Marriage and Its Discontents (Women Islam and The Law in India)

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Debates around Muslim Personal Law, the Dissolution of Muslim Marriages Act and the Muslim Women (protection of Rights on Divorce) Act have tended to focus on the issue of unilateral divorce, a right granted to husbands, as well as on polygamy and other discriminatory provisions in MPL.

This landmark study, while giving no quarter to undesirable practices like triple talaq, presents the author's detailed findings on when, and how, Muslim women resort to legal remedies should their marriages break down. Her thoughtful- and thought-provoking-analysis is based on ten years of research in Chennai and Hyderabad, during which she consulted family court records and court petitions; conducted extensive interviews with government-appointed qazis in both cities; met and had detailed discussions with the women themselves, as well as with lawyers, judges, counsellors, court staff and advocates. She also examined, for the first time, the phenomenon of wife-initiated divorces or Khula, and made the startling discovery that their number far exceeded court awarded divorces in any given year.

Vatuk’s account, based on exhaustive empirical data from south India, is the first comprehensive study on how Muslim women negotiate MPL, the family courts and extra-judicial options in order to exit marriages that no longer work.

Sylvia Vatuk is Professor Emerita of Anthropology at the University of Illinois in Chicago. She is the author of Kinship and Urbanization: White-Collar Migrants in north India, and of numerous articles in scholarly journals. She has also contributed to a large number of edited volumes on issues of gender and family, based on many years of ethnographic fieldwork among both Hindus and Muslims in north and south India.

Earlier versions of the papers in this volume were originally published over a period of fifteen years-between 2001 and 2015- and are presented here in order of their original publication. All eight chapters are concerned, in one way or other, with Muslim marriage in India. Five deal with the impact of Muslim Personal Law (MPL) upon the lives of women, specifically in relation to marriage and divorce. A central concern of all but two of the essays is the question of what happens if a marriage that was entered into hopefully ends in disarray, with the couple facing one another in a civil court, before a community council, the jama'at or the imam of their neighbourhood mosque or in the office of a local qazi. Hence the title: Marriage and its Discontents.

I became interested in questions of Muslim Personal Law, specifically with regard to its consequences for the well-being of Indian Muslim women, after more than a decade, off and on, of conducting ethnographic and historical research and writing on issues of gender, family and kinship among south Indian Muslims. I was inspired to turn my attention to this topic due to an increasing unease with the prevailing tendency of the popular journalistic- and even much of the scholarly-literature, to account for most of the social disabilities under which Muslim women suffer by reference to the personal law regime by which they are governed. I often encountered the same rhetoric when discussing my research with Indian colleagues and others of my acquaintance, who almost invariably wanted to begin the conversation by deploring the fate of Muslim women suffering under laws, peculiar to their religion, that permit polygamy and unilateral divorce and leave them bereft of any means of support, should their marriage be dissolved. I naturally recognised-and by no means wished to minimise the significance of-the severe gender bias that is entailed in these particular provisions of Islamic law or the damage they inflict on many Muslim women. Yet, in several years of ethnographic and archival research among Muslims in Chennai and Hyderabad, I had not found that issues of this kind dominated the everyday concerns of the women I had come to know. I therefore felt a need to examine the empirical basis for these widespread stereotypes about Muslim women suffering under the oppressive burden of personal law and thereby, perhaps, find a way of undermining some of the strength of the prevailing rhetoric.

There was already a substantial body of historical, legal and sociological literature on women and the law in India, including some that highlighted the problems that these and other gender biased provisions of Muslim Personal Law create for women. But empirical studies of what they, in particular, experience when they find themselves in a judicial setting, were lacking. Nor had scholars investigated the question of how they fared when they brought marital or other family disputes to non-state, religiously based dispute-resolution venues, such as dar-ul qazat, community panchayats or mosque committees (jama at).

In the 1990s, legal anthropologists and other scholars of law and society were increasingly viewing the law not as a set of rules that mould human behaviour, but as a resource that individuals make use of in their pursuit of personal goals, whatever these may be. With respect to women, in particular, ethnographers working in courtroom settings in a variety of countries around the world, were arguing that legal proceedings often facilitate attempts to resist 'patriarchal' domination in the home and in society at large. With these ideas in mind, I began to design a study that would explore Indian Muslim women's use of both civil and religious judicial institutions, asking whether and how MPL, as administered in practice in India, impacts their efforts to accommodate and/or overcome the constraints and disabilities to which they are subjected in a heavily male-dominated legal and social milieu.

I decided to begin by investigating these questions in one of the state courts of India. Since Independence, personal law cases had been adjudicated in the regular civil courts where, due to overcrowded dockets and other reasons, they often languished for extended periods of time before being resolved. In 1984, in response to a long-standing demand of the women's movement and various welfare organisations, the Indian parliament enacted the Family Courts Act (FCA), which obliged every state in the union to set up specialised family courts in cities of over one million population, to try cases arising out of marital and family disputes. The Act was rather slow to be implemented: the first family court was established Rajasthan in 1987, and in the following year a number of others, among them the Chennai Family Court, began operations. I therefore returned to that city in 1998 and spent seven months observing the ongoing activities in that court, interviewing judges, counsellors, court staff and advocates, and talking with litigants as they sat, often for hours, outside the courtroom, waiting for their cases to be called. My research assistant and I also spent many hours in the family court records room, reading and copying by hand the details of a large sample of Muslim cases that had been heard in hat court in earlier years.

Court petitions and most of the supporting documents included in these case files were written in English and I was able o speak to judges, counsellors and advocates in that language as well, But my inability to speak Tamil proved to be a significant barrier to conducting anthropological 'participant observation' or even interview-based research. Tamil is, understandably, the language used almost exclusively for court proceedings and for the counselling that litigants are required to take part in under the terms of the Family Court Act. My previous research in Chennai had been carried out among Urdu-speaking Muslims but the mother tongue of most Chennai Muslims is Tamil, and when seeking to interview muslim litigants I only occasionally encountered one with whom could communicate directly. Consequently, I was obliged to use an interpreter for much of my work, something that I had never done in my previous research.

To serve in this role I was fortunate to find an extremely competent, anthropologically trained, Tamil-speaking young woman, Ms. R. Saraswathy, who worked with me for several months as research assistant cum interpreter. It was she who made it possible for me to accomplish my purposes, both in the family court itself and in a variety of related settings, including an all- woman police station and a women's counselling centre run by the Tamil Nadu Legal Aid Society. This period of research led to my first publication on Indian women and the law, which is included in this volume as Chapter 1. It was inspired by my observations of the tenor of counselling sessions with women and married couples (of all religions) in the family court and in other state or state-associated dispute-resolution premises, where the wife was so frequently urged to return to the marital home, despite having been abused, abandoned or thrown out by her husband or in-laws in the past. When I asked the counsellor, advocate or judge why he or she had offered such advice, the standard response was, 'But where will she go, what will she do, if she has to go off on her own?' With reference to the notion put forward by previous scholars that the law can provide women an arena within which to exert a degree of independent 'agency', enabling them to take control of their own lives, my findings were mixed. I observed modest numbers of Muslim women approaching the judicial institutions of the state, in hopes of ameliorating the conditions of their domestic lives. So, in that sense, they were not entirely passive victims of a patriarchal order. However, the realities of their domestic and overall social situation, combined with the way they are treated in the court, are such that most were able to achieve only limited success in what they had hoped to achieve by asking the state for succour.

Around the time that this article was published, Ritu Menon and Zoya Hasan were putting together a research group, based at the Neru Memorial Museum and Library in New Delhi, on "The Diversity of Muslim Women's Lives in India". They had heard about my work and kindly asked me to join them and the other participants in the project. I had by then extended my investigations to Hyderabad and was able to use data collected there to supplement my Chennai research findings for a conference paper, and then a more broadly focused article on Muslim women and MPL that was published in the edited volume that resulted from the group's work. An updated version of that piece appears as Chapter 2 in the present volume.

My fieldwork in Hyderabad in 2001 was conducted both in the family court and, as in Chennai, in other related official institutions, but also in the offices (dar-ul - qazat) of four of the city's seven government -appointed sadr qazis, and the qazi connected with the Andhra Pradesh State Waqt Board, which appoints and provides overall supervision of their work. In addition I met several times with members of the jama'at of two neighbourhood mosques in the city. My purpose was to broaden my investigations of how women fare under MPL by looking into the role of non-state religious bodies in the administration of Islamic law. I had learned in my Chennai research that the number of women who approach the courts, the police or other state authorities when faced with marital or other family problems, is relatively small. It emerged from our interviews with litigants and from the court petitions we read that, if unable to solve her problems within the family or kinship circle, a woman almost always next turns for help to a local community or mosque council or to a religious authority of some kind. It is a rare woman who goes directly to filing a civil suit or making a criminal complaint against her husband or in-laws, unless she is led to do so by members of a women's NGO or is taken there by a male relative who is familiar with the ways of the judicial system.

With respect to the issue of divorce, I had noted that in Chennai the rate of resort to the Dissolution of Muslim Marriages Act was very low and this finding was confirmed when I examined comparable data from Hyderabad. After speaking with the Hyderabad qazis and examining some of their divorce files, I realised that, in any given year, the number of wife-initiated extra-judicial divorces (by khuf) were many times the number awarded by the courts. The fact that this was an option available to Muslim women had hardly been noted in the scholarly literature, outside the standard legal textbooks. That it was an option widely used in practice by Muslim women wishing to extricate themselves from unhappy or abusive marriages had not come to my attention until then. This discovery inspired me to investigate the matter in detail, and when I was invited to contribute to a volume of essays on Indian family law being put together to honour a distinguished senior Indian legal scholar, I chose that as my subject. Chapter 4 in this volume is a revised and updated version of that article.