Muslim women are disadvantaged by Islamic laws (image courtesy of The Hindu)
Bhartiya Mahila Muslim Andolan (BMMA, or All India Muslim Women’s Movement) is a leading non-governmental organization working for the welfare of Muslim women across India. Recently, BMMA brought out a draft bill to ensure equality and justice for Muslim women by incorporating reforms in Muslim personal laws, which govern marriage, divorce, inheritance and other non-criminal matters among Muslims in India.
However, there is no codified Muslim personal law under which an Indian court can decide such disputes. There are so far British colonial-era laws protecting the authority of Islamic clerics to decide marriage and divorce cases between Indian Muslims. This means that in the absence of a codified Muslim personal law, an Indian court has no say in these matters. Muslim personal laws were written by British colonial rulers before India gained independence in 1947. Under those laws, Indian clerics can decide cases of marriage, divorce, inheritance and other such issues affecting Muslim women. This means that every Islamic cleric in India is practically akin to the country’s Supreme Court.
Muslim women are treated unequally under Muslim personal laws, as a husband can unilaterally divorce his wife or withhold alimony after divorce. A ruling by India’s Supreme Court that redressed the situation in 1986 by granting a destitute Muslim woman Shah Bano alimony was met with nationwide protests by Muslims, who considered it un-Islamic. The then secular government of Prime Minister Rajiv Gandhi bowed to Islamic fundamentalists, enacting a pro-Islam law and overturning the Supreme Court ruling.
The BMMA is trying to get the Indian government to enact a law that is more humane for Muslim women. As part of this attempt, it has drafted a “Muslim Marriage and Divorce Bill.” But an Indian media report on the behind-the-scenes work in preparing the proposed law reveals a Muslim mindset that could prevent the Indian government from enacting the proposed Muslim Marriage and Divorce Bill or passing a uniform Civil Code for all citizens.
Following are excerpts from the press report, which appeared in the leading secular daily The Hindu:
Social Worker Noorjehan Safia Niaz“Middle class (educated) Muslims keep saying: Don’t tamper with Sharia too much; they have well-off families and education to fall back on.”
“Will Muslim personal law make polygamy illegal?
“When the Bhartiya Mahila Muslim Andolan first started working on codifying Muslim personal law, they were unsure whether to ban polygamy or make it conditional. Senior lawyers pointed out that despite bigamy being a crime, Hindu men still took second wives. These women did not enjoy the status of a wife, whereas even the fourth wife of a Muslim man had that status.
“But the final draft of the new (proposed) ‘Muslim Marriage and Divorce Bill’, released in Mumbai on June 18, makes polygamy illegal. Why? ‘That’s what Muslim women wanted,’ says Noorjehan Safia Niaz, co-founder of the BMMA. ‘We played devil’s advocate with them, asking whether a second wife was not necessary if the first one could not conceive, for example. Their answer was always: No. There is no second wife. No woman should have to share her husband with another woman. ‘
“Of the seven years it took to draft this bill, two were spent talking to Muslim women, most of them poor, uneducated and living in ghettos. It was these women who were desperate for change and who were calling on the BMMA to “quickly change the law and give us justice.” But the middle class, who were supposed to be the pioneers of reform, left Noorjehan disillusioned. A US-returned Muslim woman in Hyderabad objected to the BMMA’s proposal to fix 18 and 21 as the minimum age of marriage for women and men respectively. “It should be 18 for both,” she suggested. Muslim lawyers in Karnataka saw nothing wrong with a 13-year-old girl getting married as long as she had reached puberty.
“But on the side streets of Bhopal (a city in the central state of Madhya Pradesh), uneducated Muslim women suggested they be assigned 21 and 25. ‘Our daughters graduate at 21,’ they said. ‘Middle-class Muslims kept saying, ‘Don’t tamper with sharia (Islamic law) too much. They have well-off families and education to fall back on; unjust rulings by qazis (Islamic judges) don’t affect them much,’ Noorjehan said.”
Muslim men told social workers: “You are wearing a sari, you have not covered your head, you are not wearing a burka, so you are not Muslim.”
“What kept the BMMA going was the response of poor women. Consultations were held with them in 10 states where the BMMA has been working, training paralegals as arbitrators and providing legal aid. Men attended their public meetings and a few invariably objected to their dress (“you are wearing a sari, you have not covered your head, you are not wearing a burka, so you are not Muslim”) or their lack of qualifications (“you are not aalims (religious scholars)”). One man from Ranchi who strongly objected to everything later told Noorjehan: “I agree with everything you say, but if I don’t object, I cannot face my jamaat (local religious group/society).” The BMMA took the decision not to consult the All India Personal Law Board or religious organisations. “They have shown that they do not want change.”
“The starting point of this long process was the condition of poor Muslim women, who were victims of the unjust and un-Islamic decisions of the maulanas and qazis (Islamic scholars and Islamic judges). The Muslim Personal Law (Sharia) Implementation Act of 1937 contains no specific provisions to be followed, leaving it to each qazi to decide according to his interpretation of Sharia. The Dissolution of Muslim Marriages Act of 1939 sets out the grounds on which a woman can go to court (for divorce), but few can afford to do so.
“For this reason, reformists like the late (reformist scholar) Asghar Ali Engineer campaigned for years for the need to codify Muslim personal law as per the Quranic precepts, which give women more rights than any other religion. All Islamic countries have brought in modern personal laws. But in India, the move has always met with resistance on three grounds: 1. Sharia cannot be touched; it is divine. 2. It will be impossible to decide which of the four schools of Islamic jurisprudence should be followed in codification. 3. This will be the first step towards enactment of a Uniform Civil Code (UCC).
“As Engineer never tired of explaining, Sharia is based on the Quran, not the Quran. In India, Sharia Law was drafted and enacted by the British. The BMMA worked with Engineer on his draft, choosing to base it on the Quran itself. The draft contains verses from the Quran to support its provisions.”
“The bill outlaws many common practices, including underage marriage, unilateral, oral and instant talaq (divorce), and forcing women to give up their dowry and halala…”
“Thus, in deciding the minimum age for marriage, the Koranic mandate of the ‘maturity’ of spouses was interpreted to include emotional maturity as well as physical maturity. ‘Moreover, in Islam, marriage is a contract, and a contract can only be concluded between two adults,’ says Noorjehan.
“The bill makes many common practices illegal, including underage marriage; unilateral, oral and instant talaq (divorce); forcing a woman to give up her mehr (dowry) and halala, the practice whereby one remarries his divorced wife only after she consummates her marriage with another man and then he divorces her. ‘This (practice of halala) is not mentioned in the Quran, it has become a prostitution racket in places like Lucknow,’ says Noorjehan.
“Is this the right time to release this draft, given the new government’s emphasis on the UCC? (Noorjehan says:) ‘We oppose the UCC. But we also want to know, when will the right time come to get justice for women? Twenty years ago, we were asked to wait while the Babri mosque was being demolished (by extremist Hindus), the community was being attacked. Are women not part of the community? Ten years ago, we were told that the Gujarat pogrom (the 2002 anti-Muslim riots) had taken place. Can these leaders give us an assurance that 10 years later, there will be a truly secular government and the community will not be attacked? ’
“Secondly, who decides this hierarchy of issues? Let us address all the issues – discrimination, security and also women’s rights. Also, how many of these leaders have worked on these other issues at the grassroots level? It is groups like us who have done so, who have tried to get the recommendations of the Sachar Committee (to help Muslims in India) implemented and who have also campaigned against Modi.” Noorjehan knows that the efforts of many groups will be needed to get the draft accepted by the government. “Let the community debate our draft first. In any case, for us, the process was as important as the outcome.”
Source: Thehindu.com (India), June 29, 2014. The original English version of the report has been lightly edited for clarity and standardization.
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