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‘Signs of churning’: Muslim Personal Law and public contestation in twenty-first century India*

Published online by Cambridge University Press:  15 December 2009

JUSTIN JONES
JUSTIN JONES*
Affiliation:
Department of History, Exeter University EX4 4RJ, United Kingdom Email: j.r.jones@exeter.ac.uk
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Abstract

For many Muslims, the preservation of Muslim Personal Law has become the touchstone of their capacity to defend their religious identity in modern India. This paper examines public debate over Muslim Personal Law, not as a site of consensus within the community, but rather as an arena in which a varied array of Muslim individuals, schools and organisations have sought to assert their own distinctiveness. This is done by discussing the evolution of the All India Muslim Personal Law Board, the most influential organisation to speak on such matters since the 1970s, with particular focus on its recent disintegration at the hands of a number of alternative legal councils formed by feminist, clerical and other groups. These organisations have justified their existence through criticism of the organisation's alleged attempts to standardise Islamic law, and its perceived dominance by the Deobandi school of thought. In truth, however, this process of fragmentation results from a complex array of embryonic and interlinked personal, political and ideological competitions, indicative of the increasingly fraught process of consensus-building in contemporary Indian Muslim society.

Type
Research Article
Information
Modern Asian Studies , Volume 44 , Issue 1: The politics of work, family and community in India , January 2010 , pp. 175 - 200
Copyright
Copyright © Cambridge University Press 2009

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References

1 The Awaz-i-Niswan was founded in 1987, but has gained heightened fame and geographical reach in recent years. For a discussion of its activities, see Vatuk, Sylvia, ‘Islamic Feminism in India: Indian Muslim Women Activists and the Reform of Muslim Personal Law’, Modern Asian Studies (2008) 42–2/3: 497–499CrossRefGoogle Scholar. The Women's Research and Action Group was founded in 1993 to speak for, in the organisation's own words, women who were ‘subordinated by the politics of gender, identity and personal laws.’ Yoginder Sikand, ‘Listen to the Women’, http://www.outlookindia.com/article.aspx?227300 [posted 5 May, 2005].

2 The Pioneer (Lucknow), 3 February, 2005; The Indian Express (Lucknow), 3 February, 2005; The Hindu (Delhi), 27 February, 2005; Vatuk, ‘Islamic Feminism in India’ (2008): 505–507.

3 Yoginder Sikand, ‘Listen to the Women’ passim; Vatuk, ‘Islamic Feminism in India’, passim.

4 For one example of the latter, see the case of Sahaba Khaliq of Moradabad. Times of India (Lucknow), 21 November, 2005; Qaumi Khabren (Lucknow), 22 November, 2005.

5 The Indian Express, 24 January, 2005.

6 Raport: Aal Indiya Shia Parsanal Laa Bord (Lucknow, 2005), pp. 1–4; The Yam Times (Hyderabad), 19 November, 2005.

7 Qaumi Khabren, 22 and 25 February, 2005.

8 The Milli Gazette (Delhi), 16–31 July, 2005; The Telegraph (Calcutta), 29 June, 2005. Critics of the edict said that it did not distinguish between rape and adultery. After the issuing of the edict and the furore it generated, the rectors of Deoband made some effort to retract it, saying that it had expressed only a hypothetical religious opinion and was not a fatwa intended to guide responses.

9 For more information on this widely covered and controversial case, see Metcalf, Barbara, ‘Imrana: Rape, Islam and Law in India’, in Islamic Studies (2007), 45–3: 389–412Google Scholar; Outlook (Delhi), 18 July, 2005; Rashtriya Sahara (Noida), 3 July, 2005.

10 The Hindu, 29 January, 2005. Interestingly, similar language was even used by the BBC. http://news.bbc.co.uk/go/pr/fr/-/1/hi/world/south_asia/4235999.stm [posted 9 February, 2005].

11 Muslim Personal Law is a legal system based upon the presumption that Muslims should be governed in their personal and family affairs by a form of religious law, which can be administered in family courts. It exists both in statutory form (enshrined in statutes such as the Muslim Personal Law [Shari'at] Application Act of 1937 and the Dissolution of Muslim Marriages Act of 1939) and in case law, working on the basis of court precedent.

12 For example, Williams, Rina Verma, Postcolonial Politics and Personal Laws: Colonial Legal Legacies and the Indian State (Oxford: Delhi, 2006)CrossRefGoogle Scholar, passim.

13 For example, Larson, Gerald James, ed., Religion and Personal Law in Secular India: a Call to Judgment (Social Science Press: Delhi, 2001)Google Scholar, passim.

14 For reflection upon such themes, see Gail Minault, ‘Women, Legal Reform and Muslim Identity in South Asia’, http://www.juragentium.unifi.it/en/surveys/rol/minault.htm [posted 2005].

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18 Respectively, Kirti Singh, ‘The Constitution and Muslim Personal Law’, in Zoya Hasan, ed., Forging Identities (1994), p. 96; Hasan, Mushirul, Legacy of a Divided Nation: India's Muslims Since Independence (Oxford: New Delhi, 1997), pp. 311–314Google Scholar.

19 The UCC is in official terms a Directive Principle of State Policy, outlined in Article 44 of the Indian Constitution. The underlying argument in its support remains that a cumbersome and regressive system of religiously-founded personal laws should be replaced with a single, secular and standardised system of family law for all citizens.

20 For a history of the AIMPLB in its early years through its own eyes, see Qureshi, Muhammad Abdul Rahim, Aal Indiya Muslim Parsanal Laa Bord: Sargarmion ka Ek Khake (Hyderabad, 2002)Google Scholar.

21 Rehmani, Sayyid Shah Minnat-ullah, Tanqidi Ja'iza—Fikhri Mutali'a: Khandani Mansooba-Bandi (Delhi, 1984), passimGoogle Scholar; Jeffery, Patricia, Jeffery, Roger and Jeffery, Craig, ‘Disputing Contraception: Muslim Reform, Secular Change and Fertility’, Modern Asian Studies (2008) 42–2/3: 525, 540CrossRefGoogle Scholar.

22 On the Shah Bano case, see especially Engineer, Asghar Ali, The Shah Bano Controversy (Sangam: London, 1987)Google Scholar.

23 On marriage and divorce see, for example, Rehmani, Syed Minnat-ullah, Nikah aur Talaq (Hyderabad, 2007)Google Scholar; Rehmani, Zaghir Ahmad, Talaq ke Iste'mal ka Tariqa (Delhi, 2007)Google Scholar. On bequests and inheritance issues, see Bastvi, Atiq Ahmad, Islam ka Nizam-i-Mirash (Lucknow, 1999)Google Scholar; for wider compendiums of general guidance on these and other issues, see Qasmi, Mujahid ul-Islam, Muslim Parsanal Laa ka Masla: Ta'aruf aur Tajziya (Delhi, 2000)Google Scholar; Simbhali, Muhammad Barhan ul-Din, Islah-i-Ma'ashra (Delhi, 2007)Google Scholar.

24 AIMPLB, Khutbat-i-Juma’ (Delhi, 2005)Google Scholar.

25 While its writings occasionally point out that personal law (‘a'ili nizam) constitutes only a part of a wider shari'at with wide civil, criminal and political applications, in practice the AIMPLB uses the vocabulary of personal laws and shari'at virtually synonymously.

26 For texts on the rights of women and their correct behaviour published by the AIMPLB, see Simbhali, Muhammad Barhan ul-Din, Iunifarm Sivil Kod, Muslim Parsanal Laa aur ‘Aurat ke Huqooq (Lucknow, 1996)Google Scholar; Nadvi, Muhammad Razi ul-Islam, Islami Purdah: Kya aur Kyon? (New Delhi, 1999)Google Scholar.

27 For just two examples from a large genre, see Barbara Metcalf, ‘Reading and Writing About Muslim Women in British India’, in Hasan, ed., Forging Identities (1994), pp. 1–22; Minault, Gail, Secluded Scholars: Women's Education and Muslim Social Reform in Colonial India (Oxford: Delhi, 1998), passimGoogle Scholar.

28 AIMPLB, Majmu'a-i-Qawanen-i-Islami: Muslim Parsanal Laa se Muta'liq Ehkam-i-Shari'at-i-Islami ka Dafa’ Var Murattab Mujmu'a (reprint: New Delhi, 2007), pp. 27–31Google Scholar.

29 Zaman, Muhammad Qasim, Ashraf ‘Ali Thanawi: Islam in Modern South Asia (Oneworld: Oxford, 2008), p. 112Google Scholar.

30 See http://www.aimplboard.org/madaris.html#nikahnama [last accessed 24 July, 2008].

31 AIMPLB, Majmu'a-i-Qawanen-i-Islami (2007), passim.

32 For a comprehensive list of the sources used, see ibid, pp. 23–26.

33 Ibid, p. 18.

34 On this informal structure for implementing religious personal laws, see Sylvia Vatuk, ‘“Where Will She Go? What Will She Do?” Paternalism Toward Women in the Administration of Muslim Personal Law in Contemporary India’, in Larson, ed., Religion and Personal Law (2001), pp. 232, 240.

35 Some of the most notable criticisms of the Board from an academic perspective are the various internet-published articles by Yoginder Sikand, many of which are cited in this paper.

36 Examples include Rehmani, Syed Shah Minnat-ullah, Iunifarm Sivil Kod (Delhi, undated)Google Scholar; Qureshi, Muhammad Abdul Rahim, Dastoor-i-Hind aur Iunifarm Sivil Kod (Delhi, 2007)Google Scholar.

37 Yoginder Sikand, ‘The Fyzee Formula’, http://www.outlookindia.com/full.asp?fodname=20040705&fname=yogi&sid=1 [posted 5 July, 2004]; Yoginder Sikand, ‘Patriarchy and Sectarianism: Explaining the Dissensions in the All India Muslim Personal Law Board’, http://www.wluml.org/english/newsfulltxt.shtml?cmd%5B157%5D=x-157–119978 [posted 11 February, 2005].

38 Scott Alan Kugle, among others, has argued that the British preference for text-based pronouncements, and their subjugation of the interpretative role of Muslim jurists, engrained a greater degree of rigidity in personal laws and inflexibility in their implementation. Kugle, ‘Framed, Blamed and Renamed’ (2001): 297–300.

39 AIMPLB, Majmu'a-i-Qawanen-i-Islami (2007), p. 237.

40 The work in question was ‘Al-Haila't al-Najiza li'l-Halilat al-‘Ajiza, a long fatwa intended to offer more means to Muslim women to escape oppressive marriages, and it was on account of a combination of Thanawi's endeavours and British interventions into religious laws that such provisions were included in the DMMA. For more information, see Thanawi, Ashraf Ali, Al-Haila't al-Najiza Ya'ni Mazloom-i-‘Auraton ki Muskilat ka Shari'e-hal (reprint: Delhi, 2006)Google Scholar; De, Rohit, ‘Mumtaz Bibi's Broken Heart: The Many Lives of the Dissolution of Muslim Marriage's Act’, in Indian Economic and Social History Review (2009), 46–1: 115–118Google Scholar; Gail Minault, ‘Women, Legal Reform and Muslim Identity’ [2005]; Zaman, Ashraf ‘Ali Thanawi (2008), pp. 62–5. The Majmu'a itself, and members and writings of the AIMPLB all reference Al-Haila't al-Najiza liberally, such has been its influence upon the Board's stipulations on divorce law.

41 For an example from another context of the codification of shari'at as a precursor to its smooth implementation in state courts, see Messick, The Calligraphic State (1996), pp. 54–55.

42 Anees Ahmed, ‘Reforming Muslim Personal Law’, Economic and Political Weekly, 24 February, 2001, pp. 618–619.

43 For this information on the AIMPLB's structure and stated intentions, see the organisation's website: http://www.aimplboard.org [last accessed: 24 July, 2008].

44 Ibid.

45 Naqi, Sayyid Ali, Muslim Parsanal Laa, Na Qabil Tabdil (Lucknow, 1972–3), p. 14Google Scholar.

46 Metcalf, Barbara, Islamic Revival in British India: Deoband, 1860–1900 (Oxford: New Delhi, 1982), passimCrossRefGoogle Scholar.

47 For example, Raport: Aal Indiya Shia Parsanal Laa Bord (2005), pp. 1–2.

48 AIMPLB, Majmu'a-i-Qawanen-i-Islami (2007), p. 24.

49 It was Maliki rather than Hanafi jurisprudence to which Ashraf Ali Thanawi had turned on these issues in the 1930s, and that was institutionalised in the DMMA, and henceforth the AIMPLB's rulings. See above, footnote 40.

50 Muhammad Taiyab (AIMPLB president 1973–1983) originated from the distinguished Nanautawi family of Deobandi ‘ulama, had been a student of Deoband and was the madrasa's director for 58 years. Its third and fourth presidents, respectively Mujahid ul-Islam Qasmi (2000–2002) and Muhammad Rabi Hasni (since 2002), both received education in Deoband, as did both of the AIMPLB's General Secretaries to-date.

51 Alam, Arshad, ‘From Custom to Scripture: Observations on the Direction of Indian Islam’, in Hasan, Mushirul, ed., Living with Secularism: the Destiny of India's Muslims (Manohar: New Delhi, 2007), p. 190Google Scholar.

52 Ibid, pp. 178–90.

53 Examples include the predominance of Deobandi ‘ulama in the later stages of the Khilafat movement; the campaigns of the Jami'at ul-‘Ulama-i-Hind, an organisation of Indian ‘ulama which was overwhelmingly Deobandi in its membership; and the prominence of Deobandis on both sides of the debates around the creation of Pakistan. For example, Faruqi, Zia ul Hasan, The Deoband School and the Demand for Pakistan (Asia Publishing House: New York, 1963)Google Scholar; Friedmann, Yohanan, ‘The Attitude of the Jam'iyyat al-‘Ulama’-i-Hind to the Indian National Movement and the Establishment of Pakistan’, Asian and African Studies (1971), 7: 157–181Google Scholar.

54 Haroon, Sana, ‘The Rise of Deobandi Islam in the North-West Frontier Province and its Implications in Colonial India and Pakistan, 1914–1996’, Journal of the Royal Asiatic Society (2008), 18–1: 47–70CrossRefGoogle Scholar; Nasr, S.V.R., ‘The Rise of Sunni Militancy in Pakistan: the Changing Role of Islamism and the Ulama in Society and Politics’, Modern Asian Studies (2000), 34–1: 139–180CrossRefGoogle Scholar.

55 Some of the Board's publications guard against so-called ‘excessively customary practice’ in Islam. For example, Asadi, Ubaidullah, Taqribat ka Len-Den aur us ke Mufasid (Delhi, 2004), passimGoogle Scholar.

56 The Hindu, 6 February, 2005.

57 One of the most pronounced subjects addressed in the early sessions of the Shia Personal Law Board was its frequent condemnation of Islamic terrorism, cited as a major issue of difference between Shias and radical Sunnis. For example, Raport: Aal Indiya Shia Parsanal Laa Bord (2005), p. 14; Nauroz (Lucknow), 18 November, 2005. This was used as part of the justification for the Shia Board's existence, as a tacit allusion to the subversive character of the AIMPLB, and as a means of gaining a sympathetic ear from the state and media.

58 The organisation was described as a ‘joke’ by the AIMPLB, who claimed that its members should have tried to work within the AIMPLB's remit to address such issues rather than breaking away from it. The Hindu, 27 February, 2005.

59 ‘Rights for Shia Women’, editorial, Economic and Political Weekly, 2 December, 2006, p. 4928.

60 Sikand, ‘The Fyzee Formula’ (2004).

61 Asghar Ali Engineer, ‘Abolishing Triple Talaq: What Next?’, Economic and Political Weekly, 10 July, 2004, pp. 3093–3094.

62 Work on pioneers of Muslim women's educational reform and modernisation has generally portrayed such movements as crossing sectarian boundaries in Islam rather than working within them (e.g. Minault, Secluded Scholars (1998), passim.). Similarly, modern Muslim women's organisations are said to consider it ‘antithetical to their purpose of promoting gender equality to make sectarian distinctions.’ Vatuk, ‘Islamic Feminism in India’ (2008): 496.

63 The Telegraph, 29 June, 2005; Frontline (Lucknow), 16–29 July, 2005. The Barelvi and Shia Boards both said that the woman should not be forced to separate from her husband, thus distancing themselves both from Deoband and the section of the AIMPLB that upheld this decision.

64 The Pioneer, 25 February, 2005.

65 This family included the mujtahid Sayyid Ali Naqi (d. 1988), and his successor Kalbe Sadiq, currently a Vice-President of the AIMPLB, who has been closely involved with the organisation for some 15 years.

66 The Pioneer, 25 February, 2005.

67 The Hindustan Times (Lucknow), 22 February, 2005. On the divisions erupting among the Shia clergy on account of the formation of the Shia Personal Law Board, and the political undertones associated with the divisions, see The Indian Express, 25 and 31 January, 2005; The Pioneer, 26 and 31 January, 2005; The Hindustan Times, 25, 30 and 31 January, 2005.

68 Eickelman, Dale and Piscatori, James, Muslim Politics (Princeton: Princeton, 1996), pp. 68–79, 131–35Google Scholar; c.f. Vatuk, ‘Islamic Feminism in India’ (2008): 514–516.

69 The Ahl-i-Hadis have long held, and reiterated in recent years, the view that talaq cannot be said three times on the same occasion, contradicting the AIMPLB's understanding. For example, Hasan, Legacy of a Divided Nation (1997), p. 313.

70 There were, for instance, occasional hints that the Barelvi and Shia Personal Law Boards even cooperated in their foundation and coordinated their activities. Raport: Aal Indiya Shia Parsanal Laa Bord, p. 2.

71 C.f. Jeffery, Patricia, ‘A “Uniform Customary Code”? Marital Breakdown and Women's Entitlements in Rural Bijnor’, in Ahmad, Imtiaz, ed., Divorce and Remarriage Among Muslims in India (New Delhi, 2003) p. 104Google Scholar.

72 The Telegraph, 3 May, 2005.