Tuesday, September 03, 2013

Special Report: Personal Laws: A Muslim 'Reality Check'

By M H Ahssan / INN Bureau

Fragmentation of religious authority, greater debate and dissent within communities, and increasing literacy and awareness among women have transformed the landscape of personal laws and made the old debate over a uniform civil code largely irrelevant. 

In July 2013, Mumbai’s first Sharia Court was set up. Contrary to the images this might convey, this particular Sharia court is for women, will be run by women and was set up by the Bharatiya Muslim Mahila Aandolan (BMMA).
Over the course of the year, the BMMA seeks to establish women’s Sharia courts in Ahmedabad (Gujarat), Pune (the second one in Maharashtra), Odisha and Tamil Nadu. More surprisingly, the All India Milli Council, an influential political platform for Indian Muslims, has come out in support of the initiative.

In the same month, tribal women in Himachal Pradesh rallied on the streets of Shimla demanding that a century-old law that bars women from inheriting ancestral property be revoked. Meanwhile, in Gujarat, a young Parsi woman has taken her community leaders to court challenging the denial of access to the fire temple to Parsi women who have married non-Parsis.

These seemingly disparate episodes affecting women of different faiths in different parts of the country are examples of the changing landscape of family law in India. The old debate on a uniform civil code (UCC) is based on three presumptions: that not enacting a UCC is a concession to the minorities (particularly Muslims), that Muslims as a community frame their identity around Muslim personal law, and that Muslim women in particular are not treated as equal citizens because of the application of Muslim personal law. However, politicians and commentators have missed the fact that the developments on the ground over the last decade have made the old debate over a UCC largely irrelevant.

Legislative reform 
Legislative reforms in Hindu and Christian laws and the increasing juridification of the Muslim law have created a greater degree of uniformity among different personal laws. Secondly, there is more debate and dissent within communities and a concerted attempt to reform family law from within. Thirdly, new evidence suggests that gender inequality within the family bears a greater correlation to socio-economic conditions than the form of religious law. But perhaps, most importantly, the new areas of emphasis on family law reform address questions such as domestic violence which cut across community identities and concerns.

Under colonial rule, affairs concerning marriage and inheritance of individuals were governed by their personal laws determined by the faith they belonged to. However, unlike the Mughal rulers, whose precedent the British claimed to follow, these personal laws were administered by a secular judiciary rather than by members of the religious group themselves. Thus, the application of Hindu and Islamic laws were transformed through processes of translation, interpretation and adjudication by British judges and came to be described as Anglo-Hindu and Anglo-Mohammadan laws.

In 1950, the Constitution of India under Article 44 laid down that the state should endeavour to establish a UCC for its citizens. There were two sources of support for a UCC, liberal nationalists such as Minoo Masani who argued that community-based personal laws were a danger to national consolidation and women leaders such as Hansa Mehta and Amrit Kaur who saw personal laws as greatly disadvantaging women. However, demands for a UCC were opposed not just by the minorities but by a significant number of conservative Hindus, who viewed this as excessive interference by the state. 

Debates over the Hindu law reform, rather than intervention in Muslim law, were the focus of political battles, and it was only the electoral victory of 1952 that gave Jawaharlal Nehru the legitimacy to enact the Codes. It is often forgotten that before the Hindu Code, Hindu law was much behind Muslim personal law in terms of rights given to women: Muslim women could hold and inherit property, their consent was required for marriage, they could act as guardians of minor children and, after the reforms of 1938, also initiate divorce.

Along with the Hindu Code, the state introduced a voluntary UCC, that is, the Special Marriage Act of 1954. Initially enacted to provide for inter-religious marriages, its mechanism of a civil marriage before the designated official can also be utilised by members of the same faith. Persons married under the Act have their divorce, maintenance and succession governed by the rules under the Indian Succession Act, 1925, and the Special Marriage Act, which provides far greater equality between men and women within marriages than either Hindu or Muslim law. 

What began as a debate between all forms of community identity and the state came to be framed as a question of Muslim law during the Shah Bano case (1985). The Supreme Court of India had ruled that Shah Bano Begum, a 60-year-old divorced Muslim woman, was eligible to claim maintenance from her former husband under Section 125 of the Code of Criminal Procedure (CrPC). The judgment was following a precedent; however, its timing and the observations on Muslim law by the judges led to a widespread outcry by organisations such as the All India Muslim Personal Law Board (AIMPLB).

Rajiv Gandhi’s government sought to contain conservative opinion by enacting the Muslim Women (Protection of Rights on Divorce) Act, 1986, which effectively nullified the Shah Bano judgment and legislated the position in Muslim law that required the husband to only make a “fair and reasonable provision” for maintenance within the iddat period of three months after the divorce. The MWPRDA enraged Hindu nationalists, who saw this as appeasement of Muslim men, and angered liberals, who saw this as discriminatory towards Muslim women who were denied the right to maintenance that other Indian women enjoyed.

However, unnoticed by most commentators over the last two decades, resolute Muslim women and sympathetic judges have interpreted the MWPRDA to hold that the “reasonable and fair” provision during the iddat period had to be sufficient to maintain the divorced woman for the rest of her life. Destitute Muslim women now got sums ranging from thousands of rupees to a few lakhs as opposed to the Rs.500 that women from other communities could hope for under the CrPC.

The Supreme Court, in a case brought by Danial Latifi, Shah Bano’s lawyer, held in 2001 that the MWPRDA had to be read in conjunction with the rights to equality and to life with dignity in the Constitution and confirmed that the lump sum granted to a divorced Muslim woman had to be sufficient to maintain her for life. For a brief period, until the upper limits in the CrPC were revised, Muslim women had better claims to maintenance than other women.

What this episode demonstrates is that the public reaction to Shah Bano was an aberration, a product of political circumstances and intemperate judicial language. However, since the 1980s, courts have continued to rule on questions of Islamic law and pick interpretations that have favoured women, with little opposition from Muslim leaders.

In Shamim Ara’s case (2002), the court held that the husband did not have a unilateral right to triple talaq—which simply consists of the husband saying “I divorce you” three times to his wife—but had to provide good reasons for the divorce and had to first go through attempts at reconciliation.

New voices in personal law debates 
The Danial Latifi and Shamim Ara decisions evoked little protest, in part because of the broad divergences in views of Indian Muslims over the last decade. Muslim personal law has moved from being an issue around which Muslim identity is expressed to being a site where different Muslim voices have come to assert their individual identities. Since its foundation in 1973, the AIMPLB has emerged as the main spokesperson on the question of Muslim personal law, impleading itself into court cases and being consulted by governments.

Over the last decade, the AIMPLB has been criticised because of its domination by Hanafi Sunni ulama from the Darul Uloom Deoband. As Professor Justin Jones, a historian of Indian Shiaism points out, it was this perceived domination that led to the creation of the All India Shia Personal Law Board and the All India Muslim Women’s Personal Law Board and the resignation of several leading Barelvi scholars from the AIMPLB.

These bodies have challenged the authority of the AIMPLB to speak for Indian Muslims and offered alternative visions of Muslim personal law. The political scientist Narendra Subramaniam notes that it was this divergence of opinion over the question of unilateral triple talaq that prevented the AIMPLB from becoming a party in the Shamim Ara case before the Supreme Court.

The establishment of the All India Muslim Women’s Personal Law Board and the growth of Muslim women’s non-governmental organisations (NGOs) such as the Awaaz-e-Niswan in Mumbai have led to the advocacy of women’s rights and the spread of legal awareness, not through languages of secularism but through Islamic scriptures and reinterpretations of the Sharia. With the spread of literacy and new forms of media, religious authority is being fragmented and new groups are questioning older orthodoxies. The women’s groups are particularly influential because, apart from advocating and creating legal literacy, they assist women with their daily interactions with law, be it in ensuring maintenance payments, helping secure custody rights or guarding women against domestic violence.

From August, the Bharatiya Muslim Mahila Andolan would have set up women’s Sharia courts staffed by female Islamic scholars in Maharasthra, Odisha, West Bengal and Tamil Nadu. These courts do not pose a choice for Muslim women between enjoying their right to equality as women and enjoying their right to their religion as Muslims but allow them to claim justice as Muslim women.

Separate but equal 
The far-reaching changes in Muslim law have also been accompanied by sweeping legislative reform in Hindu, Christian and Parsi laws. Contrary to popular belief, the Hindu Code reforms of 1955-56 did not place Hindu men and women in positions of equality. It was only after the 2005 amendments to the Hindu Succession Act that daughters could claim a share of Hindu joint family property and ask for its partition to become its manager. Most significantly, it was only in 2005 that agricultural land came under the purview of the Hindu Succession Act. For the first 50 years, the reforms to Hindu law that had given women a right to inherit property did not apply to the most prevalent and valuable form of property in India, that is, agricultural land.

Tribal women, who were excluded from the benefits of the Hindu law reforms, have begun to move courts to challenge the exemptions. In May 2013, a group of tribal women from Kinnaur district in Himachal Pradesh challenged the constitutionality of a colonial law that recognised customary practices that prevent women from inheriting ancestral property. Women from the Oran and Ho communities of Jharkhand had previously challenged the constitutionality of the Chotanagpur Land Tenancy Act, which limited the right to cultivate jungle land to male descendants. Tribal leaders and government officials expressed concern that allowing female inheritance would lead to the alienation of tribal lands to non-tribal people. The Supreme Court, mirroring its manoeuvres in the Danial Latifi case, upheld the constitutionality of the Act but argued that it had to be interpreted keeping in mind the constitutional right to life and livelihood. While upholding male rights to succession, it held that female heirs of the last male tenant could hold and use the land as long as they were dependent on it for their livelihood. Thus, the court provided an economic solution to tribal women without striking down tribal laws.

Judicial pronouncements also harmonised several aspects of Christian personal law. In Mary Roy’s case, the Supreme Court held in 1986 that provisions of the Travancore Syrian Christian Act, 1916, and the Cochin Succession Act, 1921, which limited the right of Syrian Christian women to their paternal property, were unconstitutional. However, it was only in 2010 that the decree in Mary Roy’s case was executed and she could claim her share of her father’s house back from her brother.

More strikingly, in 2003, the Supreme Court agreed with Father John Vallamattom and held the provisions of the Indian Succession Act, which limited the right of Christians to bequeath their property to charity, as unconstitutional. Section 118 of the Indian Succession Act drew upon old English law and laid down that no Indian Christian who had living relatives could leave their property for religious and charitable purposes unless provided for by a will a year before their death. The clause was enacted to prevent deathbed bequests that were often made under the influence of a priest who was usually in attendance. The Supreme Court held that this violated Article 14 of the Constitution by discriminating between Christians and non-Christians, and further Christians who had near relatives (and were bound by the Act) and those who did not have. The court, however, rejected Father Vallamattom’s claim that the right to make religious bequests was protected under the right to practise one’s religion, holding that there was nothing to show that the disposition of property for religious purposes was integral to Christianity.

Both Mary Roy’s and Father Vallamattom’s cases also highlight the great deal of diversity in religious practices and customs governing marriage and property challenging the homogenous identity of Indian Christians.

It was only in the last decade that the very inequitous laws of divorce for Indian Christians were overhauled. Before the amendments of 2001, the law required that Christian women had to claim two grounds of fault to initiate divorce while men needed to claim only one. The law treated women as property by allowing the husband to claim monetary damages in case of adultery. The court was empowered to settle the property of an adulterous woman on her children upon her divorce, but an adulterous man would incur no such penalty. Finally, until 2001, a Christian woman could not claim more than one-fifth of her husband’s income as alimony. The reforms in 2001 were carried out by the National Democratic Alliance government, with little opposition from Churches or Christian groups. This is partly because the groups concerned were extensively consulted through the process. Thus, there is much greater congruence within different personal laws today than a decade ago despite the lack of a UCC.

Contrasting Hindu and Muslim women 
The emotive force behind a UCC is the assumption that the difference in legal rights has a significant impact on the everyday experiences of Muslim women. However, a path-breaking survey of women by Zoya Hassan and Ritu Menon in 2004 indicated that while Muslim women as a group were weaker, when compared with Hindu women of a similar socio-economic background and regional location, differences in patterns of marriage, autonomy, mobility and domestic violence were insignificant. There was no apparent community-wise variation in women’s decision-making, mobility and access to public spaces. Zoya Hassan argued that the survey findings showed that religion did not influence per se Muslim women’s status significantly, but poverty did. Poor socio-economic condition is not a feature exclusive to Muslim women, but it is aggravated by their marginal status in the overall context of social disadvantage.

Recent focussed studies by anthropologists have shown that while Muslim men have significantly greater rights than women, these are infrequently asserted. Sylvia Vatuk in her study of Madras (Chennai) shows that contrary to stereotypes, the right to unilateral divorce is rarely used at whim. To avoid meeting any legal obligation, many men, like their Hindu and Christian counterparts, simply abandon their wives without going through the formality of divorce. The pronouncement of triple talaq also attracts social opprobrium and makes it more difficult for the man to get remarried. Similarly, Sreemati Basu, in her study of middle-class Hindu women in Delhi, finds that despite the availability of legal rights to inheritance, Hindu women rarely claim or receive property from their natal family.

It is a well-recorded but little-publicised fact that bigamy in India is far more prevalent among Hindus than among Muslims. The last comprehensive survey in 1971 found that as many as one crore Hindu men had more than one wife as compared to 12 lakh Muslim men. The most recent National Family Health Survey in 2011 indicates that 1.7 per cent of Hindu men and 2.1 per cent of Christian men had more than one wife as against 2.5 per cent of Muslim men. The legal recognition of polygamy among Muslims meant that the second wife and children from the second marriage enjoyed full legal rights. However, among Hindus and Christians, the second wife and her children have few enforceable legal rights.

The emerging picture suggests that legal reform has little impact on the lives of women in the absence of legal awareness and networks of support that can help them access these rights. It also reveals that legal reform without a corresponding change in social values can have adverse effects, such as the ban on Hindu polygamy which leaves the second wife completely unprotected. Her position has become particularly vulnerable after the Supreme Court, in 2010, ignoring precedent in D. Veluswamy’s case, denied a woman in a “marriage like relationship” the right to claim maintenance.

New frontiers of law reform 
Personal laws govern only certain questions of marriage and inheritance. Increasingly, new family law interventions aimed at improving the situation of women have moved away from inequitous religious laws and focussed on other common experiences shared by women within the family. The most notable intervention has been the Domestic Violence Act of 2005, which seeks to protect women from abuse in their families. The Act extends protection to all women within a household, including an unmarried female partner. It broadens the definition of violence to include verbal, economic, and emotional violence. It guarantees secure housing to the woman by giving her the right to reside in her matrimonial home irrespective of whether she has rights or title to it and empowers courts to pass protection orders and restrain the abuser from contacting the victims.

There is a greater recognition that women contribute to a marriage and family in ways that cannot be easily quantified economically. Studies show that women suffer significant economic loss upon divorce or widowhood. Maintenance orders are difficult to secure, with husbands often disposing of property, leaving jobs and hiding assets in order to appear unable to maintain their wives. Moreover, maintenance is not a “property right” in that it stops if she remarries, is gainfully employed, or dies. The non-financial contributions a woman makes to marriage that often enables her husband to accumulate his property is not recognised. Studies show that the chief hurdle women across communities face on divorce is the loss of shelter as the title to their homes is often with the husband or their in-laws.

In recognition, legislatures are moving towards creating a separate property regime for married couples. The civil code in Goa has recognised the right to matrimonial property since the 19th century, but other States are catching up. Maharashtra is considering a Bill that will give married women the right to half of their husband’s property. The central Marriage Laws (Amendment) Bill, 2010, which has been approved by the Union Cabinet, seeks to amend the Hindu Marriage Act and the Special Marriage Act to entitle the divorced wife to half the share of her husband’s residential property. 

The chief opposition to these laws comes not from minority groups but from the new and vocal “men’s rights” groups who argue (despite evidence) that Indian laws unduly favour women. Groups such as “Save the Indian Family Foundation” consist of very vocal upper-class, urban men who seek to defend “men’s interests”, cutting across the divisions of caste and religion. Meanwhile, courts are attempting to define in numerical terms the contribution of women as homemakers. In the Lata Wadhwa case (2001), the Supreme Court laid down Rs.3,500 as a notional monthly income for a homemaker in a small town in India. The High Courts have followed suit, trying to quantify women’s work.

The UCC debate can no longer be played out by placing minority rights and women’s rights in opposition to each other or on the fault lines of Hindutva and secularism. As the legal scholar S.P. Sathe had presciently written, uniform does not imply common, and the experiences of the last decade have shown that it is possible to secure reasonable uniform rights and duties through different regimes of law. This has been possible because of the fragmentation of religious authority, greater debate and dissent within communities, and growing literacy and awareness of women rather than a process of centralised codification.