Asaf Ali Asghar. Outlines of Muhammadan Law. 5th ed. New Delhi: Oxford University Press, 2008.

[9] (2011) 5 SCC 654.

[10] I am leaving out of this post the debate about stamping, required by several States’ legislature, for it is fairly similar in nature and follows the broader issue of registration. In fact, the Tayyaba Begum case started out because of this lack of stamping.

[11] The parties did not contest that the three conditions of a valid gift under Muslim Law had been fulfilled.

[12] AIR 1972 Ker 27

[13] In April, the Cabinet approved a bill for compulsory registration of marriages: http://www.dnaindia.com/india/report_cabinet-approves-bill-on-compulsory-marriage-registration_1674966

[14] Former High Court Judge of the High Court of Jammu & Kashmir.

[15] Hussain, Hakim Imtiyaz. “Oral Gift under Muslim Law” Srinagar Law Journal. 2012 (I). pp. 11-18.

Registration of Muslim Marriages – Pakistan

According to the Muslim Family Laws Ordinance, 1961 a marriage solemnized under Muslim Law is required to be registered in accordance with the provisions of the MFLO but non-registration of marriage (Nikah) by the Nikah Registrar does not invalidate the marriage.

Saleema Bibi and 3  others v. Khair Muhammad and 2 others 2010 YLR 691

Aftab Ahmad v. Judge Family Court and 3 others 2009 MLD 962

Muhammad Akram v. Mst. Farman Bi PLD 1989 Lahore 200

In Abdul Majid Khan and another v. Mst. Anwar Begum PLD 1989 SC 362 the Supreme Court has laid down that the presumption regarding Muslim marriage, in absence of direct proof can be raised and acted upon, in the following instance:–

(a) prolonged and continuous cohabitation as husband and wife.

(b) The fact of acknowledgement by the man, of the paternity of the children born to the woman, provided all the conditions of valid acknowledgement are fulfilled or;

(c) The fact of the acknowledgment by the man, of the woman, as his wife.

In Bashir and others v. Ham Din and others PLD 1988 Supreme Court 8 it was held that Muslim Law presumes the existence and validity of marriage in the absence of direct evidence when there a man and woman have lived together as man and wife for a long time.

 

Field Notes – Sample n. 3 by Tommaso Sbriccoli

Interview to B. K. Pinjara – 30/06/12

I am in BK Pinjara’s house, and also his wife is present. After collecting the genealogies and the information about family economy, I ask about marriage transactions and inheritance. Here is how the conversation went:

T.: so for marriages you give dahej?
BK: yes, we give it, but is not too much. If you are rich you give, but if you are poor, what could you be giving?
T: I understand. But you give bartan?
BK: O yes, of course we give bartan, all the kitchen staff, for cooking and serving, and also something for keeping stuff…
T: A cupboard?
BK: Yes, a cupboard.
T: and do you give also a palang [bed]?
BK: Yes, we give a palang.
T: and jewellery?
BK’s wife: yes, a wife get toe rings, and bracelets, and also a necklace.
T: and all these pieces of jewellery are hers or her sasural [in-laws] can take them?
BK’s wife: no, they are hers, her husband can only take one ring [could not get whether as a direct present from wife’s parents or he can take one of her rings]
T: and mahr, do you give mahr?
BK: we have mahr, yes, but we give it only in case of divorce. When you divorce you have to give mahr to your wife.
T: and do you usually give it after divorce?
BK: oh yes, otherwise the wife will go to court, and then you will have to pay also for maintenance, [khana-pina], 1-2000 rupies per month!. And if there are also child you will have to give much more, khana-pina, bimari-dard [disease-pain].
T: and how much is mahr?
BK: it depends, it can be 20000, 50.000, 1 lakh even!
BK’s wife: also I’ll have a mahr if we divorce, 2000 rupies [as she says this she smiles to me, as to say that her mahr is nothing, in comparison to the amounts his husband is saying, and with that she wouldn’t do much…]
T: 2000 rupies, that is not much, but is it because you married a lot of time ago?
BK’s wife opens her arms as to indicate that things go like that
T.: but is there a signed document at marriages stating the amount of mahr?
BK: of course, we sign a document, and then after divorce we have to give the agreed amount.
T: and what about mamera, do you give mamera at marriages?
BK: Of course we do, but wife’s nanial [a woman’s maternal grandparents] have to give mamera, not others.
T.: father’s and grandfather’s sisters do not give mamera?
BK: no, they give ban, that is some money as a gift.
T: and what do nanial give as mamera?
BK: they give clothes, some thousands of rupies, if they are rich even 50000 rps, and also some gold if they want and can.
T: so, about mahr, do talaks sometimes happen?
BK: of course they happen!
BK’s wife: he is divorced! [pointing to her husband]
T: you are divorced?
BK: yes, I had a previous wife, than I took her [pointing to her wife].
T: Did you have any children from your first wife?
BK: no, no children.
T. Why did you divorce?
BK: Problems in the house, I did not like how she cooked, and they way she acted, so I sent her away and took another one.
T: And did you give her mahr?
BK: No, I did not give anything, at those times mahr was not very frequent, and I didn’t give anything.
T: so mahr is a recent thing?
BK: yes, it is recent, before mahr was not so compulsory.

The conversation moves to other topics, that is, what happens in my country about divorce and maintenance, and then I try to go back to the interview.

T: and for inheritance, what do you do? Do you give something also to daughters?
[BK’s wife says something about how they call this process and touches her ear but I can’t get what she is saying.]
BK: yes, we can give something, we can give them their part [hissa]. If parents want so they can also give a small part to daughters.
T: But it is not compulsory?
BK: No, if there is the desire (iccha) so they can give.
BK’s wife: yes, if they want (“agar chahen”), if they have desire (“agar iccha he”), otherwise all is given to brothers.
T: but according to law do you have to give them a part?
BK: yes, we should, but then the daughter writes a letter and signs it, where she says that she renounces to her part, and so brothers take everything.
T: and if she does not want to give up her part? What does she do?
BK: She goes to the Court! But it is not good at all. Then her brothers will break relationships with her (“bhai usko chod denge”).
T: and do any cases like these happen?
BK: Yes they happen, but it is very bad.
BK’s wife: brothers will break all relationships with their sister, they will not play host to her, if she comes back home she will not be given food, water, gifts, anything.
BK: but if she renounces to her share then she will be loved and respected, and when she comes back home she can stay, no matter if she stays one day, two days, or one week, she will have everything, khana-pina, lena-dena, paise. We think that property is of sons, they live here, daughters live far, what will they do with our land then?

Field Notes – Sample n. 2 by Tommaso Sbriccoli

I arrived in India on the 17th of May 2012 and reached Madhya Pradesh on the 22nd of the same month. Initially, I took a room in a hotel in the city of Dewas, where I spent the first 15 days of my staying. I had in fact to access a fieldwork which was new to me, and so to proceed with caution in order to establish reliable contacts and find a place to stay in the village of Jamgod, selected for my research. I rent a house in the centre of the village, and had to clean it and fix it since it had been empty for years. I finally move to live in the village on the 12th of June 2012. The first period of fieldwork has been intensive, but as it always happens, more productive on the side of establishing relationships and coming to know the overall context of the research, rather than in finding and collecting massive amounts of data.

However, I have already carried out a preliminary survey on the Muslim community focus of my research, the Pinjaras, and on the wider context of the village they are inserted in.

The first general data on the village can be summed up as follows:

 

  1. The village, Jamgod, is 12 kilometres far from Dewas, in the Malwa region of Madhya Pradesh, and on the highway to Bhopal. Thus, many of its inhabitants have got jobs in the city to where they daily commute.
  2. The village of Jamgod has a multicaste population (about 26 different castes) of about 4000 people, with 1780 voters. It has an autonomous Panchayat.
  3. In the village two Muslim communities are present, the Faqirs (only two-three houses) and the Pinjaras, object of my research.
  4. Even though the village has a Hindu majority and Muslims are seen as a community marginal to (if not completely excluded from) village ritual life, they are though inserted in its political life and in good relationships with most of other castes[1]
  5. The village has still got an economy which is mainly agricultural, even if many of its inhabitants also either work in the many factories surrounding Dewas or have got government jobs in school and offices. A sort of entrepreneurship has been developing in the last years (mainly companies of truck transport services and hotels and restaurants on the Bhopal Highway) and interestingly a particular section of Jamgod Pinjaras has been leading in such businesses.

 

In relation to the specific focus of my research I have been working until now at three different levels. The first is the compiling of a census of Pinjaras in Jamgod. Data related to 2012 are being collected by me through a census conducted house by house, but no definitive data can yet be provided (till now I have collected genealogies and census data on 12 families). Only with regard to number of families, information gathered from Jamgod Panchayat can allow to draw a provisional estimate, that is, at the moment in Jamgod should be present between 100 and 120 families (houses)[2].

This set of data can prove useful in order to draw the general context within which to place more qualitative information, as demographic factors are often good indicators of socio-economic trends. Furthermore, knowing the exact genealogic history of families allows for better understanding possible disputes on property.

The second level of research concerns therefore the economy of Pinjara families. Data are being collected on amount of land owned, mobile property, shares in companies and other businesses. Furthermore, information are being gathered on amount of dahej (dowry), mahr (dower), and other gifts given to women at time of marriage, so to be able to compare them with the share on property male members of the family get. By now, this is what I have found:

 

  1. Dahej(dowry) is given at time of marriage by the bride’s parents to the groom’s parents. It usually consists of:
    1. Kitchen stuff (bartan)
    2. A bed (palang)
    3. A cupboard
    4. Clothes
    5. Golden rings, necklace and other jewellery items.
    6. Between 10000 and 25000 rupies (the last amount being at the moment the most frequently given one).
    7. Mahr should be given by the husband to the wife at the moment of marriage. Though, its handover is often delayed, and given only in case of divorce. It can amount to 11000, 21000, 31000, 41000 or 51000 rupies (the last amount being the one now considered as appropriate). It can also be given in the form of immovable property (land). In some cases, some husbands provide their wives with mehr independently from a divorce happening. This is the case of M., who owns 21 bigas of land and gave to his wife 10 bigas as mehr[3].
      In case of the death of a husband without mehr having been paid, his wife should “forgive it” to save her husband’s soul[4].
    8. Mamera is a practice typical of central India,[5] and consists of gifts (mainly clothes and some money, but some time the amount of money donated can even reach the 5000 rupies) made to the bride by her mother relatives and her father’s real and classificatory patrilateral aunts. The fact that this kind of gift is typical of Hindu communities points to an important aspect of Pinjara practises which I will deal with soon.

 

The amount of mahr (being always n+1) and the practice of mamera bring us to the third level of analysis, more linked to qualitative research on the ritual and legal practices of Pinjaras and the way they are developed in complex discursive strategies.

After the first period of research, in fact, what clearly appears is that Pinjaras are placed in-between two different ritual and legal worlds. On one side, many of their ritual practices are linked to the ones of Hindu communities among which they live. The amount of mehr clearly points to Indian numerology, where auspicious amounts of money to be given (as offerings to god, gifts to relatives or donation to priests) are considered those ending with 1 (11, 21, 31, but also 21000, 51000, and so on). Similarly, mamera is clearly a practice linked to Hindu ritual system. Most of Pinjaras, knowing the way they act is not perfectly matching orthodox Islamic law, justify themselves by stating that they were Hindus at some point in the past, later converted to Islam. Some of them claim a Rajput origin (Rajputs being at the top of Hindu hierarchy ladder, just below Brahmans), partaking thus in the frequent attempts made by Hindu low and middle status castes to raise their status by claiming higher origins. Furthermore, Pinjaras are divided according to their gotra, which is in North India a patrilinear exogamous group whose members trace their origin to a, usually unknown, common ancestor. Even more interesting is the fact that some of the Pinjaras I interviewed stated that, as Hindus do, they do not marry with people of their own gotra and of their mother’s gotra. This makes thus impossible for a marriage between patrilateral parallel cousins to take place. Each gotra has got also a Kul Devi (a goddess protecting its members and to whom regular worshipping has to be made) and a Kul Bheru (the God of the clan, in favour of whom as well rituals have to be regularly performed). Interestingly, a maulana whom I interviewed and younger Pinjaras denied the existence of such Kul Devis and Kul Bherus for Pinjaras, who only pray Bhagwan (God), and told me as well that, being Muslim, Pinjaras can arrange marriages also within their gotra or their mother’s one. This shows how in the last few decades there has been an increasing commitment on the side of Pinjaras toward a more strict and orthodox practice of Islamic principles, detaching themselves from practices, which they shared with the Hindu communities among which they live. Less “pious” Pinjaras seem to be still practising devotion and worshipping of their clan gods and goddesses, and avoiding intra-gotra marriages.[6]

This trend of development in religious attitude (and so the shift of norms related to marriage and religious practices) seems to be confirmed by an analysis of the attendance to the local Mosque. This Mosque, recently expanded and renovated together with the Dargah of a local Pir sited in front of it, hosts weekly at least 150 men and children for the Friday prayers. Most of participants are young, and very few old men (age > 50) join with the others for the occasion (there were no more than 4 of them in the two Fridays I spent at the Mosque).

We can thus see emerging a first important fracture, whose analysis might prove really fruitful in understanding whether this change is being triggering differential ways of dealing with legal matters and the production of different discourses around them.

For the moment, a concept which, in the interviews carried out, is demonstrating itself central in discussions about inheritance and women shares in them, is that of iccha, which could be loosely translated as “desire”, “want”. Iccha can be considered as an ideological operator at the border between law and actual practice.

While it is openly recognised that norms do exist (both as provisions of Islamic law and of State one) which safeguard women rights in inheritance matters, whether, and the extent to which, these are observed is left principally to the iccha of husbands, fathers and brothers. For instance, the Maulana interviewed stated the following:

 

Maulana: We know that daughters have their rights in inheritance, Islamic law provides them with a share. But we believe that is good that sons inherit.

Tommaso: But do you give something to them when the shares are made?

M.: Yes, it depends on the desire (iccha), we can give something to them. So then they write a letter where they state that they renounce to family property. But not everybody does it, it depends on the iccha, if you have iccha you give something, otherwise you don’t.

 

In this case, iccha, personal desire and inclination, takes the place of the recognition of a right or, even worse, a right whose existence is formally recognised becomes a matter of personal male choice, and even when iccha is present, it becomes no more than a “sweetener” in order to make easier and smoother women’s renunciation to their shares in family property.

In another case, a mahr (and a quite generous one) had been completely paid by the husband before his death and with no divorce case pending. But even in this occasion, iccha was a central category the husband recurred to in order to explain his choice.

 

Tommaso: Did you pay the mahr to your wife?

Majit: Yes, I did! I put 10 bigas of land in her name. So I paid my mahr, and a good one.

T.: so is it normal to pay the mahr?

M.: Everybody pays the mahr, at the moment of marriage.

 

T.: really? So for Pinjaras it is normal to pay the mahr at the very moment of marriage?

M.: it depends. If one desire to do it (“agar iccha he”) he can do it, otherwise you pay it when a divorce occurs. But I wanted (“mereko iccha tha”) to pay it, and I did it. Now I am ok.

T.: and when your wife will die, what will she do with her land?

M.: she will divide it into two parts and give them to our two sons.

T.: and your daughter, will she get something?

M.: no, we will divide everything into two parts. I already gave a lot to my daughter. I paid her dahej (dowry) with two cows, one buffalo, jewellery and clothes, and when my nata [his daughter’s son] got married I gave to him a truck as a gift!

T: so for what remains you will do two parts and exclude your daughter?

M: No, we will do three parts, one also for her. But since she has already received a lot she will probably renounce to her part.

 

This excerpt of one of the interviews is highly interesting for many reasons. First, it illustrates once more the importance of the idea of iccha in order to bridge the gap between knowledge of the norms and actual practices on the side of people. This gap is made evident also in the way norms are put into discourse. Both for mahr and for inheritance shares, two discordant versions are given. For mahr, at the beginning the rule is stated, and presented as something respected by all. In a second moment, the concept of iccha enters as the operator of differentiation between the rule and what actually happens. So you give mahr to your wife at the moment of marriage if you desire to do that, otherwise you pay it at the moment of divorce (if you do, because this is another issue to address later). For inheritance it happens the opposite. At the beginning what actually happens is stated: property is divided in shares according to the number of sons. The usual justification that daughters got dowry and other gifts is put forward. After further inquiry, the process through which this is made possible becomes clear: three parts are made and daughter is made to renounce to hers (maybe receiving by her brothers some money for that, if there is iccha on their side).

Another important issue raised is that of the actual economic import of dowry and other gifts in relation to family property. Two cows, one buffalo, jewellery and some clothes are but a small part of the overall property of this family, which owns 21 bigas of land with three wells for irrigation, an orchand, and fifteen trucks with which they transport goods to Mumbay, Poona and Bangalore. If seen under this light the gift by M. of a truck to his daughter’s son seems but a small part of the overall family asset. A point to be stressed here is that the gift of the truck is a mamera, that is, a gift made to a daughter’s son or daughter at the moment of his/her marriage. I doubt M. would have gifted a truck to his daughter’s daughter for her marriage. In this case, a present to the agnatic group within which the woman has been married is presented as a gift to her: the woman becomes thus only the intermediary of a passage of property between two different agnatic groups.

 

Mahr, though, is sometimes not even paid after divorce, and this is the reason for disputes between husband and wife and/or between their families. According to what some informants have told me, usually these disputes are first addressed by informal meetings, involving the two conflicting parties and some old and wise men of the community. We could call this forums “jati panchayat” (and informants seem to adhere to such definition). At the moment it does not seem that this panchayat is formally structured in relation to its composition and geographical jurisdiction, as it happens elsewhere. Though, this is a point about which too few information have been collected until now, and no instance of such meetings has yet been recorded by me. This forum is also activated in cases of disputes over inheritance. I have been told that it is only after this kind of forum has failed in reaching a solution that people recur to State Courts. At the moment, one of such cases is going on at Dewas Court in relation to an inheritance case. A woman from Jamgod (but married and living in another village) has filed a case against her family in order to get her share of family property. I have not yet been able to collect more precise information about this case.

 

In the end, I would like to list three other facts I deem important for the research.

 

  1. Pinjaras are Sunni Muslims, but for the moment I could not understand which School of Law they refer to (if any specific).
  2. There is a Maulana in Jamgod who is the one who registers nikahs taking place in the village. He has got the forms for registration as a Kaji from Dewas has provided him with them. After filling in the forms he brings them to Dewas, where they are registered in the Waqf Office. Sometime the Kaji from Dewas comes personally to Jamgod to register some marriages (maybe those of the people more important or close to him). In Dewas there are two Kajis and two Waqf, linked to the division of Dewas in two different reigns, one ruled by a Maharaja Senior, the other one by a Maharaja Junior. It could be interesting to see whether these two Waqf differ in their way of dealing with marriages and divorce or not.
  3. Until now I have been able to talk only with elder women and mostly in the presence of their husbands or other male relatives. It seems that old women are quite ready to support male’s view on such issues as mahr and inheritance. The access to younger women’s perspectives, often the ones who more harshly face problems related to divorce and lack of recognition of their rights, is at the moment difficult to obtain. I hope I will manage in the future to have interviews with some of them, as it would be really important to get their ideas over such matters.

 


[1] This is an important aspect to take into account, as in the last years Madhya Pradesh, and in particular Malwa region, have witnessed a sort of silent (and silenced) campaign against Muslims carried on by state police and intelligence. The overall attitude toward Muslims is thus rapidly worsening, even at the local level. A presentation of some of these cases can be found here:  http://twocircles.net/Special%20Reports/mp_terror_stories.html

[2] “Houses” should indeed not been confused with “families”, as local terms of reference clearly indicate. “Ghar” (house) refers in fact to people living in the same building and managing autonomously economic income. “Parivaar” or “Kutumb” refers instead to all those kin tracing relations through males of two or more generation (what could be define an “agnatic group”). The family share thus common responsibilities and liability in ritual (i.e. marriage) and legal matters.

[3] Personal interview with M. Pinjara, 19/06/2012. A biga is about the forth part of an hectare in M.P.

[4] Personal interview with H. Pinjara, 27/06/2012. For similar statement see also Basu Srimati, 1995, She Comes to Take her Rights. Indian Women, Property, and Propriety, State University of New York Press.

[5] I found mamera in my previous research in Rajasthan, performed by many Hindu communities.

[6] The further collection of data and genealogies will show whether, notwithstanding what they say, more pious and younger Pinjaras try to avoid intra-gotra marriages or do marry within their, or their mother’s, gotra.

Mahr

Mahr (dower) is the amount (sometimes also property rights) that the husband own to the wife. Mahr can be prompt or deferred if it is deferred without any specification of time it is assumed to be at the time of death or divorce.

 

Amina Bibi vs Mohamed Ibrahim AIR 1929 Oudh 579

Haliman vs Mohamed Manir AIR 1971 Pat. 385

Mohamed Shahabuddin vs Ummatur Rasul AIR 1960 Pat 511

 

The mahr can be increased during the marriage at the husband’s initiative and its amount does not depend on the financial capabilities of the husband

 

Hamira Bibi vs Zubaida (1961) IA 249

Essential to Muslim law

Kapore Chand vs Kidar Nissa Begum and others AIR 1953 SC 413

Unpaid mahr is a debt payment equivalent to the claims of other creditors but has priority over the co-heirs’ claims to have the property distributed among themselves.

Sabir Hussain vs Farsand AIR 1938 PC 80

Among Shias, the father in-law is liable to pay the mahr in the case of failure of payment by the husband

Maina Bibi vs Vakil Ahmed (1924) 52 IA 145

Possession of the husband’s property can continue after husband’s death or divorce until the mahr is recovered.

Maintenance for nursing/taking care of the child

According to Noor Saba Khatoon vs Mohammed Qasim AIR 1997 SC 3280 and on the basis of section 125 of Criminal Procedure Code, 1974 and section 3(1)(b) of Muslim Women (Protection of Rights on Divorce) Act, 1986 the divorced Muslim mother is entitled to receive maintenance for nursing or taking care of the infant/s up to a period of 2 years. This right is independent from the rights of the children to receive maintenance until they are majors.

See also:

Smt. Sushila Bai vs Bisauharam on 1 September, 2009

Lubna Mehraj And Ors. vs Mehraj-Ud-Din Kanth on 8 October, 2003

Maintenance to the wife during the iddat

According to section 3 (1) Muslim Women (Protection of Rights on Divorce) Act 1986 and uncodified Muslim Personal Law the divorced wife is entitled to life-long maintenance to be paid by the husband during the iddat period.

 

Shabana Bano v. Imran Khan, AIR 2010 SC 305

Danial Latifi v Union of India, 2001 (7) SCC 740

Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945

Maintenance by the Wakf Board after the Iddat period

According to sec. 4 Muslim (Protection of Rights on Divorce) Act, 1986 the magistrate can order any heir of the woman to maintain her after the iddat period. In absence of relatives the Wakf Board may be ordered to pay her maintenance.

 

Tamil Nadu Wakf Board and another vs Syed Fatima Nachi, AIR 1996 SC 2423

Related Statutes:

Mussalman Wakf Validating Act, 1913

Mussalman Wakf Validating Act, 1930

Central Waqf Act, 1954

U.P Wakf Act, 1960

Waqf Amendment Act 1984

Waqf Act, 1985

Divorce at the Woman’s Initiative in India, in Pakistan and in the Diasporas

Divorce at the Woman’s Initiative in India, in Pakistan and in the Diasporas

Livia Holden (LUMS)

 

Abstract

 

This paper explores and analyses Hindu and Muslim practices of divorce at the woman’s initiative at the level both of customary jurisdictions and of official law-courts in India, in Pakistan and in the South Asian diasporas. It explores the multiple interpretative frames of socio-legal narratives to throw light on their implications vis-à-vis legal outcomes. Through a multidisciplinary inquiry combining legal pluralism, feminist methods and collaborative approaches, this paper highlights the necessity of understanding in a concerted construction of knowledge with social actors, the instances contradicting, even if not in an open conflict, the mainstream discourses on the sacramental and indissoluble Hindu marriage as well as on the men’s exclusive initiative of Muslim divorce. The central question of this paper is how divorce at the woman’s initiative is dealt with and what are the successful arguments in law courts? This paper describes the interplay between custom and positive law as ways through which social actors make sense of power and governance very often creatively developing arguments following the different fora of litigation in South Asia and in the diasporas. In so doing it draws on the changes of the public discourse about divorce at the woman’s initiative over the last two decades to conclude with considerations about the increased role played by religion in the legal sphere as well as the unexpected outcomes of advocacy and human rights instances.

 

Keywords: Legal anthropology, South Asia, divorce, law and gender, personal laws, Muslim law, Hindu law

 

Introduction

 

This paper focuses on divorce at the woman’s initiative among Hindu and Muslim communities in South Asia and in the diasporas on the basis of seventeen years of observation of these practices in South Asia and more recently in the South Asian diasporas. Since Hindu practices of divorce at the woman’s initiative have been until now revolving around non-state jurisdiction mainly, my fieldwork in India, that I carried out intensively, even though intermittently, between 1995 and 2006, was concentrated in the Shivpuri district, a rural area of Madhya Pradesh in Central India. This was expanded later on to collect and analyse unpublished and published cases decided by state jurisdictions at the national and transnational level.

Since the end of 2009 I have also carried out fieldwork in Pakistan where I have moved for professional reasons. This move provided the unexpected opportunity to follow and also film proceedings in state courts in Punjab (Multan, Sheikhupura, Kasur, Gujranwala), in Khyberpanktunkhwa (Peshawar and Haripur), in Sindh (Hyderabad), and in Quetta (Balochistan).[1] Concomitantly I am also analysing published and unpublished case law on divorce at the woman’s initiative at the national level. Occasionally, I am furthermore offered insights into the treatment of the above practices both in the Hindu and the Muslim contexts at the transnational level in the UK, and also in the USA, through the practice of expert witnessing either as first-hand data or as experiences shared by colleagues acting as experts in court.

During these seventeen years of longitudinal fieldwork in South Asia my point of observation has changed from focusing almost exclusively on the Hindu communities in India to have a privileged access to family disputes and legal proceedings in Pakistan, including very detailed glimpses on how situations of matrimonial disputes among South Asians are dealt with in the transnational context. I have noticed the discourses about Hindu practices of divorce at the woman’ initiative changing over time – but less so at the grassroots’ level: the biggest changes occurred at the level of the middle and élites class and maybe, as a consequence, considerable changes occurred in the ways these practices were perceived by socio-legal scholarship and by state and non-state activism, which is increasingly embedding in academia.

This paper not only focuses on the recurrent arguments elaborated within the proceedings and the legal practices of divorce at the woman’s initiative among Hindu and Muslim communities in India and in Pakistan, and in the diasporas; it also highlights the decision-making process of the parties and the conditions of divorce at the woman’s initiative acceptance at the legal level – both by state- and non-state jurisdiction; and it will at the same time point out the changes and implications of the ways these practices have been seen, portrayed, and mobilised. Although this paper is not the place to elaborate much on the increasing blurring of boundaries between academic research, advocacy, and activism, comments will also be formulated on the risks of the current development approaches purportedly acting for the empowerment of women in South Asia.

FULL PAPER  in print in Jørgen Choler Nielsen, Werner Menski, and Rubya Mehdi, DJØF: Copenhagen; and in Bulfoni, C. (ed.), Tradizioni religiose e trasformazioni dell’Asia contemporanea, Milano-Roma, Veneranda Biblioteca Ambrosiana-Bulzoni, Asiatica Ambrosiana, 4.


[1] At the time of writing this paper this project is still in progress but one of its first outcomes will be Lady-Judges of Pakistan, an observational documentary-film showing legal proceedings in the Pakistani courts presided over by women judges. The author is also drafting a list of recommendations regarding gender and the legal profession compiled with the collaboration of women judges. Lady-Judges of Pakistan is realised thanks to the support by Agence Nationale de la Recherche, Centre National de la Recherche Scientifique, Centre d’Études Himalayennes, and Lahore University of Management Sciences. For encouragement and logistic support special thanks go to the Judicial Academy and the Supreme Court of Pakistan.

 

Registration of Muslim Marriages – India

The general principle adopted by the Indian courts so far is the direct and indirect evidence for the presumption of marriage on the basis of section 114 Indian Evidence Act, 1872.

Maharashtra, Gujarat, Karnataka, Himachal Pradesh and Andhra Pradesh have provided for compulsory registration of Muslim marriages. Assam, Bihar, West Bengal, Orissa and Meghalaya have provided for voluntary registration of Muslim marriages. In Uttar Pradesh there is a policy providing for compulsory registration of marriages by the Panchayats.

Jammu and Kashmir has adopted a law that provides for registration within 30 days from the nikahnama signature. This law does not seem to be enforced though.

Under the Special Marriage Act, 1954, which applies to Indian citizens irrespective of religion, marriages can be registered by the Marriage Officer but registration is not compulsory.

Precedents:

Mohammed Amin vs Vakil Ahmed AIR 1952 SC 358, Abdul Rasak vs Aga Mahomed Jaffer 31 Ind App. 56 (P.C.), Ghasanfar Ali Khan vs Kaniz Fatima 87 Ind. App. 105 (P.C.), Gokal Chand vs Parveen Kumari AIR 1952 SC 231, Badri Prasad vs Deputy Director of Consolidation AIR 1978 SC 1557).

But Smt. Seema vs Ashwani Kumar, (2006) 2 SCC 578 directed for compulsory marriage registration.

See also Smt. Seema vs Ashwani Kumaron 25 October, 2007

Related Statutes:

Assam Moslem Marriages and Divorce Registration Act, 1935

Orissa Muhammadan Marriages and Divorce Registration Act, 1949

Bengal Muhammadan Marriages and Divorce Registration Act, 1876

Oral Gifts – India

Oral gifts among Muslims are valid if there is a declaration by the donor, acceptance by the donee and possession of the gift. Even though the immovable property right is not registered it is valid according to uncodified Muslim law.

 

Rahia and  Rahia Bibi vs Nasar Ahmad on 23 April, 2010

Shaik Khadaru Masthan vs Smt.Sayyed Fathimun Bee, 13 September, 2007

Gulam Hussain Kutubuddin Maner vs Abdulrashid Abdulrajak Maner J.T. 2000 (10) SC 425: 2000 (8) SCC 587

Sri Ran Niwas Todi & Another vs Bibi Jabrunnissa And Others 6 August 1996 (1996) 6 SCC 444

llah Shamsuddin Naday vs Jaitunbi Makbul Naday (1994) 5 SCC 476

Valie Peedikkandi Katheessa Umma vs Pathakkalan Narayanath Kumhamu, AIR 1964 SC 275

Property rights, gender, and human rights discourses in South Asia

by Livia Holden and Sylvia Vatuk

ABSTRACT

This paper explores and analyses the management of property rights by Muslim women at the level both of customary jurisdictions and of official law-courts in India and in Pakistan in the context of ongoing pressures for developing a global legal framework of human rights. Through a multidisciplinary inquiry combining legal pluralism, feminist methods and collaborative approaches, this paper will investigate the dynamics of the reception, adoption, and implementation of gender equality vis-à-vis property rights in a variety of contexts. This paper will first of all highlight the interplay between customs, personal law, and secular law as ways through which social actors make sense of power, class, gender, and governability. On the basis of published case law and qualitative case study of unreported litigation, when available, this paper will also focus on the multiple interpretative frames of socio-legal narratives to throw light on their implication vis-à-vis legal outcome. The central question of this paper is what are the legal arguments that women develop regarding property rights and what do their legal treatment tell about Muslim law and Muslim identities in South Asia? As such this paper links from a wider perspective to the global movements for human rights in order to see the role of these claims among Muslim communities in South Asia. As a conclusion it will include a scrutiny of the exclusive role of the state for the management of law and dispute resolution.

 

LSA panel: Non-State Law and Governance in South Asia and in the Diasporas

Law and Society Association 2012 International Meeting Honolulu, Hawai’i – 5-8 June 

Livia Holden; Lahore University of Management Sciences (Session Organizer)

Marc Galanter, U. of Wisconsin/London School of Econ & PolSci. (Co-Chair)
Livia Holden, Lahore University of Management Sciences (Co-Chair)
This session focuses on the South Asian networks that act as referents for the settlement of justice in South Asia, and furthermore analyses their translocal legal implications within the South Asian diasporas in terms of governance. The core focus of this workshop is the dynamics of the trust networks that inform the decision-making process concerning the choice of the forum for dispute resolution, especially but not exclusively, in relation to gender and power, and for their relation with governance. How practices of non-state law dispute resolution and their conceptualizations by both the socio-legal scholarship and the general public have been modified or influenced by local and translocal dynamics that have developed in South Asia in the last 40 years? How are those legal practices shaped by the post-colonial instances of the free market? And, what is the role of the geo-political stakeholders in the severance, re-establishment, variation, and perpetuation of trust networks for dispute resolution. Finally: what are the global implications of translocal forum shopping strategies and governance within and beyond the wider inter-Asian scenario of South Asian diasporas?
This workshop welcomes contributions looking at the language of the law by exploring the legal formulations, the arguments and the patterns of litigation within the everyday interactions of trust networks but also encourages multidisciplinary approaches from socio-legal scholars, anthropologists, lawyers, policy makers in a variety of domains, and activists. Authors may use a variety of methods ranging from qualitative to quantitative and including historical, ethnographic, and socio-legal analysis.
Jean-Philippe Dequen, University of London

Alternative Dispute Resolution within India’s Muslim Personal Law System

Mengia S Hong Tschalär, U of Zurich/Columbia U

Muslim Women’s Activists and Gender Reform: Non-State Muslim Women’s Bodies Negotiating Women’s Rights in Postcolonial India

Kalindi Kokal, National Centre for Advocacy StudiesTanta Mukta Gaav Samittee: A State Recognized Effort to Localize Dispute Resolution Forums
 Archana Parashar, Macquarie UniversityReligious Personal Laws as Non-State Laws: Implications for Gender Justice