Shumaila’s Story

A recent Delhi High Court ruling upholding a 15-year-old girl’s right to be with her husband has triggered a debate on the issue of Islam and child marriage.

Written by Uma Vishnu | Published: August 26, 2012 1:30:28 am

On the night of April 12,2011,when her parents were away,Shumaila told her little brother she would be back soon and quietly slipped the latch on. She frantically looked for her slippers,couldn’t find them,so stepped outside barefoot where her lover Mehtab stood waiting for her.

Two days later,her parents filed an FIR with the police,accusing Mehtab of kidnapping their daughter. They also told the police that Shumaila had left with Rs 1.5 lakh in cash and that their youngest son,five-year-old Altamas,had seen her open the iron trunk in their home and take out the money that Shumaila’s father Afzaal,a property dealer,had kept after a recently finalised deal.

Mehtab and Shumaila had eloped,one of the countless such cases that enter police records as ‘kidnappings’. Except that in this case,Shumaila was yet to turn 15 and Mehtab was a few years older at 21. A recent Delhi High Court ruling,where the judges quoted from earlier rulings and “Mohammedan law” while upholding Shumaila’s right to be with Mehtab,now her husband,has triggered a debate on whether Islam sanctions child marriage or if the judgment would only serve to provide legal sanctity to child marriages among Muslims.

The case

Mehtab worked with a scrap dealer in Delhi’s Old Mustafabad,in a house opposite Shumaila’s in Gali No. 26. The two had soon exchanged glances and phone numbers and she spent long hours whispering into the phone,says Shumaila. She says her father Afzaal sometimes asked her who she was talking to,but it was easy—she would simply say it was her friend Tabassum on the line.

A year after her daughter had eloped,Shumaila’s mother Tahra Begum filed a petition in the Delhi High Court,seeking a writ of habeas corpus to produce Shumaila in court. By then,Shumaila and Mehtab were married and were in his family home in Dotai village,Hapur,Uttar Pradesh. On April 18 this year,Shumaila appeared before the court,four months pregnant,and said that she had gone with Mehtab on her own. While the court decided on her case,Shumaila was sent to Nirmal Chhaya,a children’s home in Delhi.

On May 9,the court disposed of Tahra Begum’s petition and ruled that a “Muslim girl who has attained puberty,i.e. 15 years,can marry and such a marriage would not be a void marriage”. However,the court said,she has the option of calling off her marriage or treating it as “voidable” when she turns 18. The court also said Mehtab,Shumaila and either of her in-laws will have to appear before the Child Welfare Committee in east Delhi’s Dilshad Garden every six months till Shumaila turns 18.

Shumaila and Mehtab

“Ab to Dotai mein mann lag gaya. Pehle Dilli accha lagta tha (I am happy in Dotai now. Earlier,I used to like Delhi),” says Shumaila,now 16,seven months pregnant and veiled,sitting with Mehtab in the one-room house that shares a courtyard with the extended Chaudhury family. The fan in the room groans to a halt. “Phir se bijli gayi,” says someone in the courtyard. Shumaila,pearls of sweat on her brow,talks of how she met Mehtab,the night she slipped out of the house,the day her father came to meet her at Nirmal Chhaya and how she had,with a straight face,told him that she wanted to go back to Mehtab. Did she cry? “Kabhi nahin. Main to hasti rahi (Never. I always kept smiling).” Indeed,the smile never leaves her. She is,after all,just 16.

Mehtab,with his boyish looks,hair chicly brushed,rarely smiling,interrupts to blame Shumaila’s mother for hounding them,for accusing him of theft,for the trauma his family went through. “Batao,tumhari maa ne kaha nahin tha ki mujhe jail mein dalenge (Didn’t your mother say she will get me arrested)?”

From Delhi,Shumaila and he went to Jaipur,he says. Shumaila’s parents got his brother,who worked with him in Delhi’s Old Mustafabad,arrested and later his father Nanoo when he came to Delhi to enquire about his son,says Mehtab. It was finally his sister who got in touch with him and told him to come home with Shumaila. He says they moved continuously to avoid the police—Jaipur,Meerut,Moradabad (where they had a nikah) and finally to Allahabad for a court marriage in August 2011.

“By then,the police traced my call records and got my sister arrested. That’s when I decided to come back to Dotai,” says Mehtab.

“The family went through a lot of trouble,” says Mehtab’s father Nanoo. “We could have sent Shumaila back. But she didn’t want to go and then,we were scared. What if something happens to her and we are blamed for it? Par Mehtab ne kaam to sahi nahi kiya (But Mehtab hasn’t done the right thing).”

Mehtab,a school dropout,now works with a relative at a saw mill. Nanoo and his wife had to file an affidavit in court saying they would take care of Shumaila.

Does she miss home? Her siblings? “No,” she smiles. Does she have a message for her parents? “Bas yeh keh dijiye ki Shumaila apne sasural mein khush hai (Just tell them Shumaila is happy).”

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Old Mustafabad is on the fringes of the capital. The road that enters this east Delhi colony has its uncertainties—blocked one minute,a freeway of upturned earth the other. The only order here is in the numbered galis that fork out of this road. It was from here,Gali No 26,that Shumaila left that April night with Mehtab.

“Shumaila ke chakkar mein sab kho diya. We lost everything—our house,car,” says Shumaila’s mother Tahra. The family has since changed addresses,they now live in a brick-walled,one-room rented house in Gali No 5.

They accuse Mehtab and his friend Tabassum of instigating Shumaila. “That night,Tabassum came home and took Rs 1.5 lakh from this trunk here. My child would have never done such a thing on her own. She was not even 15 then. None of my five children would ever do such a thing,” says Tahra. “Four children,” interrupts Afzaal. “Let’s leave out Shumaila.”

They say they had no inkling of Shumaila’s relationship and that they hadn’t met Mehtab till the case began. They are now “scared” for Shumaila. “Dotai is a dangerous village. I hope she is safe. She made us suffer a lot. Now that she will be a mother soon,she will realise what children mean to their parents,” says Tahra,opening a trunk to show a new salwar-kurta she had tailored for Shumaila.

Child bride or a woman’s right?

Shumaila’s was a case of elopement. She was young,pretty,a school dropout with enough energy and time to dribble away and found Mehtab,who worked right across the road,irresistibly attractive. But what made this case stand out was the court ruling.

A division bench of Justices

S Ravindra Bhat and S P Garg upheld the right of the 15-year-old to live with her husband. The judgment read,“This Court notes that according to Mohammedan Law,a girl can marry without the consent of her parents once she attains the age of puberty and she has the right to reside with her husband even if she is below the age.”

To arrive at their decision,the judges cited earlier judgments and said that besides Muslim laws,such cases even meet the provisions of the Prohibition of Child Marriage Act. According to the judges,the Act stipulates that every child marriage “shall be voidable at the option of the contracting party who was a child at the time of marriage. This is in consonance with the principle under Muslim law where a minor has the option of annulment of marriage on her attaining the age of majority/puberty. The principle is well-known and is commonly referred to as the option of puberty or khiyar-al-bulugh. This clearly indicates that the marriage of a ‘child’ is not void but voidable.”

While the All India Democratic Women’s Association issued a statement condemning the judgment,the All India Muslim Personal Law Board was among the first to hail the ruling.

And so,Shumaila,15 and some months old then and pregnant,went with Mehtab. Is this a victory for women’s rights,as some scholars see it,or a judgment that sees a child being pushed into a role she may not have been ready for,even if that is what she chose for herself?

Maimoona Mollah of AIDWA says the definition of “child” needs a better interpretation. “A ‘child’ is not merely a girl who has not attained puberty but she is a child also in terms of her mental age,maturity etc. There is a need to revise the age of marriage. I see no harm in respecting the law of the land and fixing 18 as the minimum age for marriage for Muslim girls,” says Mollah.

But wasn’t the court simply relying on Muslim personal laws,by which the community is governed?

“I cannot fault the court because it could not have gone beyond existing laws. Therefore,the only solution is to amend the laws and codify the Muslim Personal Law in accordance with the Quran and Prophetic teachings. Apart from this,The Prohibition of Child Marriage Act,2006,must also be amended to void all child marriages ab initio. At present they are only “voidable” and not “void,” says A Faizur Rahman,Secretary-General,Islamic Forum for the Promotion of Moderate Thought.

The Quran,says Rahman,does not prescribe any age for marriage. “But in verse 4:6 it makes it very clear that the age of marriage is the age when a person shows unmistakable signs of intellectual maturity (rushd). The Quran also describes (in 4:21) marriage as a contract. Therefore,the question of the validity of child marriage in Islam does not arise because,a) a 15-year-old does not possess the intellectual maturity to take an informed decision on her marriage,and b) for a contract to be legally binding,both parties have to be adults. A contract cannot be entered into between two minors or between an adult and a minor.”

Shaista Amber,president of the All India Muslim Women Personal Law Board,calls the judgment “progressive’ in that it “upholds women’s rights” but says the Quran lays emphasis on “education and on securing the child’s future”.

“First of all,we are not talking of women’s rights here. A 15-year-old girl is a child and not a woman. Muslim scholars in India must seriously consider bringing the Muslim Personal Law in conformity with the Quran and the authentic teachings of Prophet Muhammad and fix 18 as the age of marriage for Muslim girls,” says Rahman.

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