By Siobhan Lambert-Hurley
Oct 05, 2016
The legal status of Muslim women in India came into focus recently after a women’s group called for a ban on Sharia courts. The Muslim Women’s Quest for Equality petitioned the Supreme Court to abolish the All India Muslim Personal Law Board (AIMPLB), which oversees the application of Muslim personal law in India. Of particular concern was the AIMPLB’s ongoing defence of triple Talaq divorce.
According to the Muslim Personal Law (Shariat) Application Act, 1937, marriage, divorce, succession, adoption and other ‘personal’ legal matters are governed by Islamic law, rather than a uniform civil code, within the Muslim community. The irony is that, prior to the enactment of the law, the debate centred on how governing personal lives by the sharia would actually improve Muslim women’s rights in India.
From the late 19th century, Muslim reformers had used the sharia to argue in favour of greater rights for Muslim women than were recognised in customary practice. An early example was the Calcutta-based jurist Syed Ameer Ali. First in A Critical Examination of the Life and Teaching of Mohammed (1873) and later in The Spirit of Islam (1922), he defended Muslim women’s legal status in Islam on the basis that it guaranteed a share of inheritance and other property rights, women’s right to divorce (khula) and protection against polygamy.
Offering an even more favourable interpretation of women’s status in Islamic law was Sayyid Mumtaz Ali. A lawyer educated in the religious sciences at the Dar ul-Ulum at Deoband, he employed the Sharia to counter assumptions of women’s presumed inferiority to men in his treatise, Huquq un-Niswan (1898). According to his conclusions, Muslim women were not only guaranteed inheritance, Mahr (dower) and the right to remarry after divorce or widowhood, but their testimony in court was equally admissible to that of a man on most legal matters.
By the early 20th century, female reformers too were employing the sharia to argue for Muslim women’s equality. One of the most influential was the female ruler of the princely state of Bhopal in central India, Sultan Jahan Begum — notably, also the first Chancellor of Aligarh Muslim University (1920-30). In a series of publications and speeches in the 1920s, she laid out how the rights of Muslim women in India were best protected by Muslim personal law, as defined in the Sharia, rather than by a uniform civil code.
Her starting point was that Islam had come to the ‘redemption’ of the woman when she was ‘in the lurch’, providing her with more rights than any other religion.
While president of the All-India Women’s Conference in 1928, Sultan Jahan Begum encouraged Muslim women to participate in the campaign to raise the age of marriage, which resulted in the Child Marriage Restraint Act, 1929. A number of male politicians claimed then — as the AIMPLB does now — that curbing child marriage conflicted with the Sharia.
Prevailing interpretations of the Sharia in India today — institutionalised in the AIMPLB — allow gender inequality to be justified and upheld in the name of Islam. But Islamic law should not be presumed to be static or unchanging. History points to how more favourable interpretations have been employed to advocate Muslim women’s legal rights in India. In the light of the political controversy that surrounds proposals for the abolition of Muslim personal law in favour a uniform civil code, building on these historical precedents may offer a pragmatic way forward.