the controversy over Muslim Personal Law appears, disappears and reappears. By
registering a suo motu writ petition recently on the issue of Muslim women's
divorce, the Supreme Court has once again stirred up a real hornet's nest of
opposition and criticism from religious bodies (echoed in Urdu publications and
social networking sites). It goes without saying that Talaq is quite the
signature feature of Muslim Personal Law. The way the whole mechanism of Talaq
has been conceived, interpreted and enforced makes it obvious that it has only
been a male prerogative. A man can easily pronounce divorce unilaterally, extra-judicially
and automatically by simply pronouncing the word Talaq thrice in one go, either
to or with clear reference to his wife.
is coming from the expected quarters, with the All India Muslim Personal Law
Board (AIMPLB) at the helm of affairs. As soon as a reform to Muslim Personal
Law is suggested, the board takes it upon itself to launch a campaign to
'enlighten' the masses in this regard and resist any attempt at
alteration--even if the change is slight and within the bounds of Islamic jurisprudence.
This stance by the 'religious elites' naturally sends a ripple in the Muslim
community, especially when it is portrayed as an intervention in the 'sacred'
realm of personal law. The 'custodians' of the community have made it clear
that personal law is premised on a divine principle and that nobody is allowed
to change even an iota of it. Slogans like 'Islam in danger', 'personal law is
our right' make the rounds, whipping up the passions of the faithful. This
paves the way for further homogenizing the community, and thus perpetuating and
reinforcing the hegemony of the religious elite.
is emphasizing that the Shariah is based on the Quran and Hadith. However, it
also needs to be borne in mind that the Shariah is not a static and an ossified
object. The evidence against the immutability of the Shariah is present in the
Dissolution of Muslim Marriage Act 1937 itself. For instance, this Act has the
provision that if the whereabouts of a woman's husband is not known for four
years then she is "entitled to obtain a decree for the dissolution of her
marriage". Before this Act was promulgated, the waiting period for
"half-widows" to remarry was one hundred or more years! In other
words, she could not remarry if her husband disappeared.
be allowed to use Islamophobia as an excuse to resist initiatives to bring
about reform in Muslim society.
has also asserted that personal law is a "cultural issue" and rooted
in Islam, and hence beyond the jurisdiction of law. However, one should never
be allowed to take resort to cultural relativism to commit the crime of
injustice, and in this case render women in a subordinate position as well as
deny them their rights. Islamophobia is also being brought up every now and
then. It goes without saying that Islamophobia persists; however, evoking it in
this particular case stretches credulity to its limit. One cannot be allowed to
use Islamophobia as an excuse to resist initiatives to bring about reform in
AIMPLB presents itself as a mouthpiece for Indian Muslims, perhaps it should
take into account the voices of Muslim women and activists who have been
struggling for the rights of their sisters. For an idea of what women have to
say about divorce, polygamy, Mehr, age of marriage, and a few other things, one
needs to go through the report titled "Seeking Justice Within Family"
brought out by the Bhartiya Muslim Mahila Andolan (BMMA). These are genuine
concerns of Muslim women who have been at the receiving end of the law for much
too long. The grievances which are being articulated are not 'conspiracies' for
dismantling the community from within. 'Threat to Islam' is only a figment of
the imagination. These are genuine voices of concerns from people for whom
religion has become an instrument of injustice.
The idea of
social justice calls for questioning, challenging and breaking hierarchies. You
cannot ask for human rights by denying the same to others. Unequal equations
and asymmetrical relations are not in sync with the times.
Even if one
takes a cue from the Constitution, which is being referred to by the AIMPLB
again and again, which says that there ought not to be discrimination on the
basis of religion, I think it holds equally true that religion should not be
the basis of discrimination. Breaking hierarchies is necessary for the
empowerment of the marginalized and dispossessed; it also paves the way for
democracy. Moreover, if we want empowerment of the community and internal
democratization, then this would necessarily require strengthening the
'minority within minority'.
religious organizations and their spokespersons who often speak on behalf of
the community should be honest enough to accept that the personal law is
problematic when it comes to dealing with the issues of women, and particularly
the asymmetric power equations that structure the relationship between the two
genders. Moreover, these religious bodies should learn to properly address the
criticism of the Muslim women's organizations and squarely come up with answers
that stand to reason and logic. Their hiding behind the hullaballoo attests to
their incapacity to come to grips with the issue of gender justice.
religious bodies should learn to properly address the criticism of the Muslim
women's organizations and squarely come up with answers that stand to reason
It needs to
be reiterated here that the Shariah is a social construct that came into
existence at a particular point in time, echoing the values of those times.
That was then, this is now. Our times call for a reinterpretation that
incorporates the notion of gender equality.
these religious bodies baulk at modern ideas of gender justice, they could at
least study a few models present in the contemporary Muslim world for ushering
in changes. The Mudawana--the new Islamic Family Law--of Morocco is a
case in point.
law got introduced in Morocco in 2003. It has done away with the male's
unilateral repudiation of marriage, and has also endowed women with the right
to divorce. Moreover, there is no legal place for verbal divorce anymore. Both
the spouses have been assigned the joint responsibility of the family. It has
also incorporated gender-sensitive terminologies besides a good deal of other
all these changes have references from the scriptures. Consideration of
Mudawana, and people implementing it in their lives, as un-Islamic, or an act
of apostasy, would be an untenable proposition! I firmly believe that 'personal
is political'; therefore, Muslim Personal Law should see a thorough change.