A step away from patriarchy

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Photo: Tehelka Archives
Photo: Tehelka Archives

While the personal laws of several religions are inimical to gender justice, the Muslim code comes in for the most criticism. However, even as the debate on a Uniform Civil Code hangs fire, a Muslim women’s group has made a significant move towards liberating women from the shackles of patriarchy. On 23 June, the Bharatiya Muslim Mahila Andolan (BMMA) — one of the several groups striving for a gender-just civil code for Muslims — released a model Nikahnama (set of marriage norms) that seeks to empower Muslim women. It outlines various changes in personal laws that a large section of Muslim women have been longing for.

The model Nikahnama calls for registration of all marriages and rejection of a second marriage unless there is a valid ground, such as death of the first wife. It stipulates that the wife should have her due place in the household even after her husband’s death. Significantly, it requires the presence of both the husband and the wife for divorce to be permitted, and only when it is supported by legal documents. The Nikahnama also calls for respecting a woman’s voice when she demands a divorce and states that she should be allowed to retain her personal belongings.

The notion that the present plight of Muslim women is due to Islam holds no water. The opinions of thousands of Muslim women went into the drafting of the Nikahnama. Islamic scholars and reformers like Asghar Ali Engineer also contributed immensely to it. The challenge now is to launch a campaign for making it the basis of personal laws.

The Directive Principles in the Constitution call upon the State to evolve a Uniform Civil Code. The issue came to the forefront in the wake of historic Shah Bano judgment of 1985, in which the Supreme Court held that Muslim women, too, are entitled to maintenance after divorce. Orthodox Muslims opposed the judgment and the then Rajiv Gandhi government reversed it with an Act of Parliament. That was a serious mistake.

The women’s movement has long been pitted against the continuation of archaic personal laws that deny gender justice. Rather than mere uniformity in personal laws, the women’s movement has been demanding laws that ensure gender justice. In continuation with British policy, while the civil and criminal laws are the same for all communities, laws related to marriage, divorce, custody of children and inheritance are based on the traditional customs of particular religious communities, which are heavily loaded in favour of men.

While a Uniform Civil Code can be an amalgam of unjust laws from different traditions, that is not what the women’s movement wants. The new personal laws must stand the test of gender equality and be introduced through social reforms rather than diktats from above.

The efforts of Muslim women’s groups have to overcome the domination of orthodox elements in the community. As Muslims comprise nearly 90 percent of the victims of communal violence in the past several decades, the ensuing sense of insecurity fans the orthodoxy. Women bear the brunt of the violence and are also subjected to sexual assault. This physical insecurity whittles away at their assertiveness within the community in matters concerning their wellbeing. That is why the cry for reforms from within the community often goes unheard.

On the other hand, the Hindu Right’s demand for a Uniform Civil Code is not really a voice for gender parity. Rather, the issue is used as a political stick to beat the Muslims with. This obfuscates the need for overhauling personal laws to ensure gender justice for all citizens, irrespective of religion. As women suffer the most because of the unjust laws, they should have a major role in formulating new laws.

The BMMA has shown the way forward. Its model Nikahnama has emerged from a process of extensive community participation and articulates the aspirations of Muslim women. Surely, personal laws pertaining to other religious communities also need to go through a similar process. Only then will new personal laws help overcome the patriarchal norms that shackle Indian society.

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