A survey among Muslim women in 10 states threw up startling results. Almost 92 percent wanted talaq to be banned. With an NGO publishing a model nikah namah, are the signs of change on the horizon?
By Ajith Pillai
That the Muslim Personal Law is gender unjust and discriminates against women is well-known and has been arti-culated on several intellectual platforms. But now, perhaps for the first time, an extensive survey has been conducted to give voice to ordinary and marginalized Muslim women about a law that has an important bearing on their marital and adult life. The outcome of the study is not only revealing but should make Muslims as well as lawmakers sit up and introspect.
The survey was conducted among 4,710 Muslim women across 10 states between July and December 2013 by the Bharatiya Muslim Mahila Andolan (BMMA), which describes itself as a “secular, autonomous and rights-based Muslim women’s movement”.
Among the questions asked were: what should be the minimum age for marriage; should men be allowed to keep more than one wife and should the oral system of divorce or triple talaq, which bypasses the established legal system, be banned.
The results of the survey reflect that an overwhelming number of Muslim women are not only against what they feel is an archaic law but they also want the government to codify a new legislation which is non-discriminatory, gender sensitive and relevant to modern times.
The BMMA operates in 12 states and for the survey, its activists and volunteers reached out to respondents in urban and semi-urban centers in Maharashtra, Gujarat, Bihar, Rajasthan, Madhya Pradesh, Jhar-khand, Odisha, West Bengal, Karnataka and Tamil Nadu.
Answers to the BMMA survey reflect the frustration among Muslim women (see graphs) with certain practices followed in the name of the Personal Law. For example, as many as 92.1 percent respondents were against the unilateral or oral divorce system or talaq. They wanted it banned. A sizeable majority, 88.5 percent, wanted the qazi who sends the notice of oral divorce to be
punished. But what came as a surprise was that 95.5 percent of those polled had not even heard about the All India
Muslim Personal Law Board (AIMPLB) which claims to be a representative body of Muslims in the country.
Zakia Soman, one of the co-founders of BMMA, said: “The AIMPLB is only an NGO like any of us. It has simply been given too much importance by the media and politicians. The average Muslim does not recognize it or even know of its existence.” Indeed, for the record, the AIMPLB is a non-government body set up in 1973 “to adopt suitable strategies for the protection and continued applicability of Muslim Personal Law”. But the popular perception is that the organization is a quasi-official one whose reactions must be sought on every Muslim issue.
The AIMPLB, on its part, has been critical of the survey and the conclusions drawn, inclu-ding the one calling for a ban on talaq. Maulana Abdul Raheem Qureshi, spokesperson of the AIMPLB, reportedly had this response: “Which sane Muslim in the country is not aware of the AIMPLB? We are not in favor of tampering with Muslim laws. The Islamic system gives a way out of a difficult marriage—it allows couples a chance of coming out of a bad relationship.” When contacted by India legal, a representative of the AIMPLB refused to elaborate further, saying that he would not like to comment without seeing the survey and could not go by a few sketchy media reports.
That apart, how much credibility should one give to the survey and the organization that conducted it? When contacted by India Legal, activists who work with Muslim wo-men in Gujarat, Mumbai and Delhi vouched for the genuineness of the BMMA, although they differed with it on ideological grounds. “They have fought against communal forces and have taken up issues that affect the lives of Muslim women. So we should not be dismissive of its survey. After all, it confirms that women are fed up with the patriarchy that rules the Muslim clergy and the Personal Law. But will the data be taken as seriously as, say, the study conducted by the Sachar Commission? Was the same rigueur followed in collating the findings? And is codifying the Personal Law of utmost priority today or are there more urgent issues that need to be addressed?” wonders an activist.
She says that the BMMA is unlike other progressive women’s organizations in that it swears by the Quran and feels that any change should be within the framework of the Holy Book. According to another activist, it “holds the Quran in one hand and the Indian constitution in the other”. It believes that the Quran is just and fair to women and that it is its warped interpretation that has caused so much mischief.
Talking about the survey, Soman told India Legal: “It became possible because of our volunteers and team members. They sho-wed the patience to interact with the women and draw them out to answer several sensitive questions. It took us six months to collect the responses.” She says there was nothing political in the survey or the timing of its release in the second week of August. “The survey was carried out in 2013 and it took us time to collate the data and also to finalize the report that accompanies it,” she says.
Law Unto Itself
Instances of flawed notions of right and wrong, with horrifying results
Muslim Personal Law in India is based on the interpretations of Shariat (Islamic laws) and can vary from place to place and from person to person. It largely deals with marriage and family matters, including divorce, custody of children, inheritance of property, etc.
Since it is not codified, women activists complain that the many interpretations of Shariat laws have been extremely patriarchal and biased towards men. It is also alleged that by invoking the Shariat to justify arbitrary interpretations, women have been denied their rights spelt out in the Quran. The Shariat, liberal Muslims point out, is man-made and not divine. But its divinity is invoked to justify unjust acts like triple talaq.
It was in the post-1857 era that the British introduced laws to reform society. In keeping with its divide and rule policy, separate rules were framed for Hindus and Muslims. For the latter, two laws were enacted
—Shariah Application Act, 1937, and the Dissolution of Muslim Marriage Act, 1939.
To put it in a nutshell, the first merely stated that Shariat laws will govern all Muslims. It did not go into specifics but left it to the interpretation of Shariat courts manned by clerics or those given the task of interpreting. The second law empowered women by giving them the right to opt out of a bad marriage on nine counts. Divorce was earlier banned for Muslim women and led to several conversions to other religions to dissolve their marriages.
In post-Independent India, no changes were made. It was the Shah Bano case which created a storm in 1985. The woman from Indore was divorced by her husband in 1978 under the Muslim Personal law. But she approached the courts for maintenance. The case reached the Supreme Court, which ruled in 1985 that under Section 125 of the CrPC, Shah Bano be paid maintenance of
Rs500 per month by her husband. This led to outrage among the Muslim community and the Congress government under Rajiv Gandhi buckled under pressure and passed the Muslim Women (Protection of Rights on Divorce) Act 1986, which virtually overturned the apex court decision.
Under it, the husband is liable to pay alimony for three months after the divorce, following which the woman has to turn to her relatives for financial support. In case they fail to help, the court can order the Wakf Board or the state to provide for the woman and her children. The constitutional validity of the 1986 Act was challenged in 2001 in the Supreme Court. Shariat laws have no legal binding in India and Shariat courts can do nothing more than advise those who approach it. Fatwas passed by them are also mere advisories.
UNFAIR TO WOMEN
In the report, Seeking Justice Within the Family by Dr Noorjehan Safia Niaz and Zakia Soman, the authors point to what they feel is the crux of the problem. To quote: “The Shariat (Islamic laws based on the Quran), as practiced in different parts of the country are subject to multiple interpretations and misrepresentations which more often than not are unfair to women. Often the injunctions in the Quran are violated in the name of the Shariat…. It is not difficult to guess as to what is the perspective and understanding of
some of the men who dispense justice at the Shariat courts across the country! Most of the time the verdicts in family matters end up being unfairly pro-men and anti-women. These can hardly be said to be based on Quranic injunctions.”
The way forward that the BMMA has come up with, after consultations with wo-men from various strata of society as well as legal experts and social activists, is to work within the framework of the Muslim religion and push for a law that is Quran compliant and yet, without the inadequacies and inequalities that the Personal Law has in its current form. A draft Muslim Family Law has already been circulated. “We plan to take it up with the government and with the people. We want the law codified,” says Zakia.
The BMMA has also formulated and published a model nikah namah or marriage contract, which, in contrast to the ones generally used in India, safeguards the rights of both spouses, and is fully in accordance with the Quran. It was framed by a team of Muslim women scholars with the help of the well-known Islamic scholar, the late Dr Asghar Ali Engineer. Several marriages, according to the BMMA, have been conducted in Maharashtra and Gujarat, using this nikah namah.
It remains to be seen if the BMMA’s campaign for a codified Muslim Personal Law will overcome resistance from the clergy and the powerful conservative political lobby within the community.
One issue that the lobby raises is the word “Bharatiya” in the full form of BMMA. But the organization is clear that “Bharatiya” means Indian and it does not believe in allowing Hindutva elements to monopolize the term. Zakia also maintains that she and others associated with the organization are strongly opposed to Hindutva oriented politics and will not allow their campaign to be exploited by vested interests.