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Sharia Law in India

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softwareNerd

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Split from another thread.

...sharia law has been in force in India since independence.
Someone who isn't familiar with Indian law would misinterpret this to mean that sharia is applicable as it is in muslim countries like Saudi Arabia. Actually, the form and context in which Sharia is used in India is extremely benign.

In India, Sharia law does not apply to criminal law, nor does it apply to regular contract law. Basically, it applies to marriage contracts that people entered into qua Muslims and to inheritances of people who are Muslims. The idea behind this is simple. When someone gets married they can draw up a specific contract. However, most people would find this tedious. Instead of having a single standardized marriage contract, Indian law allows a couple to marry under a few different standardized contracts. If one wishes, one can use the standard civil contract. If one prefers the Muslim route, one can marry as a muslim under the muslim contract (e.g. pre-deciding a potential future alimony at the time of marriage, so as not to debate it later). If one wishes, one can be married under the Hindu Marriage Act. I could be mistaken, but I think there is also a separate act that is used by the "Syrian Christians" in India. Often -- at least among modern Indians -- people get married under the civil act, but also get a priest to perform a ceremony.

Similarly, for inheritance, traditional Hindu families lived in "joint families" and some property was assumed to be commonly owed by the "Hindu Undivided Family (HUF)". The HUF laws simply recognize the existing implicit contract and also provide a way to unwind and keep personal assets separate -- kind of like laws related to titling of property.

Further, though the drafters of these Indian laws looked to priests and custom for their basis, once the law is encoded, it is meted out by a secular court. There is an advisory body of Muslims who say how the law ought to be changed, but there is no recourse to priests for specific cases.

So, the practice in India is to allow for different "standardized interpretations" of these types of implicit agreements based on religion, while allowing people to opt out. This practice predates independence. It comes from the British era. I think it was pretty smart of the British to have adopted this: have a uniform Penal code, a uniform contract law, and respect existing implicit contracts in marriage and inheritance, based on prevailing norms in each community.

Edited by softwareNerd
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So, the practice in India is to allow for different "standardized interpretations" of these types of implicit agreements based on religion, while allowing people to opt out. This practice predates independence. It comes from the British era. I think it was pretty smart of the British to have adopted this: have a uniform Penal code, a uniform contract law, and respect existing implicit contracts in marriage and inheritance, based on prevailing norms in each community.

Actually I am quite surprised reading the above lines as this imples that multi-culturalism is good. :worry:

I think that the personal law boards must be scrapped immediately and a uniform civil law should come into place, but I know I may look like this: :lol: and I know not many Indians will agree with me. :P

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It means that the peoples of a nation and their way of life are determined by their blood inheritance rather than their brains or intelligence. Good bye individual freedom. :huh:
Okay, thanks for the clarification. (Though, the way you describe it, one would not be able to say that "multiculturalism is good", just that it is true or false.)

These laws acknowledge that people from different communities follow different legal conventions. It is not an issue of whether these are good conventions. From a legal viewpoint, if these conventions do not violate rights they may be upheld. Now, some of these conventions cannot be allowed to continue: so, no more chopping off hands for stealing. However, other conventions are not right-violating. E.g., if someone wants to agree on a divorce-price at the time of marriage, there's no rights-violation in that. In fact, it's just a different legal mechanism, and may even have some merits.

If the law were to force people to follow a certain religion, or if the law did not provide opt-out options like "civil marriage", then it would violate rights. As such, the contexts where India applies such laws is pretty constrained.

Take a similar example. Suppose the U.S. were to merge with another country, which followed the French Napoleonic system of justice. It would be fine to allow certain elements of that system to remain in place, if they do not violate rights. This does not imply that the French must necessarily have a system of their own, just that they do. Allowing such a system to remain is not a bow to multiculturalism. It is a bow to existing practice and existing understanding of family contracts.

The Indian system is not saying: this law is good for Muslims and this other one is good for Hindus. Rather, it is saying that Muslims have a certain implicit understanding when they enter into a marriage contract. Hindus have a different type of understanding. If they do not have such an understanding, they can go the civil route.

The problems that do arise with this system is that many people are ignorant of the law. If I get married in a way that the courts assume that I am agreeing to Hindu conventions, but I think that I am agreeing to Muslim ones, or to civil ones, then the real fault is in my ignorance of the law.

Much worse than the application of these conventions to family law is the new Hindu assertiveness that has disallowed religious conversions. That is the true threat to individual freedom.

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Okay, thanks for the clarification. (Though, the way you describe it, one would not be able to say that "multiculturalism is good", just that it is true or false.)
Yes, but do you have an alternative definition of it?

These laws acknowledge that people from different communities follow different legal conventions. It is not an issue of whether these are good conventions. From a legal viewpoint, if these conventions do not violate rights they may be upheld. Now, some of these conventions cannot be allowed to continue: so, no more chopping off hands for stealing. However, other conventions are not right-violating. E.g., if someone wants to agree on a divorce-price at the time of marriage, there's no rights-violation in that. In fact, it's just a different legal mechanism, and may even have some merits.
I am sorry, but I think sharia law is barbaric and it does not have any merits whatsoever, just as the Hindu scriptural laws are not valid today.

Take a similar example. Suppose the U.S. were to merge with another country, which followed the French Napoleonic system of justice. It would be fine to allow certain elements of that system to remain in place, if they do not violate rights. This does not imply that the French must necessarily have a system of their own, just that they do. Allowing such a system to remain is not a bow to multiculturalism. It is a bow to existing practice and existing understanding of family contracts.
But unfortunately, India has never "merged" with any country. All the people in India (including muslims) have been living there for thousands of years. In such a case, maintaining communal differences and claiming to be a "secular" state (as the Indian constitution does) is absurd.

Much worse than the application of these conventions to family law is the new Hindu assertiveness that has disallowed religious conversions. That is the true threat to individual freedom.
IMO, this may be a strawman. Just substituting one mystical irrationality with another is stupid. In fact I think the lack of freedom for individuals who criticise religions is a more dangerous trend in India as we are seeing with the recent Islamic cartoons and Pope controversies. I support the so-called "new Hindu assertiveness" as it actually allows for individual freedom in trying to continue in the same religion as they are born. Anyway, I would like to see India move past religion of all sorts and adopt genuine secualrism in all aspects of life. Edited by Whoisjohngalt
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Okay, let me try this another way. Let us say that India does away with Muslim marriage law. Now, having done away with it, let's suppose a Muslim couple want to get married and want to draw up a specific marriage contract, with terms and conditions of their own choosing. Also, suppose they get many of their ideas about their contract from traditional Muslim law. Let's say they codify this in their marriage contract. Suppose they agree on a mechanism that would indicate divorce (e.g., three un-coerced declarations of a desire to divorce by either side, made without any intervening reconciliation, and each not made less than a day apart); also suppose they decide that in the event of such a divorce the husband will pay the wife a lump-sum amount of Rupees 5 million.

Note, I am speaking of a private contract with some conditions, not a standard contract recognized as being standard. If we assume that the contract does not contain clauses allowing the guy to beat his wife and such, do you think the law should uphold the terms of that private contract?

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Okay, let me try this another way. Let us say that India does away with Muslim marriage law. Now, having done away with it, let's suppose a Muslim couple want to get married and want to draw up a specific marriage contract, with terms and conditions of their own choosing. Also, suppose they get many of their ideas about their contract from traditional Muslim law. Let's say they codify this in their marriage contract. Suppose they agree on a mechanism that would indicate divorce (e.g., three un-coerced declarations of a desire to divorce by either side, made without any intervening reconciliation, and each not made less than a day apart); also suppose they decide that in the event of such a divorce the husband will pay the wife a lump-sum amount of Rupees 5 million.

Note, I am speaking of a private contract with some conditions, not a standard contract recognized as being standard. If we assume that the contract does not contain clauses allowing the guy to beat his wife and such, do you think the law should uphold the terms of that private contract?

I don't know ehat you are driving at, but I think you are talking about religious freedom here. Thats a different issue altogether. IMO religious freedom along with freedom of speech and freedom of thought should increase in India. What do you think? BTW, read up on sharia at http://en.wikipedia.org/wiki/Sharia. There is nothing worse than this for either muslims or non-muslims. This is barbaric and deserves to be left in the medieval ages. Edited by Whoisjohngalt
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No, I'm not speaking of freedom of religion as such (thoughb it is closely related). I am asking about the freedom of two individuals to make a contract that they think is fit (assuming that the contract does not contain violence, etc.). In the case of a marriage contract, should the government insist on a single set of rules, or should a couple be allowed to frame their own contract.

As for Sharia, I'd like to make it clear that I think it is evil. However, there is Saudi sharia and there is Malaysian sharia and there is the tiny sliver of sharia that is practice under Indian law. I am only talking about the Indian verson.

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No, I'm not speaking of freedom of religion as such (thoughb it is closely related). I am asking about the freedom of two individuals to make a contract that they think is fit (assuming that the contract does not contain violence, etc.). In the case of a marriage contract, should the government insist on a single set of rules, or should a couple be allowed to frame their own contract.

As for Sharia, I'd like to make it clear that I think it is evil. However, there is Saudi sharia and there is Malaysian sharia and there is the tiny sliver of sharia that is practice under Indian law. I am only talking about the Indian verson.

Actually, I know of many muslim men in India with multiple wives. What do you think of this? As to your question, as long as the couple make rational arrangements in the contract, I don't see why I'd oppose the existence of multiple types of marriage contracts, although I don't know the status of this kind of law in other non-Islamic democratic countries.
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Actually, I know of many muslim men in India with multiple wives. What do you think of this?
If adult men and women want to be in this type of contractual arrangement with each other, I don't see why the government should object.

..., as long as the couple make rational arrangements in the contract, I don't see why I'd oppose the existence of multiple types of marriage contracts, ...
Is rationality the legal standard or is individual rights the standard? For instance, if a billionaire signs a prenuptial agreement with a penniless fiancee promising her half his fortune if they are divorced for any reason whatever, would the law need to make a judgement of whether that is rational or irrational? Or, is it enough for the law to say it will be upheld as a valid contract as no rights were violated in its making?
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If adult men and women want to be in this type of contractual arrangement with each other, I don't see why the government should object.
Ok.

Is rationality the legal standard or is individual rights the standard? For instance, if a billionaire signs a prenuptial agreement with a penniless fiancee promising her half his fortune if they are divorced for any reason whatever, would the law need to make a judgement of whether that is rational or irrational? Or, is it enough for the law to say it will be upheld as a valid contract as no rights were violated in its making?
I think the 2nd option would be the right one. BTW should these posts be moved into a seperate thread?
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