Listen To The Women

The recent meeting of the All-India Muslim Personal Law Board at Bhopal has onceagain made it amply evident that many ulama associated with the Board are averseto any basic changes in Muslim Personal Law as it exists today, and which, inseveral respects, is clearly loaded against Muslim women. 

The sharp criticism that the Board has won for itself from progressive Muslimquarters for having sought to legitimize what the latter see as ‘un-Islamic’patriarchy in the guise of the shari‘ah strikingly highlights the dubiousclaims of the ulama (as well as Islamist ideologues) that traditionalunderstandings of the shari’ah, as they understand it, has all the answers tohumankind’s woes. 

If the ulama are unable to agree on precisely what the shari‘ah rulesgoverning relations between the genders should be, is it all surprising thattheir insistence that genuine peace and prosperity in accordance with God’swill can be secured only through following their version of the shari‘ah hasfew serious takers?

Mercifully, the ulama associated with the Board do nothave a monopoly over shari‘ah-based discourse. Faced with the intransigence ofthe traditionalist ulama, who consider the centuries-old patriarchal traditionof fiqh or jurisprudence as almost wholly sacrosanct and unchangeable and asrepresenting the normative or divine shari‘ah, a small and growing number ofIndian Muslim women have begun to take on the ulama on their own turf. 

They have taken to studying Islam themselves, going back to the Qur’an andby-passing the fiqh tradition which they see as having denied them of the rightsthat the Qur’an has provided them. In the process they are developing new,more gender-just notions of Islam and the shari‘ah that critique both theclaims as well as the authority of the traditionalist ulama and Islamistideologues.

The Mumbai-based Women’s Research and Action Group (WRAG), a well-knownwomen’s organization, has been in the forefront of this struggle to re-readthe Islamic tradition in order to argue the claim for gender equality. It wasfounded in 1993, in the aftermath of the bloody riots in Mumbai that eruptedsoon after the demolition of the Babri Masjid, in which several hundred people,mainly Muslims, were killed. 

Following the riots, Muslims in Mumbai saw themselves being furtherghettoized, forced into separate localities for fear of further attacks by armedHindu mobs. And, as a WRAG leaflet puts it, Muslim women, who were‘subordinated by the politics of gender, identity and personal laws, werefurther disadvantaged as they faced oppression from within and outside thecommunity’. It was in this context that WRAG was formed to help women,particularly Muslim women, struggle for their rights.

Recognising the limits of middle-class secular feminism, WRAG has beeninvolved in promoting a form of Islamic feminism for Muslim women in India. Inthis regard it has published a number of booklets meant for popular consumption,seeking to offer a women’s-friendly interpretation of the shari‘ah andcritiquing the patriarchal understanding of the shari‘ah furiously championedby the All India Muslim Personal Law Board, the majority of the traditionalist ulamaas well as Islamist groups such as the Jama‘at-i Islami. 

WRAG’s well-researched literature sheds desperately needed light on thecontentious issues involved in the on-going debates about the shari‘ah. In itsbooklet ‘History of the Development of Islamic Law’, it shows how theinitial egalitarian thrust of the Qur’an came to be overshadowed over thecenturies with the emergence of different schools of fiqh. These schoolsdeveloped in a feudal and patriarchal society and it was inevitable that theyshould bear the imprint of their social context. Muslims today, however, itargues, need not be bound by the precedent established by the fiqh schools but,instead, should return to the Qur’an for guidance. 

In two other booklets, ‘Laws Governing the Muslim Community’ and‘Understanding and Interpretation of Qur’anic Verses on Divorce’ WRAGargues that  Qur’anic verses with clear legal import, such as thosedealing with divorce, need to be understood contextually and historically,rather than simply literally. If the intention of the Qur’anic laws was togradually establish the principle of gender justice, it suggests, this calls fornew interpretations of these laws in order to meet that mandate in today’svery different context. Obviously such a suggestion is complete anathema to thetraditionalists and the Islamists.

WRAG’s approach to Islamic gender justice, asreflected in its literature, is rooted in a particular way of reading theIslamic scriptural resources. It hardly refers to the Hadith, the corpus ofsaying believed by many Muslims to have been uttered by the Prophet Muhammad,presumably because a large number of these sayings are simply concocted andtherefore unreliable, and also because many of them unambiguously justifywomen’s subordination. Likewise, the opinions of the schools of fiqh are alsorarely referred to, because the schools reflect a similar patriarchal ethos.Instead, it goes back to the Qur’an, seeking Qur’anic sanction for itsproject of women’s emancipation.

This strategy of reading the Qur’an in support of a gender-justunderstanding of Islam is well-illustrated in a recent WRAG publication byNoorjehan Safia Niaz titled ‘Maintenance After Divorce: A Major Concern ofMuslim Women’. Much of the ongoing debate on the Muslim Personal Law centreson the appropriate method of divorce and the rights of divorced women.

While the Board continues to insist on the legitimacy of the method ofdivorcing by pronouncing the world talaq thrice in one sitting (although it hasbeen forced to admit that this method is not the most appropriate one) andlimits maintenance rights for divorced women to just three months, Niaz readsthe Qur’an to come up with startlingly different conclusions.

Noting that the Qur’an clearly specifies that divorced women should begiven a gift according to the husband’s means, Niaz argues that thetraditional notion of maintenance for only a short period must be revised inorder to relate to the Indian context. She writes that while in seventh centuryArabia a divorced woman could easily get remarried and so they were generallyprovided post-divorce maintenance for only a few months, this is not the case inIndia because of widespread prejudice against marrying divorcees. Indeed, manydivorced women may not want to remarry or may not be able to remarry if they aredivorced at an age when remarriage is not a viable option. Hence, Niaz says, therelevant Qur’anic verse ‘must be interpreted in the context of Indiansociety’ so that divorced women are maintained by their husbands till suchtime as they can ‘work out an alternative’.

To further bolster her argument Niaz notes that in the Qur’an (2:241) therequirement of paying post-divorce maintenance to the divorced wife does notspecify any period or amount. Yet, she says, the conservative ulama insist thatsuch women not be given maintenance after the ‘idda period, generally threemonths, following divorce. Because of this, many divorced women are left with nomeans to fend for themselves, many being driven into destitution and evenprostitution. 

Niaz castigates the conservative ulama for ‘ignor[ing] the harsh realityfacing women’ and for ‘allow[ing] men to evade their socialresponsibility’. Countering the oft-heard argument that the mehr or dower thatshe is given by her husband is an adequate payment for the divorced woman aftermaintenance, Niaz argues that ‘mehr is the right of women at the time of nikah[marriage] and not divorce’ and hence that ‘mehr should not be linked todivorce’. 

To deny a divorced woman maintenance after the ‘idda period, she claims, isto deny her any compensation for the years of domestic work and ‘hidden labour’that she has undertaken while the marriage lasted. Consequently, she argues, adivorced woman must also be given an adequate share in the assets accumulated bythe family. In this regard she critiques the Muslim Women (Protection onDivorce) Act, passed in 1986 in the wake of the Shah Bano controversy, forhaving taken away the rights to maintenance after the ‘idda period thatdivorced Muslim women enjoyed.

To further back up her argument for adequate maintenance of a divorced womanafter the ‘idda period Niaz discusses the term mata‘a, or consolatory giftor compensation. Referring to this the Qur’an says, ‘For divorced womenmaintenance should be provided on a reasonable scale’. Noting that the amountof mata‘a is left unspecified, Niaz interprets the line to make for adequatemaintenance for the divorced woman even after the period of ‘idda is over,clearly opposing the traditionalist ulama’s understanding of the term. Shelaments that while  many Muslim countries have provision for mata‘a fordivorced Muslim women this is not the case in India, presumably because of theopposition to this on the part of the conservative ulama and what she calls‘Muslim fundamentalists’.

In the ongoing and seemingly endless debates on Muslim Personal Law, voicessuch as those of the Muslim women associated with WRAG desperately need to beheard. The temptation to credit the Board with a monopoly over shari‘ah-baseddiscourse must be firmly resisted, for it is not a representative body, and norare its views legally enforceable. If, as Muslim tradition tells us, the ProphetMuhammad exhorted his followers to learn ‘half the faith’ from his wifeAyesha, there is no reason why we should not be listening to what a new breed ofMuslim women scholar-activists, such as Niaz, have to say about their ownreligion.

Yoginder Sikand is the author of Sacred Spaces: Exploring Traditions of Shared Faith in India and Inter-Religious Dialogue and Liberation Theology: Interviews with Indian Theologians and Activists