Challenging the Hegemony - AIMPWLB and AIMPLB

Why is AIMPLB raising their voice only on the issues like Babri Masjid, terrorism and family planning and not the rights of women? No historical step has been taken by the board for the welfare of women.

In 1964, two Muslim members of the Maharashtra Assembly — Hasan Hamdani and A. R. Antulay — introduced bills for restricting polygamy among Muslims. In 1972, the law minister of India sought to introduce the bill on Uniform Civil Code (UCC) and in 1973, the amendments in the maintenance provision after divorce paved the way for establishment of AIMPLB for protecting sharia and MPL. AIMPLB was formed in 1973; among various objectives of the board, establishing measures for protecting MPL and Shariat Act of 1937²⁸ is its main concern.

MPL, according to Gopika Solanki, is a subject of contestation between mul­tiple agents: those who produce laws and those who legitimize them. She defines MPL as ‘MPL on the ground is amalgamation of local, customary, religious, state and international laws and customs, and it is made and unmade by interacting sources of law, civic, religious and state authority in various adjudicative cases’.²⁹ The operational part of the law is adjudicated by three societal actors — first are the individual actors, who include local clergy, lawyers and family members of the litigants. In the second category come the religious organizations like AIMPLB and women’s organizations like AIMWPLB; the third category includes the resi­dential committees (mohalla committees) and adhoc groups.³⁰

Two principles on which the AIMPLB was formed were that firstly, sharia as an Islamic law is complete and MPL is part of sharia.

The AIMPLB holds no formal authority to determine the rulings or man­ner of implementation of MPL, but its vocal stand on particular issues, wide membership and status within a large network of eminent ‘ulama has meant that the organization has exerted a great deal of public influence on matters relating to MPL and Indian Muslim society more generally.³³

According to Amber, AIMPLB raises only issues that are highly politicized and is wholly blind to the issues of women. Even the women members of AIMPLB, according to her, do not challenge the male clergy of the board. Praveen Abidi, a former member of the board in one of her interviews said, ‘AIMPLB is opposed to gender justice, and even to the rights given to Muslim women in Islam. The few women members are just figureheads and have no effective voice of their own.’³⁴ AIMPLB was criticized for its lower membership of women in the board, due to which in 2000 the board enlarged its slot for women. Still, women only represent 12 per cent of the board, which is too few to influence the Board’s out­comes.³⁵ This, in Amber’s opinion, is not right because the needs of women are understood by women and instead of complying with the decisions of AIMPLB they must at least raise their voice for a woman mufti (legal authority) in Darul Qaza (religious courts) working under the board.

Amber’s dissatisfaction with the AIMPLB rests on three premises — maintaining status quo on laws and not working on reforms in Islamic laws, not prohibiting the anti-women practices like halala, and non-maintenance of waqfs³⁶ to support destitute Muslim women.

What matters to ulama is only what is Islamic, what is haram (prohibitive) and halal (permissive). Do they work on ground level? Do they access the situation among poor Muslim brethren? Do they associate themselves to the suffering of the Muslim women who suffer domestic violence and abuse every day? Do they do anything to ameliorate their situation? What kind of Islam do they preach, the Islam in which there are no rights for women?³⁸

The trends of dowry, halala and triple talaq are a nuisance in the Muslim commu­nity, but till now AIMPLB has not been able to eradicate these practices. Neither is there any attempt to curb these menaces. They do not openly speak up against the evil practices of halala, neither do they promote the Islamic way of divorce. Regarding the waqfs, Amber says waqf properties are not used for the purposes they were actually meant for in Islam. The charitable purpose of waqfs has been diluted and these properties are given illegally to others. In her opinion, these properties should be used for the victims of triple talaq who are destitute and have no natal families to go back to. She does not see non-maintenance of a Muslim divorcee from her ex-husband as injustice perpetuated by state. Any secular law granting economic benefits to post-divorce Muslim women is resisted by both ulama and Amber. Both find it inappropriate to claim maintenance from an ex­husband beyond three months of iddat (waiting period) because Islamic law allows remarriage after three months of divorce.

Fundamentalist leaders have refused to acknowledge or address the system­atic disadvantage of Muslim women and personal law reforms have been used to assert community boundaries. Thus fundamentalism has margin­alized Muslim women’s interests, by failing to address the reality of their social and economic vulnerability.³⁹

According to Amber, after the Shah Bano case of 1985, till now AIMPLB has not worked towards the promotion of the 1986 Act.⁴⁰ The Act maintained that a divorcee after the waiting period should be taken care by their natal families. If a divorcee is not supported by her brothers and does not have parents, waqf should come to her rescue. Waqf should take care of divorced women and clergy should take every step in this regard. The 1986 Act puts the obligation of maintenance either on relatives or waqf. David Pearl mentions the shortcoming of this provi­sion in the 1986 Act. He says, ‘Waqf Board is unable to help a woman who has a living relative, but one perhaps simply does not wish to maintain his divorced kinswoman.’⁴¹

Amber says women do not even know that they can claim maintenance from waqf. The opinion is seconded by Rabia Sandal, General Secretary and official spokesperson of the board, but she differs from Amber as according to her in some cases the woman’s situation should be taken into consideration before the fixing of maintenance. Amber is restricting herself to the stated word of the Quran, thus not implying the reform of law outside the boundaries of religion. The negotiations of reform are to be made within the existing boundaries of reli­gion where the textual sources will remain the guideline for reform. According to social anthropologist Elizabeth Mann,

Debates as to the meaning of the Quran were written by the theologians and during the five hundred years or so following the Prophet’s death. These texts form the essence of Islam and constitute a corpus of author­ity which is referred to, mulled over, discussed and used as a guideline for behavior with the status of law.⁴²

In Sandal’s opinion AIMPLB should organize programmes in the Muslim com­munity so that the general public gets involved in the Islamic discourse.

Quran needs to be read thoroughly to understand what perspective it has for women and what are the rights we as women have in Islam. Instead of making sharia and laws as collective effort of only ulama, Quran should be read and understood as an individual responsibility.⁴⁴ Amber’s suggestions for AIMPLB include banning of triple talaq and unilateral divorces, maintenance from baytul maal (waqf), waqf properties to be used to pro­vide shelter homes to divorcees and widows, diverting small schemes of funding to waqf and employed for divorcees, etc. Her suggestions also include that the yearly budget for minorities, especially Muslims, should be diverted to waqf and committees should be made to look into its finances. This, according to Amber, is the Islamic way of serving the divorcees and widows and thus it should be adhered to. In the Muslim community the other resources of finances like zakat (charity), or money from animal sacrifices, etc., should be distributed class wise. Ratio should be made between the classes and the higher class should give more zakat to help the other classes; to this, zakat should be made more usable by open­ing madrasas and places for higher education. In her opinion, the clergy among Muslims do not have the will and intentions to work in a manner that will be beneficial for the community at large.

Her efforts have not been without challenges. The board presents itself as site of resistance against the hegemony of the ulama and redefines the concept of flex­ibility of laws. Her undermining of Western feminism and ideals has earned her legitimacy among some ulama.

Amber unpacks what is in all schools of jurisprudence to provide justice to the victims of triple talaq, halala, etc. She has observed the on-ground realities of women approaching her not only from the Lucknow city but from far-off villages also and belonging to the poorest sections of Muslims. Her involvement with the lived realities makes her conceptions of Islam different. Forming a new board, and Amber’s argument in defense of it, is located within the space of her disagree­ment with male jurists. Her ability to clearly articulate the canonical sources and use of scholarly arguments reflects the trend that even though her own position is grounded in the majority opinion, she is careful to choose among the vari­ous doctrinal positions that secure rights for women. Invocations of the hadith, various legal schools and the Quran itself constitute an Islamic tradition that is constantly reworked and transformed in the context of daily interactions with her litigants. The specificity of doctrinal reasoning does not justify her struggle for equal rights of women; rather she carefully builds argument upon the concept of rights to women as mentioned in the Quran.

The articulation of Islamic laws with regard to marital laws and gender justice takes place in complex forms on different levels. The goal is to understand the numerous ways of understanding Islam among the hegemonic clerical circles and women's groups for articulation of justice and rights for Muslim women. Islam as a religion thus is neither unified nor has been historically placed in continuity. The discontinuities, contradictions and flexibility are still prevalent in interpreta­tion of family laws. The departure of the board from ulama can only be seen in matters of triple talaq, not in maintenance; thus its participation from within the religious tradition is the timely approach to rediscover religious laws. Various women's groups emerged as alternatives for interpretation of Islamic laws pri­oritizing Muslim women and their rights rather than stringently defined legal tradition by the male clergy. Multilayered meaning of Islamic texts resulted in different legal schools and this quality is taken advantage of by the AIMWPLB. AIMWPLB does not promote radical departure from Islamic tradition; all it does is the rethinking of certain areas using methodology of judicial eclecticism and continuous redefinition of these laws in judicial corpus. The board agrees in some aspects with the traditional ulama and in some aspects do value change. It thus uses the balancing method (al-mizan): God's law is balanced with creative interaction of new situations and sharia. This re-articulation and re-interpretation of laws to promote gender justice points out the opportunities that the corpus of heterogeneous Islamic law presents within itself, defying the image of monolithic Islam and Islamic law.

Notes

1 Shah Bano was a divorcee who filed for maintenance from her husband and received the monthly maintenance order from the High Court. Her husband, himself a lawyer, moved his petition in the Supreme Court of India, stating he was not liable to pay the maintenance under MPL. The Shah Bano judgement received flak from the Muslim community. AIMPLB was heading the crusade against this judgement and received support from other members of the Muslim community.

2 Halala is the Indian term, derived from the Arabic word ‘tahliV, which means to make anything permissible. In the context of marriage and divorce in India, nikah halala means remarriage of a woman to another man after her irrevocable divorce to make her permissible to her first husband again. The consummation and divorce of second marriage is necessary to make a woman eligible for marriage to her first husband.

3 M. H. Tschalaer, Muslim Women's Quest for Justice — Gender, Law and Activism in India (Cambridge: Cambridge University Press, 2016), 62.

4 In her ethnographic study of the board, Mengia Hong Tschalaer mentions about the internal factions that started soon after the board was formed. Immediately after its inception, the board split into two factions, the other faction run by a Shia activist, Parveen Abidi. This faction accused Amber of misusing the platform of AIMWPLB for her own political agenda and using media for her own publicity. Ibid., 62. None of these intra-fractional struggles were disclosed by Amber in the personal communica­tion with her.

5 Ahl-e-hadith don't hold themselves bound by taqlid or imitation to any four schools of law in Islam — Hanafi, Shafi, Maliki and Hanbali. Thus they are also called ghayr muqal- lid. They consider themselves free to seek guidance in matters of religious faith and practice from the authentic traditions of the Prophet (hadith), which together with the Quran are in their view the authentic guide for true Muslims.

Interview, Shaista Amber, November 28, 2017.

Leila Ahmed, Women and Gender in Islam — Historical Roots of Debate (London: Yale University Press, 1992), 66-67.

Interview, Shaista Amber, November 28, 2017.

It is a madrasa located in Lucknow, the capital of Uttar Pradesh. It was started with the aim of reformation of the educational system of the madaris and to remove the sectarian differences among the ulama of Islam. For details of the madrasa see, Maulana Mohammad Ishaq Jalees Nadwi, Tareekh Nadwatul Ulama (Lucknow: Maktaba Darul Uloom Nadwatul Ulama, 1983).

Khaled Abou El Fadl, Speaking in the God’s Name: Islamic Law, Authority and Women (London: One World Publication, 2001), 255.

Tablighi Jamaat was a reform movement started for the propagation of faith. It was started by Mohammad Ilyas in Mewat (Uttar Pradesh). To know more about this movement see, Abul Hasan Ali Nadwi, Life and Mission of Maulana Mohammad Ilyas (Lucknow: Academy of Islamic Research and Publications, 1978); M. Anwarul Haq, Faith Movement of Mawlana Mohammad Ilyas (Australia: Allen and Unwin Publications, 1972).

Quran Chapter 3, verse 110 cited in Souvenir (2015-2016) of AIMWPLB.

Umm Umarah is one of the earliest converts of the Islam, who fought many battles alongside her husband and sons and was proud to show off her battle scars. Naila Minai, Women in Islam:Tradition and Transition in the Middle East (London: John Murray, 1981) 17. Interview, Shaista Amber, November 29, 2017.

Saba Mahmood, Politics of Piety: The Islamic Revival and the Feminist Subject (New Jersey: Princeton University Press, 2005), 8.

Aysha Hidayatullah, Feminist Edges of the Quran (New York: Oxford University Press, 2014), 4.

For Abul Ala Maududi’s view on women see Abul Ala Maududi, Purdah and the Status of Women in Islam (New Delhi: Kazi Publishers, 1991).

Talfiq combines parts of doctrines of more than one recognized Islamic legal school. The components of the doctrines are selected on the basis of their suitability for changing social conditions regardless of their historical and systematic contexts.

Rifat Hasan, “Muslim Women and Post-Patriarchal Islam,” in After Patriarchy: Feminist Transformation of the World Religions, ed. Paula Cooey, William Eakin and Jay McDaniel (NY: Orbis Books, 1991), 41.

Shibani Roy, Status of Muslim Women in North India (Delhi: B. R. Publishing Corporation, 1979), 5.

PTI, “Muslim Women Board Registers 166 Cases,” The Hindu, published online on February 27, 2005, accessed April 25, 2018. https://www.thehindu.com/2005/02/27/ stories/2005022702101100.htm.

Interview, Shaista Amber, November 28, 2017.

Anindita Chakrabarti and Suchandra Ghosh, “Judicial Reform vs. Adjudication of Personal Law View from a Muslim Ghetto in Kanpur,” Economic and Political Weekly 52 no. 49 (2017): 14.

Vrinda Narain, Gender and Community Muslim Women’s Rights in India (Toronto: University of Toronto Press, 2001), 78.

Shahida Lateef, Muslim Women in India Political and Private Realities 1890s—1980s (New Delhi: Kali for Women, 1990), 12.

Jean Philippe Dequen, “Justice for Muslim Women in India: the Sinuous Path of the All India Muslim Women Personal Law Board,” Journal of Law and Social Research 3 (2012): 83.

Interview, Shaista Amber, November 30, 2017.

This Act created Muslims as a distinct community with its own laws and also helped Muslim women in restoration of their rights granted to them by sharia. This law deals with marriage, succession and inheritance rights of Muslims.

Gopika Solanki, Adjudication in Religious Family Laws Cultural Accommodation, Legal Pluralism and Gender Equality in India (New Delhi: Cambridge University Press, 2011), 39 and 267.

Ibid., 268.

For historical analysis of the AIMPLB see, AIMPLB, AIMPLB Khidmat aur Sargarmiyan, (New Delhi: AIMPLB, 2010), 1—13.

The AIMPLB has been accompanied by allegations of the Deobandi dominance. Clerical representatives and Muslim women alike have aspired to undermine the body through the formation of their own alternative legal organizations. In recent years, Shias established All India Shia Personal Law Board and another Sunni sect, Barelvis, formed All India Muslim Personal Law Board Jabid.

Justin Jones, “‘Signs of Churning’: Muslim Personal Law and Public Contestation in Twenty-first Century India,” Modern Asian Studies 44, no. 1 (2010): 182.

Yoginder Sikand, “Interview: AIMPLB blind to concerns of oppressed Muslim women: Parveen Abidi,” Twocircles.net, published online on 10 February 2010, accessed January 21, 2019. http://twocircles.net/2010feb12/interview_aimplb_ blind_concerns_oppressed_muslim_women_parveen_abidi.html.

Sylvia Vatuk gives two reasons for women of the male board not being able to influ­ence the board’s deliberations — ‘either they share the conservative outlook of the male majority or if they speak out against patriarchal biases they might be accused of dividing the community’. Sylvia Vatuk, “Islamic Feminism in India: Indian Muslim Women Activists and the Reform of Muslim Personal Law,” Modern Asian Studies 42, no. 2/3 (2008): 494.

Waqf is the locking up of the title of an owned asset from disposition and allotment of its benefits for a specific purpose or purposes. A waqf asset cannot be disposed of; its ownership cannot be transferred. Only its benefits are to be used for the specific purpose(s), which is (are) mainly charitable in nature. The charitable purposes of waqf traditionally include educational institutions, orphanages, roads, and religious estab­lishments like mosques, graveyards and so on.

Maitryee Mukhopadhyay, “Between Community and State: The Question of Women’s Rights and Personal Laws,” in Forging Identities: Gender, Communities and the State, ed. Zoya Hasan (New Delhi: Kali for Women, 1994), 116.

Interview, Shaista Amber, November 29, 2017.

Vrinda Narain, Gender and Community, 5.

Section 4 (2) of the Muslim Women (Protection of Rights on Divorce) Act 1986 states, Where a divorced woman is unable to maintain herself and she has no relative as mentioned in sub-section (1) or such relatives or any one of them have not enough means to pay the maintenance ordered by the Magistrate or the other relatives have not the means to pay the shares of those relatives whose shares have been ordered by the Magistrate to be paid by such other relatives under the second proviso to sub­section (1), the Magistrate may, by order direct the State WaqfBoard established under section 9 of the Waqf Act, 1954 (29 of 1954), or under any other law for the time being in force in a State, functioning in the area in which the woman resides, to pay such maintenance as determined by him under sub-section (1) or, as the case may be, to pay the shares of such of the relatives who are unable to pay, at such periods as he may specify in his order. “The Muslim Women (Protection of Rights on Divorce) Act, 1986,” Indian Kanoon, accessed February 4, 2018. available at https://indiankanoon. org/doc/1933289/

41 David Pearl, A Textbook on Muslim Personal Law Second ed. (London: Croom Helm, 1987), 74.

42 Elizabeth A Mann, “Education, Money, and the Role of Women in Maintaining Minority Identity,” in Forging Identities: Gender, Communities and the State, ed Zoya Hasan (New Delhi: Kali for Women, 1994), 137.

43 Interview, Rabia Sandal, December 3, 2017.

44 Interview Shaista Amber, November 29, 2017.

45 Interview, Rabia Sandal, December 3, 2017.