Beyond the Limitations of the Impasse: Feminism, Multiculturalism, and Legal Reforms in Religious Family Laws in India

Abstract

How do feminists harmonise cultural rights and gender equality in the governance of the family in multicultural and legally plural societies? Faced with the dilemma that advancing gender justice in the family by advocating uniform laws across religious differences would undermine minority rights in the context of growing Hindu nationalism in the 1990s, the Indian women's movement shifted ideologies and practice and pursued an assemblage of reforms in adjudicative and legislative processes, in the state and society. Women's groups pursued piecemeal legislative reforms in religiously neutral civil and criminal laws that affected the family, and supported by judicial actors, used legal innovation to advance women's rights in adjudication of religious family laws in state courts. They creatively and resourcefully built their own societal religio-legal adjudicatory forums and selectively engaged in conflict, cooperation, alliance-building, and communication with diverse religio-cultural and state actors to transform the content of gender-unequal religio-cultural laws in society.

Acknowledgments

Acknowledgements

I would like to thank Anjali Dave, Trupti Panchal, Amrita Shodhan, the anonymous reviewer, and editors for their comments, questions, and suggestions. All errors remain mine.

Notes

The State of Jammu and Kashmir enacts its own laws; the 5th and 6th Schedules of the Indian Constitution recognise indigenous laws in tribal majority areas; the Union Territory of Goa recognises its own common civil laws in the governance of the family.

Adjudication is defined as a process leading to an outcome in a legal dispute in personal laws following a coercive or non-coercive process in state or societal laws or legal forums.

For example, Section 29(2) of the Hindu Marriage Act 1955 recognises customary divorce, authorising both the state and customary groups to act as legal agents. The Muslim personal law is uncodified, and is an amalgamation of customary laws, Islamic laws and precepts, and state laws and judicial precedents, as state courts also administer uncodified Muslim personal law. The degree of freedom granted to religio-cultural groups in the administration of religio-customary laws varies in India and, in general, the state privileges statutory laws in matters of financial settlement post-divorce.

The Talaq e bidaat consists of three pronouncements (of divorce) made during a single tuhr (menstrual cycle) in one sentence or a single pronouncement made during a tuhr clearly indicating an intention to dissolve the marriage irrevocably (Mulla 1955, 267).

This section, meant to protect indigent wives, was applied uniformly across religions under criminal laws of India. Although the amount then under this law was Rs. 500 ($10) a month, this section was popular with women—under this law, recovery rate of arrears was higher because failure to pay invited criminal liability.

Under Islamic laws, this term refers to a period of roughly three months and ten days post-divorce.

The Babri Mosque is a sixteenth-century structure; the Hindu right claim that it was built upon the ruins of the temple of the Hindu God Ram, though archaeological evidence is disputed. The mosque was used for religious purposes by both groups, but several suits from opposing religious groups claiming the site were filed in the immediate aftermath of the partition of India. As a result, the government proclaimed it a disputed site and locked the gates in 1949. The gates were reopened to allow Hindus to offer prayers in 1986, and Rajiv Gandhi, the Congress Party leader, allowed a Hindu ceremony near the site in order to gain Hindu conservatives' votes. To counterbalance this move and to revive its support among Muslims, the Congress Party enacted the Muslim Women's Act, 1986 (Hasan 1999). In the late 1980s, the Hindu right mobilised to destroy the Mosque; it culminated in the demolition of the mosque by groups of Hindu fundamentalists on 6 December 1992.

The practice of notionally voluntary suicide by the woman on her husband's funeral pyre.

The term IWM refers to individuals, informal groups, and formal organisations whose actions are informed by an analysis of power located in gender relations in society and whose aim is to challenge and change women's subordination in society. For the purpose of this paper, the term IWM includes autonomous women's groups, women's groups and wings affiliated with the radical left and the left of the centre parties, mass organisations of women, non-governmental organisations (NGOs) working exclusively on women's rights and issues as well as NGOs running projects on women, and women's organisations affiliated with organisations working for civil liberties, democratic unions, and social work groups/organisations. The typology excludes right-wing women and organisations. The terms feminist organisations and women's groups are used synonymously in this paper.

Section 498(A), Indian Penal Code 1860, criminalises physical and mental violence, including dowry-related violence, faced by married women.

Following the feminist campaign against rape, Section 376, IPC, read with Section 114-A of the 1983 Criminal Law Amendment, was introduced into the Indian Evidence Act, which shifts the onus of proof onto the accused in custodial rape cases.

The Dowry Prohibition Act, 1961, prohibits the giving and taking of dowry.

The Commission of Sati (Prevention) Act, 1987, prohibits the commission of sati (notionally voluntary suicide) by the widow on her husband's funeral pyre, and its glorification.

The Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994, a result of feminist campaigns, came into force in 1996.

For instance, Shehnaz Shaikh, an activist of the Mumbai-based feminist organisation, Awaz E Niswan, filed a petition in the Supreme Court (Shahnaz Shaikh v. The Union of India and Abdul Rab Kavish. Civil Writ Petition no. 32 of 1983), but withdrew the suit in the aftermath of the Hindu–Muslim riots in Mumbai in 1992–1993 (Gangoli 2007).

Although the Indian state has been responsive to law reform strategies of women's groups, the state has not taken up women's organisations' demands for an enactment of uniform civil code. See Ahmedabad Women's Action Group & Ors. v. Union of India (All India Reporter (AIR) 1997, 3 SCC 573).

See Ahmedabad Women's Action Group & Ors. v. Union of India (AIR 1997, 3 SCC 573).

The Hindu Succession Act, 2005, was amended to give Hindu women equal inheritance rights during this decade. However, this paper focuses on reforms in matrimonial laws of Hindus and Muslims. The politics of reform in inheritance laws of the Hindus are different from the dynamics in matrimonial law reforms, as the shared adjudication model is limited to the governance of marriage and divorce among Hindus. The state is the sole authority in the governance of inheritance laws of Hindus. This state policy has provided limited opportunity for civil society to participate in the adjudication of disputes under this law.

The Joint Women's Programme of Delhi evolved a draft reforming Christian Personal Law through a decade-long dialogue between various churches, and submitted it to the government in 1994. The Indian Divorce Act, 1869—applicable to Christians—was amended in 2001.

The Parsi Marriage and Divorce Amendment Act, 1988, introduced mutual-consent divorce; the Indian Succession Amendment Act, 1991, gave equal inheritance rights to women.

The government of the Western state of India, Maharashtra, along with feminist group Majlis, has drafted the Matrimonial Property (Rights of Women Upon Marriage) Bill, 2012, which dealt with the concept of joint matrimonial property during the subsistence of marriage and the division of property post-divorce for all women. Some Islamic scholars and members of the All India Muslim Personal Law Board objected to this initiative, expressing concern that such a bill may violate the principles within the Sharia regarding rights of Muslim women upon divorce. Some women's groups protested against this move by the AIMPLB to block Muslim women's rights in law, while others argued that the challenge here is to reconcile the principles of the Sharia with the provisions of the Bill. As a result, many feminists have been involved in an effort to redraft the bill in consensus with Muslim scholars. The talks are proceeding to add a new section that would state that if a woman has a similar right under her personal law, she can avail herself of it. An option under discussion is that because the AIMPLB's position is that Muslim women already have a right in Sharia, feminists can persuade the AIMPLB to set up the machinery that will give women this Islamic right (personal communication with Flavia Agnes, feminist scholar and lawyer, Majlis, Toronto, March 17, 2012).

These positions were articulated in drafts prepared by the following groups: Forum Against Oppression of Women, Anveshi Law Team, the Working Group on Women's Rights, Majlis, the All India Democratic Women's Association, Saheli, and People's Union of Civil Liberties (see Menon 1998, for a detailed discussion of each draft).

For instance, women's groups and feminist lawyers share information about judges who routinely give anti-women judgments, and who display their bias in throw-away comments in the courtroom that reinforce derogatory or stereotypical perceptions about women. The Indian media also often reports on such instances. However, recently, a High Court Judge in the southern state of Karnataka was flagged for his judgments and derogatory comments against women in the media. He famously asked an abused wife to reconcile with her husband to preserve the harmony of the family. Women's organisations took up this matter, and feminist lawyers compiled a list of his judgments that demonstrated his biases. A delegation of women's organisations, feminist lawyers, and ex-members of the State Commission for Women met with the Chief Justice of the Karnataka High Court with the demand that this judge be transferred from hearing family court matters on the division bench. The High Court judge in question recused himself after these reports became public. See 8 September 2012. Controversial Judge Taken off Family Case. Staff reporter. Hindustan Times.

In general, women's groups remain self-reflexive about the limitations of engaging with the state, remaining alert to the political domestication of feminist agendas. Some choose to work outside the state, while others remain committed to work through and beyond the failures and dilemmas of working with the state.

Interview with Irene Sequeira, lawyer, 17 July 2003, Mumbai.

To elaborate, Hindu women are governed by the Hindu Maintenance and Adoption Act, 1956, under which a Hindu wife is entitled to maintenance from her husband on grounds of cruelty, conversion, desertion, adultery, polygyny, or communicable disease; divorced Hindu women are entitled to permanent alimony under the Hindu Marriage Act, 1955; and divorced Muslim women are awarded mehar, dower, and can seek maintenance under the Muslim Women's (Protection of Rights on Divorce) Act, 1986. In addition, married women across religious lines can seek maintenance under Section 125, Cr.P.C; all married women have a right to stridhan. Working women, even in pink-collar jobs, were not granted maintenance; women often found it difficult to prove husbands' income, and lengthy litigation processes made it more difficult for women to fight protracted legal battles. In addition, courts did not always guarantee economic rights of women in live-in relationships or bigamous relationships (Menski 2003; Solanki 2011).

Interview with Veena Gowda, lawyer, 16 June 2003, Mumbai.

Order 39 of the Civil Procedure Code, 1908, allows the court to grant a temporary order preventing wasting, damaging, alienation, sale, or disposal of a property that is under dispute.

See Chapter 3 of the Family Courts Act, 1987, Section 7(c, d).

Case details are based on interviews with Masood Sheikh and Mehzabi Sheikh and Court.

Interviews with MS, 17 March 2003, Mumbai.

It is not my intention to argue here that settlement is always and automatically preferable to Mumbai. Names are changed to protect their identities as per the access order of the Bombay adjudication. Nor do I imply here that women litigants and women's organisations simply accept any terms of settlement between the parties. In such cases, they often examine the terms of proposed settlements to ensure that the agreement protects the safety and interests of the women. However, women's organisations tend to privilege the woman litigant's autonomy in decisions regarding her future course of action, and accept that many women may make decisions that are antithetical to feminist ideals. Women's activists in such cases point to the possible harm that might befall in such situations, and yet assure women that the organisation would always help them to deal with the consequences of their decisions. It is difficult to arrive at a judment about the pros and cons of settlement of cases, and this paper advocates a contextual approach that involves paying attention to the context of the proceedings and the ground realities of the situation, rather than automatically conceding the primacy of universal rules.

Personal communication, Sona Khan, in a book release function organised by the Women's Action and Research Group, 22 April 2003, Mumbai.

Section 405, IPC, defines what constitutes criminal breach of trust: ‘Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits “criminal breach of trust”’. Section 406, IPC, specifies punishment for criminal breach of trust.

Stridhan often consists of money, jewellery, clothes, furniture, and other household items, ranging from utensils to cars.

See Pratibha Rani v. Suraj Kumar and anr (1985 AIR 628 1985 SCR (3) 191 1985). The case clarified the nature, character, and concomitants of stridhan, and ruled that the right of exclusive ownership over the stridhan during coverture rested with the wife.

Section 498(A), IPC: ‘Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. For the purpose of this section, “cruelty” means (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand’.

Personal communication with Anjali Dave, Director, Special Cell for Women, Mumbai, September 15, 2012.

The Special Cell for Women and Children is distinct from the police-initiated special cells or all-women's police stations, staffed by the police, which offer counselling in noncriminal cases to prevent marital breakdown, using familial ideology. This was replicated at the provincial (and now, national) level.

The data in National Crime Records Bureau indicate that the number of reported cases under Section 498(A) increased by 80% between 2003 and 2009.

The average conviction rates between 2005 and 2009 range from 19.5% to 23%. See Section 498(A): A Report Based Upon Analyzing Data from National Crime Records, 2005–2009, Swayam, Kolkata.

Feminists have questioned whether this act is useful in combating domestic violence—given that Section 498(A) is used quite often to bargain for post-nuptial maintenance rather than to penalise men, the act is not an effective deterrent. My data show that the infiltration of law in popular discourse, legal strategies, and consciousness challenges the normalisation of domestic violence, and destabilises the male impunity.

The law is non-compoundable (women cannot withdraw complaints at any time), though a procedure for quashing 498A exists in the High Court. However, in such instances, witnesses will deny their statements made to the police, and the accused is acquitted due to lack of evidence.

Similar allegations are levelled against the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1987, which penalises violence against Dalits and Adivasis in India.

Interview with MH, 13 May 2003, Mumbai.

Interview with Anjali Dave, Director, Special Cell for Women and Children, Mumbai, 7 July 2009.

Personal conversation with Nandita Gandhi, Director, Akshara, Mumbai, 5 August 2012.

The term includes ex-wives, mothers, sisters, widows, women in bigamous unions, and past and current live-in partners.

Interview with Anuradha, Legal Cell, Centre for Social Justice, 14 July 2010, Ahmedabad.

Interview with Shaukat Said, lawyer associated with the Dalit Rights organisation Navsarjan, 26 July 2011, Ahmedabad.

This provision has led to new legal developments that have implications for the governance of the family in India. See for instance, D. Velusamy vs. D. Patchaiammal (criminal Appeal nos. 2028–2029 of 2010), arising out of Special Leave Petition (Crl. Nos. 2273–2274/2010). In this case, the Supreme Court laid down criteria defining the nature of live-in relationships that could be held valid for the application of this Act, and held that a woman who lived with a man without marriage would be eligible for maintenance, but this would not apply to women who had only a financial and sexual relationship with a man or who worked as a domestic worker.

Punwani Jyoti, 30 April 2012. Women's rights could fall into place with secure economic rights. Matrimonial Property Bill of the Maharashtra government. Times of India, Mumbai edition.

Most Sunni Muslims in India follow the Hanafi law, though Shafi, Maliki, and Hanabali laws are also adhered to in some pockets of the community. Many Shia communities follow the Shia law, and Shia sects, such as Bohras, Khojas, and Ismailis, follow sect-based laws (An-Na'im 2002).

The Muslim Personal Law recognises three types of divorce—talaq ahsan, talaq hasan, and talaq-ul-bidaat. The talaq ahasan consists of a single pronouncement of divorce made during a period of menstruation followed by sexual abstinence during Iddat, a period of three months and ten days (Mulla 1955, 267). The second type of divorce, talaq hasan, consists of three pronouncements made during successive tuhrs (menstrual cycles) with no sexual relations taking place during the time (Mulla 1955, 267).

See Dagdu Pathan (see Dagdu s/o Chotu Pathan v. Rahimbi Dagdu Pathan & Others, May 2002, Aurangabad bench of Mumbai High Court). All India Maharashtra Law Reporter (Criminal), Vol. 2, 1230–1261. Shamim Ara v. State of U. P. and Another (2002, AIR SCW 4162). Cited and discussed in Muslim India 239, November 2002.

Lawyers use the judicial precedent to contest unilateral divorces outside courts. ‘A Muslim husband had divorced his wife and refused to give maintenance. They had three children and they were in a bad shape. I told the husband that there is no proof and the courts do not recognise unilateral divorce anymore … The Shamin Ara case has been reported widely in the media and the husband realised that his divorce will be disputed if the matter reaches the court. The husband wanted to marry again and did not want lengthy litigation. I arranged a decent settlement for the woman and the children. … ’ Interview with advocate Niloufer Akhtar, 3 March 2003, Mumbai.

Interview with the Rah E Haq Women's Collective, 20 April 2003, Mumbai.

Interview with Vandana Nanaware, social worker, Special Cell for Women, 19 May 2003, Mumbai.

Interview with Kunda Kelkar, Stree Mukti Sanghatana (The Organizations for Liberation of Women), 8 April 2003, Mumbai.

Interview with Hasina Khan, member, women's group Awaaz E Niswan, 13 January 2003, Mumbai.

This type of divorce is called talaq e tafwid, in which a husband can delegate the right of divorce to his wife or to any of his family members.

Formed in 2007, it is a mass organisation of Muslim women across India that believes in deepening substantive citizenship rights of Muslim women in the democratic framework; it allies with social movements of the Dalits (literally, the oppressed, self-referential term for India's population that falls outside caste boundaries) and indigenous peoples, seeks to encourage leadership in Muslim women, and works on law reforms in Islamic laws based on liberal, humanist, and feminist interpretations.

The Deobandis represent religious tradition that follows textual, conservative, puritanical Islam that is sanitised from local variants and influences.

The Barelvis follow conservative but folk Islam.

A reformist movement that encourages fidelity to direct teachings of the Quran and Hadith for guidance in matters of faith. Their interpretation of Islamic laws is based on literalism, and they also place importance on ritual practice.

This case is based on interviews with the litigants, social worker, and the Darul Qaza officials and non-participant between September 2002 and March 2003.

Darul Qaza, or, courts of law, are religious bodies that adjudicate in matters of Islamic family laws. These are established by the Ulemas of the Deoband doctrinal orientation.

Statement by Wahabuddin Khan, 20 December 2002, Mumbai.

Meeting with the social worker and Nafisa, 23 March 2003, Mumbai.

Additional information

Notes on contributors

Gopika Solanki

Department of Political Science, Carleton University, Canada.