South Asian Feminisms

Duke University Press

Copyright © 2012 Duke University Press
All right reserved.
ISBN: 978-0-8223-5165-8

Contents

ANIA LOOMBA AND RITTY A. LUKOSE South Asian Feminisms: Contemporary Interventions……………………………………………..1FLAVIA AGNES From Shah Bano to Kausar Bano: Contextualizing the “Muslim Woman” within a Communalized Polity………………………33AMINA JAMAL Global Discourses, Situated Traditions, and Muslim Women’s Agency in Pakistan………………………………………54ATREYEE SEN Martial Tales, Right-Wing Hindu Women, and “History Telling” in the Bombay Slums……………………………………75SONALI PERERA Of Moments, Not Monuments: Feminism and Labor Activism in Postnational Sri Lanka………………………………….97ANANNYA BHATTACHARJEE Feminism, Migration, and Labor: Movement Building in a Globalized World…………………………………..117VASUKI NESIAH Uncomfortable Alliances: Women, Peace, and Security in Sri Lanka………………………………………………..139MALATHI DE ALWIS Feminist Politics and Maternalist Agonism………………………………………………………………….162ANGANA P. CHATTERJI Witnessing as Feminist Intervention in India-Administered Kashmir………………………………………….181LAMIA KARIM Transnational Politics of Reading and the (Un)making of Taslima Nasreen……………………………………………205LAURA BRUECK At the Intersection of Gender and Caste: Rescripting Rape in Dalit Feminist Narratives……………………………..224ANJALI ARONDEKAR Subject to Sex: A Small History of the Gomantak Maratha Samaj………………………………………………..244FIRDOUS AZIM Keeping Sexuality on the Agenda: The Sex Workers’ Movement in Bangladesh………………………………………….267TOORJO GHOSE Politicizing Political Society: Mobilization among Sex Workers in Sonagachi, India…………………………………285ASHWINI SUKTHANKAR Queering Approaches to Sex, Gender, and Labor in India: Examining Paths to Sex Worker Unionism…………………306RATNA KAPUR Hecklers to Power? The Waning of Liberal Rights and Challenges to Feminism in India…………………………………333MRINALINI SINHA A Global Perspective on Gender: What’s South Asia Got to Do with It?…………………………………………..356Bibliography……………………………………………………………………………………………………………375Contributors……………………………………………………………………………………………………………407Index………………………………………………………………………………………………………………….411

Chapter One

FEMINISM, RELIGION, AND THE SECULAR

FLAVIA AGNES

From Shah Bano to Kausar Bano Contextualizing the “Muslim Woman” within a Communalized Polity

THIS ESSAY EXPLORES the intersection of gender and identity and weaves together two significant, yet seemingly isolated incidents in Indian history—the verdict of the Supreme Court of India in the Shah Bano case in 1985, which upheld the right to maintenance of divorced Muslim women, and the controversy that followed, and the more recent communal carnage and the sexual violence that was unleashed on Muslim women in Gujarat in February and March, 2002. Though apparently isolated, these two incidents bring to center stage subaltern Muslim women situated in a communally vitiated political arena, one that compels us to examine changing cultural and political figurations of “the Muslim woman” over the last several decades in dynamic relation with the lives of Muslim women. While marking the period of the rising wave of Hindu fundamentalism in the country, the two cases, and the two women they are named for, can be placed at opposite ends of the spectrum: Shah Bano at one end, and Kausar Bano, a victim of the Gujarat atrocities, at the other.

In this essay I want to examine the following questions: Within the confines of an identity that is both rigid and fluid, how does a Muslim woman negotiate the state structures and dictates of the community? What are the contradictory pulls of culture, religion, law, and politics that play upon her life and how does she position herself within these contradictory pulls? Why does she always enter the political arena adorned with the mantle of victimhood? Are there no moments of defiance and resistance, and why do these moments get overshadowed? Who are her allies and adversaries in her struggle for survival? What have been her gains and losses? How do the proponents of a uniform civil code view her? More important, how does she relate to the vocal, visible, and highly articulate women’s movement, which brought gender concerns within the political arena with the slogan “The personal is political”? The women’s movement has focused on the overarching hold of patriarchy on the lives of women and invoked state interventions through sustained campaigns to release women from its clutches. But how has this articulation addressed concerns of women who are at the margins of social boundaries, whose reality is marked not only by patriarchal dominations but also by racial, religious, and caste prejudices? These are important questions that have haunted some of us within the Indian feminist movement.

In any society, the way the question of gender is articulated depends on the hierarchy of social concerns in that society. A slogan coined by women of color in the United States succinctly captures this reality: “All the women are white, all the blacks are men, but some of us are brave.” The slogan was coined to convey that when issues of women’s rights are addressed, they are addressed in the context of white women, and when issues of race are addressed, they are in the context of black men. Issues that specifically concern black women are addressed neither by the women’s movement, which is predominantly white, nor by the predominantly male-dominated movements of people of color. Women of color had to carefully carve out their strategies by aligning with one or other of these movements. A similar dilemma faces women from minority communities in India. Even when gender concerns of minority women hit the headlines, they do so primarily to strengthen the prevailing stereotypical biases against the minority community at large. Rather than concern for Muslim women, it is antipathy to the Muslim community that gets foregrounded when mainstream media pays attention to the “plight” of Muslim women.

THE SHAH BANO JUDGMENT AND THE CONTROVERSIAL MUSLIM WOMEN ACT

No example can better serve to explain the situation described above than the events that followed the Indian Supreme Court ruling in 1985, which upheld the right of a divorced Muslim woman for maintenance under Section 125 of the Criminal Procedure Code. The adverse and derogatory comments in this ruling against the Prophet and Islam, and the call for a uniform civil code, resulted in a Muslim backlash and demand for a separate statute based on Islamic jurisprudence. Bowing to the Muslim orthodoxy, the Congress government led by Rajiv Gandhi introduced a bill in Parliament, which sought to exclude divorced Muslim women from the purview of Section 125. This move came to be projected as the defeat of the principle of gender justice for Indian women, as well as the defeat of secular principles within the Indian polity. It was projected that the proposed act would deprive divorced Muslim women of the rights granted under a secular provision, that is, Section 125, on the basis of religion alone and violate the constitutional mandate of equality. The act would also be a clear departure from the directive principle enshrined in Article 44 of the Indian Constitution—”the state shall endeavor to enact a Uniform Civil Code.”

Between the pronouncement of the judgment by a Constitutional Bench in April 1985 until the act was passed under a party whip in May 1986, Muslim women found themselves at the center of a controversy, with both sides justifying their respective positions. On one side were women’s organizations and human rights and civil liberty groups, who shared an uneasy alliance with Hindu right-wing groups—such as the Bharatiya Janata Party and the Shiv Sena, who promote a vicious anti-Muslim propaganda—to whom they are usually opposed. On the other was the Muslim religious orthodoxy under the leadership of the Muslim Personal Law Board. The former grouping held that taking divorced Muslim women out of the purview of Section 125 would deprive them of their fundamental rights of equality. Instead, they demanded the enactment of a uniform civil code. Muslim religious leaders argued that the Supreme Court ruling was against the tenets of Islamic law, which views marriage as a contract: upon divorce the relationship of husband and wife is severed; hence it is un-Islamic (haram) for a divorced Muslim woman to claim maintenance from her former husband. They demanded a new act to reflect this. “The Muslim woman” was thus called upon to make a difficult choice between her claims for gender equality and equal protection of law, on the one hand, and her religious beliefs and community affiliations, on the other.

As the debate progressed, the media projected two insular and mutually exclusive positions. Those who opposed the bill and supported the demand for a uniform civil code were projected as modern, secular, and rational, and also nationalist. Those who opposed a uniform civil code were portrayed as fundamentalist, orthodox, male-chauvinist, communal and obscurantist, and antinational. This whipped up anti-Muslim sentiments in the country, and Muslims were increasingly defined as the “other,” both of the nation and of the Hindus. They, in turn, could be mobilized to view this as yet another threat to their tenuous identity and violation of their constitutional guarantee of freedom of religion. Huge mobs of Muslims, including women, walked the streets to denounce the judgment and to demand the enactment of a new statute that would deprive Muslim women of the right of maintenance under Section 125. The controversy obscured the fact that at its heart was a paltry sum of 179.20 rupees per month, far too little to save the middle-aged, middle-class former wife of a successful Kanpur-based lawyer from vagrancy and destitution. This finally led Shah Bano herself to make a public declaration renouncing her claim—if it was against her religion, she declared, she would rather be a devout Muslim than claim maintenance from her former husband.

The hurriedly drafted new statute—the Muslim Women Act—was full of loopholes. Despite its limitations, it was of immense historical significance as the first attempt of independent India to codify a segment of the Muslim Personal Law and bring it within the purview of the constitutional framework of justiceable fundamental rights.? But the positions across the divide were so rigid that they left no space to contemplate the significance of this milestone.

THE UNFOLDING OF THE MUSLIM WOMEN ACT

The contentious litigation terrain of this act can be divided into two core components. The first is the challenge to the constitutionality of the act by social organizations, women’s groups, and statutory bodies by way of writ petitions in the Supreme Court. The second consists of the appeals filed by individual husbands in the Supreme Court against the judgments of various high courts that had awarded Muslim women lump sum settlements. While the writ petitions lay dormant in the Supreme Court over the next fifteen years, the act gradually unfolded itself in the lower courts.

Despite the act, which barred them from claiming maintenance, numerous deserted Muslim women filed applications for relief at the level of the lowly magistrates’ courts? In most cases, the husbands pronounced talaq (divorce) as a retaliatory measure to defeat the women’s claims. Thereafter, the maintenance rights of Muslim women had to be decided according to the provisions of the Muslim Women Act. In appeals filed either by the divorced wife or by the husband, various high courts in the country awarded lump sum settlements to divorced Muslim women according to the provisions of the act. The husbands challenged the high court rulings by way of appeals to the Supreme Court. These appeals gradually started accumulating, along with the original writ petitions challenging the constitutionality of this act, which were filed by women’s organizations and civil liberty groups.

What was intriguing for me, as a women’s rights lawyer and legal scholar, was the question, if indeed the act was depriving women of their rights and was enabling husbands to wriggle out of their economic liability, why were the husbands finding themselves aggrieved by the orders passed under a blatantly antiwomen statute? This aroused a faint suspicion in me that perhaps the manner in which the act was unfolding itself in the lower courts was indicative of a diverent legal reality, defying the premonitions expressed by women’s organizations that the act would deprive Muslim women of their basic rights of survival. This phenomenon provided the first indication that perhaps the ill-famed act could be invoked to secure the rights of divorced Muslim women.

It was clear to me that binaries that emerged in the uniform civil code debate ignored the fact that beneath the highly visible terrain of statutes lies a mundane yet dynamic subterrain: the contested terrain of litigation. Here rights are constantly negotiated, interpreted, and evolved. A silent revolution takes place when an aggrieved Muslim woman, a victim of patriarchal prejudices, initiates a process of litigation to claim maintenance in a magistrate’s court. This is where the agency of an ordinary Muslim woman can be most vibrantly felt, where an aggrieved Muslim woman can negotiate the realm of law at her own instance, just the way Shah Bano had done before her claim became entangled within a political controversy. Such struggles rarely emerge as case law, and very few reach the higher courts or are discussed in law journals. Yet they are important markers of social reality and of emerging legal trends that require our critical scrutiny.

After an analysis of some of the reported judgments, it became evident that a seemingly innocuous clause, which had missed the attention of protesters and defenders alike, was being invoked by a section of the lower judiciary to support judgments that provided greater scope for protection against destitution than the earlier provisions under Section 125, where the maximum amount that could be claimed was only 500 rupees per month. Section 3 (1)(a) of the Muslim Women Act stipulated that a divorced Muslim woman is entitled to a “reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband.” This clause, along with the preamble, “An Act to protect the rights of Muslim women who have been divorced by, or have obtained divorce from their husbands,” had been invoked by the judiciary in defense of Muslim women’s rights.

The judgments were an indication of the possibility of widespread change. The high courts of Gujarat and Kerala were among the first to affirm that the new act was to protect the rights of divorced Muslim women and not to deprive them of their rights. They further stressed that any ambiguity within its clauses must be interpreted in such a manner as to reconcile it with the preamble. They declared that condemning divorced women to a life of destitution would not amount to protecting their rights as stipulated by the statute. The first significant judgment on this issue was pronounced by the Gujarat high court on February 18, 1988, within a year and a half of the enactment. But even before this, on January 6, 1988, the die had been cast in women’s favor by a woman judicial magistrate in Lucknow, who awarded the applicant Fathima Sardar 85,000 rupees as fair and reasonable provision and maintenance during the iddat period. Justice M. B. Shah, while presiding over the Gujarat high court, explained: “The determination of fair and reasonable provision and maintenance would depend upon the needs of the divorced woman, standard of life enjoyed by her during her marriage and the means of her former Husband. The amount must include provision for her future residence, clothes, food and other articles for her livelihood.” In July and August of the same year, the Kerala high court reaffirmed this position in Ali v. Sufaira and Aliyar v. Pathu and again, in 1990, in Ahmed v. Aysha. In 1995, a division bench of the Kerala high court explained:

The clause, “reasonable and fair provision and maintenance to be made and paid to her within the iddat period” is as follows: Provision is to be made and maintenance is to be paid. The provision has to be made to secure livelihood of the wife. This need not be in monetary terms; it could be by grant of immovable property or other valuable assets or other income yielding property. Provision must be made within the iddat period and it has to be fair and reasonable…. The revolt against the Shah Bano judgment by a section of Muslims was only in respect of a continued liability. There was no dispute regarding the liability of the husband to pay. The Act was passed to contain the revolt and protect the rights of divorced Muslim women. It is difficult to think that Parliament has, by enacting the Act, completely taken away the right of divorced Muslim women under Section 125, Cr.PC without making any provision as a compensatory measure.

Later this trend was followed by the Madras and the Bombay high courts. A full bench of the Bombay high court further explained that the provision and maintenance is an amount designed to meet a future and continuing liability, and cannot be confused with mehr (in Muslim law, a sum of money assured at the time of marriage as a mark of respect to the wife and as her future security). A full bench ruling of the high court of Punjab and Haryana in 1998 in Kaka v. Hassan Bano and division bench ruling of the Bombay high court in 1999 in Jaitunbi Shaikh v. Mubarak Shaikh also endorsed this view.

TTL[THE LAW IS WHAT THE LAW DOES]TTL

The wording of a statute or dictate comes to life when it is contested in courtrooms and interpreted through judicial pronouncements. Hence the legal maxim “The law is what the law does.” In a significant number of cases, a concerned and sensitive judiciary carved out a space for the protection of women’s rights from what appeared to be an erroneously conceived, badly formulated, and blatantly discriminatory statute. For example, the lump sum provisions for future security, which the courts so carefully crafted out of the controversial legislation, in fact seemed to provide a better safeguard against destitution than the meager doles that women were entitled to under the earlier antivagrancy provision under Section 125.

(Continues…)

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