Muslim Personal Law is not tantamount to shari’a
By Barbara Metcalf
The need to be vigilant about unconscious prejudice and ill-formed stereotypes about Muslims is critical in today’s world, not least in India where Muslims comprise such a significant proportion of the citizenry and where tragic episodes of anti-Muslim violence have taken place since Independence in 1947.
Some recent reports have revealed perhaps startling indications of the extent to which Muslim Indians lag in relation to their fellow citizens in economic level, education, and representation in key public sectors as well as in management positions in private businesses.
Of these, the 2006 report of the Prime Minister’s Committee on the Social, Economic, and Education Status of Muslim Indians (or the Sachar Report, for Justice Rajinder Sachar who chaired it) is particularly important. Several studies by the Hyderabad-born, US-based, Omar Khalidi, including Indian Muslims since Independence (Vikas, 1995) and Khaki and Ethnic Violence in India (Threes Essays Collective, 2003) have highlighted the systematic exclusion of Muslims in India’s public services. A study by Delhi-based researchers Ritu Menon and Zoya Hasan, entitled Unequal Citizens: A Study of Muslim Women in India (Oxford University Press, 2004), similarly emphasized poverty and discrimination as causes of the ‘backwardness’ of the Muslim population as a whole. They demonstrated conclusively that the conventional wisdom that Islam is to blame for Muslim women’s problems was irrelevant compared to the impact of poverty.
Muslim Personal Law in relation to women is one of those red-flag issues that periodically surface to ‘confirm’ the unconscious assumption that Muslim citizens are not quite Indian, or Indian enough. Whatever the official secularism, the ‘real’ Indian is an upper-class, bourgeois Hindu. As colonial authorities did before them, today media and ordinary people alike obscure gender issues that affect women of their own community by focusing on those of others and believe that in so doing they have shown their own superiority.
To be sure, anyone holding to a transnational standard of gender justice would be distressed at specific issues in the written guidelines of MPL, including, among others, the asymmetric right given to men to initiate divorce, practice polygamy, claim custody following divorce. But none of these begins to compare in impact to the poverty, insecurity, and over-all discrimination faced by Muslim women and men alike.
Moreover, without in any way calling into question the goals of those who wish to see change in many dimensions of MPL, there are several reasons, beyond putting it in the larger socio-economic context that Muslims face, for a somewhat more optimistic view of MPL as it actually operates.
Here the work of several researchers deserves attention. The benchmark for their comments is not only the prejudice alluded to above but the widespread assumption that Muslim Indians, given their embattled minority position, are unable to undertake the kind of reforms possible in states like Pakistan and Tunisia. Certainly, developments in Pakistan since the 1980s make that early conclusion seem dated. Yet, John Esposito concludes in Women in Muslim Family Law(Syracuse University Press, 2002) that “Islamic law as practiced in India does not reflect the reforms and progress made by Muslim majority countries with respect to women’s rights” (p 116). This conclusion is too simplistic.
First off, despite considerable confusion, Muslim Personal Law is not equivalent to ‘Islamic law’ if by that is meant shari’a. Classically, shari’a is highly context specific and adaptable to social and cultural needs.
For Muslims, as for most Indians, there are many extra-judicial sources of moral guidance, from individual elders to panchayats and tribunals, some community-generated and some with official sanction. Advisory opinions or fatwas for Muslims may be more confining than even a narrow reading of MPL, but they may also be more lenient.
A striking example of the latter possibility comes from the work of the late Gregory Kozlowski who spent months in the mid-1990s in the company of a community elder in the southern Indian city of Hyderabad as people brought him their everyday troubles of squabbling brothers, recalcitrant spouses, inheritance disputes, and so forth. As he recounts his experience in an article, “Loyalty, Locality and Authority in Several Opinions Delivered by the Mufti of the Jam`iah Nizammiyah Madrasah, Hyderabad, India,” he was astonished one day to hear the elder approve a divorce sought by a woman. But the elder, taking into account the larger ethical and moral norms in shari’a, was in turn astonished at Kozlowski’s surprise: The wife obviously did not want to live with her husband, he explained ((in Modern Asian Studies 29, 4, 1995, pp. 915-16).
Secondly, as the great Indian jurist A. A. A. Fyzee explained in 1963, MPL is not tantamount to shari’a because so many dimensions of law from the colonial period on, including criminal law and the all-important law of precedent and procedure, are secularly defined. In a headline-grabbing alleged rape by her father-in-law of a poor Muslim country woman named Imrana two years back, there was considerable discussion of MPL, even an ill-informed denunciation of it in The New York Times by the acclaimed writer Salman Rushdie, though MPL was in no way at all involved. What was at stake was a fatwa (advising the woman to sever her current marriage), which was completely ignored.
The legal issues were not family law but subject to the secular Criminal Procedure Code. The CrPC makes criminal other family matters including the age of legal marriage, family violence against women, and prohibition of dowry. In relation to rape and these other matters, the respective laws protect Muslim Indian women far better than Pakistani women. Whether the laws are observed is of course another matter. Perhaps because there was no way to make the offense Muslim-specific, virtually no notice was taken either at the time, or at the time of the rape, of the fact that the same Imrana had been married at age 13.
Third, in a provocative and original examination of case law, the political scientist Narendra Subramanian has argued that despite separate codes of family law for Hindus, Muslims, and Christians, in their actual decisions Indian judges are demonstrating a convergence. Muslim Personal Law is, after all, administered in secular courts by judges of all religions who do not specialize in the law of one tradition or another, and they cannot help but be influenced by that experience. Even the misleadingly-named Muslim Women (Protection of Rights on Divorce) Act, 1986, has proven in its adjudication to be substantially less detrimental to women’s interests than originally expected. Judges are limited, Subramanian argues, by prevailing norms of the respective communities, but it is important to note the extent to which those norms are multiple and competing, and thus allow judges some leeway in their decisions.
Thus to a final point about the pluralism of perspective on personal laws among India’s Muslims. Contributing to this, in contrast to many Muslim majority states, Muslims in India live cheek-by-jowl, as do all Indians, in the context of democratic pluralism, with India’s ‘noisy democracy’ of NGOs, secular feminists, transnational rights movements and so forth. At the time of the Imrana fatwa, there was, for example, considerable debate in the light of Islamic tradition, but surely influenced by the larger context, about the irrelevance of that fatwa’s guidance in India today. Sylvia Vatuk has recently reviewed the lively debate generated about MPL on the part of Muslim women, again many adducing their positions from Islamic teachings. Some have formed into organizations that compete, for example, with the (self-appointed) All India Muslim Personal Law Board, on such matters as drawing up model marriage agreements for couples about to wed, also discussed in several web postings by Delhi-based Yoginder Sikand.
Given the realistic position that the enactment of the constitutional Directive Principle of a Uniform Civil Code is not likely in the foreseeable future, such initiatives are very important. As is caution about the stereotypical thinking about Islam so prevalent in India as elsewhere today. Muslim Personal Law, whatever its problems, is not the defining feature of most Muslim women’s lives, and it is not as monolithic, immutable, and encompassing as many may imagine.
Barbara Metcalf is the Alice Freeman Palmer Professor of History and Director of the Center for South Asian Studies at the University of Michigan.
India in Transition (IiT) is published by the Center for the Advanced Study of India (CASI) of the University of Pennsylvania. All viewpoints, positions, and conclusions expressed in IiT are solely those of the author(s) and not specifically those of CASI.
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