Where is her home?

My first reaction is to look for my answers in the text of the Quran. The two Surahs which speak to me about women in Islam are Surah Al Baqr and Surah Al Nisa,the second and fourth Surahs of the Quran. So I tried to view this judgment through the lens of these two Surahs. What is the Quranic injunction about the age of puberty and the age of marriage?

First,let us look at the judgment. The division bench of Justices S. Ravindra Bhat and S.P. Garg ruled in favour of upholding the right of the 15-year-old girl Shumaila to live with her husband Mehtab. Her parents had filed a habeas corpus writ petition alleging their daughter had been kidnapped by Mehtab who had also stolen money from them. The bench quoted the Mohammedan Law which allows a girl to marry without her parents consent after attaining puberty. But recognising the delicacy of the case,they ruled that certain safeguards had to be placed to protect the girl. These included the condition that when she turned 18,she could,if she so wished,declare the marriage void.

This judgment led to the usual social buzz in media channels regarding rights of women in Islam and the appropriateness of the high court judgment. Views were polarised along the expected lines of condemnation and approbation,most of them,regrettably,for the wrong reasons.

To understand this issue from an Islamic context,I sought guidance from the two Surahs. I wanted to find out the context within which Islam,although prescribing no fixed age,permits marriage after puberty. I looked for the Islamic view of marriage; especially for women. In this regard,I found verse after verse about the relationship of men and women,in marriage,divorce and inheritance. In short,I found a wealth of directives on interpersonal relations in marriage. The overall spirit I derived from the texts was that all believers,men and women,must exercise utmost consideration in their conduct with each other. A few examples form the Surahs will suffice.

In case of divorce,men are asked not to take anything back from women that they have given them during their married life,not even if it is a “heap of gold”. Again,in case of divorce,men are asked to let the women go “in kindness” and never retain them “to cause them hurt”. It goes on to say: “He who doeth that hath wronged his soul”. In the same Surah,the highest status is given to women in these words: “Be careful of your duty towards Allah in whom you claim your rights of one another,and towards the wombs that bore you”.

The Quran was revealed 1,500 years ago in pre-Islamic society,which held women in highest contempt and often the girl child was buried at birth. In that social context,Islam created a revolution by giving rights to women,including property rights,which are detailed in a manner that no one who professes the religion can afford to ignore. I could go on,but the point is that none of the anti-gender labels given to Islam could have stuck to Islam had we allowed its adherents to understand it in their own light. What sticks is what we have done to its teachings. We have created an impression of the religion with little resemblance to what I find in the pages of the Quran.

The Quran did not stipulate the precise age of marriage for girls or boys,but by giving priority to education (the most important word of the Quran is “Iqra”,meaning “Read”),indicated its direction. It also enjoined that women should have a right to their own earnings,implying that women were free to work and earn. This pointed the way for women to be equipped to deal with their lives as persons. If this is not women’s empowerment embedded within the religion,I don’t know what else it is. This calls for a nuanced reading and understanding of Islam instead of using every excuse to berate the religion.

Coming back to the case of Shumaila,she stated before the court that she wanted to stay with her husband and had no desire to go back to her parents. This was a difficult situation,which the court handled with care. The judgment protected her dignity by allowing her to go with her husband. It also protected her future by giving her the option of declaring the marriage void,if upon attaining adulthood at 18,she felt she had made a mistake. Had the court ordered her back to her parents’ home,how would that uphold women’s rights?

Last year,during a seminar in Lucknow,Vrinda Grover,lawyer and my friend,showed me a judgment of the Karnataka high court in a similar case. Both parties in this case were Hindus; the parents of the girl had filed a habeas corpus petition. The court declared that,in the case of a girl under 21,it is mandatory that the approval of both parents be obtained. Otherwise,the marriage is voidable,adding that “girls under 21 years of age suffer from hormonal imbalance,fall in love with boys,marry and repent at leisure”. The boy was thereby arrested and the girl sent back with the parents.

Both cases and judgments are in the public domain. I will rest my case with all those who read this piece.

The writer is a member of the Planning Commission