Jinnah And A Controversial Marriage

It is well known that Pakistan founder Mohammad Ali Jinnah argued for a politically sensitive case involving a Kashmir marriage in 1936 and won it. But how he won the case and was he ever paid are the two issues that M J Aslam has tackled in this write-up

In his autobiography Blazing Chinar, Sheikh Mohammad Abdullah briefly mentions of an interesting criminal case of the 1930s (see Mohammad Ali Jinnah and Myself pp 220-231). It does not divulge the full facts of the case.

The details are here: Hanifa Begum’s first husband had died of police firing in September 1931. She had been, then, married to one Abdul Kabir and subsequently, to Mirza Mehr Ali. Abdul Kabir had filed a criminal complaint under section 494 of the Ranbir Penal Code (dealing with an offence of marrying an already married woman) against both Hanifa and Mehr Ali.

The lower court had convicted Hanifa while acquitting Mehr Ali for want of knowledge. The lower court’s order was assailed by Mehr Ali in appeal before the High Court at Srinagar with Shri Birju Dalal as its Chief Justice. The case was earlier argued in the trial court by Afzal Beigh who had lost it there. It was thought to be a hopeless case on facts. During that period, Mohammad Ali Jinnah was on a vacation trip in Srinagar. It was 1936 and Jinnah was on the second visit to Kashmir. He was accompanied by his sister, Fatima Jinnah, and they were staying in a houseboat at Shivpora, Srinagar.

Since Jinnah was a lawyer of great eminence and the case was very complicated virtually beyond the competence of Afzal Beigh to defend in the High Court, Sheikh Abdullah along with him (Afzal Beigh) approached Jinnah to accept the brief of the case for defending it before the Court of Chief Justice. Blazing Chinar states that “after we (Sheikh Abdullah and Afzal Beigh) had briefed him on the case, Jinnah demanded a fee of Rs 1000 per attendance at court. Mirza Mehr Ali was not in a position to pay such a huge fee; we tried to persuade him to reduce it. That would go against his professional ethics, said he…….We had to submit to his terms”.

On the day of the hearing, Jinnah argued the case and won it on the very first hearing that “demonstrated his legal prowess……Jinnah’s legalistic hair-splitting did it all and he won the case elucidating a very subtle point…..relating to Islamic calendar”. [Ibid, pages 220-221]

The Courtroom was flooded with people drawn from almost every section of the society, lawyers, government-employees on leave, shopkeepers having shut their shops, students and the duo of Sheikh Abdullah and Beigh. [see Muhammad Yousuf Saraf, Kashmiris Fight for Freedom (2009 edition) vol one, pages 620-621]

In the words of Sheikh, what was that razor-sharp legal acumen that Jinnah had used that took everyone in the Courtroom by surprise? In Islam, it may be noted, a widow can remarry only after observing Iddat, which is a period of four months and ten days from the date of death of her husband. The question was whether Hanifa had remarried Abdul Kabir during the period of Iddat. If so, then that marriage was null and void under the Islamic law and her marriage with Mehr Ali was valid.

Conversely, marriage with Mehr Ali was invalid and, hence, the complaint under section 494 genuine. Jinnah came to the Courtroom without books and argued that the Iddat period of four months and ten days under the Islamic law was to be counted in lunar months only when death of a husband takes place on first of the “lunar month” otherwise it had to be counted as 130 days simple, one may say according to solar calendar. He argued further that, in the case, the Iddat period was to be calculated according to the latter rule of 130 days simple and applying it to the case, the marriage of Hanifa with Abdul Kabir (complainant) was during the Iddat period. Hence, it was null and void, while her marriage with Mehr Ali was valid in the Shariat. The whole audience was left agape with joy and jubilation. Chief Justice asked: “Mr Jinnah. Is there any authority?” He replied: “My Lord. I am the authority”. [Ibid]

Now, coming to the allegation that Jinnah sought an exorbitant professional fee from a poor man. The allegation flies in the face of the auto-biographer himself for several sound reasons.

Firstly, Muhammad Yousuf Saraf, former Chief Justice of the High Court of Pakistan administered Kashmir (PaK) writes about the said case that Jinnah was on holiday vacation in Kashmir during which he would never accept any case nor argue it. But, Mehr Ali had persuaded him to accept his brief as he was a staunch follower of the Muslim Conference. On hearing the facts, Jinnah agreed to accept the brief and, at the same time, he declined to accept any fee. Saraf writes that Mehr Ali personally told him this. [Ibid, pages 620-621]. Saraf’s book was first published in 1977, in Lahore and was available throughout the world. Blazing Chinar (Atash e Chinar) was first published in 1985 and its author was duty-bound to rebut the Saraf if it was false. The misrepresentation dictated in great haste before his death to M Y Teng, who penned down the autobiography, had political reasons.

Secondly, the biographer of Jinnah, Hector Bolitho, after extensive research, has narrated many episodes that speak loud and clear about Jinnah’s probity as a professional lawyer.

“Once, when a client was referred to him, the solicitor mentioned that the man had limited money with which to fight the case. Nevertheless, Jinnah took it up. He lost but he still had faith in the case and he said that it should be taken to the Appeal Court. The solicitor again mentioned that his client had no money. Jinnah pressed him to defray certain of the appeal expenses out of his own pocket and promised to fight the case without any fee for himself. This time, he won; but, when the solicitor offered him a fee, Jinnah refused arguing that he had accepted the case on the condition that there was no fee,” writes Hector Bolitho, author of 60 other books. “There was a client who was so pleased with Jinnah’s services in a case, that he sent him an additional fee. Jinnah returned it, with a note, ‘This is the amount you paid me. This was the fee… Here is the balance.” [Hector Bolitho, Jinnah: The Creator of Pakistan (1954), pages 18-19]

Thirdly, Edgar Snow, internationally acclaimed American journalist and author, has noted that even if one appraised Jinnah as a barrister, it was to acknowledge that he had won the most monumental judgment in the history of the Bar. (The Dawn, September 11, 2017) So, is he credited with getting acquittal order of Congress leader Bal Gangadhar Tilak in a sedition case in appeal (AIR 1916 Bom 9 = (1917) 19 Bom LR 211), from the Bombay Court?

Another Jinnah biographer, Stanley Wolpert, (see Jinnah of Pakistan, (1984) page 29) holds a high opinion about his professional integrity: He “was a most accomplished lawyer, outstanding amongst Indian lawyers and a fine constitutionalist”.

Pak Today dated January 30, 2017, quotes Sir Stafford Cripps Frank Mores, the then Editor, Indian Express, once writing: “Watch him in the courtroom as he argues his case. Few lawyers can command a more attentive audience. No man is more adroit in presenting his case. If to achieve the maximum result with minimum effort is the hallmark of artistry, Mr Jinnah is an artist in his craft. He likes to get down to the bare bones of his brief in stating the essentials of his case. His manner is masterly”.

Fourthly, Raj Mohan Gandhi has similar narratives of high professional ethics and upright behaviour of Jinnah to tell. In Towards Understanding Muslim Mind (1986, pp 123-186) Jaswant Singh, India’s former Foreign Minister, writes that Jinnah’s reputation as a lawyer was formidable. On the strength of his capability in conducting cases, he had won a handsome practice and to achieve this in the company of eminent lawyers of those times was a testimonial to his abilities as an advocate, to his determination and his character.

(Author is an academic, story-teller and freelance columnist. Presently, AVP at JK Bank. Views in this write-up are completely personal, not of the organisation the author works for or writes for.)