The Indian legal system plays a delicate balancing act. On the one hand, the world’s largest democracy has maintained a system that is secular. On the other, when it comes to issues of family law, India’s different religious groups have had a degree of autonomy.
But the way justice is administered in the Muslim familial legal system is treating women unfairly, according to Muslim women activists. And some of them are trying to change it.
The existence of religious autonomy in family law recently came into the public spotlight in a somewhat bizarre fashion in India. In March, a Muslim Indian man, Aftab Ansari, was ruled by a village council in West Bengal to have divorced his wife because he had accidentally uttered the Urdu word for divorce, ‘talaq’, three times during his sleep.
His wife of 11 years heard him, and when the village council found out it decreed that this constituted a divorce, even though Ansari said he had no intention of leaving her.
Sameera Khan, a Mumbaibased activist and journalist, complains that according to Islamic law a husband can divorce his wife just by saying ‘I divorce you’ three times. The wife, however, does not have similar rights. Khan’s current work involves the study of the Indian public space and how it affects women. She looks to the future optimistically as there are a growing number of Muslim women’s groups in Mumbai seeking to challenge this inequality.
Hasina Khan is the coordinator of Aawaaz-e-Niswaan (Voice of the Women); her group strives to make polygamy illegal in India.
Noorjehan Safia Niaz, of the Women’s Research and Action Group (WRAG), also works to secure more rights for women in India’s Muslim family law. In 2005, Niaz protested loudly against the All India Muslim Personal Law Board when it stated that Muslim law made the wife subservient to her husband.
‘Islam gives more rights to women than any other religion,’ says Sona Khan, a Muslim women’s rights attorney in Delhi.
‘But politically, Islam has dropped gender protection rights.’ Khan was an attorney for Shah Bano, whose mid-1980s Indian supreme court case ended in a ruling that a Muslim woman in a divorce could be granted maintenance, or alimony, which was different from the Muslim law.
Despite that ruling, Muslim communities in India today can still control how divorces are administered. Khan considers herself a practising Muslim, but she believes that India’s democracy is weakened by what she calls ‘regionalism’. ‘[Muslims] can’t run a parallel system of the administration of justice,’ she says.
Sameera Khan laments the fact that Muslim women in India have long been stuck in a political bind. During the British occupation, she says, Muslims were taken up with fighting colonialism. So women who may have felt slighted by inequality were discouraged from calling for change in their community, for fear that the independence movement would be splintered. She says Muslim women are in a similar situation in India today.
India is home to the second largest Muslim community in the world (after Indonesia). But Muslims comprise only 16. 2 per cent of the overall population, and the Hindu nationalist Bharatiya Janta Party (BJP), although currently in opposition, continues to promote a political platform that stands against the ‘appeasement’ of the Muslim minority. On the world stage, meanwhile, Khan believes that Muslims feel confronted by Europe and by the US. Thus, Muslim women feel that their religion is fighting for equality with other religions, so now is not the time to rock the proverbial boat.
‘When do we fight for our rights?’ Khan asks rhetorically. ‘The woman’s question is always to be answered later. It’s tough being Muslim,’ she says. ‘It’s even tougher to be a Muslim woman.’
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