Prophet Remark Row (From a Socio-Legal Viewpoint)

Prophet remark row from a socio legal viewpoint

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The Article ‘Prophet remark row (from a socio-legal viewpoint)’  is an outlook of the author on the remark passed by the BJP spokesperson about Prophet Mohammad and his wife Aisha. The article elucidates that time acts as the major cause of all the societal changes. There can be seen a change in the age of marriage even among Hindus and this can be clearly understood from the manuscript. The idea to criticize the prophet for marrying a young girl is not worthful and it’s just not relevant to make an unfair comparison and be a part of abusing someone’s religion. Even there are penal provisions available in India for the violation of religious sentiments of an individual or a community.

Author(s): Saumitra Anand & Prithu Shukla

Prophet remark row: Introduction

The row over Gyanvapi Mosque still goes on while a fresh fodder for discord is launched which finds Prophet Muhammad and Aisha – his third wife, in the mix.

On 26th May 2022 a BJP spokesperson (now suspended) passed a remark on Prophet Muhammad in midst of a hot exchange with a fellow panellist while on a news debate.

The crux of her statement was that she pointed out that Prophet Muhammed had married Aisha when she was 6 years of age and consummated the marriage when she was nine. Even though what Ms. Sharma was trying to insinuate is unclear but her comment caused resentment in a section of the Islamic community, been fodder for the news debates, and has piqued some gulf countries.

The age of Aisha at the time of marriage has been a subject of discussion and controversy among Islamic scholars. However, Hadiths which are considered to be an important source of Muslim Law in Sahih Hadith which is considered an authentic source of Islamic history, mention that the Prophet married Aisha when she was 6 and consummated the marriage when she was 9.

The time when the Prophet lived was an epoch when it was not uncommon to marry a girl at a young age and in the later developments of Islam, the Sunnah of the Prophet suggests that there was an insistence on puberty and maturity before marriage.

Age of Marriage in Ancient Hindu Society

If we look for references for the suggested age of marriage in ancient Hindu society, we find in Manusmriti, a prominent Dharmasastra of Hinduism, a dictate in Chapter 9 verse 94:

” A man, aged thirty years, shall marry a maiden of twelve who pleases him, or a man of twenty-four a girl eight years of age; if (the performance of) his duties would (otherwise) be impeded, (he must marry) sooner.”

This signifies that the prevalent social norms in the early society made it permissible for a man to take a wife at a fairly young age as the wife and what seems unacceptable in this day and age was accepted as valid at a point of time in history.

Legal Maxims: Emphasis on the dynamic aspect of societal changes 

The law adopts a similar policy contained in the maxim:

Nova constitutio futuris formam imponere debet non praeteritis, i.e. a new law ought to regulate what is to follow, not the past. Though there are exceptions possible in certain circumstances relating to procedural law and the like, an event in history ought not to be put to test, ex post facto, on the touchstone of standards of rightness or wrongness evolved centuries later in the course of human development through the ages.

To get at the raison d’etre of disparity in law with respect to certain acts being treated as right or wrong at different points of time, another legal maxim shows the way:

Distinguenda sunt tempora; distingue tempora, et concordabis leges, i.e., ‘Times must be distinguished; distinguish times, and you will reconcile  laws.’ So in order to appreciate the difference in laws of different times, we must first differentiate between the prevailing social circumstances.

In moral relativism, moral truth or justification is relative to culture or society, opinion, social context, and a number of other factors and two distinct moral realities ought not to be contrasted or one should not be judged on the scale of social conditions of another era.

Therefore, the law seeks peaceful co-existence and harmonization of laws in different times for a peaceful society.

As far as the spokesperson’s comment is concerned, being an official spokesperson of the party in government she ought to have exercised discretion in making statements that have the tendency to insult a religion or religious beliefs.

Although several FIRs have been lodged against her and law enforcement is seized of the matter, the law agencies would investigate the intent behind the comment and determine whether the act is to be prosecuted.

Is there any penal provision that prescribes punishment for insulting a religion?

Section 295-A of the Indian Penal Code penalizes acts insulting or which attempt to insult the religion or the religious beliefs of any class of citizens of India, but for that, there must be a deliberate and malicious intention of outraging religious feelings.

It is now for the law enforcement and eventually the court to take stock of her intent and to decide if she is to be penalized under Section 295A or under any other offence and the law will take its course. In the meanwhile, she has issued an apology and has also been suspended from her position in the party, but unfortunately, riots have still erupted in several parts of the country in the last few days.

With divisive politics at play and the media fanning the flames and at times setting it up, India’s social fabric is put to test on a daily basis. It has withstood till now but is thinning out as we keep chasing red herrings while there are several elephants in the newsroom waiting to be addressed.

Author(s): Saumitra Anand & Prithu Shukla
(Saumitra Anand is an advocate based in Prayagraj
and Prithu Shukla is a Law Student in his 3 rd Year at
Faculty of Law, University of Allahabad.)


References

[1]  Maulana Muhammad Ali, The living thoughts of the Prophet Muhammad, Available Here

[2] Merits of the Helpers in Madinah (Ansaar), Available Here

[3] Wedlock, Marriage (Nikaah), Available Here

[4] Hadith found in ‘The Book of Marriage (Kitab Al-Nikah)’ of Sahih Muslim, Available Here


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Author: Saumitra Anand and Prithu Shukla

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