WUNRN
India
- Striving For Gender Justice: Overcoming Obstacles
By
Ram Puniyani* - 01 July, 2014
While on one hand a PIL (India-Public Interest
Litigation) has been filed for UCC (India - Uniform Civil Code), there is
another significant development in this direction. This relates to the personal
laws of Muslim community. That ‘Muslim women are subject to more domination and
gender injustice’ has been a widespread perception. While as such the Personal
laws of different religious communities are not giving adequate justice to
women, the popular focus is mainly on the Muslim community. This despite the
fact that there are number of Muslim women’s groups who are striving for gender
just civil codes within Muslim community. The recently released Nikahnama
(Marriage Norms) by Bhartiya Muslim Mahila Andolan (BMMA) is one such leap by
Muslim women to overcome the shackles of patriarchal grip on the Muslim women.
Model Nikahnama released by BMMA (June 23, 2014) is an important step in this
direction, in the direction of empowering Muslim women This tries to give the
solution to various problems faced by Muslim women. It outlines the various
steps for which the large section of Muslim women is longing for.
This Nikahnama calls for registration of all marriages, calls for denial of
second marriage unless there is a valid ground like death of the first wife
etc, calls for minimum age of marriage for girls to be 18, (for boys 21), wife
should have due place in the household even after the death of husband, divorce
should be permitted in the physical presence of husband and wife both and it
should be supported by legal documents, and in case of women demanding divorce,
her voice should be respected and she should be allowed to keep personal
belongings.
The notion that the present plight of Muslim women is due to Islam holds no
water. Islamic scholars and reformers like Asghar Ali Engineer contributed
tremendously to the many basic points of this Nikahnama, which is a sort of
Muslim Personal Law. The major highlight of this draft is that it represents
the opinions of thousands of Muslim women due to whose participation the
drafting of this one took final shape. The future challenge is that this
Nikahnama has to be made the basis of the personal laws and a major campaign
has to be launched in support of this. While the directive principles of our
Constitution call that state should attempt to evolve a Uniform civil code, the
issue as such came to the forefront in the wake of historic Shah Bano judgment,
where a Muslim divorcee women was granted the maintenance by the court. The
opposition to this court judgment came from the orthodox section of the
community and the judgment was reversed by an act of Parliament by Rajiv Gandhi
Government. This was a serious mistake.
The women’s movement has been asking for gender justice and many a concerned
groups have been struggling for this. As we know the personal laws have been a
continuation of what British had introduced and pertain only to marriage,
divorce, custody of children and inheritance. While the civil and criminal laws
are the same for all the religious communities, the personal laws have been
based on the traditional customs, primarily patriarchal. The severe flaw in
these laws is that they are heavily weighted in favor of men. While initially
there was some lack of clarity about the concept of Uniformity, the women’s
movement in due course called forgender justice as the basis of these rather
than mere uniformity.
Uniformity can very well be an amalgam of unjust laws picked from different
traditions and put together. That’s not something which women’s movement wants,
that’s something which is not in consonance with the concept of gender parity.
That’s not what a civilized society should have. The twin aspect of the need
for newer personal laws has been the gender equality in front of law and their
introduction through a process of social reform rather than imposition by
dictat from the top.
The efforts of Muslim women’s groups face obstacles due to the domination of
orthodox elements in the community. This situation is worst confounded due to
the sense of physical insecurity following the communal violence. During last
several decades the percentage of Muslims getting killed in the communal
violence is close to 90%, while their percentage in the population is close to
14%. Communal violence is also the ground where women from minority community
are subjected to serious sexual and physical abuse. This is what creates the
sense of social insecurity, weakening their movements in a serious manner. It’s
not that Muslim women don’t want reforms or parity in social matters; it’s not
that Muslim men are able to hegemonize the situation due to religion or due to
what Koran says. The issue at stake is the physical insecurity due to which
Muslim women’s groups have remained comparatively weak and unable to assert
themselves within the community and society. There surely are number of groups
from amongst the Muslim community asking for equality, their movement is unable
to get strength due to the cancerous phenomenon of communal violence and its
soial-psychological aftermath.
The Hindu right wing’s cry for Uniform Civil Code (UCC) is not because it is
seeking for gender parity. It has been seen that this UCC can be used as a
political tool to beat the Muslim community with so it has been made as a basic
part of the so-called ‘Hindutva’ agenda. This also needs to be seen from
another angle. As a matter of fact the term Uniform has to qualified in proper
perspective. It should not be a compilation of different unjust laws from
different religious customs. What we need is an overhaul of the personal laws
in all the religious communities and that the new laws have to be formulated on
the grounds of gender justice. And secondly, they have to be evolved through
the process of discussion and debate within the communities, where the women,
who are the major sufferers of the prevalent laws, should have a major role in
formulating them.
The step by BMMA shows the way for the communities to march in the direction of
change in personal laws. On one hand this Nikhnama has been evolved through an
extensive process of community participation, on the other it articulates the
aspirations of Muslim women at large. Surely the laws pertaining to other
religious communities also need to go through the process of similar exercise
where women have a major say and the laws then act as a major mechanism for
overcoming the patriarchal norms on the society. Such positive steps by social
groups need a welcome modification to further broader participation to make it
more representative in character.
*Ram Puniyani was a professor in biomedical engineering at the Indian Institute of Technology Bombay, and took voluntary retirement in December 2004 to work full time for communal harmony in India. He is involved with human rights activities from last two decades.He is associated with various secular and democratic initiatives like All India Secular Forum, Center for Study of Society and Secularism and ANHAD.