Ohen women frame their battles by law, they face two obvious challenges. First, their experiences of violence and violation must be made readable by the law or the arbitrator. Second, an alternative courtroom or even forum requires parties to occupy a binary position: offender and victim, perpetrator and victim. This means that parties can find themselves embroiled in co-petitioners whom they strongly oppose ideologically, as long as the end goal, “the prayer”, is aimed at a similar end. Opposition to any aspect of Muslim personal law by Muslim women’s movements, organizations or individual women remains vulnerable to appropriation by the Hindu nationalist political establishment. This placed women’s demands in a precarious paradox of simultaneously opposing Hindu nationalism and negotiating with them.
On the other hand, any argument to protect minority practices has found “legal” endorsement in court by organizations such as the AIMPLB, and as a result, the feminist position on minority protection has shared space uncomfortable with the Orthodox clergy. To find the particularity of the joints of Muslim women, focusing our analysis on the means of resistance and the strategy preceding the law – judgment or bill – becomes crucial.
The founding members of the two Muslim women’s organizations that joined Shayara Bano’s court petition against the practice of triple talak, Collectif Bebaak and BMMA, expressed disappointment at the lack of support from feminist organizations that identified as secular. They also expressed disappointment at the direct or tenuous association of their co-petitioners – Ishrat Jahan and Shayara Bano with the BJP, as Jahan later joined the BJP and Bano was also offered a position in the party. in Uttarakhand. Moreover, they suggested that this co-option in the BJP could be a consequence of the inability of the secular feminist mobilization to meet the demand of Muslim women for legal remedies in family law. The strategies of the Collectif Bebaak and the BMMA differed considerably.
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Hasina Khan of the Bebaak Collective identified as secular; she said the collective’s aim was to bring “the voice of street women to parliament” (auroton ki awaaz sadak se sansad tak).15 The BMMA, on the other hand, also identified itself as a secular women’s organization, but with a focus on Muslim women and emphasized routing their activism through provisions in the texts. Islamic clerics. The two organizations notably disagreed over the 2019 Muslim Women’s Marriage Protection Act (discussed in the next subsection), which criminalized the pronouncement of triple talak. While the Bebaak Collective opposed it, the BMMA supported it with some reservations.
For the BMMA, the rights came from the Koran as their haq (right) but in enabling women to access these rights, they did not prevent the use of legal strategies. In 2016, the Collectif Bebaak was born from an agreement of several women’s organizations. Hasina Khan who previously worked with Awaaz-e-Niswaan (until 2013) became one of the main voices of the collective. In a personal interview, she said she found the framework of religion very restrictive. She said that although she is well aware of the rights granted to women under the Koran, she also believed that this book could be questioned: “What if one is an atheist-Muslim? …someone who culturally identifies as Muslim but is not religious. She regretted that the women’s movement was divided on the issue of legal intervention and presented it as a betrayal for Muslim women: “Shayara Bano is not the first woman I have met who has suffered fate she suffered. We had worked with many women who had suffered triple talak and we had tried hard to convince these women to file a complaint in court. She argued that the realities and problems of each minority are very different.
Has she ever [named an activist] ever went to the Jama Masjid and tried to discuss why women should wear the burqa? The way Christian women are able to talk about homosexuality, or Hindu women at the temple entrance? Why are we reluctant to talk about muslim women’s sexuality – we only talk about muslim women’s “rights” why is roti, kapda, makaan [food, clothing, shelter] important for Muslim women. Why do groups say that the Muslim women’s community is not ready? Sometimes it’s 1992 [demolition of the Babri mosque]or 2002 [Gujarat riots] will there ever be a good time to talk about muslim women? Why do they want to prepare us to survive and suffer [rehne, pisne] within the community, having our own mosques, our own schools, aren’t we citizens?
Khan pointed out that specific causes can sometimes become collateral damage in larger battles to oppose Hindu nationalism. This poses a crucial question: should Muslim women abandon any conversation about legal remedies until the general problem of Islamophobia and the marginalization of Muslims by the state and the public is resolved? And further, can a conversation with the state on the reform of Muslim personal law really have any consequence when Islamophobia characterizes almost all contemporary state interventions? Muslim conservatives and the secular intelligentsia shared their opposition to Hindu nationalism and therefore to legislative intervention in Muslim personal law. Not only did this replicate the privatization of the law of people, but the failure to separate the law from its creators undermined the dialogue that the law had the potential to generate.
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Yet despite the disagreement between the BMMA and the Bebaak leadership over religion as a source of rights, in the triple talak cases, the petitions of the two organizations have been combined (with the request of the government). These parties eventually wanted state intervention in matters of Muslim family law, and specifically an end to unilateral instant divorce. After the Supreme Court’s verdict on the triple talakthe BMMA has expressed its intention to file new complaints against the practices of bigamy and nikah halala also, which were matters which had been expressly omitted from consideration by the court during the hearing on the triple talak. A number of petitions were subsequently filed by Muslim women as well as BJP members against the practices of nikah halala and bigamy, which remain pending in court. The BMMA has not yet submitted its own.
The women’s movement has become particularly divided on the issue of bigamy. Scholar and activist Flavia Agnes has argued that a ban on polygamy could deprive Muslim second wives of their existing rights and reduce their status as “mistress” or “custodian,” terms the Supreme Court frequently used to describe second wives, which would never be awarded to women under Muslim law. While the idea of bigamy pushed the conversation towards new imaginings of a family, in most cases in India women had no power to refuse a bigamous arrangement, and entering into a second marriage was also a exclusive right for men. This argument has created a bizarre position that, citing the failure of the Bigamy Prevention Act among other communities and the plight of second wives among Hindus, bigamy could be defended as a “protection” for women. Muslims.
A comparative table of statutory interventions in Hindu and Christian personal law reiterates the claim that Muslim personal law was primarily debated in courts rather than in parliament, as shown in Chapter 5.
This excerpt from “Divorce and Democracy: A History of Personal Law in Post-Independence India” by Saumya Saxena is published with permission from Cambridge University Press.