Separate and Unequalстатья из журнала
Аннотация: Abstract Through an ethnographic examination of legal processes in Family Court, this article maps some of the circumstances which Indian Muslim women confront in the area of Family Law. It provides a portrait of the politically interested spaces which govern their lives, indicating the osmosis between 'religious,' cultural and legal realms, rather than essentialisms about the nature of Islam. It provides a reminder that we can no more separate religious practices fundamentally from patriarchal logic than we can separate jurisprudence and the workings of law, indeed the State, from its constitution in multiple embedded sites of patriarchal logic and race and imperial regimes. Optimal strategies for Indian Muslim women to be socioeconomically and legally empowered are also interrogated in this context, as the paper explores the ways in which gender equality and cultural difference and community support can, or not, protect women. It emphasizes the importance of problematizing both notions of 'community' and 'gender equity' in any attempt to address women's rights and needs. Keywords: Islamwomen's rightsMuslim womenIslamic law and womenfamily lawIslamic culture and communityIndia Notes A number of Hindu and Muslim communities practice veiling in varying degrees; the level referred to here is unclear. This conversation took place at a time when the practice of the husband pronouncing triple talaq at a single setting had been legally declared invalid (Basu 2003 Basu, S. 2003. Shading the Secular: Law at Work In The Indian Higher Courts. Cultural Dynamics, 15(2): 131–52. [Google Scholar]). The legal expectation was that talaq had to be verbally pronounced in the presence of the person at the time of intended separation and in more than one episode. While appellate courts in the 1990s gave a variety of judgments on the need to 'prove' talaq and not just state it in pleadings, the 2002 Supreme Court case Shamim Ara vs. State of UP and Another (2002 7 SCC 518) set new ground with the verdict that talaq could only be given for a 'reasonable cause' and if preceded by a 'pre-divorce mediation' including both families. However, triple talaqs continue unabated (Vatuk 2008 Vatuk, S. 2008. Islamic Feminism in India: Indian Muslim Women Activists and the Reform of Muslim Personal Law. Modern Asian Studies, 42.2–3: 489–518v. [Google Scholar]: 503). As Vatuk defines it, 'this self-appointed body was established in 1973 "to protect the Muslim Personal law (MPL) in India". Its 201 members include many of the country's leading clerics … It has no real authority to set legal policy for the Muslim community but is very vocal and exercises a great deal of public authority on matters related to MPL' (2008. 493). In the case at hand, for example, the legal recommendations are purely advisory but are deemed to carry authoritative weight for family members looking for direction. The advice from the board to follow s. 125 anti-penury provisions is ironical if one remembers that the Board historically opposed awards under s. 125 for Muslim women as described later, and advocated they rely on family or waqf charity. Gurpreet Kaur Bhatti's play 'Behzti' faced violent protests from certain Sikhs who objected to elements of the plot such as sexual abuse and murder that takes place in a gurdwara (Sikh temple), and a priest being involved in rape. The subsequent intense debate was framed in terms of 'violating a sacred space' (fictionally!) versus being able to explore issues of sexual violence and shame that may happen within the community (BBC News 2004 BBC News. 2004. 'Theatre stormed in Sikh Protest', 19 December 2004. Available at http://news.bbc.co.uk/2/hi/uk_news/england/west_midlands/4107437.stm (accessed 18 September 2008) [Google Scholar]; Choudhury 2004 Choudhury, B. 2004. "Behzti Controversy Fuels Publicity". BBC News, 20 December 2004. Available at http://news.bbc.co.uk/go/pr/fr/-/2/hi/uk_news/4111239.stm (accessed 18 September 2008) [Google Scholar]). Mitnick (2003 Mitnick, E. J. 2003. Review: Individual Vulnerability and Cultural Transformation. Michigan Law Review, 101(6): 1635–60. (Review of Multicultural Jurisdictions: Cultural Differences and Women's Rights by Ayelet Shachar) [Google Scholar]: 1659) critiques not just the operational details of this model but also worries about whether the most vulnerable of group members feel most obliged to comply to group norms and may have difficulty opting out. In 2005, the All India Muslim Personal Law Board recommended at its national conference that Muslims work to establish a large network of dar-ul-qaza or Shari'a courts across the country [some exist already], to preserve the 'separate religious identity of the Muslims' (Communalism Watch 2005 Communalism Watch. 2005. "Mullahs propose Sharia Courts in India". 27 May 2005. Available at: http://communalism.blogspot.com/2005/05/mullahs-propose-sharia-courts-in-india.html (accessed 18 September 2008) [Google Scholar]). The Supreme Court is now in the process of hearing a Public Interest Litigation case filed by Vishwa Lochan Madan, asking for the dissolution of all Islamic and Shari'a-based courts on the grounds that existent marriage and criminal law were being violated in these venues, and the judiciary undermined. The government's position is that the existent courts are advisory, allowable under freedom of religion, and do not constitute legal interference (The Telegraph Online 2007 The Telegraph. 2007. "SC scanner on Shariat challenge". In The Telegraph Online 6 April 2007. Available at http://www.telegraphindia.com/1070406/asp/nation/story_7613758.asp (accessed 18 September 2008) [Google Scholar]; Express India 2007 Express India. 2007. "SC Admits PIL on Islamic and Shariat Courts". PTI posted 5 April 2007. Available at http://www.expressindia.com/news/fullstory.php?newsid=84326 (accessed 18 September 2008) [Google Scholar]). See for example http://fjordman.blogspot.com/2005/02/islamic-law-used-by-secular-swedish.html. I have focused here on legal rights in formal courts before the State; as scholars such as Solanki (2007) Solanki, G. Who shall be the Adjudicator?: Multiculturalism and Gender Justice in India. Paper presented at the Joint Annual Meeting of the Law and Society Association and the Research Committee on Sociology of Law. Berlin [Google Scholar] have pointed out, legal adjudication through community organizations, non-governmental groups and local religious bodies often set innovative trajectories for interpreting formal legal decisions. The interaction between all these realms including the State finally sets the terms on which 'minority rights' are deployed. The formal legal level, however, sets the criteria of last instance. Rajeswari Sunder Rajan (2000) Rajan, R. S. 2000. Women Between Community and State: Some Implications of the Uniform Civil Code Debates in India. Social Text, 65(18.4): 55–82. [Google Scholar] usefully maps some groups who occupy significant positions in these conflicts, organizing them with respect to questions of whether or not systems of personal law should be abandoned in favor of a Uniform Civil Code: (1) Groups that favor some form of a Uniform Civil code – whether 'Constitutional Secularists' who seek legal uniformity for greater national unity, or Hindu nationalists who assert religious hegemony through imposing 'uniform' laws; (2) Groups that oppose the Uniform Civil Code – either on the grounds of 'Religious Patriarchy' (resistance to proposed changes in laws benefitting women), or because of minority communities' perceived threats to religious identities and to a Uniform Civil Code essentially Hindu in nature, or from 'communitarians' who oppose 'coercive state secularism'; (3) Other constituencies such as women's groups, who would place questions in a broader palate of unequal rights (2000: 57). Notably, the alignments make for incongruous political alliances. Mehr refers to 'dower' or bridewealth in Muslim marriages, owed to the bride from her husband. It can be 'prompt' (paid right after the wedding) or 'deferred' (paid later, often at divorce). Dower is paid by the groom's family to the bride, dowry by the bride's family often to her in-laws or husband. Agnes (1999) Agnes, F. 1999. Law and Gender Inequality: The Politics of Women's Rights in India, Delhi: Oxford University Press. [Google Scholar] and Parashar (1992) Parashar, A. 1992. Women and Family Law Reform in India: Uniform Civil Code and Gender Equality, New Delhi: Sage. [Google Scholar] provide comprehensive trajectories of the reform of Indian family law. In Muslim legal systems, Iddat is a waiting period for women who are newly divorced or widowed, before they can marry again. It is usually three months, except for pregnant women, for whom it is the end of the pregnancy. Engineer (1987) Engineer, A. A. 1987. The Shah Bano Controversy, Edited by: Engineer, A. A. Hyderabad: Orient Longman. [Google Scholar] provides a comprehensive portrait of the politics around Shah Bano; Pathak and Rajan (1989) Pathak, Z. and Rajan, R. S. 1989. Shahbano. Signs, 14(3): 558–82. [Crossref], [Web of Science ®] , [Google Scholar] explore the discursive terrain and Shah Bano's erased subjectivity. Basu (2003) Basu, S. 2003. Shading the Secular: Law at Work In The Indian Higher Courts. Cultural Dynamics, 15(2): 131–52. [Google Scholar] and Vatuk (2001) Vatuk, S. 2001. "Where Will She Go? What Will She Do?": Paternalism Towards Women in the Administration of Muslim Personal Law in Contemporary India". In Religion and Personal Law in India, Edited by: Larson, G. J. 226–48. Bloomington: Indiana University Press. [Google Scholar] provide accounts of the legal terrain under this Act. This upper limit has now been removed as well, as discussed later in the article. See also http://cities.expressindia.com/fullstory.php?newsid=128146. Besides my own observations, Solanki (2007) Solanki, G. Who shall be the Adjudicator?: Multiculturalism and Gender Justice in India. Paper presented at the Joint Annual Meeting of the Law and Society Association and the Research Committee on Sociology of Law. Berlin [Google Scholar] and Vatuk (2007) Vatuk, S. Maintenance for Divorced Muslim Women: Twenty Years after Shah Bano. Paper presented at the Joint Annual Meeting of the Law and Society Association and the Research Committee on Sociology of Law. Berlin [Google Scholar] have also reported this in their respective Indian Family Court settings. My fieldwork included observation of legal aid venues as well as courtrooms and court-related counseling; I have focused on courts in this piece. I have also emphasized issues of maintenance and grounds of divorce in these cases, setting aside other issues such as custody and jurisdiction for this paper. I observed multiple sessions of several of these cases. During each period of fieldwork, there were two judges (the individuals changed), both with Hindu names (one possible if problematic way of surmising religious affiliation), one male and one female. US$1 equaled about Rs 47 in 2001. If one party were to convert from their religion, however, they could marry under personal law. Polygyny under which wives are treated unequally may be cited as a cause of divorce under the Dissolution of Muslim Marriage Act, but there are no provisions in India for existing wives to object to a husband's polygyny. Solanki (2007) Solanki, G. Who shall be the Adjudicator?: Multiculturalism and Gender Justice in India. Paper presented at the Joint Annual Meeting of the Law and Society Association and the Research Committee on Sociology of Law. Berlin [Google Scholar] confirms this common ploy: husbands claim the divorce has gone through to avoid maintenance as well as the remedy of 'restitution of conjugal rights', and judges often try to mediate through seeking strict proof of divorce, leading husbands to various innovative methods for establishing public divorce announcements. Muslim women can privately and irrevocably dissolve their marriages through Khula. It allows women to not depend on their marriage contracts in asking for divorce for a variety of reasons, and to retain gifts they brought to the marriage, but they are supposed to recompense their husbands, and in effect often forfeit their mehr/dower in exchange. Criminal charges under s. 498 are a gender-neutral way of bringing domestic violence by the extended family to legal attention, in addition to divorce-related pleadings in (civil) Family Court. In related research, I have been mapping the ways in which assertions of domestic violence by women of all communities is often framed/counteracted by judges as a choice between economic sustenance and the option to allege violence on criminal grounds, reconciliation within marriage being suggested as the optimal alternative. Unlike the cases documented in Basu (2003) Basu, S. 2003. Shading the Secular: Law at Work In The Indian Higher Courts. Cultural Dynamics, 15(2): 131–52. [Google Scholar], where communalist agendas appear blatantly in judgments, or in Agnes's (1999) Agnes, F. 1999. Law and Gender Inequality: The Politics of Women's Rights in India, Delhi: Oxford University Press. [Google Scholar] contention that the Muslim Women's Act 'has been used by court officials to express a general anti-Muslim bias' against polygyny and easy divorce (1999: 105). Additional informationNotes on contributorsSrimati BasuSrimati Basu Gender & Women's Studies University of Kentucky Breckinridge Hall Lexington KY 40506-0056 USA E-mail: srimati.basu@uky.edu
Год издания: 2008
Авторы: Srimati Basu
Издательство: Taylor & Francis
Источник: International Feminist Journal of Politics
Ключевые слова: Gender Politics and Representation, Political and Economic history of UK and US, Historical and Contemporary Political Dynamics
Открытый доступ: closed
Том: 10
Выпуск: 4
Страницы: 495–517