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Abstract
Postcolonial Indian politics have been punctuated by major debates about Muslim personal law: the law and case precedent that applies to Muslims in matters of marriage, divorce, adoption, succession, and inheritance. These debates ask whether gender equality for members of all religious communities can be achieved in a religiously differentiated legal system. While some argue that a uniform civil code would be the critical mechanism to protect women’s rights, we suggest that Muslim personal law in fact plays a marginal role in family courts, where shared statutes already hold a much more significant place. Based on a mixed-methods analysis of cases from a New Delhi Family court, we demonstrate that Muslim women almost exclusively file cases under common, non-religious laws, and that the few cases filed specifically under Muslim personal law are often adjudicated on the basis of a combination of laws rather than on Muslim law alone. Yet, our findings also confirm that Muslims are only marginally present in state courts, and mostly use other means to adjudicate family disputes. This situation pushes against the idea that the “harmonization” of religious personal laws is sufficient to understand the legal complexities confronting minority women.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 Mohd. Ahmed Khan v. Shah Bano Begum. AIR 1985 SC 945; Shayara Bano v. Union of India and Others Supreme Court Writ Petition No. 118 of 2016.
2 The first Family Court was founded in Jaipur, Rajasthan in 1987 and other localities slowly followed such that by 2005 there were 91 Family Courts (Agnes Citation2011, 273, 323–27).
3 Some of the Indian High Courts’ cause lists are directly available online, but this was not the case with the Family Courts’ lists at the time of research (http://indiancourts.nic.in/). Our case lists range from June 2011 to August 2013.
4 The only cases that reach judgments more than 50% of the time are Hindu divorce cases.
5 The restitution of conjugal rights is a suit to return a spouse to the marital home.
6 This method does not exclude the possibility of mistaking some Hindu and Muslim names and should be regarded as a “reliable approximation” rather than a perfectly accurate method (Susewind Citation2015: 321). Muslim names were identified according to our prior knowledge of the region and by comparing with online name lists as well as with the names listed in Muslim law cases. While there might be slight variations in the results given the method used, our findings nevertheless corroborate past studies and suggest that the trends we observed are not at odds with what other research show.
7 National Judicial Data Grid (District and Taluka Courts of India). https://njdg.ecourts.gov.in.
8 Section 125 of the Code of Criminal procedure refers to the “order for maintenance of wives, children and parents.”
9 Although RCR was not initially part of religious personal laws and was introduced during British colonial rule, our data show that it is now filed under both the Hindu Marriage Act (it is Article 9 of the Act) for Hindus and under Muslim Law for Muslims. So although it may not be “purely” a matter of religious personal laws it is now, in practice, treated as such.
10 Sylvia Vatuk (Citation2017) reports similar findings in Chennai and Hyderabad.
11 The fact that 77% of Muslim law cases are filed by men is somewhat surprising given that the most common acts constituting “Muslim Law”, such as DMMA and MWA, do not apply to men. However, the online data shows that RCR, which applies to men, is classified under DMMA or MWA.
12 The NJDG 2018 online database shows a similar trend: 95% (799 out of 881) of the total pending criminal cases (mainly maintenance) at the Saket Family Courts have been filed by women (all religions considered).
13 Solanki gives some examples of Hindu women who do this though our data suggest that in the aggregate it is less common among Hindus than among Muslims (2011, 129–130). We unfortunately do not have data about non-state Hindu forums currently practicing in Delhi whose interventions may explain this discrepancy.
14 This corroborates Solanki’s data on the Bombay Family Court, where she demonstrates that most cases filed are for matrimonial remedies (nullity of marriage, divorce, etc.) (2011, 95).
15 Article 9, the Restitution of Conjugal Rights, is another article used to file a petition under HMA, although less frequently.
16 Other studies of family courts confirm that these institutions tend to support mutual consent forms of settlements, that most divorces filed are divorce by mutual consent, and that many other divorces filed are transformed into mutual consent divorces (Solanki Citation2011).
17 Another of the 14 cases was also filed by Muslims for RCR, but under HMA.
18 The exact number of Muslim law divorce cases can only be approximated given the available data. Whereas the 2011–2013 case lists specify under which specific HMA article each HMA case is filed, the method of keeping the 2011–2013 case list produces ML as a sort of black box: cases classified under Muslim Law do not contain this information. The column u/S (“Under Statute”) is simply left blank in ML cases. However, we were able to find this information in the 14 cause descriptions collected in 2011–2013 and in the 2018 online data. Out of the 14 cause descriptions, six were filed under Muslim Law. Three indicate that the petition concerns divorce under DMMA while the three others refer to general Muslim Law, RCR and annulment of marriage under the Child Marriage Act. In the November 2018 case lists available online, 31 cases refer to Muslim Law in all Delhi family courts. Out of these, ten refer to DMMA, nine refer to MWA, five simply indicate Muslim law and seven provide no information (see ).
19 MWA section 3 states that divorced Muslim women are entitled to“(a) a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband; (b) where she herself maintains the children born to her before or after her divorce, a reasonable and fair provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children…”
20 Section 2 of the Shariat Application Act states: “Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal properly inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).”
21 We hope, in a subsequent study, to address class and caste.
22 This pattern remains the same in all Delhi family courts in November 2018: 74% of Muslim law cases are dismissed by default or withdrawn.
23 As Muslim Law is a somewhat unclear category, it is important to remember that what counts as Muslim Law can be understood differently in each court. Moreover, cases that fall under that category might vary slightly from one family court to the other.
24 In the case file the plaintiff alleged that prior to her marriage, her family had given the respondent Rs. 10,000 and one gold ring and a wristwatch; his mother one pair of gold rings; his father one gold chain and a wristwatch; his sister one gold ring; and clothes to other relatives.
25 Iqbal Bano v. State of U.P. (2007) INDLAW SC 618; Danial Latifi v. Union of India. 2001 (7) SCC 740; Mohd. Ahmed Khan v. Shah Bano Begum. AIR 1985 SC 945.
26 The judge relied on Rajini Murthi v. Murshid Abdullah Mohd. 1994 III AD 299; Amin Baig v. Salman (1910) 33 All. 90; Mst. Resham Bibi v. Khuda Baksh (1937) 19, Lahore 277; AIR 1938 Lahore 482.
27 This case entailed non-Muslim law components: the respondent was jailed in 2003 because he was convicted of raping his daughter. The plaintiff filed for divorce in 2010, just before the end of his sentence. There was no maintenance case, but part of the plaintiff’s allegation was that her husband had failed to provide maintenance since he was imprisoned. These allegations did not figure in the final divorce judgment, which was based solely on his imprisonment.
28 The Protection of Women from Domestic Violence Act (PWDVA) dispute was protracted: it began in 2007 and after numerous appeals it reached judgment in 2016. That judgment summarizes: “On application of complainant, an Order of Interim maintenance was passed in favour of the complainant on 11.07.2008 whereby respondent no. 1 was directed to pay interim maintenance of Rs.6,000/- per month to the complainant. The respondent no. 1 went in Appeal against the said Order wherein the maintenance was reduced to Rs.4,000/- per month vide Order dated 19.07.2009 passed by the Court of the then Ld. ASJ, Ms. Raj Rani Mitra.” The final appeal in the PWDVA case contested whether she had satisfactorily demonstrated violence; ultimately the judge decided that it had not, and therefore dismissed the PWDVA claim. This final case mentions the case we discuss here, which happened during the course of the PWDVA dispute.
29 It states:“(viii) that the husband treats her with cruelty, that is to say,— (a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or (b) associates with women of evil repute or leads an infamous life, or (c) attempts to force her to lead an immoral life, or (d) disposes of her property or prevents her exercising her legal rights over it, or (e) obstructs her in the observance of her religious profession or practice, or (f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Quran.
30 Jayachandra v. Aneel Kumar (2005) 2 SCC 22; Sobha Rani v. Madhukar Reddi AIR 1988 SC 121; Savitry Pandey v. Premchand Pandey (2002) SC 73; GVN Kameshwara Rao v. G. Jabili (2002) 2 SC 296; V. Bhagat vs. D. Bhagat 1994 1 (SCC 337); Aftab Alam & Ranjana Prakash Desai, I (2013) DMC (SC).
31 Neither MWA 1986 nor DMMA 1939 have a “Section 9”, as listed in the table. Given that RCR is a claim filed under both Hindu law and Muslim law, we assume that “Section 9” here refers to RCR (HMA, Art. 9).