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Critical Reflections on Muslim Marriage and Personal Law in India

Qudsiya Contractor (qudsiya.contractor@gmail.com) is a Fellow at the India-China Institute, The New School University, New York.

Marriage and Its Discontents: Women, Islam and the Law in India by Sylvia Vatuk, New Delhi: Women Unlimited, 2017; pp xviii + 273, ₹ 650.

 

This collection of essays, written by Sylvia Vatuk and published over a span of 15 years (2001–15), is based on ethnographic and archival research among Muslims in Chennai and Hydera­bad. It was inspired by an increasing unease with the prevailing tendency of popular journalistic and scholarly literature of condemning the fate of Muslim women to the personal law regime that “governs” them —where polygamy and unilateral divorce leave them bereft of any means of support, should their marriage be dissolved.

A central concern for most of the essays (with an exception or two) is the question of what happens if a marriage ends up in disarray; especially when the couple faces one another in a civil court, before a community council, the jamat or the imam of their neighbourhood mosque or in the office of a local qazi. During the course of her research, the author found it rare for a woman to directly file a civil lawsuit or make a criminal complaint against her husband or in-laws, unless she is led to do so by members of a non-governmental organisation (NGO) working on woman’s issues or is taken there by a male relative who is familiar with the ways of the judicial system.

Examining Stereotypes

The book addresses the need to examine the empirical basis for widespread stereotypes about Muslim women suffering under the oppressive burden of personal law and thereby, perhaps, finding a way of undermining some of the strength of the prevailing rhetoric. The essays based on years of research explore Indian Muslim women’s use of both civil and religious judicial institutions to resist patriarchal domination within their homes and in the society at large.

The essays also provide a close look at whether and how the Muslim Personal Law (MPL) impacts the efforts of Muslim women to accommodate and/or overcome the constraints and disabilities to which they are subjected in a heavily male-dominated legal and social milieu. Vatuk’s purpose is to broaden her investigations of how women fare under the MPL by looking into the role of non-state religious bodies in the administration of Islamic law.

Chapter 6 of the book on “Change and Continuity in Marriage Alliance Patterns” provides some interesting insights into the persistence of endogamy even as parentally arranged marriages are giving way to so-called “arranged love marriages” among South Indian Sunni Muslims of the Nawwayat quam (community) (pp 196–219). Khandan (clan) endogamy is still widely practised while Dravidian-type customary preferential marriages are considered safe, congenial, useful, convenient and ideologically satisfying in a globalised world.

Chapter 3 on “The Cancer of Dowry” explores how a growing anti-dowry rhetoric in the 1980s moved to the centre stage as “an object of social critique by the general Muslim public as well as by social reform-minded religious authorities and institutions” (p 93).

Vatuk presents here a careful reading of the Muslim press revealing a Muslim critique of the system despite the antiquated rhetoric. These, she argues, recall some of the views of much earlier Muslim reformers in the subcontinent, who wished to purge Muslim lives of a wide range of customary rituals and ceremonial observances (rasum) such as jahez, len-den, citanam (derived from the word stri+dhan or women’s wealth). Anti-dowry rhetoric conceptualised these as they represented cultural “borrowings” of “survivals” from pre-Islamic or Hindu modes of worship and life cycle ceremonies. They, therefore, had to be avoided because they had no religious sanction in the scripture, and even involved activities contrary to the dictates of Islam. While this discourse maintained that the social consequences of participating in dowry transactions are deplorable, it differed in that its appeal for reform relied on an appeal to historical origins, rather than to overall societal well-being or gender justice.

Chapter 7 looks into why marital relationships end up in dissolution. The author attributes these to a gap that frequently exists between “the partners’ religious and cultural expectations of what a marriage should be and the reality of life for Muslim men and women in India today” (pp 220–21). The author argues that divorce stories can shed light on the nature and dynamics of contemporary marriage, the cultural construction of the institution itself and the challenges that partners face in trying to perform “their assigned gendered roles which in Islamic discourse are unproblematically complementary, but in practice are highly asymmetrical” (p 221).

The author emphasises that contrary to popular perception, Muslims remain married to their first spouses till death does them part; although, there are no hard statistics to either support or refute this notion. Some expectations within marriage tend to contradict provisions of Islamic law such as a woman’s legitimate grievance with her husband taking a second wife. Being sexually faithful is an expectation that many Muslim women reciprocate and demand from their husbands despite religious law, clerical authorities and the male-led community being tolerant to the latter’s adultery.

Divorce Initiated by Women

Chapter 4 indicates how khul or divorce initiated by the woman has received negligible scholarly attention, yet it contributes to a significant proportion of divorces among Vatuk’s findings. The author presents evidence from divorce files maintained by qazis in Hyderabad in which “cases of khul clearly dominate over cases of talaq” (p 138). Khul does meet the needs of many women who are willing to address their financial insecurities and stand up to societal attitudes towards divorce.

Although khul does take a woman’s choice in a marriage into consideration, it still requires her to persuade her husband to act on her request in order to sucessfully end a marriage, while a man by pronouncing talaq, can act entirely of his own will and initiate to dissolve the marriage. Whether khul empowers women to exert their independent agency or makes them vulnerable to manipulation putting them at a serious disadvantage is still a matter of debate. A lot might still depend upon their relative “bargaining power” within the marriage vis-à-vis the husband. The author suggests that further detailed ethnographic research to supplement the investigation of archival records has the scope to reveal more.

Approach towards Women

Chapters 1 and 2 mention that a “paternali­stic” approach towards women and their needs, permeates the legal process, in particular, the manner in which personal laws are administered in practice in the lower courts. More often the concern is about preserving her status as a “respectable” and “chaste” woman rather than upholding her rights within the marriage. A legal discourse of “rights” is thus transformed into a discourse of “welfare” whose defining terms are set, not by the woman herself, but by her counsellor, her advocate, the judge, and in the last analysis, by the realities imposed by the society within which she lives. Chapter 8 mentions that there has been an increasing willingness of magistrates in courts to order state Wakf Boards to provide maintenance stipends to destitute Muslim divorcees, although there have been some difficulties in implementing these directives.

Nonetheless, the number of women being helped in this way is steadily increasing. In Chapter 5 on “Islamic Feminism in India,” Vatuk looks at how as an approach, Islamic feminism holds considerable promise for improving the legal lot of Muslim women although merely seeking to obtain rights provided to them in the Quran might not achieve complete equality of the sexes.

This is a timely book based on empirical data that deals with debates that are back in the focus with a Hindutva propagating right-wing government in power for whom establishing a uniform civil code has been of priority. The original essays have been revised and appear as chapters arranged in a chronological order of their original publication. This may not have been the best way to address the issue at hand. Some background of the Muslims of Chennai and Hyderabad, especially those communities that were part of the study, would have helped.

The book points to the need for further comparative research to understand the way the Indian personal law system works and to what extent one civil code has in practice any clear advantage over the others in terms of their impact on women’s well-being. What are the gaps between text and practice in Muslim marriages? What is changing? What are the challenges of the new times? What are the expectations of the younger gener­ations from marital life? Do they contradict the Islamic tradition? How is the role of the state envisaged?

The rhetoric around divorce continues to remain synonymous to Muslim marital life. Unlike the Congress, which during Shah Bano’s very public legal battle for maintenance favoured “secular” national unity over minority rights, the BJP seems to be clearer in its imagination of a Hindu-majority nation where the Muslim male needs to be subdued and disciplined when it comes to upholding Muslim women’s rights. The book could have gained by providing an updated context to the tensions that exist between legal safeguards, group rights and women’s autonomy especially since the research spans a considerable 15 years. The book has no conclusion, which could have been a conscious decision by the author.

The book provides a comprehensive and detailed analysis of Muslim personal law and the experience of divorce. It is good for students, practitioners and academics seeking to understand the challenges of the MPL.

 

Updated On : 7th Dec, 2018

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