Friday, March 18, 2016

Gender and the State: A Beginner's Guide to the Personal Law Debate in India


I am not presenting at the conference, though I am moderating a panel. Nevertheless, I thought this might be a good moment to post something of my own related to this topic. I had tried to get it published earlier with a scholarly journal, without success. The second half of the essay, not included, deals with novels -- Taslima Nasreen's writings related to secularism and Muslim women's feminism, and Samina Ali's Madras on Rainy Days

This section contains an account of the Personal Law debate in Indian law, which affects Marriage Law, Divorce, custody of children, and property in marriage. It might serve as a beginner's introduction to that debate -- helpful to people who don't have much background in debates over feminism and secularism in India. 

* * *

It is becoming increasingly clear that the often-presumed link between “secularization” and “modernization” does not quite hold, as certain regions of the developed world remain strongly religious in the cultural sphere, while the rapid progress of industrialization in the developing world has come with the growth, not the diminishment, of strong religious beliefs. Secularization, as a cultural, historical tendency, is therefore not an inevitable process, and in a surprisingly wide swath of nations around the world the question of what exactly constitutes “secularism” has become a hotly-contested issue. In these debates, women's rights are often—indeed, nearly always—the central material question under debate. Questions of women’s dress, access to education and employment, control over reproductive rights, the right to divorce, property rights, and child custody rights—these are variously contested by religious conservatives, from Saudi Arabia, to Europe, to India, to the United States. The diversity of different national histories and cultural contexts is so great that no simply universal, “secular feminist” response is readily available.

As critics such as Chandra Talpade Mohanty and others have pointed out, universalism has tended to lead to analytic errors, and is often premised on a kind of neo-colonial presumption of western feminist superiority. And yet, women’s struggles with repressive religious authorities in different parts of the world can be explored, and indeed, profitably understood, across cultural and political boundaries, as long as close attention to cultural and historical specificities is maintained. In the case of the concept of secularism in particular, a helpful corrective to a conventional universalist model might come from a political philosopher like Rajeev Bhargava, who has argued that western political secularism may be only one among many concepts of workable secularism. If in a country like the United States “secularism” seems to indicate a wall of separation between Church and State, in India secularism can refer to a state deeply involved with religion, but focused on using its power to adjudicate resources and rights equally amongst different religious communities (Bhargava 2005; Bhargava 2011). As Priya Kumar phrases it, this kind of secularism emphasizes “tolerance or freedom of all religions rather than as the exclusion of religion from state” (Kumar 2008: 15).

Gender and Secularism in India: a Brief Historical Overview

In the Indian case in particular, secularism in the contemporary moment seems to hinge on women's rights, sometimes with the same degree of complexity and even awkwardness of the recently enacted French laws regarding the Hijab, or headscarf. The current crisis in women's rights and religion has been directly debated in regard to two legal controversies in the 1980s, the Shah Bano case (Agnes 1999; Agnes 2007) and the Roop Kanwar Sati case (Mani 1998), though arguably it could be extended both backwards—to the debates over Sati in the colonial era and the centrality of rape in narratives of Partition—and forwards, to the violence against women in the riots that engulfed the Indian subcontinent in 1992 and 2002 (Baldwin 2002). 

These controversies of the 1980s were, admittedly, widely discussed by Indian feminist scholars and journalists as they were occurring, though the true lasting import of the Shahbano controversy in particular may not have become apparent until more recently. Bruce B. Lawrence, for instance, has described the legacy of the Shah Bano as follows: “In volume of print and decibels of emotion it exceeds all other tragedy-laced spectacles, even the storming of the Sikh golden temple in Amritsar, even the assassination of Mrs. Gandhi and later her son, Rajiv. It exceeds even the Rushdie affair, with which it has sometimes been linked, notably by Gayatri Spivak” (Lawrence 1998: 135). While few in the West outside of specialist, South Asian Studies circles have heard of it, the Shah Bano case, clearly, presents very important problems, both for transnational feminist studies and for religious studies. Here, we will briefly rehearse, in a strictly introductory fashion, some of that history for those who are unfamiliar with it. For more comprehensive analysis, readers are referred to Flavia Agnes’ book, Law and Gender Inequality:the Politics of Women’s Rights in India (OUP 1999). 

Behind the Shahbano case, and essential to any preliminary understanding of how secularism works in the Indian context, is the system of differential “personal laws” (or civil codes) that are in place for different religious communities. Personal laws, as Zakia Pathak and Rajsewari Sunder Rajan put it, “concern women intimately,” in that they pertain to marriage, divorce, head-of-household status, and property rights/inheritance: “Women’s rights activists in India have long been protesting against the gender-discriminatory nature of the personal laws of all religious communities which regulate most spheres of women’s activity” (Pathak and Rajan 1989: 560). 

With respect to marriage laws, the Indian personal law system address the legality of polygamy, child-marriage, dowry, and bride-price. Importantly, these laws vary by religious community; there are different personal law codes for Hindus, Muslims, Parsis (Zoroastrians), and Christians. These laws are technically referred to in the Indian legal system as the "Hindu Marriage Act," the "Muslim Marriage Act," and so on. These differential laws provoke considerable tension between the religious communities: at present in India, for example, polygamy is legal for Muslims, but not for members of other religious communities.

The laws are presumed to govern even those people who are not in fact religious, as nearly all Indians carry with them a connection to a religious tradition embedded in their names and family background. Individuals who insist on a non-religious affiliation, along with individuals whose families cross religious lines, are governed by the "Special Marriage Act." Once a person is married under a given Marriage Act, all future questions pertaining to rights within a family are governed by that act. A particularly unusual example of this in action is a 1995 Indian Supreme Court decision (Ali 2003; Agnes 2007) rejecting the plea of a Hindu man named Sarla Mudgal who wanted to take a second wife but was refused under the reformed Hindu Marriage Act. He technically (some say, fraudulently) converted to Islam, and took as his second wife a Muslim woman. The Supreme Court invalidated the second marriage on the grounds that the laws governing his first marriage forbade it.

The differential civil codes are a legacy of British colonialism; most of the marriage acts were formalized by the British in the 1860s, after consulting with religious figures from the various communities as well as their own “experts” (see Bilimoria, 2006). Critics of the system have suggested that the British investment in pacifying the various Indian religious communities after the 1857 Mutiny led them to accept only the most conservative and patriarchal of interpretations of traditional religious personal law. The system was perpetuated voluntarily after Indian independence, albeit with one significant change: the Indian constitution has a non-binding directive clause urging Parliament to eventually abolish the differential laws, and adopt a Uniform Civil Code, for the sake of national unity (Article 44 of the Indian constitution reads as follows: “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”).

In the 1980s and 1990s, these different marriage acts became a hot-button issue, as the movement to abolish the different civil codes, once the province of the far left in Indian politics, was adopted by the Hindu right. The Hindu Marriage Act, which at the time of independence allowed child marriage, dowry, as well as polygamy, had been reformed repeatedly since independence (see Jacobsohn 2003). After 1976, all of the above were outlawed for Hindus—though many problems remained (feminists have grievances about property rights, inheritance rights, custody rights, and head-of-household status rules that are still discriminatory). However, over the same period of time, no major reforms of the Muslim Marriage Act had been enacted. Issues such as polygamy as well as instantaneous verbal divorce (“triple talaq”) were invoked, beginning in the 1970s and 80s, by the emerging Hindu right as signs that the “backwardness” of the Muslim community was being encouraged by a “pseudo-secularist” Congress Party. Thus the movement to institute a Uniform Civil Code, which would ban polygamy and standardize rules for marriage and divorce along secular lines, was revived in the 1980s, not by feminists or secular-left political movements, but by the rising Hindu nationalist movement. The Uniform Civil Code was itself not a new idea; it had been in the air at the time of independence and the framing of the constitution (1946-1948), advocated by women in particular, but had been dropped on the widespread opposition of both Hindu and Muslim male leadership in the Congress (see Agnes 2007: 294-295).

The Shah Bano Case, in 1986, crystallized the debate over the Uniform Civil Code, forcing India’s secular left into an awkward position, and galvanizing the Hindu right. Shah Bano, an elderly Muslim woman, sued her husband to be granted “maintenance” (alimony) despite the fact that India’s Muslim Marriage Act doesn't specifically provide for it. Shah Bano had been divorced by her husband via the Islamic method mentioned earlier—Triple Talaq. It is effectively, instantaneous divorce; the husband merely says “I divorce you” [“Talaq”] three times, and the marriage is formally dissolved without further obligation in a way that is considered legally binding. This form of divorce is not mentioned in the Quran, but it did become part of one tradition of Islamic Sharia law in the medieval era, and was continued as the British attempted to reproduce Sharia in what has been called the Shariat Law (introduced in the 1930s, and continued in post-independence personal law).

Needless to say, Triple Talaq is considered an unjust practice by many moderate Muslims and most non-Muslims in India (for a relatively recent example of a Muslim progressive critical of Triple Talaq, see Engineer 2004). The Indian Supreme Court ruled in favor of Shah Bano, but the event outraged the Indian Muslim establishment, who formed a significant percentage of the electorate supporting the Congress party. The force of the decision was nullified by an act of Parliament signed by Prime Minister Rajiv Gandhi, in an attempt to maintain support amongst Muslim voters (see Lawrence 1998: 136-7). Rajiv Gandhi's reversal of the court's decision was extremely unpopular with the Hindu majority, as it was seen as a violation of the spirit of India's laws. The opposition BJP party in particular picked up on it as a rallying cry, and cited it repeatedly as proof of the failure—the hypocrisy, they claimed—of the Congress party's hegemonic secularism.

One of the ways Indian feminists have tried to enter into the debate outside of the mechanism of state authority is to challenge the viability of Triple Talaq under Shari’a law itself in order to persuade moderate Muslims of the need to eliminate Triple Talaq. Using references from the Quran, they have also pointed out that the Shari’a does after all condone, or even require, two distinct forms of “maintenance.” According to Madhu Kishwar, a leading New Delhi feminist at the time (Kishwar's politics shifted rightward later and she is no longer widely cited by many scholars), the Supreme Court had already ruled on two earlier Muslim divorce cases in favor of the women plaintiffs. In one case, Justice Krishna Iyer had cited a practice called mehr as justifying his decision to grant maintenance. Kishwar defines mehr as follows:


There is a further wrinkle, which has to do with another form of maintenance. Shah Bano's ex-husband, Mohammed Ahmed Khan, had actually paid her a lump-sum amount for the divorce, during the iddat, the three-month period following the official talaq. (During that three month period, the husband is supposed to "keep the wife in his house and maintain her at his own standard of living."). Shah Bano's lawyers had argued for another, ongoing payment, the mataa, which is described in the Quran: "And for divorced women let there be a fair provision (mataa). This is an obligation on those who are mindful of God" (Quran 2.241).

These are important arguments, but Kishwar, writing in the feminist magazine Manushi in 1986 – at the height of the controversy – did not manage to significantly alter the dynamics of the national debate. Perhaps her most important point comes later in the essay, where Kishwar articulates what would become one of the primary planks of the left-feminist response to the question of Shah Bano and the Uniform Civil Code. While obviously sympathetic to Shah Bano's case, Kishwar was deeply concerned about the way in which the case was used to foment anti-Muslim hysteria by leaders on the Hindu right. Though the Hindu right has never been especially interested in women's rights in the Hindu community, it seized upon the unjust elements in Muslim divorce law and decided it had a pressing interest in creating a Uniform Civil Code. They effectively hijacked the issue:

A similar situation prevails among Muslims today. The manner in which concern for Muslim women is being expressed today appears to Muslims more like an attack. It seems to be born not out of sympathy for Muslim women but of antipathy towards all Muslims. Muslims, being a minority community, are constantly suspect in the eyes of Hindus, and are constantly expected to prove their patriotism and loyalty to this country. They are expected happily to agree to be 'reformed' as a test of their loyalty to the Indian nation. If a Hindu resists a particular social reform measure, he is merely seen as a 'conservative'. But if a Muslim does so, he is at once accused of being a foreign agent, propped up by petrodollars, or he is asked to quit and go to Pakistan. (Kishwar 1986: 212)

Even if feminists support Shah Bano, and also the reform of the Muslim Marriage Act, those who push for reform have to mindful of what those reforms mean in political context. The push for the Uniform Civil Code, hijacked by the right, was in effect dropped from the platform in journals like Kishwar's own Manushi. But it also became unpopular in broader Indian feminist movement, most notably the All India Women's Congress. What replaced it was an approach that Rajeswari Sunder Rajan describes as "culturalist communitarian" in her own recent contribution to the Uniform Civil Code debate. Reforms, Kishwar and others argued, need to be made, but they need to be made by Muslims within the bounds of community. They cannot be imposed by the state.

[W]omen's groups' concession to religious communities' rights to personal laws is less a recognition of the legitimacy, even less of the value, of communitarianism than a pragmatic reconciliation to the realities of the Indian situation. Thus even the All India Democratic Women's Association (AIDWA), the central leftist women's organization in the country, conceded at their convention on equal rights and equal laws (December 1995) that a two-pronged strategy would be necessary to achieve this--both common gender laws as well as reforms from within--and, specifically, that Muslim personal laws must be reformed "within the scope of Islam." (Kishwar 1986: 222)

Many subsequent progressive and feminist intellectuals have echoed this argument in subsequent years, including, Akeel Bilgrami (1994) and most recently Priya Kumar (2008). 

After the Shah Bano case, a centralized board was created by prominent Muslim leaders to consider questions such as Triple Talaq and the minimum requirements for alimony, and to make recommendations to Parliament that would lead to reforms. This organization is called the All India Muslim Personal Law Board (AIMPLB). It is an organization whose members are not chosen democratically; at most, one Muslim woman has been invited to serve on a board of 40 members. Unfortunately, after more than twenty years in existence, the AIMPLB has not produced any notable reforms to Muslim personal law (Naim 2004).

Another Delhi-based feminist theorist active at the time of the Shah Bano case, Kumkum Sangari, disagreed with the cultural/communitarian argument, pointing out these inconsistencies, and the fundamental injustice of patriarchal personal laws across the board. In addition to Triple Talaq, Muslim personal law continues to allow Polygamy—a practice which has since 1955 been banned for Indian Hindus. But Sangari, in her landmark essay “Politics of Diversity: Religious Communities and Multiple Patriarchies,” (1995), is careful to indicate that she favors a reworking of the law in the interest of social justice for women and not the benefit of a particular religious community or political party. As she puts it, “Clearly, as an anti-Muslim party whose past and future existence mainly depends on Hindutva, the BJP does not have the right to draft a uniform civil code.” She does put forward a somewhat more contextual approach, which nevertheless is based on fundamental human rights for women:

My own position, arrived at through a questioning of certain prevailing notions of heterogeneity and specific forms of homogenization, is in favour neither of personal laws nor of a uniform civil code as it is presently projected; rather, it rests on [a] different conception of both homogeneity and heterogeneity—that is, a notion of common laws that can take into account the multiple existing axes of social differentiation in India even as they transcend such differences in the realm of rights. I envisage a set of universal and inalienable rights for all women accompanied by a legal particularism that is determined neither by religion, nor for that matter by the present categorization of family laws, but situationally, in terms of legal provisions designed to address the specificities of legal arrangements. (Sangari, 1995: 3289)

Though Sangari continues to situate her response to the uniform civil code debate with reference to “situational” differences, what differentiates her from her peers is the insistence on “universal and inalienable rights for women.”

As these various critics have pointed out, Hindu women have been treated only marginally better under the Hindu Marriage Act—a whole host of practices that limit women’s rights are happily accepted by the leaders of the Hindu right as well as the left. Creating a Uniform Civil Code in the way the Hindu right has requested it could well only universalize those forms of discrimination. To some extent any debate over laws in India is partly academic, as enforcement, especially in rural areas, is quite rare. Rajeswari Sunder Rajan feels that a fully secularized concept of individual rights for women has never really matured in the Indian legal system, partly because of the emphasis on religion-based communities (which demand rights as a group, and usually receive them), but partly because the system itself is simply deeply flawed. In recent years, women who are not elites, and who have attempted to contest their conditions have often found themselves excommunicated from family society. But Sunder Rajan stops short of abandoning the idea of individual rights entirely, as in the following paragraphs:

The recourse to legal remedies and the assertion of rights and autonomy by individual women are often viewed as isolating and individualizing moves, especially when posed against the affective solidarities offered by family and community. The trade-off between (gaining) legal rights or legal victories and (losing) family and community support is invariably one that must give women pause. That such choices have to be made is a problem, it is argued, arising from the liberal conception of rights as inhering in the individual. The perceived limits of individualism and liberal rights for women has been responsible for calls issued by some feminists to abandon them as failed promises and return to family and community solidarities and values.
The politics of legal rights is a complex and charged issue, and not one that I wish to explore here in any depth in terms of an abstract debate. What is relevant for the present discussion is that for Indian women, the state is not in any case a readily available recourse from the problems of violence, injustice, discrimination, exploitation, or oppression experienced in family, society, or community. The laws are tardy, the police corrupt, welfare and employment opportunities negligible, and the individual's knowledge of her rights and entitlements itself vague. To speak of women as rights-bearing individuals in this context is to invoke a situation that does not exist in any meaningful way. (Sunder Rajan, 2003: 166)
In short, before any meaningful reform of Personal laws affecting women can occur, there has to be a fundamental shift in the entire legal system's approach to women.

One way for this to happen, Sunder Rajan argues, is for women to be recognized as a "group" alongside other groups—such as religious-based communities, caste groups, etc. To this effect, both she and Kishwar have advocated an increased recognition of women as a strong identity category to be recognized by the state. Along those lines, Madhu Kishwar has recently argued for reservations (i.e., affirmative action) for women in India's Parliament, governing bodies, as well as schools. (A bill reserving 33% of all Parliamentary and State Assembly seats for women did pass the upper house of Indian Parliament in 2010, but its effects have not yet fully been seen in subsequent elections.)

[I've removed the second half of the essay, which explores how the Personal Law debates have been addressed by two South Asian Muslim women writers, Taslima Nasreen and Samina Ali.]

Works Cited

Agnes, Flavia. “The Supreme Court, the Media, and the Uniform Civil Code Debate in India.” The Crisis of Secularism in India. Anuradha Dingwaney Needham and Rajeswari Sunder Rajan, Eds. Durham: Duke University Press, 2007, pp. 294-315.

Agnes, Flavia. Law and Gender Inequality: the Politics of Women’s Rights in India. Delhi: Oxford University Press, 1999.

Ahmadi, Fereshteh. “Islamic Feminism in Iran: Feminism in a New Islamic Context.” Journal of Feminist Studies in Religion 22.2 (2006) 33-53.
Ali, Farwa Imam. “Governed as one: Uniform civil code could precipitate more
woman-friendly policies
.” The Week, August 10, 2003; accessed online at

Baldwin, Ruth. “Gujarat’s Gendered Violence.” The Nation. September 30, 2002. Accessed online at <>. Accessed March 6, 2012.

Bhargava, Rajeev, Ed. Secularism and its Critics. Delhi: Oxford University Press, 1998.

Bhargava, Rajeev. “Beyond Moderate Secularism.” Blog Post at The Immanent Frame. Accessed online at: Accessed March 6, 2012.

Bilgrami, Akeel. “Two Types of Secularism: Reason, Modernity and Archimedean Ideal.” Economic and Political Weekly. Vol. 29, No. 28, July 9, 1994: 1749-1761.
Bilimoria, Purushottam. “Muslim Personal Law in India: Colonial Legacy and Current Debates.” Islamic Family Law (Digital project sponsored by the Ford Foundation). Accessed online at <>. Accessed March 6, 2012.

Cooke, Miriam. Women Claim Islam. (New York: Routledge, 2001).

Engineer, Asghar Ali. “Islam vs. Modernity: Ban Triple Talaq, it’s a sin.” Express India, June 17, 2004. Accessed online at

Howarth, Toby M. The Twelver Shi’a as a Muslim Minority in India: Pulpit of Tears. New York: Routledge, 2005.

Jacobsohn, Gary Jeffrey. The Wheel of Law: India’s Secularism in Comparative Constitutional Context. (Princeton: Princeton University Press, 2003).

Kishwar, Madhu. Religion at the Service of Nationalism and Other Essays. Delhi: Oxford University Press India, 2002. 

Kumar, Priya. Limiting Secularism: The Ethics of Coexistance in Indian Literature and Film. Minneapolis: University of Minnesota Press, 2008.

Lawrence, Bruce B.  Shattering the Myth: Islam Beyond Violence. (Princeton: Princeton University Press, 1998).

Mani, Lata. Contentious Traditions: The Debate on Sati in Colonial India. (Berkeley: University of California Press, 1998).

Mohanty, Chandra Talpade, Feminism Without Borders: Decolonizing Theory, Practicing Solidarity. (Durham: Duke University Press, 2003).

Nadim, Sanaa “Women and Equality in Islam.” In Sunita Mehta, Ed. Women for Afghan Women. (New York: Palgrave Macmillan, 2002).

Naim, C.M.  “Please Spare Us The AIMPLB Edicts.” Outlook India, October 7, 2004. Accessed online at
Pathak, Zakia and Rajeswari Sunder Rajan, “Shahbano.” Signs 14.3 (Spring 1989), pp. 558-582.
Rajan, Rajeswari Sunder. The Scandal of the State: Women, Law, and Citizenship in Postcolonial India. Durham: Duke University Press, 2003.

Sangari, Kumkum. “Politics of Diversity: Religious Communities and Multiple Patriachies.” Economic and Political Weekly. Vol. 30, No. 51 (Dec. 23, 1995), pp. 3287-3310.

No comments: