Indian Muslims have always been free to apply their own personal laws – concerning marriage, divorce and inheritance. The Congress upheld legal pluralism, so as not to aggravate the minority. The Bharatiya Janata Party’s Narendra Modi has no such reservations. He is pursuing a Uniform Civil Code, and presents this as a victory for Muslim women.
He’s probably right. A UCC would improve gender equality – if women can claim their equal rights. To do so, they need economic autonomy and public safety.
Under Muslim Personal Law, a man was only obliged to support his divorced wife for three months. After this iddat period, the divorce was complete. He was no longer liable.
In direct contravention of divine law, Indira Gandhi’s government legislated that all divorced women were entitled to maintenance. This 1973 amendment of the Criminal Procedure Code applied to all women, including Muslims.
Claiming her legal rights, Shah Bano, a divorced, elderly woman in Madhya Pradesh, appealed to the Supreme Court. She won in 1985.
Progressive Muslims supported the Supreme Court ruling. Writing to Prime Minister Rajiv Gandhi, they highlighted that divorced women enjoyed the right to maintenance in a number of Muslim countries: Morocco, Iraq, Egypt, Turkey, Libya, Tunisia, Syria and Algeria. Women’s organisations also expressed support.
Conservatives were outraged. The All Indian Muslim Personal Law Board (formed after the amendment to the Criminial Procedure Code) deeply opposed judicial interference. They mobilised huge rallies across the country. In Mumbai, 300,000 marched. They demonstrated that any effort to overrule divine law would be resisted. Keen to preserve their support, Rajiv Gandhi’s government legislated that divorced Muslim women were no longer entitled to maintenance.
Fast-forward 40 years, the BJP is in power. It has no compunctions about aggravating Muslims. Parliament has criminalised triple talaq. A man who repeats “I divorce you” may find himself imprisoned for three years. Heeding concerns from Muslim women, this law provides some protection against desertion and destitution.
But the benefits should not be over-stated. Criminalising triple talaq only means that women are still married to men who would rather abandon them. This is no guarantee of equal respect or resources within marriage. Nor does it reduce sexist violence.
For many, this was just another attempt to hound and persecute Muslim men.
What do Muslim women want?
Muslim women have organised to reform family laws, improve women’s autonomy, and protect them from abuse. In Tamil Nadu, Muslim women organised their own jamaat, independent from male-run mosque committees. STEPS publishes a magazine on Muslim women’s rights, listens to women’s petitions, organises discussions, and provides legal aid.
In Lucknow, they formed an All-India Muslim Women’s Personal Law Board. Several women’s courts have been established by the Bharatiya Muslim Mahila Andolan (Muslim Women’s Movement of India). Female qazis listen and provide advice. As one activist explained,
“There are so many rights given to women in the Qur’an that are not found in the books of any other religion. But the religious authorities mislead people, they misuse their position.. The ulama are an almost entirely male group. They give everything a patriarchal interpretation... interpreting the texts to suit their own interests.”
Would a Uniform Civil Code advance gender equality?
Yes – if women can claim their equal rights. To do so, they need economic autonomy and public safety. But India’s rate of female employment is low and falling. Men go out into the world, run family businesses, migrate to new economic opportunities, and resolve community disputes.
As long as women are economically dependent on male guardians, they’re unlikely to make claims or agitate against them. Hindu women are legally entitled to divorce and alimony, but this does not seem to improve their capacity to leave abusive men. Divorce rates remain very low. Hindu women rarely claim their inheritance – for fear of alienating kin.
Family courts are seen by many women as slow, corrupt, and unsympathetic. Legal cases tend to languish for years, requiring funds that many women do not have. Taking private matters to court is widely considered shameful.
Even if women do approach the courts, keen to file for divorce, they are often encouraged to reunite. “Where will she go? What will she do?” asked one social worker at the Madras Family Court. Even if alimony was duly paid, it would still be insufficient. In Delhi, Hindu women are usually encouraged to reconcile with their abusive husbands. Low female employment and property ownership are major constraints.
Are Muslims more patriarchal?
Muslim women are more much more likely to practise purdah. They are less likely to participate in the labour force, and earn money, find Sonalde Desai and Gheda Temsah, analysing nationally representative data.
But religion makes no difference to women’s household decision-making – concerning what to cook, whether to buy expensive items, how many children to have, their health care, and marriages. Religion makes no difference to female autonomy. It is more freely exercised in the South – as shown by Shireen Jejeebhoy and Zeba Sathar. In terms of child mortality, Muslim families are actually more egalitarian. Muslim daughters have better chances of survival.
The impacts of communal violence
Muslim communities are increasingly ghettoised. Communities seek to protect themselves (especially women) from external attack.
In 2002, a train was burnt in Gujarat, killing 58 Hindu pilgrims. In retaliation, there was sustained communal violence. Women and young girls were stripped, paraded naked, gang-raped, mutilated, quartered and burnt.
“[I] fell behind as I was carrying my son, Faizan. The men caught me from behind and threw me on the ground. Faizan fell from my arms and started crying. My clothes were stripped off by the men and I was left stark naked. One by one the men raped me. All the while I could hear my son crying. I lost count after three. They then cut my foot with a sharp weapon and left me there in that state - Sultani.
My mind was seething with fear and fury. I could do nothing to help my daughter from being assaulted sexually and tortured to death. My daughter was like a flower, still to experience life. Why did they have to do this to her? What kind of men are these? The monsters tore my beloved daughter to pieces. After a while, the mob was saying cut them to pieces, leave no evidence. I saw fires being lit. After some time the mob started leaving. And it became quiet.” – Medina.
By remaining in their ghetto and veiling, Muslim women can mark themselves as community members and secure local protection. By shrinking their worlds, women gain safety.
“The men decided that they did not want their women to go out because it meant crossing the other community’s areas, so the world of the women just shrank.” – Noorjehan Safia Niaz (activist).
“We find that after the riots, many more parents do not want to send their children to school outside the area.” – Shehnaz Shaikh (school principal).
“You can’t do what you want to do. You pursue a job that fits in with their ideas of appropriate timings for girls to be out, so usually you become a teacher.” – Asiya.
Feeling threatened and under siege, Muslim communities have tightened restrictions on women’s mobility and economic autonomy. This constrains women’s capacity to explore the city, loiter with friends, expand their horizons, critique unfair practices, and organise for reforms. Moreover, many Muslim women are reluctant to publicly decry Islamic practices. lest their words be weaponised by the Hindu right.
Islamic organisations such as the Jamaat-e-Islamic have also gained influence by providing crucial relief. Communal violence thus seems to have exacerbated pre-existing inequalities.
In sum, a Uniform Civil Code would advance gender equality – if women can claim their equal rights. To do so, they need economic autonomy and public safety. This holds for Muslim and Hindu women alike.
Alice Evans is a Lecturer at King’s College London, a Faculty Associate at Harvard CID, with previous appointments at Cambridge and the LSE. This article first appeared on her website.