Rights for Shia Women

O

According to a new model ‘nikahnama’ that the AISPLB announced, the wife would have the right to seek a divorce if she is cheated, if she is prevented from exercising her right to education, if the husband has provided false information at the time of marriage, if the groom disappears for two years, if he does not inquire about the wife for months together, if he does not provide for her essential needs, or if he forces her to have sexual relations with other men. The wife, in turn, cannot indulge in “wasteful expenditure” that lands her husband in debt; she must approach arbitrators mentioned in the document for seeking divorce and not directly approach a court. The previous model nikahnama introduced by the All India Muslim Personal Law Board (AIMPLB) and which applies to all Muslims, gives women the right to initiate divorce only if their husbands are cruel or impotent. The new nikahnama gives 1.5 crore shia women in India more rights than their sunni counterparts. The shia nikahnama also makes the signing of an agreement at the time of the wedding mandatory. It should have details of the professions of both spouses, their salaries, dependants and earlier marriages, if any. The marriage will not be considered legal unless the agreement is signed.

The AISPLB broke away from the AIMPLB last year, accusing the latter of not taking up issues related to the shia community. Shia Muslims hold the fundamental beliefs of other Muslims, but in addition to these tenets the distinctive institution of shia Islam is the Imamate – a much more exalted position than the sunni imam, who is primarily a prayer leader. Sunnis form the majority denomination within Islam in India and the tensions between the two have even erupted in violence on many occasions. Shia leaders have never tired of pointing out that as a minority within the Muslim community, the condition of their five crore community members needs drastic social and economic improvement and that political representation has been denied to them at the centre and states. They are also upset that the Rajindar Sachar Committee, which has submitted its report on the state of the Muslim community in India, did not speak to shias as a group.

The plight of all Muslim women in India – shia and sunni – is truly that of a minority within a minority. To the non-Muslim society at large, the cases of Imrana (who was raped by her father-in-law and was then directed by fatwas to live with him because she had become “haram”) and Gudiya (who died earlier this year after enduring the glare of media publicity over the tussle of who she should live with) are symbolic. It is cases like these that fuel the Hindu right’s arguments that a uniform civil code, with all personal laws scrapped, is required for all Indians.

Critics have pointed out that the AIMPLB remains frozen in a time-warp and that the Hanbali school of Shariat followed by Deoband Darul-Uloom and the sunni Muslims is being touted as the only real interpretation of Islamic law, while the more liberal Islamic schools such as Shafi, Malik and Hanafi are being ignored.

The shia model gains great significance because the AIMPLB, which was expected to endorse the rights of Muslim women firmly with its model nikahnama failed to do so. It is not very well known that Muslim law is certainly not outside the ambit of the judicial process and the issue of triple talaaq can be subjected to legal recourse. The Dissolution of Muslim Marriage Act, 1939 and the Muslim Women (Protection of Rights on Divorce) Act, 1986 (MWA) are the two relevant pieces of legislation. The MWA followed the controversial Shah Bano case in which the Supreme Court granted women lifelong maintenance. The MWA removed Muslim women from the purview of the general law of maintenance and placed them under special legislation. However, it also gave Muslim women the right to appeal to the courts if they were not paid the stipulated maintenance. What is imperative is that social sanction comes from the Muslim Personal Law Board. This the AISPLB has done with its model nikahnama. It is a positive development that the shia community leaders have decided to bring about a change themselves without obvious pressure from outside. Now comes the all-important test – the implementation of the provisions of the nikahnama and a supportive environment for the shia women who want to use it.

EPW

Economic and Political Weekly December 2, 2006