Tuesday, 1 May 2018

Legal Justice for MUslim Women

INDIAN MUSLIM WOMEN AND THE PROCESS OF FAMILY LAW REFORMS
A BRIEF UPDATE
Zakia Soman and Dr. Noorjehan Safia Niaz
It took BMMA a process lasting over eight years to draft the Muslim Family Law. Hundreds of consultations were held across the country with Muslim women, lawyers, academics, religious experts and many more supportive stake holders. On 18thJune 2014 this draft was made public through the media. The process of consultation towards improving the draft and building a consensus is an ongoing one. The copies of the draft have been sent to several members of parliament, members of local legislative assemblies in different Indian states, the women’s’ commissions, the law commission of India, academic institutions etc. We are working towards the draft getting tabled in the parliament with the help of some progressive MPs. Salient features of this draft are end of unilateral divorce, polygamy, halala and muta marriage, age of marriage to be 18 and 21 years, minimum mehr to be equivalent to grooms annual income, mother and father to be natural guardians of the child and equal distribution of property amongst siblings.
The need to draft the law by a group of activists was felt because our centres in different parts of the country were thronged by Muslim women who faced legal and social hurdles within the family. Either they were orally divorced or were denied divorce, their husbands remarried with impunity leaving them abandoned with children and nowhere to go, widowed Muslim women were deprived custody of their children citing that only father is the natural guardian of the children, halala, another name for prostitution was imposed on women in the name of religion, young Muslim women in the southern parts of the country were duped into temporary marriages, not to mention meagre mehr amounts, marriages without consent and underage marriages. All these rampant violations of Quranic injunctions were happening unchecked so much so that malpractices such as triple divorce have become synonymous with the Indian Muslims. BMMA felt that part of the problem could be addressed if there is a law in place which women can access. Since none existed and it looked that it will never be brought into existence by the hegemonic and steeped in patriarchy mullahs, BMMA took upon itself the task of drafting the law. In line with our slogan which says, my struggle, my leadership, the drafting process itself was an enlightening and educational process where women and men were given an opportunity to look out for solutions rather than wallowing in the problem. We were clear that we needed to explain how the violations were unQuranic and we had to go on publishing translations of Quranic verses concerning marriage and divorce to convince the ordinary people that they were being told untruths.  
During consultations it came across very clearly that the educated middle class professionals are cut off from the large swaths of the poor and assetless mass of the Muslims. Comments from a male practicing lawyer, ‘what is wrong if a girl is married at the age of 13’ or suggestion from a female NGO worker, ‘even boys should be married at the age of 18’, suggests that change and reforms in law cannot come from those who may be educated but are not steeped in values of equality and justice. Peace and dignity to women cannot come from those who though have the means and education to push for change but will still want to maintain the status quo. Largely many individuals including Muslim men contributed effectively to the consultations but fought shy of making their views public citing fear of the mullahs.  Allegations such as these women are propped up by the Hindu right wing, that they are out to change the Quran itself, that they are not wearing the hijaab, that they are inspired by western feminism, that they are not Muslims at all because they don’t “look Muslims” – were some of the comments that BMMA activists faced during the course of the consultations indicating the hard battle which was in store for us.
Many reactions came after this draft was released. As expected the religious groups rejected the draft as well as the movement terming it unIslamic. They opined that everything was perfect the way it was and calling for any change would be heretic. They also said that the Muslim law is divine and therefore it cannot be changed or codified. The women’s movement in India which has a strong track record of highlighting women’s issues still maintains a deafening silence over the effort apart from some individual feminists and a few groups who understand the issue. A women’s’ rights lawyer went to the extent of saying that the existing shariah law requires no reform and is in fact in many matters better than the Hindu law. We received tremendous support from ordinary women both Muslim and Hindu. Apart from ordinary women themselves several jurists, academics and ordinary citizens  have wholeheartedly supported the provisions of the draft and have lauded the efforts of BMMA for taking up the most neglected but the most politicized aspect of a Muslim woman’s life.
In the meanwhile BMMA also released the national study which sought the views of 5000 women on reforms in Muslim family law. 92% of the respondents wanted a complete ban on the practice of oral divorce while 91% were against the practice of polygamy. An overwhelming 83% wanted the Muslim family law in India to be codified indicating that our demand for reforms and codification is not without support. Followed by this study was a 115 case studies compilation of victims of oral divorce which again threw light on the manner in which Muslim women were divorced by their husbands. These evidentiary and empirical studies were circulated widely amongst the state and quasi-state bodies like the national women’s commission, minority commission, law commission, human rights commission. The purpose was to let the state authorities know that Muslim women are suffering because of these horrendous practices and that it cannot shy away from intervening and ending those practices. As part of our campaign, BMMA also sent a letter requesting the attention of the Prime Minister of India towards the plight of Muslim women. On 28th October 2015 BMMA sent the copy of the draft to National Legal Services Authority [NALSA]for their perusal and attention.
These efforts bore fruit as in November the Supreme Court bench of Justice Dave and Justice Goel took a suo moto cognizance of the legal discrimination faced by Muslim women. They asked the Attorney-General and the NALSA which are state institutions, to reply whether gender discrimination suffered by Muslim women should not be considered a violation of the fundamental rights under Articles 14, 15 and 21 of the Constitution and international covenants. This decision came up during discussions on the issue of a daughter’s right to equal shares in ancestral property under the Hindu succession law.
In the meanwhile BMMA wrote to Supreme Court requesting it to appoint an amicus curie for the PIL as we did not have the resources and the wherewithal to pursue the case.
JUH, a powerful body of clerics in India states that has said the MPL flows from the Quran and cannot be subjected to any scrutiny from the Supreme Court based on the principles of the Constitution. It says the Muslim personal law is not a ‘law’ and hence cannot be subjected to the scrutiny of the Part 111 of the Constitution which ensures fundamental rights. The JUH has very conveniently forgotten that the Constitution of the country allows for religion based laws as all majority and minority religious community in India are governed by their own religion based laws. All that the Muslim women are saying is even the Muslims in India must have a Quran based personal law so that justice is ensured.  They are conveniently also ignoring that all Islamic/Muslim countries have a justiciable codified family law including neighbouring Pakistan and Bangladesh, countries which came into existence just a few decades back.
We have received a lot of inspiration and support from Islamic feminists and scholars world over. We are happy and proud to be part of Musawah and the global movement for gender justice in Islam. Our experience suggests that the Muslim woman wants change for the better. She is fed up of the injustices such as triple talaq and halala. She is beginning to read the text and apply her own ideas of justice and equality to her real life situation. She is no more willing to be oppressed by the patriarchal mindsets that have ruled the roost in our society. Besides, the Indian democracy provides a unique opportunity for the women and men to demand their rights legally and socially. The values of justice and equality are a common thread across the Quran and the Constitution of India. The BMMA hopes that in the coming years we will be able to provide the example of a just and fair face of our religion. And the ordinary Indian women will make this happen.

First published by Musawah

Muslim Women's Views on Muslim Personal Law

Muslim Women's Views on Muslim Personal Law
Zakia Soman and Dr.Noorjehan Safia Niaz

A survey of Muslim women and their views on Muslim personal law reveals that the women feel the rights enshrined in the Quran have not reached them; an overwhelming number of the women want personal law to be reformed. As it exists today, Muslim family law is piecemeal and disjointed and neither the community nor the government has tried to make it comprehensive.

The Sachar Committee1 was established in 2005 to study the socio-economic condition of Indian Muslims. The findings of this committee showed how India’s largest minority lagged behind educationally, economically and socially. The committee carried out extensive research, studying the conditions of the community in the run-up to its final report. However, the terms of reference of the Sachar Committee did not include a look at the socio-economic condition of Muslim women and their status vis-à-vis Muslim personal law. There has not been any data collection or evidence gathering by any government agency or social organisation that could be found in the public domain. The situation of Muslim women inmatters of family and marriage remains anuncharted area that requires empirical probing in order to understand it and also to move towardsgender-just solutions to the problems they face.
In 2013, the Bharatiya Muslim Mahila Andolan2 conducted a national study on the Muslim women’s condition as well as views on reforms in Muslim personal law. This article is based upon the key findings of this study.3
The objectives of the study were to study the conditions of Muslim women pertaining to issues of family law; toascertain their views on Muslim family law and to develop evidence in support of codification of Muslim family law.
For the study, 4,710 Muslim women from the 10 states of Bihar, Gujarat, Jharkhand, Karnataka, Maharashtra, Madhya Pradesh, Odisha, Rajasthan,Tamil Nadu and West Bengal were contacted. A detailed interview schedule was prepared and community-based women activists trained to collect data did the data collection. This was done from July to December 2013 with anaverage of 470 women per state.
A number of questions pertaining to age of marriage, divorce, maintenance, custody of children, polygamy, property ownership, etc, were posed to the women who gave very interesting answers. A couple of critical conclusions can be drawn from the answers given by the overwhelming majority of women: that the rights of women enshrined in the Quran have not reached women in reality, and that an overwhelming number of Muslim women demand reform inMuslim personal law as it obtains inIndia today.
Socio-economic Status
The socio-economic status of Muslim women that came up in the researchestablished that Muslim women have a negligible share in formal employment. Out of the 4,710 respondents in this study, it was observed that an overwhelming 78.7% of the women were homemakers whereas only 7.9% worked in the organised sector and the remaining 13.4% worked in the unorganised sector. This emphasises the need forspecial measures, including budget allocations, towards inclusion of Muslim women in the workforce of the country. Governments and policy bodies must study this dimension and devise policies towards inclusion.
Low Income: The annual income of 73.1% of the families was below Rs 50,000, out of which 39.1% families earned less than Rs 35,000. Only 18.3% of thefamilies had an annual income between Rs 50,000 and Rs 1 lakh and 8.6%, that is, 407 families had an annual income of over Rs 1 lakh indicating their overall poor economic condition. The Sachar Committee had established the highincidence of poverty amongst Muslims. Yet, nearly eight years since the Sachar Committee report, there is no sign of improvement.
Age: Of the 4,710 women surveyed, 15.5% were married below the age of 15 years, and 39.8% were married between the ages of 15–18 years. If these figures are combined, a good 55.3% were married before the age of 18 years. Only 10.6% got married over the age of 21 years which when combined with the above figures show that a large number of women are getting married and perhaps starting a family at a time when women from other communities are busy preparing for their graduation. One of the encouraging trends is that despite early marriage, 46.5% of the women surveyed had one or two children. Only 4.9% of the women had more than six children, 20.7%of the women had three children closely followed by 20.8% having four–six children while 7.1% women did not have children.
When asked about desirable age of marriage for girls, 75% of the respondents wanted it to be above 18 years for girls and 88% wanted boys to marry above the age of 21. It is important to note here that age of marriage is a key factor in the life cycle of a woman and her family.
Some conservative quarters insist on puberty as the right age for marriage. The meaning of puberty needs to bedefined not just in terms of physicalattributes but an overall mental and emotional development and maturity. Marriage is an important social relation that calls for mature handling of relatives andsocial responsibilities. Besides the ill-effects of pregnancy on adolescent girls’ bodies, their ability to raise children needs to be considered too. The Quran encourages comprehensive and judicious understanding of various concepts, including puberty, and there is no bar on delving deeper into this. Theclarity demonstrated about age of marriage by such a large number of respondents should guide this debate and not the rigid insistence on a narrow definition of the word puberty.
Sect: Only 4.1%, that is, 195 women surveyed belonged to the Shia sect, while 87.6% or 4,126 women belonged to the Sunni sect. The remaining 8.3%, that is, 389 women were not aware of their sect.
Caste: Of the women surveyed, 45%, that is, 2,156 belonged to high castefollowed by 26.2%, that is, 1,235 to the Other Backward Class (OBC) and 5.2%, that is, 245 women to the Dalit and backward castes. There were 22.8% ofwomen who did not know which caste they belonged to.

Jurisprudence: Just over half, or55.5%, that is, 2,614 women interviewed were under the Sunni Jamaat, followed by 10% or 473 women under the Barelvi. Deobandi, Wahabi and Ahle-Hadees were at 5.4%, 4.1% and 4.4% respectively. Of the total surveyed women, 20.5%, that is, 967 did not know which jurisprudence they fell under. The data reinforces the fact that Muslims in India are not a monolith and there is a clear diversity in terms of beliefs and practices. It also brings out the existence of a caste system within Muslims.
Domestic Violence: This study brings out the fact that 53.2% of the surveyed women have faced domestic violence. An overwhelming 82% women said they did not have any property in their name and 83.9% women confirmed that their current residence was not in their name. They did not own any property despite ownership of property being a Quranic right.
Dispute Resolution Mechanism: Over half or53.2% women reported having faced domestic violence at some point in their lives. Most women said they go to the family followed by police and then to social organisations or non-governmental organisations to complain about their domestic issues. Only 1.4% women reported having gone to a qazi or Darul Qaza. An overwhelming 95.5% women had not heard about the All India Muslim Personal Law Board (AIMPLB).
Mehr: Mehr is an important Quranic right given to a Muslim woman that she can demand from her groom. Itcan be in the form of cash or any other form such as gold, property, etc, and it should be given to her at the time of marriage. Our findings suggest that this important affirmative measure favouring women has been diluted in practice. More than 40% women had received less than Rs 1,000 as mehrwhile44% women did notreceived mehr at all. Most respondents were not aware of the empowering provisions about mehrand that it is their right to decide the amount. The majority or 85.7% women wanted mehr to be given at the time of marriage while 83.9% of respondents wanted equivalent of the annual income of the husband to be the minimum mehr amount.
Polygamy: An overwhelming majority of women surveyed, 91.7% or 4,320 women, spoke out against polygamy saying that a Muslim man should not be allowed to have another wife during the subsistence of the first marriage. On being probed further, 72.9%, thought that polygamy should not be allowed even if the first wife consented. While 2,959 women said that polygamy should not be allowed even if the first wife was ill, 2,983 women felt that polygamy should not be allowed even if the first wife could not conceive. Husbands should not be allowed to take widows as second wives was the view of 2,949 women. On being asked if men should be allowed multiple marriages to balance out the sex ratio, 83.4%, that is, 3,929 women said that the husband should not be given the permission for a second marriage irrespective of the ratio of women to men.
The views of ordinary Muslim women on polygamy are very clear; they do not want it under any circumstances.
Divorce: Of the 525 divorced women, 65.9% were divorced orally and 78% women were divorced unilaterally. The study indicates that an overwhelming 88.3%, or 4,159 women, want the legaldivorce method to be the talaq-e-ahsan method spread over a period of 90 days and involving negotiation and avoiding unilateralism on the side of the husband. An overwhelming 92.1% wanted a total ban on oral/unilateral divorce, 93% women wanted arbitration process to be mandatory before divorce and 72.3% wanted the arbitration process to last between three to six months. Also, 88.5% women wanted the qazi who sends notice of oral divorce to be punished by law. On custody of children, 88.9% of respondents wanted the mother to retain the custody while 95.6% wanted ex-husbands to pay for children’s maintenance even if they were in the wife’s custody. The deciding factor for custody, in the view of 92.7% of the women, was consent and the well-being of the child.
Oral and unilateral divorce is one of the key issues being faced by Muslim women. We have come across a high incidence of oral divorce through various means such as uttering the word thrice, through a post card, notice from the qazi, over the phone, communication through relatives, etc. In several instances, the oral divorce takes place in the absence of the wife. This practice is in violation of the Quranic tenets of justice and is utterly unfair. It happens without any participation by the wife or without taking her views into consideration. Most times it happens in herabsence and yet is passed off as a valid divorce by different shariat courts which are male-dominated bodies. It is important to recount that a large number of women respondents called for banning this practice.
Maintenance: Half thewomen respondents received maintenance from the husband during the marriage but 27% reported receiving none. Almost half of the divorced women were either being supported by their own parents or were supporting themselves by working as they did not receive maintenance from the husband.
Codification of Family Law: An overwhelming 83.3% women felt that their family disputes could be resolved if a law based on Quranic principles was codified and 89% wanted the government to intervene in helping to codify Muslim personal law. Over 86% women wanted religious leaders to take responsibility for enabling Muslim women to get justice in the family and wanted these leaders to support the bringing about of a gender-just law based on the Quranic tenets of justice and fairness. An overwhelming 86% wanted the community-based legal dispute resolution mechanism to continue but at the same time wanted the functionaries to be madeaccountable to law and to principles of justice. They wanted the government to help ensure this accountability through a legal mechanism. While 88.5% women wanted a partnership between the court and the qazi,90% women wanted qazis to be brought under legal accountability mechanisms. On legal aid, 95.4% respondents wanted Muslim women to provide legal aid to other Muslim women.
Existing Legal Framework
Let us briefly take a look at the existing legal framework for personal laws concerning Muslims in India. The Britishenacted the Shariat Application Act, 1937 which was an attempt at applying Shariat law and not customary laws to the Muslim community. This act states that the Muslim community will be governed by the Shariat and not customary laws. Although it states that Muslims will be governed by Shariat, it does not specify much on aspects such as the age of marriage, divorce, maintenance, custody of children, polygamy, etc. This is of no help to women as it does not list the various issues that they face. In practice, followers of different schools of thought continue to apply their own varied understanding and interpretation of the Shariat. There are, therefore, many conflicting views on several significant issues, especially those concerning divorce. The irony is that each view claims to be based on theirrespective interpretations of the Shariat. And the practice of unilateral oraldivorce continues. Several Muslim countries have codified their laws and tried to ensure justice to women. Severalsocio-religious communities in India, including minorities, have codified personal laws as per their religious texts. But such a move has not been taken up for the Muslims owing to the politics over leadership.
The Dissolution of Muslim Marriages Act 1939gave a Muslim woman the right to seek dissolution of her marriage on nine specified grounds. This is the only legislation enacted by the British, which introduced a substantive codification of the divorce law. However, although the act benefits women, it is rather piecemeal. It only lays down the grounds on which women can seekdivorce. It does not lay down any procedure or a time frame within which she can get a divorce. The man can divorce his wife without assigning any reason and even in her absence. He may or may not approach the court or any authority to seek divorce. This act does not question or restrict the man’s unbridled right to oral triple divorce. The act deals only with divorce and not with related matters such as maintenance, custody of children, payment of mehr, etc. For these matters, the woman has to file separate cases under other laws, sometimes in other courts. This law is a welcome measure but it needs more elaboration and matters under its purview. Our findings clearly indicate that it has not stopped Muslim women from beingdivorced unilaterally and instantly.
The latest development in recent times has been the Shah Bano controversy and the Muslim Women (Protection of Rights on Divorce) Act 1986. The Shah Bano case is one of the most significant lawsuits in the history of the Indian judicial system. The case pioneered the Muslim women’s fight for justice on the right to claim alimony. There was a huge uproar at the time over the right to maintenance granted by the courts to Shah Bano. It was dubbed “interference in religious matters” by some conservative male sections. In the aftermath, the Muslim Women (Protection of Rights on Divorce) Act 1986 was passed byParliament.
According to this act, the husband is liable to pay alimony during the time of iddat or for the span of three monthsafter the divorce. In case the divorced woman has no close relatives to lookafter her or she is incapable of providing her own maintenance, the magistrate has the right to order the Waqf Board to take up the responsibility of providing support to the woman and her children. The act shifts the responsibility of maintenance from the husband to the relatives and the Waqf Board. The husband knows that if he does not provide maintenance, he could still control and harass his divorced wife to beg at different places for maintenance. The husband takes responsibility for the children till they are two years old. After that the responsibility falls on the wife to claim maintenance for them. Theefforts by a lone woman to rightfully claim maintenance after divorce got converted into a huge political storm and the concerns of the woman were relegated to the background, the Quranic injunctions on gender justice notwithstanding. Since then there has been no effort either by the various governments or by the community to revive the process of gender-just reforms in Muslim personal law.
These three laws exist in India in the name of Shariat or Muslim personal law. But as is evident from our survey, these are highly inadequate in enabling justice for women in the matters of marriage and family. There is no codified law that covers all aspects of family and marriage matters. In Muslim society there are multiple implementing agencies that dispense justice in family matters. There exist Shariat courts, qazis, muftis (religious clerics), jamaats (sect arbitration councils) that also take in cases of family dispute. These bodies are readily accessible and have closer contacts with the community unlike the secular court structures. Poor people find going to a court expensive, cumbersome and time- consuming. The community mechanisms are accessible but aredominated by men who arbitrate and settle disputes, which more often than not go against the interest of the women. These individuals and institutions have adopted patriarchal, conservative and anti-women interpretations of the religious texts. In some cases there islittlerecognition of the Constitution and the values of justice and equality.Besides, the Muslim law being followed by these bodies is not homogeneous and its provisions vary according to thedifferent sects and subsects.
Furthermore, it is an amalgamation of customary law and practices, statutory law and interpretations of the verses of the Quran. So while a Muslim woman is required to go to the court to seekdivorce, a Muslim man is not required to do so. He can pronounce divorce thrice and terminate the marriage contractinstantly and unilaterally. The presence of wife or witnesses is not required. These courts are mostly approached by men as most of these places may not be women-friendly. However, Muslim women do approach Shariat courts regularly with the help of male relatives or directly. Our findings suggest that women also approach family courts and other localised government-run legal structures but the time and money required to pursue a legal case is beyond the reach of most women. Poor economic conditions and lack of sustained resources necessary to approach legal mechanism prevents them from going to court. While gender-just reforms within the Parsi and Christian matrimonial laws have been enacted through the initiative and support of the government, there is nopolitical will to bring about reforms in Muslim personal law that would benefit Muslim women.
Muslim family law as it obtains today is piecemeal and disjointed with noeffort from the community or the government to make it comprehensive. There is no monitoring or review of male-dominated community-based bodies for dispensing justice. As a result Muslim women are left with no choice but to suffer the injustices done to them. It is hoped that with increasing awareness and mobilisation of Muslim women, their voices will be heard.
Conclusions
This study establishes that Muslim women have been denied justice and fair treatment in matters of family and marriage. The ground reality for an ordinary Muslim woman is quite grim despite the Quranic tenets of justice and fairness. She suffers from practices such as under-age marriage, oral divorce and polygamy in the absence of a codified law and knowledge of Quranic principles. She suffers injustice in family matters owing to misinterpretations emanating from patriarchal mindsets and interests. The community justice mechanisms may or may not be friendly places for a woman and she is left with very littlelegal recourse.
The ordinary Muslim woman has faith that the Quran is just and fair to all. Her clear thinking on what should be her legal rights is heartening. Her desire to have a clearly laid down legal mechanism needs to be taken up at all levels within the community and by the government. She wants a codified law based on the Quranic tenets to resolve herissues such as age of marriage, divorce, maintenance, polygamy, custody of children, property, etc.
Clearly, the existing male-oriented community justice framework has not helped Muslim women to get justice in matters of marriage and family. It isimportant to understand the meaning of the popularly held perception aboutIndian Muslims being governed by Shariat in matters of personal laws. Do we have codified Shariat laws in India that adequately address all aspects concerning marriage and family matters? The study establishes that the existing legal framework is far from adequate when it comes to upholding rights of women granted by the Quran. This is true in the Indian context where the Muslim women’s quest for justice is viewed with scepticism or even hostility. The secular democratic state has failed to enable fair representation for all sections of the population,including women, by only recognising the conservative religious voice as the voice of the whole community. The conservative sections are unaware and unconcerned about the issues of Muslim women and therefore they cannot continue speaking for them.
Furthermore, Muslim women and girls face several challenges of safety,security, survival and dignity in modern times like women and girls from allother communities. They are gradually learning to cope with these challenges. The solution cannot be that of confining them to homes for their own safety and well-being. They have aspirations like other citizens and it is binding on both the government and the community to recognise and support their concerns. Muslim women cannot forever live with the threat of instant oral unilateraldivorce or polygamy or post-divorceeconomic uncertainty. These must be resolved by evolving a just and fair legal framework based on the principles of the Quran.
Notes
1 The Rajinder Sachar Committee was constituted in 2005 by the Prime Minister of India. It was tasked with collecting information on the socio-economic status of India’s Muslim population and identifying areas ofintervention by the government. It collated data from the census and National Council of Applied Economic Research studies, and conducted its own surveys to highlight that Muslims in India fared worse than other socio-religious communities on issues of access to health, education, credit, general infrastructure and employment
2 The Bharatiya Muslim Mahila Andolan was formed in January 2007 in Delhi. It is a democratic organisation of Muslim women, led by Muslim women, which works for citizenship rights of all and particularly Muslim women in India. In 2015, its membership crossed 60,000 women and men across 15 states. BMMA shares the values of justice, democracy and secularism enshrined in the Constitution as well as the values of justice and peace enshrined in the Quran. It believes in women’s position as equal citizens in society and strives to build Muslim womens’ leadership. In different states—Gujarat, Maharashtra, Rajasthan, Madhya Pradesh, Karnataka, Tamil Nadu, Odisha, West Bengal, Bihar, Jharkhand—it works on the issues of education, jobs, security, law and health. BMMA is opposed to communalism and believes in communal harmony, mutual religious respect and coexistence. It stands in solidarity with all who believe insocial justice and equality.
3 The full study Seeking Justice within Family: A National Study on Muslim Women’s Views on Reforms in Muslim Personal Law can be found at bmmaindia.blogspot.in.
First published in EPW

Indian Muslim Women's Tryst With Herself

INDIA MUSLIM WOMEN’S TRYST WITH HER SELF
Genesis and Need of Bharatiya Muslim Mahila Andolan
Dr. Noorjehan Safia Niaz
Since the inception of the Bharatiya Muslim Mahila Andolan [BMMA] in a January 2007 in New Delhi, it has been asked by many as to the need for Muslim women to organize themselves? Kya zaroorat hai Musalman aurton ko apni tehreek tayar karne ki? After 10 years of BMMA, it is amply clear why it was so important that Muslim women take a lead. The reasons are many. To start with, no community can develop if its women remain behind and conversely the women of the community cannot progress unless the larger community also takes the onus to lend her a helping hand in playing her role in public life.

BMMA has not only created an alternative liberal voice in the Indian Muslim community but has also brought Muslim women in the forefront by raising a sensitive issue of law reform towards which the larger community had adopted an ostrich approach. Creating a membership base on more than a lakh, creating an draft of Muslim family law, creating Darul Uloom-e-Niswan-a centre for Islamic teaching, winning a PIL in the Supreme Court against the Haji Ali dargah Trust, filing a PIL in Supreme Court against the practice of triple talaak and halala, running vocational training centres in 7 cities for the socio-economic development of Muslim girls and boys, running Aurton Ki Shariah Adalats in 4 cities-in short creating secular, liberal space within the community and reclaiming Islam from misogynist and conservatives to secure human rights of Muslim women. With Muslim women taking lead, especially on matters of personal law reform and issues of women’s access to sacred spaces, we have also seem the Muslim male secular liberal voice rising to support women.

While we see a rise in conservative forces within the community, we also see the world not doing anything better. With conservative political parties rising in the Europe and USA and within our own country, Islam and Muslims continue to remain the villain. Notwithstanding the fact that the highest number of victims of Islamic terror continues to be fellow Muslims. Closer home, rise of cultural and political hindutva groups has ensured that Muslims remain under siege. This socio-political environment has a direct bearing on women and youth. Lack of educational and livelihood opportunities, ghettoized living conditions and an atmosphere of being hated, feared and despised have pushed the community to the wall.

The arrival of the forces of globalization and privatization in India since early 1990s has also led to the poor - dalits, adivasis, women and minorities being driven further to the margins with a direct onslaught on their lands and livelihoods. Civil society organizations have been protesting about the widespread exclusion of India’s large masses due to the very questionable notions of development which are increasingly finding deep roots into the successive governments and their policies. A malfunctioning PDS and nonfunctional primary schools both aggravate the social exclusion faced by the minorities as by the dalits and adivasis. Today the impact of state withdrawal from welfarism and inclusive development is for all to see. It is important to see BMMA’s work emerging and impacted by these conditions.

Indian history is replete with instances of struggle for social change and justice. Women and especially Muslim women have also initiated and actively participated in many historical movements for justice. These struggles are still on with increasing strength of women. Yet women’s participation and the articulation of her perspective of social justice and development have always been ignored traditionally. This alternative voice of women which is concerned with just, fair and humane society never got due recognition. And this fuelled in some Muslim women a strong need to create a collective that will not only address the concerns of the Muslim community and particularly of the Muslim women but also take concrete steps to ameliorate this situation. They felt that a mass organization is required where the most oppressed and marginalized sections gets a voice and are able to mobilize themselves to create conditions in society which will ensure social, economic and political justice, upholding of human rights, equality and peace. This urge led to the formation of the BMMA. Over the last 10 years it has established itself as an alliance of like-minded individuals that take upon themselves the onus of taking up the issues of the Muslim women and Muslim community head on. In such grim and testing times, Muslim women have led the community restoring faith in the secular, liberal values on the Indian Constitution and reclaiming a humanist Islam from dark forces.

The BMMA works towards all the rights and duties emanating from the Constitution. In its 10th year its membership has crossed one lakh members across 15 states. It raises issues of education, jobs, security, law and health. It being a national entity seeks to carry out its activities through a formal national democratic structure with a system of accountability. It addresses the issues of education, employment, security and legal reforms and takes proactive and concrete steps towards these. It not only works at the grassroots on these issues but also does political advocacy to raise issues at the appropriate fora. In short it seeks to create an alternative voice of Muslim women and works for its leadership development.

The vision of the Andolan is to create conditions within the Indian society where the Muslim community and especially the Muslim women are able to eradicate their own poverty and marginalization and live a life of equality, justice and with respect for human rights. It believes in the values of democracy, secularism, equality, non-violence, human rights and justice as enshrined in the Constitution of India. These are the guiding principles in their struggle. It believes in the inherent capacity of women to lead and ameliorate the social, economic, political, legal and educational backwardness. It also seeks to carry out positive, liberal, humanist and feminist interpretations of religion for ensuring justice and equality to Muslim women. And to achieve its vision of an equal society it seeks collaboration and alliance with other movements and networks that are fighting for social equality and human rights and are opposing forces of fascism, capitalism, communalism and imperialism in all its forms.

To achieve this vision and objectives the Andolan through its well laid out administrative structure reaches out to Muslim women in villages, towns and cities and organizes them into pressure groups under the leadership of a committed woman leader. The emergent leadership of Muslim women at the national, state, district, block and village level carries out programmes and activities related to education, livelihood, law reform and health services. Amongst its many achievements the Andolan in all the states where it is active, has mobilized Muslim women and exerted pressure on local government machinery to issue important documents like voter I-cards, ration cards, widow pension cards etc. Perspective building and inputs and information-giving workshops are organized on various issues on a regular basis. 

These initiatives of Muslim women need to be further supported and complimented by other Muslims so that the community as a whole is able to lead a life of dignity and safety. It cannot be that the community demands security and democracy for itself from the state but does not allow the same for the women. Democracy within is the crying need of the time.

BMMA has also compelled the community to understand Islam and Quranic teachings from a feminist perspective. It has uncovered Islam from a labyrinth of patriarchy, misogyny and conservatism and reasserted its ideals of equality, justice, wisdom and compassion. Within the Islamic framework there is a strong need to appreciate and distinguish between the normative and contextual writings in the Quran. There are many verses of the Quran which have a normative, immutable and prescriptive appeal. They point towards universal values of justice, equality, wisdom and compassion which must permeate life of each and every human being for all times of come. On the other hand are the contextual and descriptive verses which were relevant for those times and for that particular society. As a principle new age Muslim women through BMMA have rooted for the universal principles and based their laws and their way of life on those. In other words a humanistic understanding of the Quran has resurfaced which will ensure that as Muslims we are able to live in peace with other communities and also ensure justice within. 

Allah is a universal power which as per the Tawhidic understanding permeates all beings, living and non-living. This universal power is rahman and rahim, merciful and beneficent and is embedded in the Islamic notion of Taqwa or moral/ethical notions.* It is very heartening and encouraging to note that across the Muslim societies Muslim women are embracing this very Islamic and universal ideas of Tawhid and Taqwa which encourages us to love all as creations of one God and live and let live everyone in peace and tranquility. Emboldened by the conceptualization of God as merciful and just, Muslim women are now seeking justice and equality within the families and are reclaiming their right to read the Quran and arrive at their meanings based on their own lived realities. In the last couple of decades we have had Islamic feminist scholars like AminaWadud, Fatima Mernissi, Riffat Hassan, Ziba Mir Hosseini and many others who have taken up the challenge of rereading, retranslating and reinterpreting the Quran from a feminist perspective. And what has emerged is a vast amount of literature which debunks many misgivings and misunderstandings about Islam and women’s rights. What has been liberating and empowering is the assurance that the Quran wants justice for all humans so that life can be led peacefully and in tranquility and in complete harmony with everything around us. So ‘…. problem is not with the text but with the context and the ways in which text is used to sustain patriarchal and authoritarian structures’.*

With the emergence of Muslim women’s religious leadership, we get to hear a completely humanistic and enabling version of Islam. Women are no longer just recipients of knowledge and objects to be studied but are now agents of knowledge creation including religious knowledge. Islamic laws and understanding of Islam itself has been the domain of men for many centuries now. Extremely patriarchal interpretations and even translations have created a hierarchy in women-men relationships. Superiority of men over women is God-ordained and hence cannot be challenged at all. This understanding closes all doors of negotiations within the familial relationships. Contemporary Muslim women, including Indian Muslim women through BMMA have inadvertently opened the doors of ijtihaad by creating knowledge from their own perspectives and their own lived realities which are largely experiences of injustice and inequality. In other words there is a move towards ‘democratization of the production of religious knowledge’.* Women are no longer dependent on men to know what God wants from them. They no longer have to accept what men have been telling them. They no longer have to believe that God has created them as inferior to men. They now read, translate, interpret and explain to the world that their God is just, loving and merciful and has created them on par with men.

As Muslim women gain strength and voice there is hope for the community as well, for women’s voices will be voices of peace, harmony, justice and equality. The BMMA which is growing from strength to strength with each passing year has given a platform for Muslim women to emerge as leaders and take their community out of its stagnation. Muslim women are taking tremendous interest in the affairs of the community as well as the country. This churning amongst the Muslim women has a historical significance as they have never been organized on a national scale ever before. Their dreams and aspirations of a prosperous, just, plural and democratic Indian society and Muslim community are matched equally well by their administrative and organizational skills. This development only confirms that that the deliverance of the community lies in the hands of its women.

Marathi version published by Loksatta

Also sent to sociolegalreview 

Muslim Women's Initiative - Because Nobody Else Will Do It !

MUSLIM WOMEN’S INITIATIVE
BECAUSE NOBODY ELSE WILL DO IT !
Dr. Noorjehan Safia Niaz

History of Muslims in India is an amalgamation of assimilation, integration and separation of identity all at the same time. Today at the cross roads are Muslim women who are not only asserting her identity as a Muslim woman but also as an Indian citizen. She is leading not just herself but also the community. She is not only asking her rights from her community but also from the state. From within the state she is reposing her faith in the courts for resolving her concerns of discrimination. The recent Supreme Court observations of the legal issues of Muslim women are a welcome step forward in resolving the long standing discrimination faced by Muslim women.

The rise and growth of Muslim women’s movement in India as characterised by the formation and growth of Bharatiya Muslim Mahila Andolan is an indicative of the coming of age of Muslim women in India. Through BMMA Muslim women are leading the subaltern feminist movement which is again part of the larger Islamic feminist movement rising from other parts of the Muslim world. Muslim women today are redefining the contours of religious thought by including in it the discourses of gender equality and human rights. For her the Quran and the Constitution of India speak the same language of equality, justice, freedom, compassion and wisdom.

The first achievement of the BMMA has been their fearlessness in providing an alternative voice to the community, the voice of its women. This is the first time in the history of independent India that an organised Muslim women’s movement has emerged and has sustained itself since the last 8 years. It took Muslim women 70 years after independence to find its voice and to challenge the hegemony of patriarchal forces within the community.

The BMMA, as a Muslim women’s movement worked on a codified draft of the Muslim family law and released it in 2014. The draft was prepared by nationwide consultation with thousands of Muslim women, lawyers, academicians and scholars of law and religion. It was the first instance of law which was drafted after due consultation with the most affected section of the community, the Muslim women. The provisions of the draft law are such that they have broken fresh grounds and have opened the doors of reforms for the community as far as law reforms are concerned. Because of the incessant campaign of BMMA, the issue of legal discrimination has now reached the doors of the Supreme Court.

The law prepared by BMMA lays down the conditions relating to solemnization of a Muslim marriage which include payment of mehr and unambiguous consent to marriage by both the parties. The conditions also include the age of marriage to be 18 and 21 years for the girl and the boy respectively. The draft prohibits a man to marry another woman in the subsistence of his first marriage. In proposes polygamy to be made illegal. The draft also outlines the responsibilities of the qazi including ensuring the conditions mentioned above before solemnization of marriage. The minimum mehr as mentioned in the draft should not be less than the groom’s one full annual income. Registration of the nikaah is compulsory and it is the responsibility of the parties to ensure that their marriages are registered with the relevant state bodies. Irrespective of who raises the demand for divorce the method of divorce includes mandatory arbitration. The draft deems invalid any other method of divorce including the instant oral/unilateral divorce. The practice of halala and muta marriage has also been declared an offence. According to the draft it is the legal responsibility of the husband to provide the above even if the wife has an independent source of income. Both the mother and the father are considered natural guardians of the child. In the situation of widowhood the mother continues to be the natural guardian of the children.

Muslims in India are going through some trying times. With conservative forces of the Hindu and the Muslim community rearing their ugly head, nationally and internationally it is becoming difficult for the progressive voices within the community to address their concerns of justice, peace and development. But the Indian Muslims are also living in a nation state which is bound by the values of democracy, secularism, socialism and fraternity. It is these Constitutional values which need to be protected and promoted by the community so that they can enjoy the fruits of staying in a liberal and progressive society. This is precisely what Indian Muslim women are doing. They are taking full advantage of the constitutionally guaranteed political space by organizing themselves across the country. Whether it is demanding implementation of Sachar Committee report, or drafting a women-just and Quran compliant Muslim family law, forming Aurton ki Shariah Adalats, fighting for a secure social and political life – Muslim women have undertaken some very momentous and significant socio-political actions stating that democracy within is essential to demanding democracy from the state.

Muslim women have entered the religious domain hitherto held by men and have let the world know a completely humanistic and enabling version of Islam. Women are reading and translating the Quran to derive their own meanings and interpretations. With the emergence of Muslim women’s religious leadership, there appears hope that the rights enshrined in the Quran will be restored to her. Muslim women are not just receiving knowledge from the so-called scholarship of Muslim clergy but are also creating religious knowledge. Muslim women have challenged the patriarchal interpretations and translations of the Quran. These women internationally and movements like BMMA in India have inadvertently opened the doors of change by creating knowledge from their own perspectives and their own lived realities which are largely experiences of injustice and inequality.
As Muslim women go from strength to strength, there is hope for the Muslim community as well because voices of women are voices of justice, equality, fairness and humanity.  

First published by Loksatta

Women's Shariah Court - Muslim Women's Quest for Justice


Women's Shariah Court-Muslim Women's Quest for Justice
An Alternative Dispute Resolution Forum for and by Muslim Women

https://notionpress.com/read/women-s-shariah-court-muslim-women-s-quest-for-justice

Would it be easy to imagine a court where justice is dispensed not by women and men wearing black flowing gowns but by ordinarily dressed, uneducated women? Muslim women living in slum communities of Mumbai took upon themselves the job of providing legal aid to other distressed women. Need for justice is as crucial as other needs, especially for women who face marginalization on a large scale. This book looks closely at the genesis of these groups, their history, their interventions, their motivations and their contributions to women’s movement.
The book suggests recommendations for strengthening alternative dispute resolution forums where justice will be dispensed not by learned lawyers but by ordinarily dressed unlettered women. These women, through their innate sense of justice reaches out passionately towards other equally battered women and together they journey towards a life of dignity.

Reclaiming sacred spaces - Muslim Women's Struggle for Entry into Haji Ali Dargah

Reclaiming sacred spaces - Muslim Women's Struggle for Entry into Haji Ali Dargah 
https://notionpress.com/read/reclaiming-sacred-spaces

This book captures the journey of Muslim women led by BMMA to gain entry into the sanctum sanctorum of the Haji Ali Dargah. In 2012, BMMA activists could not enter the sanctum as women were barred from accessing and offering prayers near the tomb. This was the first time in the 400 years of the history of this dargah that someone was barred from offering prayers while standing inside the inner room where the tomb lies. For those women living in Mumbai and visiting Haji Ali as part of their growing up years, this restriction came as a shock. It was not only regressive from a gender perspective but also was indicative of more restrictions which might be imposed in future, killing the syncretic spirit of dargahs which have been home to all, irrespective of class, gender, religion or any other category.

The following two years were a struggle outside the court when women tried to negotiate and sort out the issue by demanding the restoration of the status quo through dialogue. When those initiatives failed to give any result, then BMMA approached the Mumbai High Court.

Chapter 1 of the book outlines both, the struggle outside the court and then the struggle within the court. It also looks closely at the role of state and its various agencies whose primary responsibility is to fulfil their constitutional obligation of protecting women’s rights.

Chapter 2 looks at the debate based on the Indian Constitution. The intersectionality of Constitution, religion and women’s rights and how Muslim women invoked the various articles of the Constitution to regain entry into the dargah.

Chapter 3 is about Islam and women’s rights. Quran, as the book of God has emphasized on gender equality unequivocally. It is the Quranic values of justice, equality, kindness, wisdom and compassion which are at the core of Islam. Patriarchal interpretations stand exposed as women themselves begin reclaiming religion from the clutches of conservative religious organizations.

Many annexures capture the journey and the final message of the judiciary. Many individuals and groups came forward to support and show solidarity which is again captured in the annexures. Media played an important role in highlighting the issue and women’s perspective throughout.

In all, this book captures all that one needs to know about the Muslim women’s fight for gender justice followed by a victory which was their first foray into the religious arena. It is a book about the struggle and triumph of Muslim women as Indian citizens, as women, as Muslims.

Nobody imagined that a democratic struggle by ordinary Muslim women would hit patriarchy at its core and yield a great step forward towards gender justice. The ‘Haji Ali Case’ not only challenged the patriarchy within the Muslim community but also created space for an alternative voice which was desperately trying to speak the language of equality, justice and democracy. This struggle created space for an open debate on women’s rights and religion which hitherto was confined to certain academic circles.

Muslim women in India, led by BMMA, are today at the forefront of reforms, especially those emanating from religion. They have kept it simple- Muslim women will take from the Constitution, from the Quran, from CEDAW, from UDHR and from any other document all that will facilitate their betterment and equality. A Muslim woman is a world citizen today and she has all the right to reach out to all quarters so that she can lead the change not just for herself or for her community but for all humankind and indeed for the entire world.


It is hoped that this book which captures the struggle to reclaim sacred spaces from patriarchal forces inspires other similar movements led by women.