May 05, 2005

Hindu magistrate, Muslim lawyer trapped in communal divide

Hindu magistrate, Muslim lawyer trapped in communal divide

MALEGAON (MAHARASHTRA), MAY 4: As local police nervously watch, an alleged affair between a Hindu magistrate and Muslim lawyer has flared communal tensions in this teeming Maharashtra town known for its powerlooms and sectarian violence.
Lawyer Noorjehan Mohammed Hussein Ansari (24) and Judicial Magistrate First Class Balasaheb Hiralal Bharaskar (31) were dragged out of a state rest house on March 7 by four Muslim youth who allegedly ‘‘caught them in a compromising position’’.
Ansari initially accused the judge of rape. And Bharaskar, a probationary magistrate with two children, was arrested and removed from service—he was later granted conditional bail.

But now, Ansari says she had accused the judge under duress from police and a local madarsa cleric. She has also withdrawn her complaint and rubbishes the ‘‘story’’ that the town—290 km north of Mumbai and 75 per cent Muslim—has come to accept as the truth.

She says she will now approach the High Court for justice. ‘‘I want an in-depth inquiry into the incident and action taken against the madarsa and the youth,’’ she told The Indian Express.

‘‘How can I have an affair with him (Bharaskar) when I don’t even know him? That day I was taking a walk when some young men chased me and tried to outrage my modesty. I went into the rest house for safety,’’ she says, adding that Bharaskar was actually trying to help her.

The four young men allegedly took the couple to cleric Mufti Mohammed Ismail at the Mohammediya Madarsa ‘‘to do justice’’. Soon, an angry mob gathered there till a police lathicharge restored order. The cleric then handed over the couple to the police and Ansari filed a FIR accusing Bharaskar of raping her several times.
‘‘They took us to the madarsa, where I was forced to file a case of rape. The mufti also asked the magistrate to convert to Islam and marry me but we refused to do so,’’ she says.

In the profession for six months, Ansari is Malegaon’s fifth female Muslim lawyer. The incident has ruined her life and made her insecure, she says.
Bharaskar was a lawyer at Ahmednagar for seven years and became a magistrate after four attempts at passing the examination. He was posted at Malegaon in January. He was not available for comment.

His lawyer, who requested anonymity fearing reprisals, says that the case had been fabricated by the police and the mufti. He insisted Bharaskar had only tried to save Ansari from being beaten up by the young men, who were allegedly stalking her. ‘‘There is no illicit relationship involved,’’ says the lawyer.
The cleric, meanwhile, denies allegations that he had asked Bharaskar to convert or marry the lawyer. ‘‘I told her I could not ask anyone to convert as it’s a personal decision,” says Ismail.

Malegaon SP Raj Vardhan says the case is under investigation. ‘‘The truth will come out,’’ he says.

Take them out of seventh century

Balbir K Punj

The Malegaon 'scandal' involving a lady Muslim lawyer and a Hindu Magistrate that made six-column front page news in a national daily (The Indian Express, May 5, 2005) is a presage of doom, should Islam prevail over other parts of India. Such an incident occurring in an otherwise predominantly Hindu State like Maharashtra makes one apprehensive about the state of affairs in Muslim-dominated parts of Assam, West Bengal, Bihar, Uttar Pradesh, etc.

On March 7, a 24-year-old lady Muslim lawyer Noorjehan Ansari and Class I Judicial Magistrate Balasaheb Hiralal Bharaskar-who were then recently posted at Malegaon-were dragged out of a State rest house by four Muslim youth who had allegedly "caught them in a compromising position". They took them not to the Police but to the mufti (Muslim jurist or counsel, popularly known as Qazi), Mohammed Ismail of the local madarsa for 'justice'.

Noorjehan had initially accused Magistrate Bharaskar of rape, which led to his imprisonment and termination of service. But now the truth has come out as the accused, driven by scruples of conscience (one assumes), has decided to spill the beans. She now says that she had accused the Magistrate, a complete stranger to her, under duress by the police and the mufti. The Magistrate, far from harming her was actually trying to help her. On that fateful day, when she was taking a walk, some young men chased her and tried to outrage her modesty. She took shelter in the rest house for safety. But soon four of those men barged into the rest house and took the woman along with the Magistrate to the mufti with an ulterior motive.

She also informed that the mufti had told Bharaskar to convert to Islam and marry her, and only then he could be spared. The Qazi now denies the allegation of coercion for conversion. But those familiar with Islamic history have reason to feel otherwise. All through the Islamic era, Kings and Qazis offered Hindu subjects guilty of offending Muslims, absolution from offence on condition of accepting Islam. Such torment was meted out to Guru Teg Bahadur, Bhai Mati Das, Vir Hakikat Rai before they preferred Martyrdom.

So after all tall claims of post-modernism and progressiveness, are we moving towards a medieval India, bedevilled by increasing aggressions of Islam? The model nikahnamah (marriage code) released by All India Personal Law Board was recently in news. I am not going into the nitty-gritty of the nikahnamah which might be one and a half step forward for those who lag by hundreds of miles. But it underlines the prominent role of Qazis in Muslim divorce cases.

In 'secular' India, none except a Muslim can practice polygamy. A marriage can be solemnised by a priest but can be annulled by a court of law, in a process that is often protracted, acrimonious and expensive. But for Muslims, not even a cleric is necessary to dissolve a marriage. Mere utterance of the word talaq thrice would do. The model nikahnamah has chosen to retain triple talaq as an integral part of the sharia, though simultaneous utterance is now counselled against.

In matters of criminal law, Indian Muslims have conveniently parted ways with the sharia and accepted being governed by the law of the land. Otherwise, a Muslim might lose his right arm for stealing, or be publicly stoned to death for committing a rape. Such medieval barbaric penalties are still prevalent in some Arab countries. But they have kept personal laws out of the purview of the state's law. When Allahabad High Court in 1994 denounced the power of a Muslim husband to throw his wife out by uttering talaq-talaq-talaq as contrary in spirit to the Indian Constitution, the highly agitated ulema said that no attempt to interfere with the sharia would be allowed. Independent India has tolerated all these under the name of 'secularism'.

The Shah Bano Case (1985) exemplified the extent to which 'secular' India could buckle under pressure of the ulemas. The Rajiv Gandhi Government that enjoyed three-fourth majority in the Parliament got the Supreme Court's order abrogated through Muslim Women (Protection of Rights on Divorce) Act, 1986. The Supreme Court had held that a divorced Muslim woman was entitled to get maintenance from her husband under 125 CPC. Shah Bano's husband Mohammed Ahmed Khan had argued that marriage under the sharia being a contract, he was not liable to give her maintenance.

I shall not dwell on the legal merit and inadequacy of the MW (PRD) Act, 1986. But it is a fact that Congress buckled under the ulema who deemed Supreme Court's verdict an attack on Islam. The fundamentalists' muscle flexing was evident -there would be some direct action if the law were to prevail in place of the sharia.

In days of the British rule, a counsel of the Muslim offender who killed a Hindu (Kafir) used to argue that the accused had done no wrong according to the precepts of the sharia. Lawyers as eminent as Asif Ali had reasoned so. The British judges who had established the modern legal system in India, of course rejected such arguments. Today we hear of Jamiat-e-Ulema-e-Hind openly raising the demand for establishment of sharia courts throughout the country.

While there is dishonesty in the Indian establishment's approach, the AIMPLB modus operandi smells of conspiracy. Population control, for the umpteenth time now, has been repudiated as counter-Islamic. Maulana Rabey Hasni Nadwi, Chairman, AIMPLB had categorically declared so after Census 2001 became public. How is it that several self-assured Muslim countries in the world have long done away with polygamy, Wakf, whilst also implementing family planning? Family planning seems Islamic when a Muslim is the absolute master and Islam prevails. But it seems blasphemous in a Dar-ul-Harb (enemy territory or non-Islamic land) which is yet to be converted into a Dar-ul-Islam (land of Islam). In a democracy where each individual has just one vote, the most effective strategy to gain back India as Dar-ul-Islam is to procreate more.

It is naive of 'secularists' to argue that the desire for reform must come from within the society. Sadly, they display no interest to understand Islam, the only religion that has defied any change for the last 1400 years. There can be no reformer in Islam since Allah says in the Qur'an, "This day, I have perfected your religion for you, completed My favour upon you, and have chosen for you Islam as your religion." (sura-5 ayat-3). So there can be innovation in religion. Its latest craze is to take the world back to seventh century Arabia. Indeed there are some moderate and progressive Muslim countries that were influenced by the West in the 19th and 20th century. But things are regressing now.

The Indian 'welfare state', in the name of 'secularism', has allowed two sets of laws, education system and women's rights to exist. This has kept mullah-bound Muslims poor, unhygienic, uneducated and unemancipated. Mullahs only concern is to spread the sway of Islam, without really improving the daily lives of its folks. This 'secularism' has now become a nuisance widening the chasms between Muslims and the remaining society. A society bereft of reforms becomes ntolerant and aggressive. India will paradoxically do the biggest disservice to its pluralist ethos if it allows such orthodoxy to flourish and impinge upon others' lives. We cannot prove our love for Muslims by feigning a predilection for its orthodoxy. To love the patient is not to love his disease.

(The writer, a Rajya Sabha MP and Convener of BJP's Think Tank can be contacted at

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