HOW THE JOURNEY TOWARDS A COMPREHENSIVE CODIFICATION BEGAN

DAY 18

BMMA'S JOURNEY TO ENSURE LEGAL PROTECTION TO MUSLIM WOMEN

Why was the need felt to codify the Muslim family law? 

While the Hindu majority and other religious minority communities enjoy the benefits of a codified personal law, the Muslims in India have been deprived of this basic protection. BMMA's effort since 2008 has been to evolve a draft by taking opinion and suggestions of the larger community, especially Muslim women who have been the victims of a discriminatory personal law. Personal laws in other Islamic countries have been codified, including neighboring Pakistan and Bangladesh. Historical reasons including political compulsions, a misplaced understanding of secularism, appeasement of patriarchal elements and fear of losing Muslim identity have all contributed to the neglect of this issue. So while Muslim women have continued to suffer injustices within family the uncodified law remains out of bounds for any attempt at enabling gender justice. BMMA is demanding what other communities in India and other Muslims in some Islamic countries already enjoy, legal protection. However, during our engagement with the community in drafting the law, we realized that the issue has been highly politicized. We also realized that if we, the Muslim women do not draft the law nobody else will. We realized that neither the community religious leadership nor the state have any interest in the subject. It has been left to the Muslim women themselves to take steps to safeguard their rights and demand a law from the parliament. We undertook this arduous task with the sole aim of fulfilling the legal vacuum that has existed unquestioned. 

What was the process? 

The women of BMMA embarked on a mission towards legal justice beginning 2008. More than 400 consultations were held across the country with women, ordinary citizens, lawyers, academicians, scholars of Islam etc. Our interactions with ordinary Muslim women during the process were very encouraging as they clearly spelt out the need for a law which would ensure them legal protection. As meetings, consultations unfolded in state after state, it was very clear that Muslim women wanted a law that ensured their dignity and rights in matters of marriage and family. The first draft of the Muslim family law released in 2014 was thus born out of these consultations carried out since early 2008. Thereafter many lawyers, academicians and ordinary Muslim men and women gave their suggestions and comments which were incorporated into the second edition. As on today, our third edition is out. It is a document that has emerged through a democratic process and is a work in progress. As we move along the path to codify this draft, we hope to hear more suggestions and ideas which can further strengthen this document. It is a continuously evolving draft formulated in the true spirit of the modern human rights framework of the Indian Constitution and the notion of gender justice in Islam. It goes without saying that this document needs to be further strengthened and is open to suggestions from all those who stand in solidarity with Muslim women. 

What are the provisions of the draft law?

In a nutshell this draft stipulates:

• Legal age of marriage of a Muslim woman and man as 18 and 21 years. 

• Prohibits polygamy, nikah halala and muta marriage. 

• Minimum mehr amount must be equivalent to annual income of the groom. 

• Talaak-e-Ahsan is the legal method of divorce where arbitration is mandatory and unilateral or one-sided instant divorce by husband is not valid. 

• Mother and father as natural guardians of a child

• Custody of children is to be decided based on best interest of the child and child's consent. 

• Wife gets a share in the marital property 

• Daughters get equal share in the parent's property. 

What were the challenges faced by BMMA?

BMMA has faced and continues to face many challenges. Such is the stranglehold of patriarchy in our society that we have faced resistance from multiple quarters. These include conservative religious groups, certain academicians, certain lawyers who have attempted to sabotage the movement of Muslim women through counter arguments. They have also attempted to create confusion in the minds of ordinary Muslims who have in many ways expressed their readiness for change. BMMA leaders have faced threats, abusive language and personal attacks. The religious groups have called us unIslamic, cause of fitna [anarchy] and stooges of various political dispensations. Once again, cries of 'Islam is in danger' are being heard. Once again we have been told that the time is not right for Muslim women to speak about law reform. 

What was the support received? 

While on one hand we faced challenges and obstacles, we have received huge support from ordinary Muslim women and men. It is very heartening that we have received tremendous support from ordinary Indians, women and men, from all faith backgrounds. Especially remarkable has been the support of Muslim men who want change and reforms for themselves and for the women of the community. 

Who inspired your team?

We are hugely inspired by the rising tide of Muslim women Islamic scholars like Dr. Amina Wadud, Dr. Ziba Mir Hosseini, Zainah Anwar, Mulki Al-Sharmani, Asma Lambrabet, Omaima Abou Bakr and many others who are tirelessly working to reconcile modern human rights with Islam so that as Muslim women we are able to enjoy the best of both the worlds enjoining values of equality, justice, freedom and democracy. 

What do you want from the stakeholders?

Our ardent request to all stake holders is to recognize the voice of Muslim women and strengthen her struggle for legal justice. We also request the elected representatives and the government to look at the legal discrimination faced by Muslim women because it is their constitutional obligation to protect and promote her legal rights. We have suffered enough at the hands of party politics since the last 70 years and now long for justice within family and society. We also want a comprehensive legislation which in one go is able to ensure all demands mentioned in our draft law. As we saw earlier the law against triple divorce came after 36 years and law in 1986 came after 50 years. It is time a COMPREHENSIVE LAW is put in place, NOW. 

Fourth and the Last Codified Law for the Muslim Community So Far - The Triple Divorce Legislation

DAY 17

MUSLIM WOMEN PROTECTION OF RIGHTS ON MARRIAGE, 2019

After 1986 legislation which allowed Muslim women post-divorce maintenance, this law against triple divorce came after 33 long years. So many Muslim women in this span were divorced and legally abandoned with no provision for the future. It is due to the efforts of these women who came forward and shared their stories, that this law was possible. A special thanks to Shayra Banu, Afreen Rahman, Gulshan Parveen, Ishrat Jahan and Ateeqa Sabri for filing their petitions against this practice in the Supreme Court and a big shout out to all BMMA volunteers and victims of triple divorce to bravely come forward to abolish this heinous practice. 

What does the law state?

• Any pronouncement of talaq by a husband by words, either spoken or written or in electronic form or in any other manner is void and illegal.

• Any husband who pronounces talaq upon his wife is punished with imprisonment for three years and a fine. 

• Wife will received a subsistence allowance from her husband for her and the dependent children. 

• Wife is entitled to custody of her minor children in the event of talaq 

• The offence is cognizable if reported by the wife or her close relatives. 

• The offense is compoundable at the instance of the wife. 

• Bail to the offender husband to be given by magistrate only. 

What was the role played by Muslim women which led to the enactment of the law

• BMMA from 2007 onwards demanded the comprehensive codification of the Muslim family law which would include making triple divorce, halala, polygamy and muta marriage, illegal. 

• Many public meetings, public hearings, innumerable press conferences, studies, articles were published from 2007 onwards to highlight the plight of women troubled by this practice 

• Multiple submissions were done by BMMA to the state and national governments to enact a legislation against the practice. 

• Draft law was prepared by BMMA which included a major portion on divorce and related issues. This draft law was prepared after consulting thousands of Muslim women, lawyers and academics. 

• BMMA files a PIL supported petitions filed by Shayra banu. Later Afreen Rahman, Ateeqa Sabri, Ishrat Jahan and Gulshan Parveen too filed a PIL in the SC against the practice of triple divorce 

What are the milestones which led to the enactment of law? 

• March 28, 2016: Central Government asks government to file report on “Women and the law: An assessment of family laws with focus on laws relating to marriage, divorce, custody, inheritance and succession”.

• February 16, 2017: Supreme Court forms five-judge constitutional bench to discuss challenges relating to triple talaq and nikah halala

• March 2017: All India Muslim Personal Law Board (AIMPLB) tells Supreme Court that Triple Talaq falls outside the jurisdiction of the judiciary. 

• May 18, 2017: Supreme Court reserves verdict on appeals questioning constitutional validity of instant Triple Talaq.

• August 22, 2017: Supreme Court declares practice of Triple Talaq illegal. Asks Centre to frame a law.

• December 2017: Lok Sabha passes Muslim Women (Protection of Rights on Marriage) Bill, 2017

• August 9, 2018: Central government clears amendments to Triple Talaq bill.

• August 10, 2018: The bill is tabled in Rajya Sabha. There is no consensus. Passage of bill gets postponed till winter session

• September 19, 2018: Cabinet clears ordinance. Triple Talaq becomes punishable offence with a three year jail term.

• December 31, 2018: Opposition demands scrutiny of the bill by the select panel in Rajya Sabha

• June 20, 2019: President Kovind urges political parties to clear Triple Talaq Bill during his address to joint session of Parliament.

• June 20, 2019: Government tables The Muslim Women (Protection of Rights on Marriage) Bill, 2019 in Rajya Sabha.

• June 21, 2019: Government tables The Muslim Women (Protection of Rights on Marriage) Bill, 2019 in Lok Sabha.

• July 25, 2019: Lok Sabha passes triple talaq bill amid walkout by the Opposition.

• July 30, 2019: Rajya Sabha passes triple talaq bill.

There was a SC judgment against triple divorce in 2002, was that not enough? 

It is important to distinguish between judgement and legislation. A judgment is given by the courts when a petitioner approaches them. There is also no enforcement mechanism of a judgment. The judgment gives a direction, a way out. If judgments were enough we would not need the parliament. And if 2002 judgment was enough, why did we have so many men continuing to practice triple divorce with impunity? Why were they not punished under the 2002 judgment? To enforce a judgment it needs to be converted into a law which means it has to have the mandate of the elected representatives of the country. Parliament is supreme in our country because it reflects the mandate of the people who elect them. When Parliament enacts a law it becomes the job of the executive to enforce it across the country. There is a reason why we have three arms of governance; the legislature, executive and the judiciary. 

Was criminalisation necessary? Are other personal law violations criminalised? 

• All other violations of civil law invite penalties. 

• For instance, non-payment of maintenance invites Cr.PC 125 invites penalty and imprisonment. 

• There is penalty and imprisonment for violation of the Prevention of Child Marriage Act, PCMA, not just for the adult male but also for his and her parents and guardians and for those solemnising this marriage. 

• Under POCSO spouse of a person below the age of 18 years can be prosecuted. Irrespective of whether the marriage has been contracted voluntarily, a person having sexual contact with a person under 18 years can be punished. Further, it is now mandatory for those who have information about the commission of a sexual offence to report it to the local police.

• Dowry having a strong cultural base and considered a tradition has been penalised long back in 1961. It is also punishable by penalty and imprisonment. 

• Polygamy under 494 IPC is also a crime with seven years imprisonment and fine. 

• Many decades back sati was abolished although it was considered a part of history and tradition

• Widow remarriage had to allowed through a legislation because it was also a tradition that widows cannot remarry. 

What was the amended version suggested by BMMA?

• In the amended version which I will share in the coming days, BMMA had suggested:

• 4 methods of divorce; talaak, khula, mubarah and faskh-e-nikaah were incorporated but the process of divorce is to be the Ahsan method of divorce

• Divorce process if the divorce happens outside the formal court

• Divorce process if the divorce happens through the court

• Mandatory recorded arbitration of minimum 3 months 

• Settling of all issues like maintenance, custody of children, matrimonial property, alimony, jewellery and other objects to be done before final divorce 

• Halala practice to be legally abolished since it is linked to triple divorce 

• Muta marriage which has a built in divorce must also be legally abolished

Does the law not discriminate against men of other religions since they don’t face criminalisation charges for abandoning their wives?

There is a need to make a differentiation between divorce and abandonment. A unilateral divorce pronounced/read/written/whatapped/emailed/smsed thrice had the legal effect of divorce. The marriage was over and done with, with these three words. A woman abandoned/deserted has her marriage still intact. Her rights over her husband continue. She can demand maintenance for herself and her child. There is a systematic campaign by secular and feminist groups to obfuscate the difference between desertion and divorce. Even if we assume that unilateral divorce is desertion then let that desertion be criminalised. Why is there a tendency to bring in 10 other issues when Muslim women’s issues are discussed? Why is there a tendency to confuse and obfuscate different and disparate issues? Why should Muslim women bear the burden to sorting every angle, legal and otherwise? Why should Muslim women’s demand be not a stand-alone issue? What this whataboutery every time her demands are articulated? 

It has been one and half years since the passage of this law? What is the situation at the ground?

The law is not perfect as we saw earlier. A lot needed to be added to the law to make it comprehensive. But nonetheless, it brought in a much needed break in the way men were divorcing their wives. The three second divorce process came to an end with very few cases reported after the law. The credit for it goes to the men in the community for having understood that this method of divorce will not work anymore. 

But the biggest issue is its poor implementation by the police and then the courts. The police as with other laws are very reluctant to file an FIR and this is inspite of the presence of community women leaders. It has taken months for some of the victims to even file an FIR and it has taken some more time for the case to come up before the magistrate. The delayed, tedious, expensive and formal court systems and the corrupt and inefficient police have not helped women access justice. 

THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT, 1986 Muslim Women’s Right to Post-Divorce Maintenance

DAY 16

THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT, 1986

Muslim Women’s Right to Post-Divorce Maintenance

This law came in 1986 almost 50 years after the last legislation of 1939/1937, why so?

That is because, from 1937-39, until 1986, for 50 long years, no ulema, religious body, political party, social reformer bothered about Muslim women facing discriminatory practices within the family. Triple divorce, polygamy, underage marriage, halala, muta, unequal inheritance – all continued in the name of religion. Muslim women remained unprotected despite the provisions of her religion and the constitution. Even the women’s movement since the 1970s, fell short of asking for a legislation. Beyond a point they succumbed to the conservative sections of the Muslim community, scared of repercussions and also scared to breach a boundary which did not belong to them, most of them being Hindu, upper caste and upper class. A large section of Muslim women who fought for 1937/1939 legislations migrated to Pakistan after independence and partition. There was no Ambedkar and Nehru within the Muslim community to push for legislation nor did the duo take the lead the way they did for the Hindu community and got 4 set of legislations in 1955-57 for them. 

What led to the passing of the Supreme Court judgement in favour of Shahbanu? 

In 1932 Shah banu was married to Ahmed Khan, a lawyer. They had 5 children. After 14 years of marriage he married another woman. At age 62 she was thrown out of the house by Ahmed Khan. In 1978 she filed a case under CR.PC 125 for maintenance in Indore Court. Same year he orally divorced her and said since he has divorced her, he is not entitled to pay her maintenance. The magistrate asked her husband to pay maintenance. She later went to Madhya Pradesh High court. And later to the Supreme Court against the order of the High Court. The Supreme Court gave the judgement in her favour.

What were the key points of the judgment? 

The judgment established that the Cr.Pc is applicable to all citizens irrespective of their religion. Triple divorce cannot take away the right to maintenance of a divorced Muslim women who is not in a position to maintain herself. It is the responsibility of the Muslim husband to provide maintenance to his divorced wife. And she is entitled to invoke Cr.PC 125. 

What was the impact of this judgment? 

The judgment was criticised by the clerics and various religious bodies and they cited that this judgment was in contravention to the rules of Quran and Islamic laws. There was a big hue and cry and the clerics were out on the roads to deprive Muslim women of her right to access the laws of the land. They wanted a legislation which could overturn the consequences of the judgment. The Rajiv Gandhi government could not resist the pressure from the regressive religious groups and it passed the Muslim Women [Protection of Rights on Divorce Act in 1986. This Act invalidated the Supreme Court judgment. 

What were the main provisions of this Act?

To summarise:

• A divorced Muslim woman was thus entitled to maintenance from her former husband only for a period of 3 months. He had the least liability. 

• It kept Muslim women out of the ambit of law of the country, Cr.PC 125 which ensures maintenance to the wife by husband after divorce.

• It also turned a Muslim woman into a beggar because after 3 months she begs for maintenance first from her relatives who would inherit from her on her death, then her parents, her children and finally from the Wakf Board

• This provision was justified by misquoting and misinterpreting the Quran and thus misleading the community

What was wrong with the law? 

The MWA was passed in1986 under the pressure of regressive religious groups. It took away a Muslim woman’s rights under the laws of the land.  It was passed to supposedly protect the rights of Muslim women who have been divorced by, or have obtained divorce from, their husbands. But it was infact a law which intended to take Muslim women away from her rights as enshrined in the Quran. While the Supreme Court judgement in the Shah Banu case quoted the relevant Quranic verses in favour of post-divorce maintenance, the Parliament passed the said law to nullify the SC’s decision and in fact took away the Muslim women out of the ambit of the Cr. PC 125. A Muslim man could pay the maintenance for just 3 months and go scot free. In one stroke the law took away what a Muslim woman is entitled to not just by her religion but also by the Indian Constitution. 

How did this law go against the Quran? 

We cannot miss the irony here that what Quran ensured through verse 2:241 and which was upheld by the Supreme Court of India, was nullified by the Parliament by passing a law which went against the Quranic provision as well as the protective provision of the constitution. This verse Surah Baqara clears states a divorced women’s right to maintence. 50 years back the British parliament upheld Muslim women’s right to divorce through the 1939 Act and 50 years later the Indian parliament takes her away from her constitutional and Quranic rights. 

This law through its content and process was steeped in patriarchy and a result of an unholy alliance between the political dispensation and religious groups. When this alliance happens, women’s rights are frozen and in fact regressed. It also implied that a secular, liberal and democratic government is not necessarily sensitive about the rights of women who are a minority within a minority. 

What was common/different between these 3 laws; 1937,1939 and 1986

All the three laws had political ramifications. Before independence it helped the Muslim community consolidation which helped the political parties then. Political parties, religious groups, reformers as well as Muslim women backed those legislations. Muslim women had an organised voice. They spoke openly and aggressively about their rights in independently organised forums. Sadly that force melted away with partition. 

In 1986, the reverse was happening. A law was being passed to take away Muslim women’s rights ensured in the Quran and the Constitution. While the 1939 law gave Muslim women the right to divorce, the 1986 law took away her right to post-divorce maintenance. In 1986, it was a lone woman, Shah Banu who fought her lone battle against an apathetic state and an entrenched patriarchal clergy. This time around the political dispensation stood solidly with the clergy. Women’s organisations did support Shahbanu and condemned the passing of the 1986 law. But they were no match for the hooligans having political patronage. 

Were Muslim women not organised then?

While Shahbanu fought her individual battle in the courts, one woman who stood out for her courage in 1984 was Shehnaz Shaikh. She was also a victim of a discriminatory family law and challenged it in the Supreme Court. She also started Awaaz-e-Niswaan, the first ever Muslim women’s organisation in independent India. Her exemplary work in Mumbai initiated much needed debate around the issue of law reform. At great personal risk, she organized Muslim women in the large ghetto of South Mumbai. Both these women took their individual fights to a level where it reflected the community issues. But the political dispensation used the Muslim community against these Muslim women making their work and their survival difficult. But large scale organized force of Muslim women did not exist which could have stood shoulder to shoulder with Shehnaz and Shahbanu. 

What happened to the law later on? 

After the law was passed, there was widespread discontent as it got the Muslim women out of the ambit of Cr. PC 125 which was a common law of maintenance for all Indian citizens, thus endangering the citizenship rights of the Muslim women. It also went against the Quranic provision of post-divorce maintenance. Also many High Courts thereafter came up with conflicting judgments

The issue was put to rest by the Danial Latifi judgment which came in 2000, which interpreted the law thus:

• A divorce women is entitled to maintenance AND a reasonable and fair provision 

• Both have to be paid BY the husband NOT JUST FOR the iddat period but WITHIN iddat period. 

• The payment of maintenance is not just restricted to iddat period but untill she remarries. 

The Supreme Court read the Act with Articles 14 and 15 of the constitution which prevented discrimination on the basis of sex and held that the intention of the framers could not have been to deprive Muslim women of their rights. 

So the Supreme Court came to the rescue again?

Yes it did. This interpretation of the law ensured that Muslim women could ask for maintenance AND provision for future to be paid within iddat period. This interpretation was critical in restoring her rights as a divorced women. 

Reference: 

Legalserviceindia.com 

MUSLIM WOMEN GOT THE RIGHT TO DIVORCE IN 1939.

DAY 15

THE DISSOLUTION OF MUSLIM MARRIAGE ACT, 1939 [DMMA]

What were the provisions of the DMMA?

As seen in the previous article, The Shariat Application Act was passed in 1937. Within 18 months of the same, the next legislation came for the Muslims in the form of the DMMA. This Act gave Muslim women the right to divorce through the court. While many loopholes can be found in the legislation, it goes without saying that it gave unprecedented legal rights to Muslim women who could now come out of a bad marriage through court intervention. 

Under what grounds could she give divorce through the court?     

The Act permitted the wife to seek a judicial divorce on grounds permitted by the Maliki school of jurisprudence. The grounds were, husband’s:

• Cruelty

• Insanity

• Impotence

• Disappearance 

• Imprisonment

• Failure to perform his marital obligations 

• Failure to  provide maintenance for specified periods of time, ranging from two to seven years.

• She could also divorce based on the ‘option of puberty’, that is, if a woman had been married off by her elders before puberty and the marriage had not been consummated, she could ask for its dissolution. 

It stated grounds of divorce in very definite, clear and precise terms, and any judge, whether Muslim or non-Muslim, would not have much room left for doubt with regard to them. 

What were the preceding conditions before the law was passed? 

While the Quran ensured that women are equally entitled to divorce, the clerics misled and misinformed the community. As a result many Muslim women began to convert out of Islam in order to escape a bad marriage. This alarmed the clerics and social reformers alike. Not so much out of the concern for women, but to ensure that conversions out of Islam would subvert the numerical strength of the community thus endangering the new political arrangements which required community solidarity. So in order to tide over this crisis, this legislation was passed. 

What were the different religious points of view then linked to this law? 

The clerics were not on the same page while discussing this legislation. Many felt strongly that women truly do not have the right to divorce. She is in all manners inferior to men. He is her hakim, owner so to say, and only when he wants to get rid of her, can he do it. It was his and his right alone to terminate the marriage which was a relationship of maintenance against sexual accessibility or that of a master and slave. Her will for divorce is dependent on his consent. 

Many also believed that conversion cannot dissolve a marriage. Conversion itself is a sin and anyone who converts must be forced into coming back in the fold and till such time imprisoned. But the British courts did not approve of this arrangement at all. 

Some others were worried that with legislation and judicial processes, the entire personal law domain would shift to the courts and into the hands of, in most parts, non-Muslim judges. And by extension the state will start to play a role in personal matters. This insecurity is prevalent even now when the current religious organisations do not want the state to intervene in personal law matters. 

How did they find a way out?

A way out was necessary. The Hanafi jurists, because most Indians are Hanafis by sect, clearly laid down that in cases where Hanafi law is not upto it, it is permissible to apply laws from other schools of jurisprudence, Malliki, Shafi or Hambali. So the provisions of the DMMA were inspired by the Malliki school. Ulemas also issued a fatwa that a married woman may obtain a decree dissolving her marriage, thereby, bringing her divorce out of the ambit of their influence. A Muslim woman, now can approach the court of law to dissolve her marriage, and not remain at the mercy of her husband. This was a revolutionary legislation which restored to women her rights ensured in the Quran and put her a step ahead of women from other communities who still had no legislation.

Looks like the clerics played an important role unlike during the time of triple divorce law!

To sum, both the Acts, 1937 and 1939 had the involvement of the Ulemas. In fact they played a crucial role in the getting the legislations while cohorting with their political masters then. Today when the clerics deplore the involvement of the state in the shariah matters forget their own role in making the state to legislate for them, and that too a foreign state. 

Muslim women too played an active role in supporting the two legislations. It also reiterates that until women’s issues do not become political issues, they do not matter to the powers that are at the helm. 

What were the limitations of this law?

This law while it gave Muslim women the right to divorce, did not put any curbs on the man to not unilaterally divorce his wife. So while the wife had to struggle with the court process, the husband was free to divorce orally and get away from the marriage instantly which went on till 2019 when the legislation against triple divorce was passed. The law was not comprehensive as it did not make any provisions for post-divorce maintenance, custody of children, matrimonial property rights of the wife. Hence BMMA has been constantly seeking a comprehensive legislation that takes care of every aspect of family life. 

What happened to the law reform process after independence? 

If we look at the timelines, the Shahbanu legislation came in 1986, almost 50 years after the 1937 Act. Thereafter there was absolutely no attempt by political parties in power nor by religious groups nor by women’s organisation to address the issue of personal law reform. Further ahead, the triple divorce law came in 2019, a good 33 years after the last legislation. In 1937 too Muslim women were demanding their religion based rights and 2020 also the same conditions exist. While the others got their religion based rights legislated, the Muslim community lays in a stupor. Most times it was under the tight hegemonic control of the clerics who in turned controlled the political dispensation, which had no political will to intervene in matters of its own citizens. Are we going to wait for another 50 years for the next set of legislations? 

THE HISTORY OF SHARIA APPLICATION ACT, 1937 [SAA] Indian Muslims First To Begin Codification

DAY 14

THE HISTORY OF SHARIA APPLICATION ACT, 1937 [SAA]

Indian Muslims First To Begin Codification

Is it that the Muslims were the first to codify their family law? 

It is indeed tragic that the community which started first to codify its family law is still to end the process, 73 years into independence. While the rest of the population enjoys the security of the law, however faulty its implementation, and faulty it is, the largest minority in India and the second largest in the world still remains deprived of that privilege. 

Today there is resistance to codifying Muslim law from the orthodox clerics and many are still wondering what the issue is all about. But Muslim law began to get codified even before Hindu law. The call for codification of Muslim law then came from various quarters. It came from religious groups, political groups, social reformers as well as Muslim women’s organisations. While each had their own reasons, they all wanted legal reforms to happen. 

Name the family laws which govern different communities in India? 

At the cost of repeating myself which I have done in practically all articles on Muslim law, it is important to recall that Hindus are governed by 4 Acts, Hindu Marriage Act, Hindu Succession Act, Hindu Minority and Guardianship Act, Hindu Adoption and Maintenance Act Hindu law governs Sikhs, Jains and Buddhists. The Christians are governed by Indian Christian Marriage Act of 1872 and the Parsis are governed by Parsi Marriage and Divorce Act of 1936.

Muslims as on today are governed by Shariat Application Act, 1937 about which we will learn today. They also have the Dissolution of Muslim Marriage Act, 1939, The Muslim Women (Protection of Rights on Divorce) Act, 1986 and the recently passed The Muslim Women (Protection of Rights on Marriage) Act, 2019 

Other than these personal laws all the citizens are governed by the optional family law called the Special Marriage Act, 1954 which makes space for inter and intra religious marriages. This law gives you the freedom to opt out of your personal laws. 

What are the implications of these laws? 

With passing of these Acts, it became mandatory that each community is governed by their respective family laws unless they choose to marry under the Special Marriage Act. Before these codified laws were passed, Indians across religions followed a mix of customs and traditions. Even now it will not be surprising to know that even the well-educated and aware don’t know under which law they have married. We now follow a mix of codified law and local customs and traditions. Over the period of time, the personal laws are seen as intrinsic to each community’s socio-religious identities. 

What does the Shariat Application Act say?

Let’s look at the text of the SAA. It says, notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding succession, property, marriage, divorce, maintenance, dower, guardianship, gifts, trusts and wakf, the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat). In simple words it says that Muslim community hence forth will NOT be governed by customs and traditions but by the shariah law in matters of marriage, divorce etc. 

Which groups supported the codification process in 1937?

Muslim women wanted the shariah law although some of them also were also aware that the turn of political events in the 1930s are actually undermining the joint women’s call for equality and justice. Turning to codifying the shariah would ensure inheritance rights, they will have a say in the marriage, they will have the right to divorce and maintenance after divorce. These shariah provisions were conveniently ignored by the Muslim clerics then. Although the shariah provisions ensured rights for women, they were not made aware of it and were subjected to the discriminatory customs and traditions. 

Political leaders who paved the way of passing the SAA wanted a separate Muslim identity for their own political purposes. It fulfilled a colonialist agenda of creating religious identities and pitting them against each other. A community bound by a common shariah law, is easy to mobilise for creating a separate identity which can be then mobilised for political strength. 

Religious groups wanted shariah to further strengthen their religious identity which was increasingly feeling threatened by the turn of political events. 

What was the context in which the law was passed?

A quick look at the context in which the law was passed. The political scenario was changing rapidly. The Muslim League had emerged as a political representative of the Muslim community. The Muslim women along with other women were extremely vocal about their rights and were demanding a better legal deal for all women. The Muslim shariah provisions had been ignored very conveniently by the clerics then and as a result Muslim women suffered. While she had the right to khula, she was not allowed to exercise it. Many women were trapped in violent marriages with no hope ever to come out of it unless the husband divorces her. There was an alarming increase in the number of women who started to convert out of Islam to annul their marriages and save themselves the agony. The religious groups were alarmed along with the political leaders as a large number of Muslim women converting out of Islam would harm the numerical strength of the community standing at the cusp of national uprising against the British and also bearing the brunt of their divide and rule policy. Moreover as said earlier the Muslim women who led the rights movement then, knew that shariah provisions were favourable for them. They not only had the right to divorce but also right to post-divorce maintenance. The marriage was not possible without the woman’s consent. Moreover she also inherited property. Muslim women were not ready to give up their rights ensured by the religion but taken away by local customs. They played a significant part in ensuring that women got their shariah-protected provisions in the form of a codified law. 

Who opposed the SAA and why? 

The Act did face opposition from various quarters. The rural farmers of the north opposed the law as it ensured women’s right in the property. For centuries, women of all communities were deprived of their right to property and this Act in a jiffy restored that to the Muslim women atleast. Many Muslim land owners objected this fair provision. To pacify them, the Act barred the application of this law on agricultural property to ensure the political support of the Muslim landowning class. Such a convenient arrangement between the elite and the political dispensation then! Reminds you of the same arrangement between the religious groups and political dispensations in independent India. 

The opposition also came from the religious groups who for centuries had held the reins of religious matters, including the family law matters, in their hands. The passed fatwas, they misled the masses from the pulpit, depriving the women to educate herself, impacting her mobility, misinformed about purdah, deprived her of her right to divorce, maintenance, encouraged child marriage and kept her out of her property rights. Such a shame that this was allowed to continue even after independence. Even today women are deprived of her rights in the absence of shariah backed legal provisions. Some of them did support the passing of the law, but many objected to it being allowed to be governed by a secular dispensation, through lawyers and judges who will not necessarily be Muslims. This irked them more than the fact that 50% of the population will have access to their rights. They were clearly not comfortable with the power slipping away from their hands. 

All in all, the SAA ensured women’s right, specifically her right to property and her right to divorce. As we will see in the next article of the series that the process of codification did not stop. The next legislation came in less than two years of the SAA ensuring Muslim women’s right to divorce. 

Keeping in line with the trend set in 1937, the process of a comprehensive codification of Muslim law must happen. 

JOURNEY OF NIKAAHNAMA – MUSLIM WOMEN’S INITIATIVE SINCE 2005

DAY 13

JOURNEY OF NIKAAHNAMA – MUSLIM WOMEN’S INITIATIVE SINCE 2005

How did this journey begin for BMMA?

The journey began when the All India Muslim Personal Law Board released a nikaahnama, even before BMMA [Bharatiya Muslim Mahila Andolan] was launched formally. This nikaahnama of the Board did not take into account the immense difficulties which Muslim women were facing due to triple divorce. While the AIMPLB’s nikaahnama had asked the husband to take a moral oath to avoid triple divorce, it did not abolish the practice. The Board in fact had said multiple times, that however draconian triple divorce may be, it cannot be wished away and in fact can be beneficial also at times. A quick break can at times prevent physical abuse and trauma, it seems. On a high mehr amount, they Board said, the men should not be burdened beyond his capacity. Not only this but the nikaahnama insisted that the woman must be obedient to her husband and it is ok for him to be violent with her if she disobeys. So the journey began with a reaction to the regressive nikaahnama of the Board but did not end there. 

How did the Muslim women react to this nikaahnama?

Muslim women had already organized themselves into an organization called the Hukook-e-Niswaan [H-e-N] which comprised of 30 community based Muslim women’s organisations and mahila mandals in Mumbai. A young member of H-e-N, Muskaan Shaikh took the lead and tore off the nikaahnama of the Board in a press conference. She said, the Board’s nikaahnama was discriminatory. She also said that it is a common misconception that the Board is the law making body of the Muslims and this notion is given air by political parties and the media. In reality it is an NGO like any other enjoying no state or community privileges or sanction. The Board, time and again, in the name of protecting women’s rights, have made remarks or passed fatwas which actually harms the Muslim women. There is no place for such regressive, patriarchal groups in a secular democratic country. They have time and again proved how harmful they are to the Muslim women and to the larger Muslim community. 

Khatoon Shaikh of the H-e-N said during the press meet that they do not need the maulana-qazi who listen to the woes of Muslim women but do nothing. Now we don’t need them anymore, we will make our own laws, she said. She not just said it but took the lead and two of her sons got married under the new nikaahnama. She always believed that the change must begin from home. 

What were the objections to the Board’s nikaahnama?

1. The Board did not care to understand that nobody was insisting on abolishing divorce itself, but simply wanting the instant method to be done away with. But they did not do away with instant divorce. For them it did not matter that scores of women who were simply driven out of their homes on mere three words and legally abandoned. Saheli, an organization which was part of H-e-N shared that the Board is completely oblivious to the fact that men, who go abroad, sent divorce papers or simply call up their wives and divorce them on the phone. What should such a woman do? Also women do not have a right to give divorce the way men give, making a woman extremely vulnerable. The Board even said, triple divorce is a sinful but a valid form of divorce. This contradiction is something which only they can explain!

2. The Board’s nikaahnama also said that the wife should also be obedient and should not leave the house without her husband’s permission. She can meet her parent’s only if the need arises. 

3. The Board’s nikaahnama also took away the right of Muslim women to approach the courts. This was a dangerous move, taking Muslim women away from those structures over which she has a right as a citizen. This would further ghettoize the Muslim community and Muslim women. 

What else did H-e-N do?

H-e-N is collaboration with other organisations formulated an alternative nikaahnama. Having rejected the nikaahnama of the Board, Muslim women felt that they should not simply protest but also create an alternative and use it for conducting marriages which will protect a woman’s interest. As per this alternative nikaahnama, new provisions were made and they were:

1. Woman and a man were equal partners in a marriage. Also, if a couple takes a decision to get married under the new nikaahnama, the husband will not be able to give triple divorce to his wife. 

2. Moreover, it laid down in the nikaahnama itself, the Quranic method of divorce which is applicable to both men and women. In this process, arbitration is mandatory and a period of reconciliation of a minimum of 3 months must be followed before the marriage is dissolved. 

3. Polygamy is not allowed for a man who marries under this nikaahnama. 

4. It also insisted on a high mehr amount as financial security for a woman who leaves her home and family to start life in a new home. A high mehr amount ensures that she has something in her hand as she enters a new phase of her life. It gave the right to women to decide her mehr amount and also made provision for her share in the husband’s property. 

What was the concrete step taken other than simply tearing away the Board’s nikaahnama?

The alternative nikaahnama was created but as said it did not end here. Many couples came forward to get married under this new nikaahnama which did not allow polygamy and triple divorce and which insisted on a high mehr amount for the bride. Many couples who wanted tasdeed-e-nikaah, renewal of their marriage contract with their own spouses, came forward. H-e-N strongly felt that we must not stop ourselves simply by criticizing the Boards nikaahnama. 

In fact, in May 2005, 7 couples solemnized their marriages under the new nikaahnama prepared by the Muslim women. H-e-N was part of a larger group that took the initiative in the Navpada community of Bandra east.

What benefits did women get after the renewed their marriage contract with their husbands?

Through this new nikaahnama, Aga willed his house to his wife, Noorjehan, as mehr, so that she has a roof over her head after his death. She also got 11,000 as mehr as well. Reshma got her house in her own name as mehr as well as an increased mehr amount from Rs. 786 to Rs.25,000. Razia got his life insurance policy of 40,000. 

Who solemnized these marriages? 

The very courageous, Qazi Abdul Alim Rizvi, was not just brave but also very honest in his commitment to women’s rights, and very happy that Muslim women have taken this initiative. He agreed to solemnize the 7 marriages of couples on the new nikaahnama made by Muslim women. He said, it is not Islam but the interpretation of Islam that has caused the ill-treatment of women. The 7 couples who took the lead were, Suraiya and Razzak Shaikh, Noorjehan and Aga, Fatima and Ibrahim Qureishi, Reshma and Hamid Shaikh, Bilquis and Hussein, Akhtari and Khalil-ur-Rahman and Razia and Abdul Rahman. Although some couples from amongst them were already married to each other, they decided to renew their marital vows under the new nikaahnama to ensure their rights. 

What was the response of some of the grooms who renewed their marriage contract? 

Razaak, one of the groom, said that he did not want a marriage in which a woman is subordinate to a man. He vehemently opposed the Board’s nikaahnama and said we have to stop treating women like slaves. 

What happened after BMMA was formed in 2007?

When BMMA was formed, we took the same nikaahnama which we had drafted in 2005 and worked on it again to make it more women-friendly. We got it printed in large numbers so that it can be spread out in the communities where we worked. 

In 2008, Naish Hasan and Imraan set another benchmark and got married under the BMMA nikaahnama. Many firsts happened in this marriage. 

1. First, it was solemnized by a woman, that too a Shia woman while the couple were Sunni. 

2. The couple married on a nikaahnama which was prepared by BMMA, a national organization of Muslim women, of which the bride was a member and had taken active part in its drafting. 

3. This nikaahnama forbade oral divorce and polygamy.

4. Another unique part of this marriage was that it was solemnized in English and not Arabic. 

5. To add to this, all 4 witnesses to the marriage were women. 

6. It was solemnized in a jam-packed hall of both women and men. 

All present in this marriage, truly believed in the message of equality in Islam. Neither the Quran nor the shariat stops women from solemnizing a marriage. Just because it has not happened earlier, does not mean it cannot happen now. 

What happened in 2010? Did the process continue?

This process of solemnizing marriage on the nikaahnama made by Muslim women, continued. In 2010, Farheen Syed, daughter of Khatoon Shaikh, went ahead and renewed her marriage vows with Muzammil Syed. She got protection against triple divorce, polygamy and the added advantage of an increased mehr amount. Muzammil Syed and another groom, Mohammed Ismail, were more than willing to remarry their wives with a better mehr amount and a legal contract to not indulge in polygamy or use the method of triple divorce. A rare but emerging breed of Muslim men, indeed!

Was this process confined only to Mumbai and Lucknow?

Not at all. In 2010, Noorjahan Dewan, BMMA state leader of Gujrat solemnized 35 marriages under BMMA’s nikaahnama in Ahmedabad. She took great pains to educate the couple as well as other stake holders for the need to come forward and protect the interest of women. She explained how nikaahnama is an instrument which brings a woman closer to her rights which are ensured in Islam by making it binding on the husband. 

What was the next step after formulating the nikaahnama and conducting so many marriages? 

These incidents led from one to the other and finally in 2015, BMMA decided to launch its own school, called the Darul Uloom-e-Niswan, which is a registered organization, training women to become qazis. The syllabus and the training module was prepared completely by Muslim women. The first batch of 15 women were certified as qazis by DUN. The next batch happened in 2019 when 5 more women became qazis in Mumbai. 

Please name these qazis so that it gets recorded as an important milestone?

Qazi Hakima Khatoon, Qazi Jamila Lashkar, Qazi Nasreen Metai, Qazi Basheera Banu, Qazi Nishat Hussain, Qazi Safia Akhtar, Qazi Humaira Khan, Qazi Jeibunnisa R, Qazi Saramma, Qazi Jahanara, Qazi Zubeda Khatoon, Qazi Suraiya Shaikh, Qazi Heena Siddiqui, Qazi Afroz Shabbir, Qazi Hasina Shaikh, Qazi Nargis Tariq, Qazi Gulshan Khan, Qazi Zarina Khan, Qazi Yasmin Shaikh, 

These qazis were certified by Noorjehan Safia Niaz and Zakia Soman who also certified each other for the same. So in all 22 qazis exist in the country today trained by BMMA. 

The qazis were spread out in different states of the country. Qazi Zubeda Khatoon, became the first to undertake and finalize a khula where the divorce was initiated by the woman. 

Followed by Qazi Zubeda Khatoon was Qazi Hakima Khatoon who became the first woman in India who solemnized a marriage after being formally trained by BMMA/DUN and certified by an all-women group. This set the ball rolling and Qazi Noorjehan Safia Niaz, became the second one to undertake a khula proceeding. 

What was different about these women qazis? 

All the three qazi above followed the protocol laid down by BMMA. For khula, a mandatory three months of arbitration was undertaken with the purpose of arriving at a reconciliation. Before the final khula proceedings, all give and take of the couple’s belongings and jewelry happened. The final khula document was also notarized with the advice to the couple to get a court decree for the same. 2 original copies of the khulanama was given to each party. 

Similarly for the marriage, Qazi Hakima Khatoon had a series of meetings with the couple and the protocol for the same were followed. All necessary documents were collected from the couple, mehr amount of groom’s annual income was fixed. All provisions of BMMA’s nikaahnama were explained to the groom. In fact this marriage happened only because the bride insisted that she would have her marriage solemnized by a woman qazi only. 

What next?

We are here, the community needs to now come forward. The more confidence women and men repose in women qazi, the more easy it will be for us to reach out to women who need the protection of a good nikaahnama in the absence of a good law. They must see their own benefit in this process. 

By formulating the nikaahnama and solemnizing marriages and divorce, Muslim women have done an important work of reclaiming the religious space which rightfully belongs to them. Being equal human beings and being equal before the eyes of the creator, it is important that women spread themselves out in those spheres which have been forbidden to them just because they are women. 

TEN QURANIC VERSES WHICH MUST BE KNOWN TO ALL 

Know your GBJEWC verses 

Goodness, Beauty, Justice, Equality, Wisdom, Compassion 

What damage has been done by male hegemony over religion? 

The larger Muslim society would have been a lot better if Muslim women had read, translated and interpreted the word of God. Very cunningly, Muslim men [and the rest as well] have kept to themselves the right and the privilege to educate themselves, especially education pertaining to religion. Muslim men know that knowledge is indeed power and if Muslim women learn to read and understand what is written, they will take for themselves what benefits them just the way men have done so far.  

Very deviously Muslim women have been told to read the Quran in a language which they don’t understand. You see, reading the Quran in Arabic is sawaab ! Not just reading and understanding of the Quran but even its translations and interpretations have remained in the male domain. So dear women, they say, if you know how to read then please read the Quran in an alien language. If you are lucky and understand the alien language then please don’t interpret. And if you are reading a translation don’t interpret that translation and don’t analyze the credentials and motives of the translator. And if you have managed to read, understand, translate and interpret, then please keep your mouth shut as religion is the territory of the so-called alims and scholars and experts. You as a woman have no business to enter that territory. Thus continues the male hegemony over religion-based-knowledge which has destroyed the lives of many Muslim women across the world. Men are the readers, translators, interpreters and givers of this knowledge and women continue to merely receive it without questioning.

What have women scholars of Islam done? 

But times are changing for better. Many recent women readers of the Quran have managed to come out with their own translations and interpretations which question the tradition, male-centric and patriarchal understanding. They have also gone beyond the written word to extract the eternal values of Islam which put not just women and men on par but also puts all humanity equal to each other as one creation.

To me and to many like me, these eternal values of Islam which are conveyed to the humanity through the Quranic verses, gives the courage to fight for justice within and outside the Muslim community. Those eternal values are remembered best through the acronym, GBJEWC. That is how I choose to remember them. G for goodness, B for beauty, J for justice, E for equality, W for wisdom and C for compassion. For any Muslim to proclaim himself or herself as a Muslim, he or she must believe and abide by these principles.

What are the verses in Quran on equality?

1. Allah created human beings both women and men, so that they can take responsibility of the earth. The responsibility of all the affairs of the earth are entrusted on both. [2:230 - I will create a vicegerent on earth. Most scholars understand ‘vicegerent’ as human beings. 

2. Women and men are created from one source and hence by default they are equal. The very essence of their existence is mutual dependence as they come together in this world from one single source [4:1 O people, be aware of your Lord who has created you from one person and He created from it its mate and sent forth from both many men and women; and be aware of God whom you ask about, and the relatives. God is watcher over you]

3. When it comes to equality before God, women and men are equal. In all aspects which include surrendering to God, being truthful, being patient, being humble and charitable, following religious rituals, women are equal to men. There are no exemptions to woman just because she is a woman and there is no special treatment to man just because he is a man. [33:35 - Surely, the peacefully surrendering men, and the peacefully surrendering women, the acknowledging men, and the acknowledging women, the obedient men, and the obedient women, the truthful men, and the truthful women, the patient men, and the patient women, the humble men, and the humble women, the charitable men, and the charitable women, the fasting men, and the fasting women, the men who guard their private parts, and the women who similarly guard, and the men who commemorate God frequently, and the commemorating women; God has prepared for them a forgiveness and a great recompense.]

4. Women and men are owners of what they earn or gain. Some men gain more than women and some women gain more than men. Sometimes men gain more than women and sometimes it is the reverse. God favours equally. [4:32 - Do not envy what God has favored some of you over others. For the men is a portion of what they gained, and for the women is a portion of what they gained. Ask God from His favor, God is knowledgeable over all things.]

State the Quranic verses on compassion, goodness, peace, care, goodness in women-men relationship 

5. The purpose of marriage is tranquility and peace in relationship. Spouses must love, respect and care for each other and be content and happy in each other’s company. That is the essence of spousal relationship in Islam, which exhorts us in the end to think and reflect on what should one be aspiring for. [30:21 - Among His signs is that He created for you spouses from among yourselves, in order to have tranquility and contentment with each other. He places in your heart love and care towards your spouses. In this, there are signs for people who think.]

6. Women and men are made for each other, to shield and guard each other. There is mutuality of support, care and protection. Linked to the above verse it conveys that women and men are there for each other, to lead a life of peace and harmony. [2:187 - They are a garment for you and you are a garment for them…]

7. Both women and men are supporters of each other. Both are expected to do good and avoid evil. [9:71 - The believers, men and women, are awliya [allies] of one another. They enjoin al-maruf [the good] and forbid al-munkar [the bad], they observe salat and give zakat and obey God and his Prophet.]

Which Quranic verse speak of beauty and goodness in general?

8. Allah commands human beings to manifest beauty/goodness as they have been manifested upon     them by Allah. Human beings are asked to not corrupt the earth by doing anything that is unjust and unfair. [28:77 – And do good as Allah had done good to you. And desire not corruption in the land. Indeed, Allah does not like corrupters]

Verses on justice and wisdom?

9. Allah enjoins justice, kindness and the doing of good to kith and kin and forbids all that is shameful, evil and oppressive. He exhorts you so that you may be mindful. Justice is crowned by goodness. [16:90 – Allah orders justice and good conduct and giving help to relatives and forbids immorality and bad conduct and oppression.]

10. Allah enjoins all human beings to use their akl, their ability to think and rationalize. There is a lot of emphasis on knowledge, wisdom, analysis, good judgment and common sense. [28:14 -And when he attained his full strength and was [mentally] mature, We bestowed upon him judgement and knowledge. And thus do We reward the doers of good. 

There are of course many more Quranic verses, written in different contexts, which again and again harp on the same values and principles which bring people together and which define relationships based on mutual respect and support. It is time that these timeless eternal values are brought to the forefront of any debate concerning Muslim women. 

MUSLIM WOMEN AS MEDIATORS

Inspite of the fact that the Muslim community does not have a comprehensive law and the poor state of implementation of all laws, how have Muslim women find a breakthrough? 

Muslim women led by BMMA, Bharatiya Muslim Mahila Andolan have done three important things:

1. It drafted its own personal law, a comprehensive Muslim family law after a nationwide consultation spanning over 8 years. In the absence of a law, this draft shows the way to our volunteers who provide legal aid. 

2. We have set up Aurton ki Shariat Adalats to provide legal aid to distressed women. Hundreds of cases get registered here. Our team of trained volunteers provide legal aid to women. 

3. We set up the Darul Uloom-e-Niswaan, an organization that has trained 20 women who have become certified qazis. 

We have created structures by which we can support the victim and help her get justice. 

Do these Adalats / individual qazis work as mediators?

Yes the formally trained women qazis as well as other volunteers of the Aurton Ki Shariat Adalat are mediators who help the women victim. They follow the draft law prepared by BMMA, they take the help of other NGOs, clerics and lawyers if need be. They do home visits, do joint family meetings, engage with the police, community leaders and other stakeholders. Their work is very hands on. They are very mobile. The volunteers visit the police station multiple times if required. If the husband does not come for joint meeting, they visit his home as well. This helps in quick resolution of the cases. They are also trained in feminist counseling processes by which she can emotionally support the victim. She is made aware of her rights within the Quran and also about the other laws which are applicable to her. 

In this Qazi training, our trained Qazi are required to do joint meetings with the couple before the marriage. So all issues like mehr, conditions by either parties, post-marriage residence of the couple, groom’s income etc. The qazi must also ensure free consent of both the parties, especially the woman. She must ensure that they are of legal age of marriage, which is 18 and 21 years. She must ensure that this groom is not indulging in a polygamous marriage. A lot of that work is supposed to be done by the Qazi trained by us. So far we have had one opportunity to do that. But as we move ahead and as more and more women come forward to get married through a woman Qazi, she would be expected to do this work. 

Are the Muslim women legal aid workers strictly mediators? 

BMMA legal aid volunteers are based in the centres which are based in the communities. Women, victims, volunteers come in and go out of the centre. Trainings, meetings happen here. Counseling and Adalat work also happens here. So there is a thin line or no lines. I am a mediator and in a few minutes turn into a counselor or even a therapist. Sometimes the victims needs a shoulder to cry on and a patient hearing, in which case, I turn into her friend or a sister. This support is given not just to the victim but also to her father, mother, brother and other members of her family who are equally traumatized. So a community legal aid volunteer is all rolled into one. She does a lot of so-called pre-litigation work which actually is litigation work but out of the court. Her works helps those clients who would have otherwise burdened the already overburdened courts. 

What values do these women mediators adhere to?

The Adalat volunteers and women qazis are trained to believe in the values of equality, justice, freedom, democracy, compassion and goodness, liberty and fraternity; values enshrined in the Quran and the Constitution. They also function on feminist principles which requires that they hear out the women without judging and support her in any way that she wants to be supported. 

So what is mediation? 

Without getting into a formal technical definition, mediation is intervention by a third party to resolve issues between two people. Mediation is age old. In earlier times, if a person had a problem, the family would be the first mediation group. Family even now continues to be the first mediator. Forums like Nyaya panchayats, gram panchayats, caste panchayats, jamaats existed and exist even now. How gender and caste sensitive they are is another story. But mediation has always been there. 

Today we have a plethora of such forums. We have the formal courts, mediation and arbitration groups, counseling centres within courts, NGOs, community and caste groups, women’s organizations etc. Other than the formal courts, none of the other groups are formally trained in these legal processes. Native wisdom, intellect, basic common sense and a bit of training and knowledge has helped non-formal mediators to emerge. 

Why did such forums emerge, what ails our justice systems? 

We have three aspects of governance; the legislature, the executive and the judiciary. All three are important for justice to become accessible to all citizens. Having a good legislation is important. It’s implementation is equally important and if there are disputes then the dispute resolution systems like the police and the courts must also function optimally. 

Largely our laws are quite good. They are made in the Parliament after a lengthy and healthy debate, there are Parliamentary committees who sit on it and after much deliberation we come up with a fairly good law. And there is also a possibility of amendments to these laws as society evolves and time goes by. 

But when it comes to its implementation, the systems are very poorly managed. When a certain legislation is in place and if one has to access it, the first place that a person goes to is the police station and it is no secret how our police stations work. They are not just not friendly for women. They are not friendly for anybody. Complaints are not written down, FIRs not taken etc. To sum up, the implementation and execution of these legislations is extremely poor. And this becomes one of the main reasons for non-formal justice delivery systems to emerge. 

Is there any synergy between these groups who do mediation? 

That is where the challenge is and that should be the future thrust. How can we make such seemingly disparate groups to work with each other to help the victim? The victim may go to the court, to an arbitrator, to NGO or to a Qazi, wherever she goes, how do we join hands with each other to help her. 

Justice is a basic right mentioned in 39A of the Indian Constitution. The poorest of the poor must be able to access justice. But for this to become a reality, a synergistic approach is needed. We are working in our own silos, in isolation. The lawyers do not feel the need to reach out to community based group and the religious groups want to work in isolation, cut off from formal processes. Can we develop a synergistic system where the cleric, the lawyer and legal aid workers, work together? 

It requires a shedding of egos, acceptance and understanding of each other. We will need to develop a system which is institutionalized and where all the above work in tandem with each other, building on each other’s strengths and work for the victim. Can we all be working as complimentary systems in the larger scheme of helping the most vulnerable get justice?

INDIAN MUSLIM WOMEN SAINTS

DAY 10

INDIAN MUSLIM WOMEN SAINTS 

The article first appeared as a full article in Zariya-Women’s Alliance for Dignity and Equality

How are we to look at the category of women saints in a country riddled with misogyny? 

Yes and narrowing down to Muslim women saints, it is even more unpalatable for many that  a community which more often than  not   demolishes women’s rights ensured by God itself, has a plethora of women saints spread across the length and breadth of the country.

Dr. Amina Wadud gives a framework[1] under which we can further explore this issue. While the classical framework envisages[2] the man as the direct receiver of grace and knowledge from the Almighty and hence superior, she gives a framework which supersedes and replaces that framework in consonance with the value of equality.

Going by the new framework, it then is established that women and men both are capable of receiving grace and knowledge from Allah, the universal power. Both are equipped with intelligence, insights and capacities to know and understand the transcendent. Women are no longer dependent on men to know their Creator.

Aren’t there many different ways to reach Allah/God?

Institutionalized religion has created structures, frameworks, rituals and prayers to establish a connection with the Creator. While a whole lot of us are comfortable with ritualistic and laid down methods of aligning with God, many find that confining and too narrow a path. There are also many who do not wish to confine themselves to only one religious path. For them all paths lead to the same ultimate reality.

Sufi Islam  seeks to align its soul with its origin and source through meditation and prolonged prayers which are more an inward journey of the soul rather than a set of bodily movements or chants. And in spite of its esoteric and mystical orientation and its assertion of being closer to Allah through intense prayers, they have not been able to escape the cruel hands of patriarchy.

How do we use the sacred texts to establish gender equality?

Dr. Amina Wadud, also called the Lady Imaam, says in an interview to Caroline Suineer [www.ruskeattytot.fi], ‘As a Muslim I use the Islamic sacred sources to talk about human beings as persons created by a Creator with the intention of being the khalifa of God on earth. The Khalifa is an agent, the one who fulfills the divine will and the divine will is to live in harmony with all of the creation and creator. So, both women and men are created to be moral agents on the earth.’ It is the duty of women and men to do good and resist evil and spread the word of God which is to live in harmony with one another despite the diversity.

Having said that, should there be any doubt in anyone’s mind that women are incapable of being deeply spiritual? But as we know, history has been written by patriarchs and all experiences of women, spiritual or otherwise have never been duly acknowledged. 

What is the feminist perspective of gender equality in Islam? 

Islam recognizes the equality of women and men at the very genesis as both having been created from a single cell [4:1 “O mankind! reverence your Guardian-Lord, who created you from a single nafs, created, of like nature, His mate, and from them twain scattered (like seeds) countless men and women;- reverence God, through whom ye demand your mutual (rights), and (reverence) the wombs (That bore you): for God ever watches over you.”]. This itself establishes the equality of status at the time of creation. Additionally, both are considered as protectors of each other ["They (your wives) are your garment and you are a garment for them" (Noble Quran 2:187)].

What is the status of shrines of women in India?

Chandan Gowda narrates in his article[3] that the city of Bangalore which has shrines of about two dozen sufi saints, hardly knows its own treasures. More regrettable is the lack of acknowledgement of women saints, since the ‘official annals do not easily recognize women as sufi saints. Indeed, the sufi is usually imagined as a male saint’. In his own words, ‘the leadership of the various Sufi orders, where disciples learnt the techniques of attaining the mystical experiences of the divine, tended to reside in men. When women did become, on a rare occasion, the head of a Sufi order, their powers were curtailed in various ways (for ex. they could teach but not initiate disciples, or, initiate only female disciples). The Bektashi order in Ottoman Turkey was the lone exception: men and women had equal rights of spiritual apprenticeship and organizational leadership’.

The Indian subcontinent is replete with shrines of women saints but nearly no records of their achievements exist, although they are known and revered locally. Gowda writes, ‘in his major study, Karnatakada Sufigalu (The Sufis of Karnataka, 1998), Rahamat Tarikere, the literary critic, identifies several women Sufi saints in the state: Niyaamatbi of Gauribidanur; Zarinaabi of Kadur; Bibi Fatima of Gulbarga; Saiyadani of Ramadurga; Mustanima of Harapanahalli Bagur’. And this is only one state of the country. 

I would start this journey of acknowledging Muslim women saints from my own hometown, Kudchi, Karnataka, from my father’s side.

Hazrat Makhdooma Maa Saheb in Kudchi, Karnataka is a revered sufi saint. She is also referred to as our very own Rabiya Basri. She was a follower [murid] of Hazrat Shaikh Sirajjudin Junaidi Baghdadi. All saints and spiritual souls of the Deccan region have taken blessings from Maa Saheb. She is known as Shahzadi Balkh Makhdooma Hazrat Sayyeda Ma Saheba Ashrafe Do Jahaan RA. She is a revered saint of the Deccan region and is visited by all irrespective of their religion or denomination. She came from the Balkh region of Afghanistan but carried the soil of Baghdad. She was asked to choose that place in India soil of which matched in weight with the soil from Baghdad. The soil of Kudchi matched with the soil from Baghdad. And hence she settled here.

I could find very little information about her life. But interestingly half a dozen qawwali videos are done on her, eulogizing her as a mother, a patron of the poor and someone who fulfills the wishes of all those who visit her and ask for blessings. She was known for her anger for which she was also called Jalali. Coming from my elder sister who in turn heard it from her cousin, Hazrat Sirajuddin had to wash her heart 7 times to calm her down. 

And another woman saint from my city, Maa Hajiani 

Another women saint who generally is overshadowed by her brother is Maa Hajiani. Given the name it is assumed that she was the mother of Peer Haji Ali Shah Bukhari, but some accounts say that she was his sister. Both were travelling to Mecca from Uzbekistan, their home place. Their ship wrecked and they were found at the exact spots where their tombs were later built. Whatever may be the actual history, the spiritual significance of Maa Hajiani cannot be undermined.

The dargah itself is a site of three tombs, one of Maa and another of Haji Ismail Hasham Yusuf and his son Sir Mohammed Yusuf. The family, which was largely into shipping, trade and philanthropy built this dargah in 1908 in the memory of Maa. The dargah is managed by the Ismail Yusuf Trust. The plaque at the dargah reads, ‘This mausoleum was built on the grave of Saint Ma Hajiani in the year 1908 as a token of devotion and reverence to glorify her pious name and sacred memory by Haji Ismail Hasham Yusuf, ship owner and pioneer of Indian shipping who died on 20th September, 1912 and was buried according to his last wishes in the west side of the grave in this tomb’. 

There is not much known about the architects, the artisans although the dargah was built just over a hundred years back. Much less is known about the saint herself, her life, her contribution, her piety. All said and done, this dargah is a haven of peace and tranquility and forms an indelible part of memories of scores of Indians and Mumbaikars, including the author.

Reference:

1 & 2. Ethics of Tawhid and Qiwamah, Article by Dr. Amina Wadud in ‘ Men in Charge? Rethinking Authority In Muslim Legal Tradition, pg.270/271

3. Case of Women Sufis, Bangalore Mirror Bureau, 2016, Chandan Gowda

 

WOMEN SCHOLARS AND SAINTS OF EARLY ISLAM

DAY 9

WOMEN SCHOLARS AND SAINTS OF EARLY ISLAM 

If one were to go by the conservative narratives of Islam, it can be safely assumed that Muslim women are the most victimized. And that has been the biggest disservice to Islam by those who claim to represent 'true' Islam. When we dig into history with a feminist lens we find that we have a lot to feel happy and proud about. Given below are a few short narratives of women in early Islam who till date inspire us and give us hope that an alternative gender just narrative is possible. 

Sayida Nafisa 

She was a descendent of Prophet Mohammed, a scholar and teacher of Islam. She was the teacher of Imam Shafi who is the founder of the Shafi school of jurisprudence. She read his funeral prayers as willed by him. She had studied the Quran and studied Islamic jurisprudence in depth. She was extremely intelligent. She was an ascetic and went without food for days. Many miracles are attributed to her. Among the many titles given to her, some notable ones are ‘Rare Woman of Knowledge’, ‘Leading Woman in Deriving Fatwas and Rulings’

Fatima Fudayliya 

She was an 18th century scholar of hadis and a jurist. She was also an expert of usul, fiqh and tafseer. Many muhaddits (narrators of hadis) received certificates from her. She was also a calligrapher and founded a library in Mecca.

Fakhrunnisa Shuhda Abu Nasr 

She was a 10th century scholar, muhaddith (transmitter/interpreter of hadis) and calligrapher. She got the title of Shuhda Bagdadiya (Writer of Baghdad). She was so thorough that it was considered a mark of pride if one was allowed a session with her. She gave speeches on history, linguistics and literature. She was known for her erudition, calligraphic art and oratory. It is believed that thousands of students, dignitaries and scholars attended her funeral.

Al-Shifa bint Abdullah

Another women scholar in 7th century!! She was a companion of Prophet Mohammed. She had the reputation of being a wise woman. She was called Shifa because she practised folk medicine. At that time barely 20 people knew to read and write and she was one of the first woman to acquire that skill. She taught calligraphy. Prophet Mohammed and Caliph Umar are known to have consulted her on business matters and market place.

Sughra Al Darda

She was a 7th century jurist and scholar in Damascus. She held classes and taught Islamic law and theology. She said, sitting and debating with scholars is the best way to worship Allah! She issued a fatwa allowing women to pray in the same position as men. In Bahrain, a centre for teaching quran, hifz and tajwid for women is in her name.

Bibi Hajra

As the world celebrates Eid uz Zuha let us remember Bibi Hajra. She was left in a deadly desert alone with an infant Ismail by her husband Ibrahim, on the command of God. She did not give up, wail or cry. She ran from one mountain to the other to call out to traveling caravans for water. This to and fro movement, safa-marwa, is what the world does today as they perform Haj. She was visited by angel Jibrael, leader of all angels, to help her discover zamzam. She allowed a tribe to benefit from the water and that is how the city of Mecca came to being.

Hazrat Hajra, strong, determined, positive woman, never to give up, who is responsible for zamzam, eternal water spring in a desert, for paving the way in setting up city of Mecca, visited by millions every year and most important for being the initiator of a civilisation!

Hazrat Aisha 

For us Muslim feminists Hazrat Aisha is the ideal; intelligent and brave!! She held close to 1200 hadis over which she was consulted by even the early male caliphs. Prophet Mohammed is known to have said, take half the knowledge about Islam from Aisha. She played a significant political role after his death. She even led a war. She accompanied the Prophet in military expeditions and engaged in pre-war negotiations!

Umme Salma 

We inherit our legacy to ask questions from Umme Salma, wife of Prophet Mohammed. Thanks to her, we have a verse in Quran which unequivocally establishes the equality of women and men. She asked the Prophet one day, why are men addressed in the Quran and not women? The revealed verse is 33:35, ‘Indeed, the Muslim men and Muslim women, the believing men and believing women, the obedient men and obedient women, the truthful men and truthful women, the patient men and patient women, the humble men and humble women, the charitable men and charitable women, the fasting men and fasting women, the men who guard their private parts and the women who do so, and the men who remember Allah often and the women who do so - for them Allah has prepared forgiveness and a great reward.

Hazrat Khadija 

All those who want women to stay at home, bear and rear children, stay away from education and livelihood have a lot of explanation to do! How do they want us to view Hazrat Khadija? She, wife of Prophet Mohammed, was a successful businesswomen, first Muslim and first to believe in the prophethood of Mohammed, proposed marriage to him when he was 25 and she 40. She spent from her immense wealth to feed and support converts to Islam; very much a public figure.

Sukayna 

Why do we know so less about Sukayna-daughter of Rabab and Hussain, granddaughter of Fatima and Ali and great granddaughter of Prophet Mohammed? She was known for her beauty-an explosive mixture of physical attractiveness, critical intelligence and caustic wit. She made her husband sign a contract to remain monogamous and when he violated it, she took him to court. She stipulated in her marriage contract the right to disobey her husband.

Views of Fatima Mernissi 

‘Every women who came to Medina when the Prophet was the political leader of the Muslims could gain access to full citizenship, status of Sahabi, Companion of the Prophet. Muslims can take pride that in their language they have the feminine of that word, Sahabiyat, women who enjoyed the right to enter into councils of the Muslim umma, to speak freely to its Prophet-leader, to dispute with the men, to fight for their happiness and to be involved in the management of military and political affairs’

It cannot be that we demand democracy, equality, justice in public life but not in the private sphere of the family. Nothing much has changed. In the early years of Islam, ‘men were prepared to accept Islam as a revolution in relations in public life, an overturning of political and economic hierarchies, but they did not want Islam to change anything concerning relations between sexes. They were at ease with pre-Islamic traditions’. The same holds today, we regale and we should about the all the egalitarian principles but stop short of its application on gender relations, in private and public sphere. 

Padhai and Kamai, education and money are two keys to liberation of all women, especially Muslim women. Fatima Mernissi says in ‘Women and Islam’-‘The access of women as citizens to education and paid work can be regarded as one of the most fundamental upheavals in our societies in 20th century. By laying siege to the places considered until then the private preserve of men and the privilege of maleness-the school and workplace- women opened everything up to question, in personal as well as in their public role’.

Reference 

Fatima Mernissi, ‘Women and Islam’‬