By Arshad Alam, New Age Islam
08 June, 2015
The recent observation of the Mumbai High Court, asking an NRI Muslim husband to settle the dues of the first wife in order to divorce her and marry a second time is most welcome. The problem mostly in cases such as these is that even simple observations of court in regard with Muslim women’s rights gets mired in the controversies about enforcing Uniform Civil Code.
In this case though, the debate has been internal to the community. Mostly, the debate on the rights of Muslim women becomes stale as it is debated mostly in the context of a majoritarian state and society. The argument that is given is that any articulation of Muslim women’s rights has the potential to play into the hands of the Hindutva which always exploits such issues not so much to reform the Muslim society but to denigrate Muslims and their religion. It is therefore argued that Muslim women’s question-the question of their rights and democratization-should wait for the right context. But perhaps in the last so many decades, that context has never realised itself.
The only time such an opportunity did come about was during the so called Shah Bano affair, but even then, the political exigencies of the day saw to it that Muslim women were given a raw deal and Muslim men were assured of their absolute control over the bodies of women. People, including some politicians who dissented, were side-lined to the extent that today they are in oblivion.
The Mumbai HC judgment is welcome also because the advocate defending the Muslim women was herself a Muslim woman. What also makes the case interesting is that her defence is not just couched in terms of a liberal secular discourse on women’s rights but also from within the Islamic tradition through a reading which enables a rights based perspective. This is not entirely new, as many feminist Muslim scholars have been arguing from this perspective for some decades now. What is however new is the articulation of this perspective in the Indian context and the judiciary lending a sympathetic hearing to this point of view. In days to come, perhaps this is the only way out: more and more women challenging patriarchal readings of the scriptures and the Islamic law. Arguing from within the Islamic tradition will also take away the criticism that the battle for Muslim women’s rights will help the Hindutva brigade.
It is true that Indian Muslims are governed by their own personal laws and that they are one of the cornerstones of Indian secularism but minority rights as enshrined in the constitution should not be confused with the stagnancy and sterility of that particular law. The law must be dynamic and give space for change with the changing social context. Rather what we find with the Muslim personal law in India is that the law itself has become an impediment to social changes within the community particularly in relation to women’s rights. This of course is abetted by decades of reactionary leadership, both political and religious, which holds that the personal laws of the Muslims are sacred and therefore actively subvert any proposed changes within it.
What we do not realise is that the present law was made during the colonial times and is not even codified. What is considered sacred by Muslims became a law during non-Muslim state and for the convenience of British Victorian legal interpreters who did not want to sift through the maze of conventional and customary laws which defined Muslim laws during that time. Moreover, a history of this particular law would tell us, that wherever convenient, the law was suitably amended to suit the patriarchal concerns different regional Muslim communities. Historically also, Sharia has never been considered hundred percent divine.
Reason always has an important role to play in the interpretation of the Islamic law. And reason is always underwritten by the existing normative structure of society. Therefore to argue that Sharia is divine is not just historically inaccurate, it is also plainly wrong. Any attempt at interpreting the divine has to use human agency and thus the evolution of Islamic jurisprudence, although claimed to be divinely ordained, has always had the imprint of human interpretation based on reason. It is for this reason alone, that Islamic Sharia has different interpretations in different societies. Thus Sharia laws in Pakistan and other Muslim countries have been changed over time is more progressive as compared to India where still Sharia is being considered divine.
The Mumbai HC, in asking the Muslim man to settle the dues of the first wife, in order to divorce her and marry a second time, is in line with progressive interpretation of the Sharia and therefore should be welcome. It is but a small step towards gaining some more rights for Indian Muslim women. The most important outcome perhaps of the whole episode has been the brilliant lawyer fighting on behalf of the victim and whose arguments for women’s rights within the Islamic tradition ultimately convinced the court. We need more such courageous Muslim women. For ultimately, this fight against rampant misogyny in Muslim society has to be led by them.
Arshad Alam is writer and commentator on contemporary Muslim issues.