Muslim Women and Personal Law in India: Debates and Struggles

Indian Muslim Women

There are three things that should be noted in the debates related to Muslim personal laws. First, the diversity of Muslim women’s living conditions. Two, the characteristics of Islam. Third, the constitution and laws of the countries where Muslims live. By integrating and considering these three things, we need to devise political programs that provide justice and equal opportunities for Muslim women. A detailed debate should be opened after appropriating all these realities. It is mentioned in the book ‘Gender and Equality in Muslim Family Law: Justice and Ethics in the Islamic Legal tradition’, edited by Mir Hussaini, that the historical diversity of Islamic law, which is a part of Islamic Sharia itself, should be counted in present debates.

Parliament session has sparked new controversies on issues such as the Uniform Civil Code, the gender status of Muslim women and the right to self-determination of the Muslim minority. Independent Muslim women’s organization called Bharatiya Muslim Mahila Andolan has conducted a nationwide campaign against oppression of Indian Muslim women. They advocated reforming Muslim personal law by banning anti-women Muslim personal laws. In view of this case and the subsequent debate, two main types of reactions have emerged.

One: To protect Muslim women from anti-feminist personal laws, a single civil code should be implemented banning personal laws. This view is advanced by right-wing nationalists and some religious/secular feminists.

Two: Against this, various Muslim organizations, thinkers and feminists who are part of mass politics came forward and argued for the protection of Muslim personal law.

In this context, Flavia Agnes and Nivedita Menon, leading voices in the field of women’s politics in India, observe that not a single feminist civil code, but a Hinduized code, is trying to be imposed on India’s minority marginalized community, and should be countered. It is very clear that even feminists in India are moving away from pure individualism that obscures Hindu upper class women’s privileges and are now talking about structures including community.

In this situation, the equation of Muslim personal law and women’s rights needs to be analysed a little more closely. Ever since the much-discussed Shah Bano case of 1985, the demand for a single civil code to protect Muslim women from the barbarities of anti-modern religious law has been growing. Divorced after forty-three years of marriage in 1978, sixty-two-year-old Shah Bano filed a petition in the Madhya Pradesh Indore Magistrate’s Court seeking maintenance from her husband. Although the judgment came in their favour, they appealed to the High Court to get a little more alimony. The High Court increased the alimony to Rs.179.20. But her husband, Muhammad Ahmad Khan, filed a petition in the Supreme Court on the basis that under Muslim personal law, no alimony is payable after the first three months of divorce (technically known as iddah).

But the Supreme Court also ruled in Shah Bano’s favour, according to Section 125 of the Criminal Procedure Act, 1973. All India Muslim organizations came forward declaring that this verdict is a challenge to the very existence of Muslim personal law. In February 1986 as a result of the meeting Muslim leaders had with then Prime Minister Rajiv Gandhi (Muslim women (Protection of Rights on Divorce) Act) came into force. Accordingly, the Muslim woman was exempted from the benefit of Criminal Procedure Code 125 and the period for payment of alimony was reduced to three months (idda period). Various women’s organizations and writers have come forward pointing out that this violates the rights given to women by the constitution.

However, the Muslim Women (Protection of Rights to Divorce) Act has created confusion in adjudicating the matter by requiring settlements to be paid within three months in many of the later cases. That is, it was not possible to arrive at a unilateral decision as to whether the alimony should be paid for three months only or for the future.

Danial Latifi case

Shah Bano’s lawyer Danial Latifi filed a public interest petition in the Supreme Court questioning the validity of the Muslim Women (Protection of Divorce) Act. Although the judgment of the case came in 2001, the Danial Latifi case played a major role in bringing a new dimension to the Muslim Women (Protection of Divorce) Act. The Supreme Court ruled that alimony should be paid after taking into account the settlement amount after the three-month period.

The Dania Latifi case is notable for several reasons.

One: Muslim organizations including the Muslim Personal Law Board have not publicly protestested against this judgement . But Flavia Agnes criticizes the mainstream media for not giving enough attention to the verdict. Because with this ruling, there was no opportunity for a political controversy, because the ruling was malleable for all.

Two: If you study the judgment of Danial Latifi case, Nivedita Menon observes how progressive it is from the condition of Hindu women who have to undergo chastity test every month to get alimony under the existing Hindu code bill.

A comparison of Sha Banu, Danial Latifi and Shayara Banu cases will make it clear that the judgments are being discussed in our public sphere in many ways. Court judgments themselves are used in many ways as part of political debate here. The current public debate on this issue, however, stems from ignorance of the history of legal debates about Muslim women. The stereotype of the victimized Muslim woman has always been a part of our public imagination. Court rulings contradicting it make news, but different court rulings in this regard go unnoticed. A comparative study of the Sha Banu, Danial Latifi and Shayara Banu cases shows that the Muslim community or community organizations have not adopted uniform approaches to all court judgments.

As Flavia Agnes points out, there have already been several court rulings invalidating triple talaq. Danial Latifi case is not an exception. Notable among them are the judgment of Guwahati High Court in 1981 before the Shah Banocase and the judgment of the Shamim Ara case in 2002. These provide an explanation of the divorce procedure based on Islamic principles. A mediation session involving both parties must be convened before a divorce can be filed. Then the divorce should be announced in front of witnesses. Then after the three-month Idda period, if there is no possibility of reunification, the divorce becomes complete. It should be noted that dowry violence and other domestic violence come under the scope of Domestic Violence Act, 2005 and should not be confused with personal law. In this way, Flavia Agnes questions the logic of politicizing personal problem in the family as the problem of Muslim women and the community as a whole. Moreover, the selective use of law and court judgment itself reveals its bias.

What Flavia Agnes says links Muslim personal law debates to a more detailed political context.  It helps us to see the debate about Muslim personal law as a problem of the development of modernity through the law of the nation, and also as a problem of modern structures of power such as the nation, nationhood, the state, colonial modernity, and the politics of law. Therefore, it does not seem possible to reduce the civil code debate  to the absolute sense to the problem of pre-modern religion and modern gender politics.

Politics of Uniform Civil Code

Uniform Civil Code debate is aligned with the political interests of Hindu Rashtra construction through the formulation of upper caste Hindu nationalism. Social acceptance for this goal has been achieved by creating a common sense of ‘Indianizing’ the Muslim and Christian communities. It helps to assess the Single Civil Code as part of modern power struggles in Indian politics, apart from being simply a Muslim women’s rights issue. Part of these modern power struggles is the Muslim Personal Law Board, which is now accused of standing in direct opposition to the interests of Muslim woman in the public imagination.

For example, let us examine how the All India Muslim Personal Law Board was constituted. In 1972, HR Gokhale, the Law Minister in Indira Gandhi’s cabinet, presented the demand for a general adoption law in Parliament. He argued that it should be applied equally to all communities. On the adopted child till he reaches the age of majority Muslim personal law dictates that adoptees have the right to be legal guardians. Various Muslim organizations and religious leaders have viewed the move by law minister as an action that disregards instructions in the Muslim Personal Law. As a result of Muslim leaders coming together to discuss this, the All India Muslim Personal Law Board came into existence in 1973, raising the demand that Muslim personal law should be protected. The political and constitutional rights of the Muslim minority in India were part of the board’s founding objectives. This politics of communal self-determination is also the background of the violent anti-Muslim riots in India in the late sixties.

Later, in the Shah Bano case, Justice YV Chandrachud’s remarks criticizing the Muslim Personal Law caused another controversy. Before that, in 1984, the Madras High Court and Justice Krishna Iyer, from the perspective of social justice, had ruled in favour of Muslim women for monthly alimony. None of these have caused controversy. At that time, no Muslim organization had ever come with a protest like today. But why the Shah Banocase became controversial politically? What is its background?

Two main things determine the uniform civil code debate today. Both are issues of national self-determination that haunted the very formation of the Indian nation-state and its colonial history. By analysing them, a different picture will be available for the debate on the single civil code.

Doctrinal struggles, Babri Masjid and Shah Bano case

A.G. Noorani says in his study ‘The Muslims of India: A Documentary Record’ that the Shah Bano case and the Muslim Women’s Act implemented after that should be analysed in conjunction with the opening of the doors of the Babri Masjid in Ayodhya to Hindus. On March 8, 1986, on Shivaratri, Rajiv Gandhi decided to open the gates of the Babri Masjid saying that it was the birthplace of Ram. Just before this, in the month of February, Rajiv Gandhi passed the Muslim Women’s Bill in the Parliament. Left and right elite Hindu consciousness in India believed that Rajiv Gandhi was appeasing the Muslim community. The Ram Janmabhoomi Mukti Samiti led by the Vishwa Hindu Parishad is in this situation resolved the decision to open the gates of Masjid by force protesting Muslim appeasement politics of Congress.

In this context, Muslim leaders saw the decision to open the doors of the Babri Masjid to the Vishwa Hindu Parishad as part of Rajiv Gandhi’s political move rather than religious commitment. The VHP alleged that the decision to pass the Muslim Women’s Bill was like Rajiv Gandhi repeating the mistakes made by Gandhi and Nehru in the case of Muhammad Ali Jinnah. So, under the pressure of VHP, Rajiv Gandhi opened the Babri Masjid to them the very next month.

There is another background to this. In the 1980s, when the Dalit masses began to self-organize, the power of Hindu Brahminical politics declined with the conversion of Dalits to Islam in Tamil Nadu’s Meenakshipuram. Noorani also observes that with this the Sangh Parivar forces started devising new strategies for Hindu unification. Babari mobilization was a move against Dalit Bahujan  politics. It is a part of this that the Shah Bano case, unlike many other similar cases, has become a big political controversy and joins political issues including the Babri Masjid. To link it only to gender politics is a historical misreading.

Therefore, those working in the field of Muslim women’s politics in India should adopt an intersectional approach. The Shah Bano case opens up the possibility of Islamic feminist politics. That is, the history of the Shah Bano case urges us to contextually and specifically address the multiple structures of alienation and oppression of Muslim women without simply reducing the critique to the fact that Muslim women are oppressed by men in the Muslim community in all times and places. This is a recognition historically achieved by at least some sections of feminist politics in India. But in saying this we must develop some clear understanding of the workings of Muslim personal law. Let’s give some pointers for that.

The Origin and Development of Personal Law in the Modern Nation

The current uniform civil code promotes the politics of Hindu caste supremacy. India’s neo-democratic polity has reached some degree of consensus on this issue. Along with that, the possibility of decolonizing existing Muslim personal law as a by-product of colonial legislation needs to be examined.

The codification of personal laws was implemented by the British nation-state during the colonial era, rejecting pluralism within various communities. Subsequently, the post-colonial Indian constitution recognized the personal laws of five communities such as Hindu, Muslim, Christian, Parsi, and Jew and the tribal laws of Hindus. Marriage, divorce, inheritance, alimony, guardianship, adoption, death certificate etc. are specifically covered by personal laws. Rajeshwari Sundar Rajan in her article ‘Women between Community and State: Some Implications of the Uniform Civil Code Debates in India’ has assessed that all community laws in general retain a male-centric and anti-feminist character.

At the same time, the tendency to read Muslim personal law as the embodiment of Shria has to be challenged. That is, we need to understand the changes coming to Sharia in the modern administrative system of nation-state. For example, Hallaq observes that the law was conceived in pre-modern Islamic societies as a means to achieve the ethical and moral goals intended by the Shariah and the administrative systems that were part of that society. But, later it was apportioned by states to get the leeway of legitimization among the civil society.

But as the colonial nations gained dominance over the Muslim social/administrative system, the legal aspect of Sharia gained importance and its moral and ethical purpose was forgotten. Sharia has been reduced to the politics of legislation that is the cornerstone of modern nation-states. We should note that the studies of the likes of Hallaq point out that Sharia is an ethical and moral framework that modern regimes failed to assimilate . These differences are historical insights that must be considered in discussions of what Sharia has to do with the Muslim individuals today.

Unfortunately, in the tumult of modern political controversy, the intellectual probity and thoughtfulness necessary to engage in such discussions are not available today. The media that controls all this does not even inquire how the majority of Muslim women live in Islam. Thus, the space to see the Muslim women’s problem from within Islam shrinks and the Muslim women’s life is reduced to the state and legislation.

The way forward

The above discussion clarifies two things. One of them is that today’s Muslim personal law is  a creation of colonial modernity. At the same time, the second fact is that the uniform civil code debate going on now is a re-creation of Upper caste morals. Therefore, in today’s situation, while rejecting the Uniform Civil Code completely, we need to reject the colonial construction of Muslim personal law. In his study ‘Speaking in God’s Name : Islamic Law, Authority and Women’, Khalid Abou El Fadl says that the current nature of Muslim personal law does not even consider the rights given to women by Islamic Sharia. But Muslim/non-Muslim women’s institutions also suffer from limitations in addressing this conflict.

An important voice in Islamic feminist politics, Ziba Mir-Hosseini, an Iranian Islamic feminist who has done extensive research on issues of women’s authority within Islamic law, has studied Muslim personal law in various parts of the world and proposed alternatives. Their propositions generally provide significant insights for those working in the field of Muslim women’s politics in India.

Ziba Mir-Hosseini argues that the basis of injustice in extant interpretations of Islamic law is not divine, but a construct of male jurists. This, they say, creates two possibilities: epistemological and political. The first point of view of Ziba Mir-Hosseini is that many of the laws that are now considered as part of Sharia are only the views and social habits of some Muslim communities and Muslim men and therefore, they can be subject to change. Second, it frees Muslims from adopting a defensive stance and helps them to transcend old Islamic legal frameworks and discover new questions and answers.

There are three things that should be noted in the debates related to Muslim personal laws. First, the diversity of Muslim women’s living conditions. Two, the characteristics of Islam. Third, the constitution and laws of the countries where Muslims live. By integrating and considering these three things, we need to devise political programs that provide justice and equal opportunities for Muslim women. A detailed debate should be opened after appropriating all these realities. It is mentioned in the book ‘Gender and Equality in Muslim Family Law: Justice and Ethics in the Islamic Legal tradition’, edited by Mir Hussaini, that the historical diversity of Islamic law, which is a part of Islamic Sharia itself, should be counted in present debates.

Grace Mubashir is a PhD scholar at Jamia Millia Islamia, exploring the issues of law and Muslim women in India.

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