Politics and prejudice: India’s Muslim women face a double whammy over divorce reform

As divorces by SMS in India increase, activists seem paralysed over political remedies in the run-up to next year’s election.

Unilateral oral divorce - a provision of Muslim personal law - is being misused by judges (qazis) and scholars (ulemas) to appease men – while government looks on.

Talaq allows men to sever the knot with the words ‘I divorce you’ repeated three times, even if they’re not in the country and although scholars and experts agree that modern technology is increasing the misuse of the oral talaq provision, consensus is lacking on confronting the problem.

Qur’anic provision for women, which includes time for reconciliation through arbitration, is being undermined by conservative judges who are even paid off by husbands in extreme cases, according to reports.

The Bharatiya Muslim Mahila Andolan (BMMA) caused outrage in November last year when it drew attention in a newspaper report to cases similar to that of Praveen who received an SMS from her husband with talaq stated three times in the message.

Later the imam of a mosque in Muradnagar in the state of Uttar Pradesh held that the divorce by SMS was valid and termed the marriage void.

Divorce leaves a woman outcast from her community, penniless and even facing the loss of her home and children.  It is the poorest who suffer the most.

Now with elections in 2014, an investigation by Lapido has found that politics is paralysing reform, with groups at odds over a push for codification of Muslim law, which would ensure state-reinforced sanctions.

The ‘ethical voice’ in the Qur’an which provided an entry point for women’s interpretation of the text was giving way to the classical or ‘legal, technical voice’ Dr Seema Kazi, Senior Fellow at the Centre for Women’s Development Studies in Delhi, who studied at the Gender Institute of the London School of Economics, told Lapido.

‘Women’s groups are working on a re-interpretation of the Qur’an as an entry point to challenge patriarchal Muslims laws.  But there’s a limit to that because classical Muslim law does not favour women.  Then there’s no way out.’

Muslims are amongst the most backward economically and politically in India, and women who are discriminated against by the community have no wider redress without back-up in law. 

‘The (secular) betrayal on the socio-economic front created the condition for Muslim women's movements to become hostage to both the community and to patriarchal interests of the state,' says Kazi.

‘There is no sympathetic or committed representative Muslim constituency to translate these demands into institutional/legislative action.’

She said that the issue of Muslim women's rights should be subject to wider public debate and discussion, not just left for Muslim communities alone.

‘Muslim clergy have come to wield far greater authority in modern India than desired.'

Encroachment

The issue has become even more complex through politicization with the rise of the nationalist Hindu right as communalism repeatedly stalls debate.

‘It provides the Muslim clergy with an alibi to circumvent debate on the issue altogether,’ said Dr Kazi.

Religious communities in India are allowed to be governed by personal laws in family matters.

The 1937 Muslim Personal Law (Shariat) Application Act provided for the application of the Islamic Law Code of sharia to Muslims in the country.

But in 1973, the All India Muslim Personal Law Board (AIMPLB) was set up to defend sharia from encroachment or infringement by secular law or legislation.

Personal or domestic law provisions are therefore not protected in state law from whimsical interpretations of religious scholars and community leaders.

While conceding the need for reforms, women on the Board are reluctant to push for state reinforcement.

Uzma Naheed, President of IQRA International Women's Alliance and a powerful voice on the Board who was closely involved in drafting a landmark conditional marriage contract – or nikahnama - and steering it through community channels, said: ‘The need is for a consensus rather than confrontation’.

Ahmad Nadir Al-Qasmi, Research Scholar on Islamic Jurisprudence at the Islamic Fiqh Academy, New Delhi who also admits the need for reforms, emphatically rules out any possibility of the community accepting legislative attempts to interpret or codify Muslim personal laws. 

He told Lapido:  ‘Muslims in India will never accept any attempt by the government to codify Muslim personal law, so the demand by the BMMA is unacceptable’

Unlike many Islamic countries, there is no state provision in India for sanctions against those who violate the sharia – a step too far for many Muslim activists, who distrust secular governance as unbelief.

It is this lack of consensus which may ultimately undermine women’s cause.

‘The country’s political leadership perceives Muslims as a vote bank, ignoring women for reasons of expediency’ said Dr Kazi.

She adds:  ‘Whatever regime comes in, it is going to be authoritarian and reactive. It is not going to create a climate where rights issues can be publicly debated.

‘Most Muslims in general feel too insecure and besieged to initiate or facilitate such a process in a fast shrinking democratic space.

‘Localized resistance to Muslim male tyranny remains, but the conditions for it translating into major public mobilization do not, as yet, exist.’

Read Dr Seema's Kazi's Minority Rights Group report Muslim Women in India here.