Religion and law

If Muslim women want to reform personal law, why isn't the Indian state listening to them?

Muslim women in India want progressive laws, but the Indian state would rather take dictation from the conservative men on the All India Muslim Personal Law Board.

A survey of almost 5,000 Muslim women across 10 states, recording their views on Muslim personal law reveals some striking truths about the status of Muslim women and their desire for a more progressive legal code than what the Indian state currently offers them.

The study has been conducted by the Bharatiya Muslim Mahila Andolan, a nongovernmental organisation working for the rights of Muslim women. Breaking a number of stereotypes about how Muslims view the status quo in personal law, it indicts both the men within the Muslim community as well as the Indian state for their failure to listen to Muslim women.

Here are some of the key take-aways from the survey.

Women who want the age of marriage for girls to be above 18: 76%
Underage marriage is a major concern amongst Muslims and has been for some time now. Back in 1927, Mohamed Ali Jinnah, representing Bombay city, had to fight a stiff battle with conservative Muslims in order to get the Child Marriage Restraint Act of 1929 passed, which fixed the legal age of marriage of girls at 15 and for boys at 18 for Muslims. Things have, since then, become worse in the subcontinent: in March 2014, Pakistan moved to increase the marriageable age to 18 and 21, respectively. Just like in 1927, the mullahs opposed it but unlike earlier, this time they won – the bill is still in limbo.

Of course, as this shows, there is support for the move amongst women themselves but progress is barred by conservative Muslims and a state which prefers not to take them on.

Women who want the provision of polygyny removed: 92%
Polygyny is a bogey for the Hindutva brigade in India. In fact, the mistaken belief that polygyny leads to higher birth rates in the principal reason why the Sangh Parivar is such a strong votary of the uniform civil code. (This after, ironically, stridently opposing Nehru’s efforts at codifying Hindu law).

On the ground, though, Muslims have the least incidence of polygyny in India, not withstanding the law. That apart, the polygyny provision should still be removed to give women equal rights with men on paper. Turkey, a Muslim-majority country abolished polygyny way back in 1926, so there’s a concrete precedence for Indian Muslims to follow.

Women who want a ban on oral/unilateral divorce: 92%
Possibly the most widely known example of how terrible personal law can be in India for Muslim women, triple talaq leaves women extremely vulnerable since it places all the power for ending a marriage in the hands of the husband, who mostly also has economic power as well.

There has been some progress on this. In the 2002 Shamim Ara case, for example, the Supreme Court took measures to reduce the arbitrary nature of the Triple Talaq provision in Muslim Law and to regulate it, thus somewhat strengthening the position of a Muslim wife. This year, a committee on the status of women, set up by the Manmohan Singh government in 2013, recommended a ban on the Muslim practice of unilateral, oral divorce (triple talaq), arguing that it makes women “extremely vulnerable and insecure regarding their marital status".

This should be a quick win since even conservative Muslim clerics agree that triple talaq is against the provisions of Islam. The fact that the Indian state still persists with it, shows how apathetic it is to the concerns of Muslim women.

Women who believe that codification of Muslim family law will help women get justice: 83%
Again, another quick win that the state has simply ignored since it simply doesn’t care. Right now, Muslim law in India is not codified. It is up to the discretion of the judge hearing the case to pick and chose what exactly is the law to be applied. Remember, there is no one single entity called Sharia Law. Each sect, each school of jurisprudence and even each community has their own version of sharia. Without codification, in court, it is mostly the stronger party, that is the male side, that benefits from the fluidity of the law.

There are no religious objections to codifying law. Codification isn’t UCC, so there is no bogey of “Hindu Law” than can be applied. But, of course, the state really couldn’t be bothered.

The reverse situation exists in Bangladesh, where Hindu Law hasn’t been codified but Muslim law has been. The broad principle is the same: the state couldn’t give two hoots for the rights of a minority but has taken great care to ensure the best possible legal framework for the majority.

Women who have never heard of the All India Muslim Personal Law Board: 96%
The All India Muslim Personal Law Board is the all-knowing group that sits in judgment of Indian Muslim law. Amazingly, it is not a government body: it is a nongovernmental organisation, formed as late as 1973. It is a measure of the strength of a small vanguard of conservative Muslims that this private, completely unrepresentative body can, with such rare confidence, parley with, and indeed dictate to, the Indian state as an authentic authority on Muslim law.

Its unrepresentative nature can be seen from the fact that in the survey, only 4% of women had even heard of the body that decides their personal laws on their behalf.

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