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Critical Reflections on Muslim Marriage and Personal Law in India

Article  in  Economic and Political Weekly · December 2018

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Critical Reflections on Muslim cultural “borrowings” of “survivals” from
pre-Islamic or Hindu modes of worship

Marriage and Personal Law in India and life cycle ceremonies. They, therefore,
had to be avoided because they had no
religious sanction in the scripture, and
even involved activities contrary to the
Qudsiya Contractor dictates of Islam. While this discourse
maintained that the social consequences

T
his collection of essays, written by book reviewS of participating in dowry transactions
Sylvia Vatuk and published over a are deplorable, it differed in that its ap-
span of 15 years (2001–15), is based Marriage and Its Discontents: Women, Islam peal for reform relied on an appeal to
on ethnographic and archival research and the Law in India by Sylvia Vatuk, New Delhi: historical origins, rather than to overall
among Muslims in Chennai and Hydera- Women Unlimited, 2017; pp xviii + 273, `650. societal well-being or gender justice.
bad. It was inspired by an increasing unease Chapter 7 looks into why marital rela-
with the prevailing tendency of popular women to accommodate and/or overcome tionships end up in dissolution. The author
journalistic and scholarly literature of con- the constraints and disabilities to which attributes these to a gap that frequently
demning the fate of Muslim women to the they are subjected in a heavily male- exists between “the partners’ religious
personal law regime that “governs” them dominated legal and social milieu. Vatuk’s and cultural expectations of what a
—where polygamy and unilateral divorce purpose is to broaden her investigations of marriage should be and the reality of life
leave them bereft of any means of sup- how women fare under the MPL by looking for Muslim men and women in India to-
port, should their marriage be dissolved. into the role of non-state religious bodies day” (pp 220–21). The author argues that
A central concern for most of the essays in the administration of Islamic law. divorce stories can shed light on the nature
(with an exception or two) is the question Chapter 6 of the book on “Change and and dynamics of contemporary marriage,
of what happens if a marriage ends up in Continuity in Marriage Alliance Patterns” the cultural construction of the institution
disarray; especially when the couple faces provides some interesting insights into the itself and the challenges that partners face
one another in a civil court, before a com- persistence of endogamy even as parentally in trying to perform “their assigned gen-
munity council, the jamat or the imam of arranged marriages are giving way to dered roles which in Islamic discourse are
their neighbourhood mosque or in the so-called “arranged love marriages” among unproblematically complementary, but in
office of a local qazi. During the course of South Indian Sunni Muslims of the Naw- practice are highly asymmetrical” (p 221).
her research, the author found it rare for a wayat quam (community) (pp 196–219). The author emphasises that contrary
woman to directly file a civil lawsuit or make Khandan (clan) endogamy is still widely to popular perception, Muslims remain
a criminal complaint against her husband practised while Dravidian-type customary married to their first spouses till death
or in-laws, unless she is led to do so by preferential marriages are considered safe, does them part; although, there are no
members of a non-governmental organisa- congenial, useful, convenient and ideo- hard statistics to either support or refute
tion (NGO) working on woman’s issues or is logically satisfying in a globalised world. this notion. Some expectations within
taken there by a male relative who is famil- Chapter 3 on “The Cancer of Dowry” marriage tend to contradict provisions
iar with the ways of the judicial system. explores how a growing anti-dowry of Islamic law such as a woman’s legiti-
rhetoric in the 1980s moved to the centre mate grievance with her husband taking
Examining Stereotypes stage as “an object of social critique by a second wife. Being sexually faithful is
The book addresses the need to examine the general Muslim public as well as by an expectation that many Muslim women
the empirical basis for widespread stereo- social reform-minded religious authori- reciprocate and demand from their
types about Muslim women suffering ties and institutions” (p 93). husbands despite religious law, clerical
under the oppressive burden of personal Vatuk presents here a careful reading authorities and the male-led community
law and thereby, perhaps, finding a way of the Muslim press revealing a Muslim being tolerant to the latter’s adultery.
of undermining some of the strength of critique of the system despite the antiquated
the prevailing rhetoric. The essays based rhetoric. These, she argues, recall some of Divorce Initiated by Women
on years of research explore Indian Muslim the views of much earlier Muslim reformers Chapter 4 indicates how khul or divorce
women’s use of both civil and religious in the subcontinent, who wished to purge initiated by the woman has received negli-
judicial institutions to resist patriarchal Muslim lives of a wide range of customary gible scholarly attention, yet it contributes
domination within their homes and in the rituals and ceremonial observances to a significant proportion of divorces
society at large. (rasum) such as jahez, len-den, citanam among Vatuk’s findings. The author pre-
The essays also provide a close look at (derived from the word stri+dhan or sents evidence from divorce files main-
whether and how the Muslim Personal women’s wealth). Anti-dowry rhetoric tained by qazis in Hyderabad in which
Law (MPL) impacts the efforts of Muslim conceptualised these as they represented “cases of khul clearly dominate over cases
Economic & Political Weekly EPW DECEMBER 8, 2018 vol lIiI no 48 23
BOOK REVIEW

of talaq” (p 138). Khul does meet the needs about preserving her status as a “respect- for whom establishing a uniform civil code
of many women who are willing to ad- able” and “chaste” woman rather than has been of priority. The original essays
dress their financial insecurities and stand upholding her rights within the marriage. have been revised and appear as chapters
up to societal attitudes towards divorce. A legal discourse of “rights” is thus trans- arranged in a chronological order of their
Although khul does take a woman’s formed into a discourse of “welfare” whose original publication. This may not have
choice in a marriage into consideration, it defining terms are set, not by the woman been the best way to address the issue at
still requires her to persuade her husband herself, but by her counsellor, her advo- hand. Some background of the Muslims
to act on her request in order to sucessfully cate, the judge, and in the last analysis, by of Chennai and Hyderabad, especially
end a marriage, while a man by pronounc- the realities imposed by the society within those communities that were part of the
ing talaq, can act entirely of his own will which she lives. Chapter 8 mentions that study, would have helped.
and initiate to dissolve the marriage. there has been an increasing willingness The book points to the need for
Whether khul empowers women to exert of magistrates in courts to order state further comparative research to under-
their independent agency or makes Wakf Boards to provide maintenance stand the way the Indian personal law
them vulnerable to manipulation put- stipends to destitute Muslim divorcees, system works and to what extent one civil
ting them at a serious disadvantage is although there have been some difficul- code has in practice any clear advantage
still a matter of debate. A lot might still ties in implementing these directives. over the others in terms of their impact
depend upon their relative “bargaining Nonetheless, the number of women on women’s well-being. What are the gaps
power” within the marriage vis-à-vis the being helped in this way is steadily between text and practice in Muslim
husband. The author suggests that fur- increasing. In Chapter 5 on “Islamic marriages? What is changing? What are
ther detailed ethnographic research to Feminism in India,” Vatuk looks at how the challenges of the new times? What are
supplement the investigation of archival as an approach, Islamic feminism holds the expectations of the younger gener-
records has the scope to reveal more. considerable promise for improving the ations from marital life? Do they contra-
legal lot of Muslim women although dict the Islamic tradition? How is the role
Approach towards Women merely seeking to obtain rights provided of the state envisaged?
Chapters 1 and 2 mention that a “paternali- to them in the Quran might not achieve The rhetoric around divorce continues
stic” approach towards women and their complete equality of the sexes. to remain synonymous to Muslim marital
needs, permeates the legal process, in This is a timely book based on empirical life. Unlike the Congress, which during
particular, the manner in which personal data that deals with debates that are Shah Bano’s very public legal battle for
laws are administered in practice in the back in the focus with a Hindutva prop- maintenance favoured “secular” national
lower courts. More often the concern is agating right-wing government in power unity over minority rights, the BJP seems

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24 DECEMBER 8, 2018 vol lIiI no 48 EPW Economic & Political Weekly

 BOOK REVIEW

to be clearer in its imagination of a Hindu- safeguards, group rights and women’s law and the experience of divorce. It
majority nation where the Muslim male autonomy especially since the research is good for students, practitioners and
needs to be subdued and disciplined spans a considerable 15 years. The book academics seeking to understand the
when it comes to upholding Muslim has no conclusion, which could have been challenges of the MPL.
women’s rights. The book could have a conscious decision by the author. Qudsiya Contractor (qudsiya.contractor@
gained by providing an updated context The book provides a comprehensive gmail.com) is a Fellow at the India-China
to the tensions that exist between legal and detailed analysis of Muslim personal Institute, The New School University, New York.

Economic & Political Weekly EPW DECEMBER 8, 2018 vol lIiI no 48 25

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