Muslim women must have their say

Close on the heels of this report, on June 8, the Calcutta High Court passed a pathbreaking judgement ruling that divorced Muslim women would get a maintenance allowance until they remarried. This ruling came in response to a petition filed by Shakila Parveen, who was deserted by her husband Haidar Ali. By an order passed in 1993, the trial court granted a maintenance of Rs 800 for the `iddat’ period (three menstrual cycles after divorce), plus a `mehr’ of Rs 2,500. Since Ali did not respond to the court directive, Justice Panigrahi observed that the apex court had unequivocally held that section 125 of the CrPC providing for maintenance to all divorced women overruled the personal law.

What followed was the liberal view of the law which held that the right to receive maintenance cannot be restricted to the period of `iddat’ only. Instead, the appellant should get maintenance allowance till her remarriage. In a similar case, the Bombay High Court provided for maintenance enough to get the divorced Muslim woman going in life. It ruled that the amount of “reasonable and fair provision” though limited to the `iddat’ period should be fixed in order to take care of the woman through her life or till she incurs any disability under the law.

These pathbreaking judgements, reminiscent of the Shah Bano case where the Supreme Court displayed a similar spirit regarding maintenance provisions of Muslim divorcees, express a recognition of the ground reality and an earnest effort to help the divorcees within the prescriptions of the Shariat. These judgements juxtaposed against the Muslim women’s status report of the NCW should have been welcomed by even the diehard conservatives. The verdicts are a reflection of the varied interpretations the Muslim personal law can be put to. Like all other laws, this one too can become either a tool for female oppression or an effective source of redress to aggrieved women.

Needed is social pressure to prevent the patriarchal monopoly of the law’s provisions. Political recognition of the voice of the larger community, particularly its women, rather than the views of its patriarchal religious leadership alone can make the Muslim personal law an effective force of gender justice.

If the reactions to the NCW report and the judgement by bodies recognised as representative of the Muslim community are any indicator, the diehards are unrelenting in their efforts to retain their control over the community. Not surprisingly, the Muslim Personal Law Board has dubbed both the judgement and the NCW report `controversial.’ The judgement, of course, has been severely criticised as an intrusion into the personal domain of Muslims.

The reactions make it clear that the voice of women has no place in the legal and political discourse of both the upholders of the judgement as well as those like the Personal Law Board that oppose it. For Justice Panigrahi, it was not the NCW status report that provided the reference point of consultation, but the legal provision excluding Muslim women from 125 CrPC. For the opponents, of course, the interests of women have never been central to their discourse on Islamic tradition and law. Ironically, central to the debate on Muslim women have been Indian and Islamic religious and juridical traditions not women themselves, the subjects of the discourse.

The liberal opinion within the community has to help change this situation. It is heartening that at a recent meeting of the Muslim Personal Law Board executive council the NCW report was seen as one worthy of serious note. Such a welcome exercise can bear fruit only when the community begins to think about restructuring the composition of the personal law and other boards so as to introduce at least some element of gender balance in them. Gender justice for Muslim women can only be achieved when they are active participants in institutions that juridicate and legislate on their affairs.

The writer is associate professor of history at Jamia Millia, New Delhi