While it is imperative that communities move towards reform and address the concerns raised by women of the community equally, there is a need to strengthen the provisions of secular laws to address what are essentially civil matters.
Contemporary Indian politics never fails to surprise the chronicler of social history. One of the striking ironies is that while the actual status of women – measured by any indicator, other than perhaps education – shows a consistent decline, in the public domain, there is a lot of discourse on gender. Significantly, even as the nation fails to stand up for women on most counts, they in turn, are expected to stand up and defend the nation with all its failures, all the way. Mother India continues to be under pressure to protect the interests of her progeny, even as there is rising opposition and visible backlash directed at women’s movements aimed at equality.
Presently, a much-hyped political battle is being fought in the name of representing women’s interests. Should the mass of women in India take heart from this and hope that now that the prime minister’s heart bleeds for Muslim women, some concern may also be forthcoming for their long standing agendas? Or should these developments be seen, characteristically, as the latest move in a game that gets more dangerous with the interplay of politics, religion, culture and nationalism? Is this the scripting of a new role for women – especially those from the minority community – in a power game where a party with an avowedly majoritarian agenda, professes to champion the rights of Muslim women? There are many possibilities, but history may provide some clues to understanding this process.
As of now, there is a distinct possibility that the government may try to ban instant, arbitrary and unilateral divorce – triple talaq – amongst the Muslim community. This would be an achievement of sorts since the Indian government is not known to be sensitive to the issues of women or minorities. The government, in fact, is led by a party whose political success rests on mobilisation of the majoritarian voices that have continuously opposed reform in favour of women, and especially from the Muslim community.
If that does happen, we may actually see the end of the practice of triple talaq, which has undoubtedly been one of the foremost issues that has been central to the demands of women’s organisations for several decades now. There has never been any ambiguity in the women’s movement in India on the question that triple talaq must go. In fact, the most significant part in the present scenario is that Muslim women have emerged as strong, articulate and informed members of their community, with tremendous capacity to both individually and collectively challenge the patriarchal mindset and the sole right and prerogative of self-appointed, predominantly male, religious leaders to be spokespersons of and on behalf of the community.
Nevertheless, from the standpoint of women’s rights, there are strong parallels as well as sharp contrasts with similarly charged debates in the past. To appreciate that, one needs to recall earlier debates and histories.
It may, for example, be important to recall that through the 1940s and 1950s there was a section of Hindu men and women who opposed all efforts to reform laws relating to the Hindu community, every inch of the way. These included the Sri Sankaracharya Swamigai and Sri Kanchi Kamakothi Pithadhipati, Kumbakonam, as well as leaders of the Hindu Maha Sabha, such as N.C. Chatterjee and Jankibai Joshi, the general secretary of the All India Hindu Mahila Sabha. Joshi repeatedly wrote to the viceroys – Linlithgow and Wavell – to oppose the recommendations of the Hindu Law Committee and then again in 1949-50, women from the organisation voiced their opposition to the proposed Hindu Code Bill (HCB) and its specific clauses, while Chatterjee led the attack in the legislative assembly. The enactment of the HCB was opposed by M.S. Golwalkar, the RSS, the Hindu Mahasabha, the Bharatiya Jan Sangh and the Ram Rajya Parishad and their representatives in parliament. They were in fact the predecessors of the BJP, which is presently championing the cause of Muslim women. Opposition to the reforms came from several quarters, as is well known, and the tension between Rajendra Prasad and Jawaharlal Nehru on this issue is well documented.
The arguments then rang a familiar tone – Hindu Law is religious law; it is not enacted by any legislative assembly, therefore no ‘amendment’ can be brought in the legislative assembly; those supporting the HCB do not represent the Hindus, for example, Renuka Ray, a Brahmo, ‘is not qualified to represent Hindu women in the assembly’. Nor should the All India Women’s Conference, one of the foremost organisations of this period, be allowed to have any say in the matter since it ‘is a body the membership of which is open to all women, irrespective of caste and creed’. There were others who argued that on any ‘code or law affecting Hindus’ personal interest, members of no other community should be allowed to vote’ (petitions by Joshi and others available at the Nehru Memorial Museum and Library).
Interestingly, the fate of legislative enactments pertaining to the Muslim community followed another track. The 1930s saw two important laws – the Muslim Personal Law (Shariat) Application Bill adopted in 1937 and the Muslim Dissolution of Marriage Bill finally adopted in 1939 – being debated in the legislative assembly. Interestingly, both Bills were first introduced by Muslim members – H.M. Abdullah and M.A. Kazmi – and then referred to select committees. The stated objective of the first was to secure uniformity of law among Muslims throughout British India in all their social and personal relations, while the second was to consolidate the provisions of Muslim law relating to suits by married Muslim women for dissolution of marriage. In both instances, in the arguments advanced, women were kept in the centre. It was argued that the first would do justice to claims of women for inheriting the family property who under customary law are debarred from the same, while the latter was to relieve the suffering of countless Muslim women, especially under the Hanafi code, who could not obtain a decree from the courts dissolving their marriage.
In fact, the first was a clear attempt to bring into the legal domain a homogenised notion of the Muslim community, which is why several representations were received, including from the Kutchi Memons, Bohras and others, who argued for the continuance of their diverse customs, which included matriliny amongst Muslims residing in what is present-day Kerala. The debates were used to push for other agendas too, for instance, only Muslim judges should adjudicate such cases. Interestingly, on the question of property, the leaders agreed to exempt agricultural land under women’s inheritance rights, even when this was seen to be un-Quranic, which ensured that the aim and claim that the Act would alleviate women’s suffering was compromised and “the problem remains unsolved as ever.” (Legislative assembly debates, 1937)
Today we see the opposite assertion. The practice of triple talaq, including talaq-i-biddat, which, as accepted by all, is un-Islamic and not a part of the Quran, is still being held on to by the religious leadership. This despite evidence and recognition that that it is known to inflict cruelty and suffering on Muslim women. The scenario is, in many ways, similar to the events as they played out at the time of the Shah Bano judgement when there was widespread recognition of the need for maintenance for Muslim women going beyond the iddat period, nevertheless the cry of Islam in danger was used to silence the suffering women and in fact mobilise the community which was seen to be in siege. A significant difference being that Section 125 under which maintenance was sought to be retained was a clause under the secular criminal law, a fact that the then Congress government failed to respect and recognise while bowing down to pressure from hardliners and fundamentalists in the Muslim community. There again women who rose in defence of Shah Bano were told that they were not ‘real Muslims’ and did not represent the community.
Clearly, with debates around legal reform for women’s issues, what ultimately prevails is the assertion of community identity and what is perceived to be the interest of the religious community. This along with the inherent patriarchy within laws relating to the family, marriage, divorce, inheritance and succession is common to the dominant understanding of all religious communities in India. The women’s movement has foregrounded this throughout and sought to reach out to women from all communities to challenge this, in order to allow for marriage and family to emerge as units wherein all members enjoy equality and dignity.
While the real struggle within all communities today is on these aspects, since women’s struggles are not waged in isolation, they too are, necessarily, caught in the political dynamics of the context of the times in which they are posed. From colonial times to present times, this is a persistent feature – the governments of the day use the opportunity to strike at or negotiate with the concerned religious community. The community patriarchs in turn use their mobilising capacity, to playing on the vulnerabilities to bargain for their role as power brokers and for greater control over members. The challenge is for women to assert their rights as independent equal citizens as per the constitution of India. For that to happen there is a need to shift the ground from the context of polarised communal perceptions and portrayals that are the flavour of the season.
The recent focus on the plight of Muslim women has many characters and sub plots as well as sub texts – Muslim men are merciless human beings, who divorce their wives at will; the Muslim leadership is horribly patriarchal; Muslim women are in dire need of support, especially when the doors are shut on them with not an instant to prepare for a whole life time lived without the necessary support systems, including who takes responsibility for the everyday needs of the wife and the children. There is undoubtedly great truth in the story.
What is not recognised is that if you remove the word Muslim from each of these sentences, all this is true for the majority of women in India. This undoubtedly includes the vast majority of Hindu women – many of whom who live every day of their lives in fear and uncertainty, despite the enactment of several progressive laws to address these vulnerabilities in the last hundred years. The home, which is supposed to be the woman’s place as per the ideologues of almost all the religious communities, is also the site of unchecked cruelty, oppression, and the brutal suppression of rights as a citizen on a daily basis. The fact remains that Muslim men in India do not have the sole proprietary rights over patriarchy nor over ideologies which perpetuate inequalities and social discrimination.
While it is imperative that communities move towards reform and address the concerns raised by women of the community equally, there is a need to strengthen the provisions of secular laws to address what are essentially civil matters. It is necessary to draw a distinction between laws relating to marriage and family from what is argued to be the essence of religion and its practice. Women especially stand to lose if they become pawns in power games especially in present times, in a context where the rhetoric of identity politics gets more shrill and there is a strong possibility of it being hijacked by anti-democratic forces. Clearly, the debates on women’s life and experiences and opposition to the movement for equal rights go back a long way into history. These are stories from the yesteryears.
They certainly pre-date the emergence of 24-hour news channels in their new incarnation as the biggest story tellers, that too with only one hero – Narendra Modi, the messiah.
Indu Agnihotri is a senior academic and currently the director of Centre for Women’s Development Studies, New Delhi. Views are personal.