The Fatwa from Muzffarnagar- An urgent need to review the 1937 Act

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The  news (September, 2014) of repeated rape of a young Muslim woman from  Muzaffarnagar in Uttar Pradesh allegedly by her father-in-law at gun  point resulting in her impregnation and the issue of a fatwa by a  local Maulana that declared “As per the Sharia law, the baby in her  womb is her husband’s father’s,- her husband must divorce her,  even if his father looked at his wife with lust” must have startled  every right thinking individual in India.

This  again proves that the Islamic priestly class is still living in the  medieval era as far as their approach towards their women folk is  concerned. The Mullah argues that his decision was based on Shariat  (Islamic law) which is divine and immutable. A similar decision was  given earlier by the Mufti of Darul Uloom Deoband in 2005 in a case  of Imrana. There were no public protests from the community then and  not now either. In an interview published in Radiance weekly (August  10-16, 2014) Dr. Syed Qasim Ilyas, a prominent leader of  Jamaat-e-Islami Hind and also a member of the working committee of  All India Muslim Personal Law Board said: “The British could not  find courage to touch or down play any provision of Muslim Personal  Laws because family laws were linked to the identity of Muslims and  any amendment or change in the personal laws could be considered an  act to stop Muslims to follow Islam”.

Defending  the right to Talak only to the man he said, “After marriage,  husband takes all responsibilities of wife and he signs the agreement  of marriage; therefore only he is entitled to break the agreement and  has the right to disown it”. It appears that Dr. Ilyas is also  trapped in the patriarchal mindset of medieval clergy Al-Ghazâlî  (11th century) who in his book- The Revival of the Religious  Knowledge advocated that women be kept ignorant: “She must not be  well-informed nor must she be taught to write. She should stay at  home. … If you relax the woman’s leash a tiny bit, she will take  you and bolt wildly. … Their deception is awesome; their guile is  immense and contagious. Wickedness and feeble mind are their  predominant traits.” (The Medieval Mindset: http://www.ahoban.org/gender-equality-in-islam/).  Ghazâlî was an influential Muslim theologian and believed that  “Women’s empowerment is a threat to their ideology, and whilst  attempting to obliterate any attempts that jeopardize their  established dogma, they cite ‘Islam’ as a way of justifying  it.”(Ibid).

Like  Ilyas, a similar humiliating statement was issued in 1999 by Mufti  zubair Bayat, the founder of Darul Ihsan Research and Education  Centre, Durban, South Africa. He opined: “When the point has been  accepted that men and women are not the same and that they have not  been created for the same purpose, then common sense dictates that  their rights cannot be the same or equal”. (Islamic Voice,  February, 1999).

Another  from the Islamic clergy and general secretary of All India Sunni  Jamiyathul Ulema, Kanthapuram A P Aboobacker Musaliyar in an  interview published in Siraj (1913), the mouthpiece of 'Kanthapuram'  faction of Sunnis, said, "The demand for male-female equality is  against nature. Man and woman have different faculties and different  responsibilities."

Go  to the Root Cause- The Personal Law Application Act 1937 of the  British:

The  prevailing injustice to Muslim women is primarily rooted to the  Muslim Personal Law Application Act 1937 enacted by the British then  and still holds good to this day. The Act allowed the continuance of  Shariat in respect of marriage, divorce and other family laws in  Islamic society. The Mullahs are harping on this Act and resist any  reform in it on the same plea that Shariat (Islamic law) is divine  and therefore immutable.

But  the Muslim intellectuals must be aware that just within two years  (December, 1939) of the enactment of this Act, the United Nations  General Assembly held a Convention on the Elimination of All Forms of  Discrimination against Women (CEDAW). Article 5(a) of its resolution  “asked all states to take appropriate measures for elimination of  prejudices and customary and other practices which are based on the  idea of the inferiority or superiority of either of the sexes or on  stereotype rules for men and women” (Unequal Citizens – A Study  of Muslim Women in India by Zoya Hasan, 2004, Oxford, page 6).. The  resolution was ratified by almost one hundred nations. India ratified  it in 1993 but with a rider of reservation on Article 5(a) because of  its conformity with its policy of non-interference in the personal  affairs of any community without its initiative and consent. However,  the stand of the then Congress Government was hypocritical as the  government of the same party had interfered in the personal law of  the Hindus in 1955 and passed Hindu Code Bill despite some opposition  from a sizeable section of Hindus.

Many  Islamic Scholars have not taken kindly to the 1937 Act:

Contrary  to the stand of Muslim orthodoxy, a number of Muslim scholars have  argued that the Muslim Personal Law is not a divine command and has  also been reformed in many Muslim countries as well as in India  during British rule. A.A.A.Fyze, an internationally reputed Islamic  scholar in his book ‘Modern Approach to Islam wrote: “Muslim Law  in India today is not prevalent as a legal of divine command but a  piece of legislative enactment by the British and is known as the  Shariat Act of 1937”.

Another  Islamic scholar J.D.M. Derrett (‘Religion, Law and the state in  India’) has also preferred to call Mohammedan Law or  Anglo-Mohammedan Law instead of calling it Shariat which in fact is  not enforced strictly in South Asia. He said, “ In India only a  portion of Shariat laws are in force, Islamic law in British India  developed into an autonomous legal system, substantially different  from the strict Islamic laws of the Shariat and it is appropriately  called Anglo-Mohammedan Law” (Vrinda Narayan –gender Community  –Muslim women’s rights in India, page 4, 8, 95). For him Shariat  was transformed into Anglo-Mohammedan Law.

Since  reforms in Shariat were carried out by many Islamic countries like  Turkey and Egypt, the argument of Muslim orthodoxy in India that it  is immutable is not based on sound logic. Even in India the colonial  power replaced the provision of criminal laws in Shariat with the  British system of laws which are still common to both the Muslims and  other religious communities in the country. The objection of the  religio-political class in the community is seemingly nothing but  their self-seeking politics for mutual profit between them and the  vote-seeking political class at the cost of the socio-religious and  political injustice to the Muslim women.

Who  is afraid to render Gender Equality to Women?

Despite  the above views on time to time reforms in Shariat, the Muslim  orthodoxy in India took this Act as an instrument not only to deny  the right of gender equality to their women folk but not even  acknowledge or address their systematic disadvantage. The  post-colonial secular and democratic Indian state’s uncritical  acceptance of fundamentalists as the sole representatives of Muslim  interest encouraged the latter to treat their women subordinate to  the men in the community in the name of religion. In fact by not  taking up the problem of Muslim women seriously and allowing the  British enacted law to continue exclusively for a particular  religious community, the state also allowed the violation of the  constitutional guarantee to all citizens irrespective of religion and  sex.

“Muslim  Personal Law as practiced in India contravenes the Convention on the  Elimination of All forms of Discrimination Against Women (CEDAW) in  several respect” and “the continued existence of personal law  which arguably violates the constitutional principles of, inter alia,  equality and freedom from discrimination are void to the extent of  contradiction” (Unequal Citizens – A Study of Muslim Women in  India by Zoya Hasan, 2004, Oxford). The writer also argued: “the  Muslim women survey (2000) presents a picture of glaring inequality –  social, economic, political – that consistently defines and  circumscribes – all women and Muslim women in particular.(Ibid.  Page 4, 5).

In  view of the repeated propagation of such a humiliating stand against  the Islamic priestly class and silence of the State, the status of  Muslim women within the Islamic community in India particularly when  it comes to gender equality remained undoubtedly an important issue  for the Muslim feminists. Male privilege of unilateral divorce,  ubiquitous veil, conformity to the strict confines of womanhood  within a fundamentalist code are some of the major problems Muslim  women have been facing under Muslim Personal Law (Shariat)  Application Act 1937 as a result they are the victims of humiliation  of their inequality and subordination to men within the community.

This  Act had also empowered the self-proclaimed religio-political leaders  of the community to out rightly reject the demand for any reform in  existing personal laws particularly in the matter of marriage or  divorce. They argue that since the Muslim personal law is an integral  part of Islam any change in it amounts to destruction of the  religious identity of the Muslims.

Why  this “silence” from the Indian Mullahs?

The  Mullhas’ silence over the prevailing malady, rampant marriage  breaks and humiliating treatment of wives in Muslim proletariat,  strong reservation in permitting the girls to go to schools imparting  modern education shows that the radicals are totally indifferent of  the such socio-religious problems in the Muslim society and therefore  not ready to free the women from the siege of medieval bondage.

The  Indian State on the other hand never made any initiative in this  direction despite the fact that such right is protected in many  Islamic countries. So much so, by accepting the narrow definition of  Muslim Personal Law as divinely ordained law it not only supported  Muslim orthodoxy but also became responsible for the centuries old  injustice to women as this group is the only population in India  whose right to monogamous marriage is not protected.

The  Initiative has to come from within- “those Affected”:

For  over a decade some Islamic feminist groups in India are organising  protests against the unfair sections like polygamy, divorce, property  rights and other discriminatory laws against Muslim women and are  demanding their abolition. But even though India has a progressive  constitution, pro women laws and judgements they have failed to  achieve any success due to the absence of mass support and absence of  any effective and assertive leadership. Therefore, their voice for  gender equality is yet to jerk the conscience of the community or to  draw due attention of political class or media.

The  movement of Muslim women groups may be nascent but the problem with  them is that they are not fighting for their rights as an organised  group. Instead of challenging the discriminatory provisions in  personal law constitutionally or internationally accepted human  rights principles, they are found engaged in re-reading of religious  texts to find out Islamic solution to these problems. This could be  an acceptable and reasonable way but they have not taken into account  the powerful and entrenched position of the radical Mullahs who  perhaps feel that any change would undermine their own hold on the  community.

They  should also try to understand that the Mullhas have linked the issue  of gender inequality with the religious identity of the Muslims only  for their self-seeking political game despite the fact that this  issue has no relevance in a secular and democratic country. Such  political game of the radicals has pushed the women folk in the  community to a stage of subordination. Apart from it, the women  activists are not coming forward to spell out the various oppressive  practices of gender discrimination prevailing in the community.

Their  silence in cases like Shahbano and on the fatwa issued by the Mufti  of Darul Uloom Deoband in the rape of Imrana allegedly by her  father-in-law and a similar case recently shows that they do not want  to confront the orthodoxy in the community who claim themselves as  the sole interpreters of Islamic texts and impose such interpretation  on the illiterate woman like Imrana and others.

The  Islamic feminists must be aware that right to gender equality is  historically rooted to the establishment of All India Women’s  Conference in 1927 "as an organization dedicated to upliftment  and betterment of women and children" (Wikipedia). By 1942 its  leaders started demanding reform in the religion based personal law  and application of gender equality principles to women’s rights.

The  debates in the Constitutional Assembly:

The  issue was however, initiated after Independence when a proposal was  introduced in the Constituent Assembly in 1947 by Minoo Masani, a  member of the Fundamental Rights Sub-Committee. Minoo Masani together  with two women members namely Hansa Mehta and Rajkumari Amrit Kaur  and B.R.Ambedkar wished to include the clause on Uniform Civil Code  as a fundamental right but they were outvoted by the rest of the  members in the committee mainly in deference to the vocal opposition  of Muslim members who took it as threat to state interference in  their personal law. (Reference from Minoo Masani, Against the Tide,  Vikas, New Delhi, 1981, pp.  4-5.http://www.india-seminar.com/1999/484/484%20chiriyankandath.htm#484%20ch...).  As a result of such opposition of the members to appease the  community, the very objective of a Uniform Civil Code was relegated  to a status of uncertainty.

Masani,  Mehta and Kaur however, recorded their dissent, stating that “one  of the factors that have kept India back from advancing to nationhood  has been the existence of personal law based on religion which keeps  the nation divided into watertight compartment in many aspects of  life. We are of the view that Uniform Civil Code should be guaranteed  to Indian people..... ”. (Vrinda Narayan- Gender and Community-  Muslim Women’s Rights in India page 5-8).

During  Constituent Assembly debate B.R. Ambedkar repeatedly contested the  arguments of the Muslim members that their personal law was  immutable. He pointed out that “The Shariat Application Act had  been enacted specially to bring those Muslims who had hitherto been  governed by Hindu law within the purview of Shariat law” (Ibid.  Page 9).

The  other day (September 14) a TV channel had programmed a debate on the  issue of divorce as per Shariat Act and some Muslim women  participants were against the prevailing system on this issue in  Islamic society and wanted its abolition. But the issue hardly  attracted the attraction of the people concerned and even people  believing in the concept of gender equality.

Way  Ahead:

Even  the All India Muslim Women Personal Law Board (AIMWPLB) which was  constituted by a group of Islamic feminist organisations in 2005 to  protect the rights of Muslim women particularly on the issue of  marriage, divorce and other legal rights is also facing the challenge  mainly from All India Muslim Personal Law Board, All India Ulema  Council and other Mullhas-controlled organisation which does not  allow any reform in the Shariat Act.

In  order to advocate reforms and change in British enacted family laws  for Muslim women that are detrimental to them, there is a need for  Islamic feminist groups in the country to form broad coalitions and  alliances with the progressive and democratic intellectuals of the  community and scholars against the hardliners to reclaim their rights  and justice constitutionally as well as on the basis of international  organisations in support of their cause.

Apart  from it, they should also arm themselves with supporting  interpretations of Islamic texts and organise intellectual debates to  expose the mutual profit game that is being played out between  Mullahs and the vote-seeking political class in the Islamisation of  women’s problems of inequality by oppressive and patriarchal  interpretation of religious texts.

Fighting  for any code that guarantees the gender equality is the only answer  to free the women of the community from their medieval bondage that  has pushed them to the stage of inequality and discrimination.

First  published http://www.southasiaanalysis.org/node/1624