MUSLIM LAW AND JUDICIAL REFORM

MUSLIM LAW AND JUDICIAL REFORM Family law, also called personal or customary law in contexts of legal pluralism, governs features of family life such as marriage, separation, divorce, the consequences of divorce (such as alimony and property division), maintenance for children and other dependents, inheritance, adoption, and guardianship. Distinct family laws govern most of India's major religious groups—Hindus, Muslims, Christians, Parsis, and Jews—as well as many so-called tribal groups. (Hindu law governs Sikhs, Jains, and Parsis.) Muslim leaders pressed for the retention of legal pluralism far more than did the leaders of other religious groups soon after Indian independence, especially during the debates of the Constituent Assembly. Concerns about the recognition of distinct religious identity were most strongly felt among Muslims in the aftermath of the formation of Pakistan, which was associated with considerable collective violence, and which substantially reduced the Muslim share in India's population, middle classes, and political elite. Some leaders of the Congress Party gave these concerns of Muslims considerable weight, as they had suggested through the 1940s that Muslim law would continue to govern Muslims in family matters, in return for the support of some Muslim religious elites. As demands for the retention of Muslim law crucially influenced the choice to retain legal pluralism, public debate about Indian family law gives considerable attention to Muslim law.

While the legislature introduced major changes in Hindu law in the 1950s, major policy makers claimed that they were leaving changes in the laws of the religious minorities to the initiative of unspecified representatives of these groups, who in practice were typically conservative religious and political elites. The conservatism of such elites made major changes in these laws seem unlikely. Nevertheless, some changes took place in Muslim law and in India's other family laws that potentially gave women greater rights, particularly over the last generation. The judiciary was the main agent of change, although legislatures and some religious leaders and religious institutions played secondary roles. Both formal courts and community courts adjudicate matrimonial disputes in India. The changes the judiciary introduced are relevant to adjudication in the formal courts. Change was slower in Muslim community courts, which included prayer groups (jamaats), popularly recognized judges (qazis), and courts established by Muslim religious institutions (dar-ul quzats).

Women's Rights

The limited codification of Muslim law gave the judiciary considerable autonomy in interpreting Muslim law. Of the three acts pertaining to Muslim law in India, the Dissolution of Muslim Marriages Act governed the grounds on which Muslim women could get judicially mediated divorce since its passage in 1939, and the Muslim Women (Protection of Rights on Divorce) Act primarily governed the rights of Muslim women to postdivorce maintenance after it was passed in 1986. The other act, the Muslim Personal Law (Shariat) Application Act of 1937, stated that the Shariʿa would apply to Muslims in family matters without specifying the rules it recognized, although the "Islamic laws" applied in different regions of the world vary considerably. This act's silences left much of the content of India's Muslim law to the judiciary's discretion.

Indian legislatures gave the content and implementation of Muslim law little attention after independence. Reflecting this, not one of the 182 official Law Commissions of the post-colonial period assessed the functioning of Muslim law or considered possible changes in Muslim law. Only a few legislative changes were introduced in Muslim law after independence: the passage of the Muslim Women (Protection of Rights on Divorce) Act, which is applicable throughout India, and amendments to the Muslim Personal Law (Shariat) Application Act in certain states, which made Muslim law rather than local custom applicable to succession to agricultural land. The amendments of the Shariat Application Act gave daughters the right to half the shares of sons in their parents' agricultural land (along with the half share they already had since 1937 in other forms of parental property), in contrast with most of the local customs, which gave daughters no share whatsoever in agricultural land. Legislative restraint was meant to give Muslim leaders the primary role in determining the future of Muslim law, but in effect gave the judiciary that much more control over shaping Muslim law.

Despite the autonomy it enjoyed, the Indian judiciary largely followed the precedents of the colonial period in Muslim law adjudication through the first post-colonial generation. Muslim law in the colonial courts was based largely on later commentaries and compendia of Hanafi law, the legal tradition taken to apply to the majority of South Asian Muslims, although local custom rather than earlier Islamic jurisprudential traditions determined many features of adjudication. Judges interpreted the provisions of Hanafi law in light of British common law traditions, and did not recognize some laws that they considered incompatible with "justice, equity and good conscience" (e.g., the recognition of slavery, the death penalty for adultery and apostasy), a standard they used in a rather unsystematic way. They rarely referred directly to Islam's founding texts, the Qurʾan, the Hadis (the reputed sayings of the prophet Muhammad), and the Sunna (accounts of the Prophet's life). Colonial Indian Muslim law assumed a definite shape, somewhat resistant to change, from the late nineteenth century. It had rather conservative implications for gender relations, particularly in comparison with family law in countries that saw the extensive reform of Muslim law through the 1960s and 1970s, such as Tunisia, Libya, Jordan, Iraq, and Malaysia. For instance, Muslim men were allowed to have up to four wives, unilateral and irrevocable male divorce was recognized, and Muslim men were obliged to support their ex-wives only for three months after the pronouncement of divorce in India. Some features of Indian Muslim law were changed through infrequent legislation, mainly in the 1930s and 1940s, and judicial reform, especially from the 1970s.

Deepening of Democracy

The courts introduced only one major change in Muslim law in the first post-colonial generation: taking bigamy to create a presumption of cruelty toward a wife claiming divorce in the Itwari v. Asghari case of 1960, making the wife eligible for divorce on the ground of cruelty, although the Dissolution of Muslim Marriages Act did not recognize bigamy as a ground on which women could claim divorce. Some changes urged the judiciary toward greater activism, beginning in the 1970s, in many areas of law, including family law and Muslim law. Sections of the legal elite felt pressed to enable the deepening of democracy after the experience of the "National Emergency," when democratic institutions were suspended for eighteen months in the mid-1970s. This led to the growth of public interest litigation, to bring the attention of the judiciary to various concerns of under-privileged groups. Concerns about different forms of gender inequality were more prominently voiced in public debate, especially because the women's movement grew in strength and became more autonomous of political parties through this period. These concerns influenced the legal elite more than they did the political elite. Activist lawyers periodically contested the unequal provisions for the genders and the different laws governing the relevant religious and other cultural groups in family law.

While policy makers did not respond to all pressures to reduce gender inequality, ongoing political and social changes led more of them to prioritize state intervention to address some of the inequalities in family law and matrimonial life. Judges in particular became more willing to depart from precedent to provide women protection in matrimonial cases. Their activism was tempered by two concerns: the need to recognize cultural pluralism and the need for judicial restraint. However, a critical awareness grew among both judges and lawyers of the directions of family law reform elsewhere, especially of reforms in Muslim law that often involved the appropriation of earlier Islamic texts and traditions that recognized more rights for women. This context made more judges willing to initiate reform within the framework of legal pluralism by departing from precedent and by amending particular statutes. Judges justified reform through somewhat novel interpretations of statutory law and group normative tradition, as well as with reference to the fundamental rights recognized in the Indian constitution to life, liberty, dignity, and equality.

The two main reforms the judiciary introduced in Muslim law were in alimony rights and the conditions under which unilateral male divorce would be recognized. Until the 1970s, the courts restricted the obligation of Muslim men to maintain their ex-wives to the three-month iddat period after divorce is initially pronounced, a period during which the ex-wife is expected to remain in seclusion, leaving it up to the ex-wife's successors or local wakf boards (Muslim social service institutions funded largely through private donations) to provide for her if she is indigent. They did so although verses of the Qurʾan suggest that the man provide for his ex-wife's future, or require such provision from the ex-husband according to some interpretations. The parliament amended Section 125 of the Criminal Procedure Code in 1973 so that a man's obligation to support a wife he deserted or from whom he is judicially separated was extended to ex-wives. The requirement of permanent alimony was meant to apply to all religious groups, but Section 127(3)(b) of the Criminal Procedure Code deducted any amount the ex-husband may have given his ex-wife following the customary or personal law governing the couple from the payment due from the husband. Most courts resolved this ambiguity in favor of women from 1973 to 1985, taking the legislative amendment of 1973 to apply to all Indians and referring for justification to a verse of the Qurʾan that suggests the ex-husband provide for his ex-wife's future. A Constitution Bench of the apex court (the Supreme Court) did so in the Mohammad Ahmed Khan v. Shah Bano Begum case of 1985, sparking intense conservative Muslim opposition, led by the All-India Muslim Personal Law Board, the main organization demanding adherence to conservative precedent in Indian Muslim law.

The Indian Parliament passed the Muslim Women (Protection of Rights on Divorce) Act in 1986 to contain conservative Muslim mobilization, but some of the act's provisions did not clearly fit the conservative position that the obligation of Muslim husbands to provide for their ex-wives be limited to a three-month period. While Section 3 restricted the husband's maintenance obligations to the iddat period, Sections 3(1)(a) and 4 called for the husband to pay for his ex-wife's "fair and reasonable provision" (perhaps in addition to maintenance) for an unspecified length of time "within the iddat period." The courts resolved the resulting ambiguity about the period for which ex-husbands needed to provide alimony by decreeing alimony until the woman's remarriage or death in the majority of cases between 1986 and 2001, until the Supreme Court made this interpretation binding on all courts in the Danial Latifi v. Union of India case in 2001.

Until 1978 the courts recognized men's unilateral divorce of their wives in a single sitting through the so-called triple talaq, more formally called the talaq-ul ba'in (irrevocable divorce), through the oral or written statement "talaq, talaq, talaq" ("I divorce you," repeated thrice). They did so although there were many grounds on which this interpretation of Islamic law could be opposed: such pronouncements of unilateral divorce in one sitting were deemed revocable in the early Islamic community; some schools of Islamic law did not ever consider such divorces valid (including the Shafi'i, Ithna Ashari, Mustaʿlian Ismaʿili, and Ahl-e-Hadith schools, whose adherents account for a significant minority of India's Muslim population); and all schools of Islamic law considered other forms of divorce preferable, with the claim that such a method of divorce is "good in law, though bad in theology." Some courts ruled the triple talaq revocable from 1978 onward, and established two conditions for the validity of unilateral male divorce, based on verses of the Qurʾan: the husband providing a reasonable cause, and spousal reconciliation being attempted through the mediation of relatives of both spouses. The Supreme Court made this the law binding on the lower courts in a case of 2002 (Shamim Ara v. State of Uttar Pradesh).

The judicial reform of Muslim alimony and divorce law effected partial convergence with Hindu law, the law governing about 78 percent of India's population. In the reform of both alimony and divorce law, the courts introduced only those changes that they felt could find justification in Islamic normative tradition, and resisted the efforts of activist lawyers to systematically remove the gender inequalities in family law with reference to the constitutional rights to life, liberty, dignity, and equality. For instance, they did not deem Muslim law irrelevant to divorce or alimony among Muslims, grant Muslim women rights to either unilaterally pronounce divorce or to shares in matrimonial property upon divorce, or give sons and daughters equal inheritance rights. The restrained nature of judicial reform contained conservative Muslim opposition, and so made the subsequent legislative overturning of these reforms unlikely. It suggests that the judiciary is unlikely to use the Indian constitution's egalitarian principles to systematically address the gender inequalities in Muslim law and in the other family laws.

The recent judicial reforms of Muslim law encouraged and drew indirect support from ongoing changes in matrimonial practices among Indian Muslims. Partly in response to these reforms, some conservative Muslim elites began attempts to reduce the incidence of the triple talaq and polygamy, to include in marriage contracts rights for women to initiate divorce and to get a substantial dower from their ex-husbands upon divorce, and to get community courts to recognize these rights. As community courts consider the majority of Muslim matrimonial disputes, the future of Muslim law in India depends crucially on patterns of adjudication in these courts, over which all the branches of government exercise only limited influence.

Narendra Subramanian

See alsoFamily Law and Cultural Pluralism ; Muslims

BIBLIOGRAPHY

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

An-Na'im, Abdullahi. Islamic Family Law in a Changing World: A Global Resource Book. London: Zed Press, 2002.

Mahmood, Tahir. Islamic Law in the Indian Courts since Independence: Fifty Years of Judicial Interpretation. New Delhi: Institute of Objective Studies, 1997.

Menski, Werner F. Modern Indian Family Law. Richmond, U.K.: Curzon Press, 2001.

Parashar, Archana. Women and Family Law Reform in India. Sage Publications, 1992.

Sathe, S. P. Judicial Activism in India: Transgressing Borders and Enforcing Limits. New Delhi: Oxford University Press, 2002.