Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India (38 page)

Naziruddin Ahmad and Hussain Imam, also of the Muslim League, rested their case for the retention of distinct personal laws on current social conditions rather than on personal law being based on religious jurisprudence. Unlike Mohammad Ismail, Pocker Sahib, and Mahboob Ali Baig, they supported the future introduction of a UCC. Hussain Imam clearly said: “I feel that it is all right and a very desirable thing to have a uniform law, but at a very distant date.” Given the earlier history of British noninterference in the personal laws, he and Naziruddin Ahmad argued, the state needed to secure the consent of the concerned group before changing its personal laws or introducing a UCC. They believed that current opinion required that such changes be gradual, and that an increase in the literacy and social power of the majority of members of all the religious groups was necessary before such reforms would enjoy considerable support. Naziruddin Ahmad suggested mechanisms to consult community representatives through elections in which the political representatives would commit themselves to a particular position on their group’s personal law, but could not get the Constituent Assembly to agree that “the personal law of any community which has been guaranteed by the statute shall not be changed except with the previous approval of the community.”
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Hussain Imam even seemed open to the application of Hindu law to Muslims if Hindu law had been reformed so that it was more egalitarian than Muslim law, but opposed such a course in 1951 because the reforms then being proposed would not, in his judgment, have made Hindu law sufficiently egalitarian.
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As the Muslim community was in some disarray amid the violence and population movements that accompanied Pakistan’s formation, even the Muslim representatives who were open to changes in Muslim law did not propose specific reforms along these lines at that time. The positions of the Muslim representatives, the disengagement of most policy makers from Muslim initiatives, and the failure to involve Muslim leaders of the Congress Party in designing Muslim accommodation resulted in no changes being made in Muslim law. Some Christians approached the Law Ministry in the early 1950s to expand the grounds on which Christians could gain divorces.
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But,
policy makers did not address this demand then. They presented their decision not to change the minority laws as a matter of noninterference. But it was a result of their disengagement from minority mobilization and their failure to base their visions of the modern Indian family on the perspectives and cultures of the religious minorities. However, they made an informal commitment that minority-law reforms would be possible only based on the concerned group’s initiative. In choosing not to change personal law based on constitutional principles, the courts reinforced these executive decisions.

III. POSTCOLONIAL INITIATIVES FOR CULTURAL AND LEGAL CHANGE

Changes gradually occurred in the practices, opinions, and initiatives of the religious minorities regarding personal life; in the patterns of mobilization of women’s organizations and other rights organizations; in the vision of the national family that policy makers sought to promote; in policy makers’ understandings of minority norms and initiatives; and in the conditions under which judges and legislators were willing to change the rules regulating family life. They revived public debate about minority-law reform especially from the 1970s onward, and enabled changes in Muslim, Parsi and, Christian law. Policy makers changed the minority laws only if they were convinced that the reforms enjoyed support in the concerned group’s norms and initiatives. They thus reconciled minority-law reform with recognition in personal law.

A. Cultural and Legal Mobilization

As we saw in
Chapter 4
, women’s organizations and other rights organizations increased in strength, engaged in more mass mobilization, became more autonomous of political parties, built networks with legislators, judges, and bureaucrats, and gained more direct roles in policy making from the 1970s onward.
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They increased their engagement in mobilization and litigation regarding personal law, and so did community organizations. The major conservative Muslim religious and community institutions formed the AIMPLB in 1972 to defend judicial precedent in Muslim law, prevent a UCC, and block the uniform adoption law that parliament was then considering (inasmuch as
they did not believe that Islamic norms supported adoption). In response to the growth of a public ethos that favored certain rights for women, Hindu nationalists increased their criticisms of gender-unequal practices among Muslims and the support that Muslim law offered for some such practices, and called for the rapid introduction of a UCC to effect national consolidation behind their cultural vision. They especially did so after
Shah Bano
(1985). Their failure to offer specific proposals regarding the UCC’s content or to begin a public debate about it suggested that their rhetoric about a UCC was meant to isolate Muslims rather than to enable legal change.
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The growth of Hindu nationalism, the attendant increase in attacks on non-Hindus, and the increased emphasis of Hindu nationalists on a UCC led various women’s organizations, other rights organizations, and reformist lawyers’ associations to value cultural accommodation more, and focus their attention on personal law reform rather than a UCC. Some of their activists explored Islamic and Christian traditions, to rebut Hindu nationalist criticisms of these traditions and incorporate their more gender-equal features in family law. Their reliance on group norms favorable to women helped them build alliances with reformist community organizations, and reduced the ability of conservatives to oppose their proposals as attacks on group identity.
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i. Mobilization Regarding Muslim Law. Conservative Muslim elites faced more direct and extensive challenges from the 1980s onward. Associations of Muslim women and liberal Muslims grew and promoted various changes in gendered practices and Muslim law. Most of them were based in major cities, but had activists in smaller towns. They included the All India Muslim Women’s Rights Network,
Awaaz-e-Niswan
, the Muslim Women’s Forum, the Committee for the Protection of the Rights of Muslim Women, STEPS,
Bazm-i Shama-i Niswaan
, the Bharatiya Muslim Mahila Andolan, the Progressive Muslim Association, the Hindustani Muslim Forum, and the Muslim Satyashodhak Samaj.
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These organizations advocated the reforms that the state courts later introduced in Muslim alimony and divorce law. But their demands were more ambitious, including the invalidation and perhaps the criminalization of polygamous marriages, an end to the recognition of unilateral male repudiation
or the inclusion of
talaq-i-tafwid
in all marital contracts, the extension of inheritance rights in agricultural land to women in all Indian states, the abandonment of the requirement that Sunni women forego their dower if they petition for divorce in community courts, a substantial increase in dower amounts, giving women rather than their husbands’ natal families control over their dower after their marriages, an end to the practice of dowry, enabling women to reject marital alliances forged by family patriarchs against their will or when they were minors, greater openness on the part of community courts to women’s pleas for divorce with or without the husband’s consent (
khul
’ and
faskh-i-nikah
respectively), and the inclusion of women in prayer groups and thus in mosque councils, or the establishment of separate mosques for women. Some of these proposals were incorporated into model marital contracts, which were revised versions of Begum Sharifa Hamid Ali’s draft of the 1930s. The Women’s Research and Action Group in Mumbai proposed such a model contract in 1993, and began a debate about the norms on which Muslim marriages should be based.

Four new organizations were formed in 2005 to offer perspectives different from the AIMPLB’s regarding Muslim law. In response to the dominance of representatives of the DUD over the AIMPLB, two alternative boards emerged, which claimed to represent Shias (the All India Shia Personal Law Board) and the followers of the DUMI (the All India Muslim (Jadeed) Personal Law Board). The Shia Board has significant support and the Jadeed Board some support in northern India, especially in Uttar Pradesh. Moreover, two other boards emerged to represent the concerns of Muslim women. The Muslim Women’s Personal Law Board has been active in parts of Uttar Pradesh and Delhi, and established a women’s court that considered some matrimonial cases.
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The new organizations weakened the AIM-PLB’s claim to represent Muslim opinion, although the AIMPLB remained much stronger.

The growth of reformist mobilization among Muslims and the increased influence of Hindu nationalism pressed conservative Muslim elites to engage with community reformists, to retain their influence among Muslims and counter perceptions of Muslim backwardness. These developments reinforced the inclination of various prominent
ulama
to interpret Islamic texts innovatively. In 1989 they prompted some of them to form the Islamic
Fiqh
Academy,
an institution that promotes discussion among major religious scholars, in order to devise responses to the new questions that social changes raise about appropriate social practices and approaches to adjudication in the religious courts. The leadership of Maulana Mujahidul Islam Qasmi (the former chief
qazi
of the Imarat-e-Shariah, the largest network of Islamic courts in India, who became the President of the AIMPLB towards the end of his life) and his efforts to build a loose consensus among the more imaginative
ulama
gained the academy greater acceptance among conservative Muslims, particularly among followers of the Deoband-centered
madrassas
. In departures from the positions of conservative
ulama
until then, the
Fiqh
Academy advocated that Muslim women be allowed to reject spouses chosen by family patriarchs, that dower be specified in gold or silver to protect its value in the face of inflation, and that provisions in marital contracts allowing dowry or absolving husbands of economic obligations toward their ex-wives be deemed invalid.
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In response to the same sociopolitical pressures, the DUD and the DUMI launched a social reform movement in the 1990s in which they highlighted their opposition to dowry, caste endogamy, and other practices that they did not consider rooted in Islamic tradition. The AIMPLB published a compendium of the forms of family life and adjudication it favored in 1999, to guide lawyers and judges in the state courts as well as the judges in the religious courts. The booklet did not support major changes in adjudication. For instance, it expressed the preference that unilateral male repudiation be initially revocable, but did not support the denial of recognition to immediately irrevocable unilateral divorces.
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Moreover, the AIMPLB formally consulted reformist Muslim women activists for the first time in 2002. Although the board failed to sustain such consultation,
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it drafted its preferred model
nikahnama
in 2005, in response to the versions of the Women’s Research and Action Group and other Muslim women’s organizations. To respond credibly to the greater rights that women were given in the marital contracts of the reformist women’s organizations, the initial draft of the AIMPLB’s version gave women the delegated right to unilateral repudiation, divorce rights on new grounds in community courts, the right to a separate residence if their husbands contracted concurrent marriages and the right to retain on divorce all gifts they received while they were married; in addition, it required men
considering a second concurrent marriage to seek a community court’s prior approval. However, more conservative
ulama
ensured the deletion of these clauses in the final draft. Moreover, the Board’s model
nikahnama
did not influence adjudication in the courts of the Imarat-e-Shariah, although major AIMPLB officials led the Imarat-e-Shariah. This reflected the fact that the conservative
ulama’s
minor reformist gestures were meant to respond to the criticisms of reformers, whose influence is primarily in larger cities, while the litigants in the Imarat-e-Shariah’s
darul qazas
(religious court) are largely poor and from villages and smaller towns.
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Although it did not bring its limited reformism to bear on adjudication, the AIMPLB did approach the government of Uttar Pradesh, and then the Indian government, in 2006 to give all Muslim women the rights to inherit agricultural land and to a share in family agricultural income. However, it did not mobilize to press these demands.

Some conservative Muslim organizations supported more extensive reforms than the AIMPLB did. For instance, the Shia Personal Law Board stipulated in its model
nikahnama
that divorcées should be given alimony until they become self-sufficient, that women could seek divorces if their husbands restricted their education or employment or had misrepresented their personal situation when they contracted their marriages, that women should be able to effect delegated divorces without losing their dower, and that spousal reconciliation should be attempted after men indicate their intention to repudiate their wives. It also supported quotas for women in the state assemblies and the national parliament. The Muslim Majlis-e-Mushawarat (a political organization) and the Jamaat Ahl-i-Hadith (a minor religious school) highlighted their opposition to immediately irrevocable male repudiation. Due to the lack of consensus among its constituent organizations about unilateral repudiation, the AIMPLB did not intervene in the crucial case,
Shamim Ara v. the State of U.P
. (2002), in which the Supreme Court declared the
talaq-ul-ba’ in
invalid, contrary to its usual defense of conservative precedent.
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Hindu nationalist growth also prompted conservative Muslim leaders to shift their attention from defending Muslim law precedent to responding to Hindu nationalist violence against Muslims (particularly in Gujarat in 2002) and their places of worship (notably the Babri Masjid in Ayodhya, destroyed
in 1992). Even the AIMPLB, which was formed to address personal law, focused from the early 1990s on preventing the construction of a Hindu temple at the Babri Masjid’s former site.
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