by Maddy Gale
What it means to be a Muslim in India has always been culturally and politically separate from the notion of the modern “Muslim World.” The “Muslim World” is a proposed geopolitical term used to homogenize and categorize all Muslims as being part of a unified whole (Aydin).The Revolution of 1857 serves as a historical example of the disparity in treatment between Indian Muslims and Indian Hindus under British colonial regime, the two largest religious groups in the nation state. This landmark event asserted a social and political struggle between India’s primary ruling agenda and the Muslims of India, and to the majority of the opposing side who saw the Rebellion as jihad, stigmas were formed that still have their part in societal discourse today (Morgenstein Fuerst, 4). Indian Muslims were now considered the minority religion, and treated as such by the Indian government. Muslims, as a “minority,” were advised by Indian Prime Minister Nehru to depend on the goodwill of the “majority” community rather than demanding their due (Suneetha, 41). The “majority” urged Muslims to refrain from rocking the boat while they continued to treat them as less than, a pseudo separate-but-equal system imposed by the Indian government. Muslim identity was seen not only as hateful and alien, but to be dominated and ruled and made politically impotent (Engineer, 1038). This meant the culturally ingrained idea of Indian-Muslim identity had its effect on all facets of the culture, including Muslim Family Law; women’s rights became increasingly central to the notion of Muslim Identity. This consciousness aligns itself with Islamic modernity, a movement to reconcile Islamic faith with modern values such as nationalism, democracy, rights, rationality, science, equality, and progress. In other words, contemporary ways of being are only considered modern when they align themselves with European intellectual tradition, making European ways of life synonymous with modernity (Seedat, 29). Through comparative statistics, personal narratives and historical research, it is obvious that the combination of Muslim personal law and Indian legal systems make being a Muslim woman in India a marginalized and potentially oppressed position to hold.
Before examining the Muslim woman in India, we need to begin with seeing the modern Muslim woman as a diversified and heterogenous being. In the age of oppression, consciousness of the gender gap and the fight for equality, feminist activists have amplified their voices. Recent history has shown an upsurge in the notion of a need for “Islamic Feminism,” a term coined by scholars in the 1990’s with rising concern coming in more recent years from the West for the well-being of their Eastern sisters. The concept of feminism has strong associations with political modernity and consequently, the West, which needs to be addressed in order to examine the status of the Muslim woman in India (Seedat, 30). Islamic feminism seeks to both reclaim religion and undermine patriarchal distortions (Vatuk, 491). It is important to understand the need for equality in India as separate from the larger movement portrayed by the Western media, but not completely unrelated; the common thread throughout this fight against oppression is that in each instance, political forces construct a modest and pious notion of womanhood, outside of the woman’s opinion (Desai & Temsah, 2313). Although women in India do not need to engage with an authoritarian Islamic state, there is still political oppression to be faced (Vatuk, 491). The need for Islamic feminism is a political and social issue that goes beyond the secular movement in the West and finds some of its roots in the quest for basic human rights among women in India.
Muslim family law has traditionally been seen as dominantly patriarchal and strict, sometimes at the expense of the female spouse. The image below depicts the case of a Muslim woman in Assam, India being charged as guilty for her husband’s crimes. Shortly after this, her husband divorced her, severing all ties from his wife and leaving her solely guilty for the crime he committed.
The model nikahnama is the pre-nuptial Islamic marriage contract by which post-nuptial actions become legal under Islamic personal law. Traditional nikahnama addresses certain stipulations of marriage such as mahr, or dowry, and a woman’s right to talaq, or divorce. In the case of Mohammed Khan v. Shah Bano in 1985, Bano divorced her husband and received maintenance, or alimony, from him as ruled by the Indian Parliament and later the Supreme Court. Following the Shah Bano case, the court urged Muslim personal law to make changes to these systems as to prevent cases like these from reaching the higher courts of law. This sparked a larger upsurge of need to reform within activist groups who wanted to work side by side with the ulema to uphold Sharia while simultaneously codifying fundamental marriage rights for women.
In the attempt to amend the traditional nikahnama, various activist groups of Muslim women insisted on reform and brought their subsequent changes to the Muslim Personal Law Board. Women were arguing for basic human rights on the platform of legal reform, which should be noted as essential to this issue. Muslim women’s rights had become politicized rather than humanized. The women’s groups’ nikahnama stipulated the following: the husband should not inflict physical harm or wrongfully confine the wife; he should not indulge in any other inhuman behaviour; leave the wife in her natal home for an extended period; use abusive language; accept dowry; and not utter triple talaq or talaq in isolation (Suneetha, 43). Like Hindu women, Muslim women also demanded legal redress for polygamy, child marriage, purdah and denial of property rights. However, the consolidation of “communal” identities predicated on the radical difference between Hindus and Muslims and their politicisation in the context of Indians’ investment in questions of franchise and self-government (Tejani 2008) meant that the Muslim political leadership and ulema assumed an active role in bringing legislative reforms for women (Suneetha, 41). But this reclamation of autonomy simultaneously created an idea of Hindu Right being the protector of Muslim women. “Unified law” can be seen as a result of representatives of Hindu orthodoxy who are ready to use Muslim women’s interests to bolster their quest for hegemonic Hindu power (Desai & Temsah, 2412).The disparity among treatment of Muslim women and Hindu women is apparent: in the case of marriage and family, Muslim women wanted to have equal rights to Hindu women. Yet specific religious law made this difficult, as both religious subjects within India were constructed drastically different.
Out of this came two new law boards, The Muslim Women Personal Law Board and the Shia Personal Law Board, both of which released their new nikahnamas in 2006 and 2008. Protection of khula, divorce initiated by the woman, was a major addition to the Shia Personal Law Boards nikahnama. All of these reforms display a need for interpersonal modernization in Islamic family law that is reflective of the modernization in the Muslim world. Muslim women were and continue to be able to enter the both Hindu and male-dominant terrain of the “religious community” and disrupt the stereotype of Muslim women as victims of India’s community patriarchy. (Suneetha, 46). This would seem to be an early indication of modernity permeating Islam in India with positive outgrowth, but statistics show us that this reclamation of power has not been entirely fruitful.
As scholars beg the question of whether or not traditional Islam is compatible with modernization and progress, we cannot dismiss indicators that Muslim women in India are still subject to antiquated and unequal standards. The question of prevalence of sexual violence within Indian Muslim marriages must be asked in order to grasp the need for such social reform. When looking at the pervasiveness of sexual violence in India, it is important to note socio-economic, cultural, educational, regional, and more importantly, religious differences between those data is collected from. In a study conducted in 2014, Indian women from varying backgrounds were asked whether or not they had been victims of sexual violence. The estimates in this study were based on a definition of violence that included non-consensual forced sex but no other important types of wife abuse, such as emotional or economic abuse (Raushan, 180). The rate of sexual violence against Hindu women is 9.24%, whereas the rate of sexual violence amongst Muslim women is 12.67%. (Raushan, 170). It is important to know that this is one study and not entirely indicative of Muslim men as a whole, but it is safe to deduce that the ways in which Muslims are treated in India may have play in how marriages and families are conducted, alongside the historical disparity between Hindus and Muslims. Is the issue inherent to many Muslim marriages or to the protection of Muslim women in a Hindu-dominated country? Furthermore, what does this tell about the product of colonialism and its links to modernity? In another study, research showed that 55% of Hindu women in India attend family outings with their spouse, whereas only 43% of Muslim women do (Desai & Temsah, 2318). The same study reports that where 19% of Hindu women face harassment in their neighborhood, 26% of Muslim women do. (Desai & Temsah, 2324). There is a marked difference in the treatment of women in India based on their religion in social, industrial and political realms of the pan-Indian world.
The need for organizations like the AIMPLB and movements like Islamic Feminism is apparent here; many Muslim women need practical access to teachings of women’s rights that incorporate Islamic texts and religious inclusion (Vatuk, 495). This need for representation and access must be separate from marginalizing opinions as to the piety or devoutness of Muslim women, choice to veil and political affiliation and instead read as a call for equity and justice. In India, political forces will soon have to realize that the best way to treat the Muslim identity is to seek accommodation and a spirit of cooperation and democratic pluralism that aligns itself with modernity (Engineer, 1038). In order to right the wrongs of the colonial regime, equality despite religious majority or minority must be the law of the land, with Muslim Women being the catalyst for reconstruction.