With Muslim Women’s Quest for Justice, Mengia Hong Tschalaer enters the complex world of rights of Muslim women guided by very pertinent research questions. She examines this world through the lens of three leaders of women’s organizations in Lucknow. For Muslim women, it is a world fraught with hostility in family and community on questions of rights within marriage, and its breakdown. The most accessible justice forum for women is religious, i.e., the Darul Qaza which, among other things, upholds men’s unilateral right to divorce and polygamy, focuses on the act of sexual intercourse in rape, and reduces alimony to the minimum three month period of iddat.
For a researcher, it is a terrain strewn with inconsistencies and contradictions. For instance, the leaders of women’s organizations converge their views on modesty in dress and conduct with the clergy in order to gain respectability; they simultaneously diverge from the same clergy’s conservative views on rights of women. Or, the rejection of religious forum of justice—the All India Muslim Personal Law Board and Darul Qazas—as anti-women and lacking in legitimacy, while creating similar set-ups in All India Muslim Women Personal Law Board, All India Shia Personal Law Board or the Shariat courts according more rights to women while observing similar codes of modesty in conduct. Or the assertion of secular rights while speaking of the all-encapsulating nature of the Quran to include constitutional rights.
Tschalaer adeptly makes sense of it all using several analytical concepts: the leaders conforming to the codes of modesty is Deniz Kandiyoti’s ‘Bargaining with Patriarchy’, women’s use of different forums to maximize the possibility of justice is Gopika Solanki’s ‘Forum-Shopping’, activists enabling access to interpretative possibilities in religious laws to ordinary Muslim women at community level is Sally Merry’s ‘Vernacularization’, coexistence of diverse dispute-resolution avenues is Solanki’s ‘Shared Adjudication Model’, and the inevitable cross-links between secular and religious laws is De Sousa Santos’s ‘Interlegality’. In the process, the leaders are variously described as ‘comfort-providers’, ‘access-enablers’, ‘knowledge-brokers’, and ‘justice-dispensers’. The leaders distance themselves from the label of feminists and self-identify as activists.
‘Legal Pluralism’, both in terms of pluralism of justice forum and the rules these forums apply, is a long-standing ground reality; legal porosity is a measure of its acceptability in the community and society. The path to advance rights of Muslim women then necessarily involves examining the forums of justice and the rules they apply, identifying the shortcomings, and addressing them within their broad framework and respective rules, which is what activists do, for instance, in framing alternative marriage contracts.
As the existing forums reject these alternatives and challenge the reinterpretation of rules, the activists set up alternative forums made possible by and indeed, taking advantage of, legal pluralism. In the process, activists use and apply women-friendly re-interpretation of religious texts, an arena that has been exclusively the domain of the conservative clergy; and minimize the dependence on clergy in the alternative forums to administer Muslim laws in family matters of marriage and divorce. The legitimacy of these forums and their rules depends on the extent of porosity the community affords them. In the current context, the Darul Qazas and their decisions are absorbed with greater ease and acceptability than the alternative forums established by women leaders, given the fact that the alternative marriage contract is yet to be widely accepted and used.
Tschalaer rightly concludes that ‘legal discourses are mixed, transformed and earned across legal sites’ and that legal pluralism and inter-legality between secular and personal laws provide ‘opportunity for heterogeneity to negotiate and frame justice.’ However, Tschalaer’s conclusion that only feminists or legal scholars believe these to be an obstacle to gender justice seems hasty. Bharatiya Muslim Mahila Andolan activists’ demand for codification of Muslim personal law itself stems from the belief that gender justice would be better served if there is uniformity of reformed laws applicable to Muslims on family matters.
The book is methodically researched and ethnographic accounts of women leaders facilitate a layered understanding of activism on rights of Muslim women. While the leaders have different social and economic backgrounds, it is clear that they are all culturally rooted in the religion-based Muslim milieu of Lucknow. Their basis for resolution of familial disputes, strategies for change, articulation of reform measures and their actions are therefore all rooted in the same milieu. They may use the secular forum of family courts for its symbolic power and the relative enforceability of its decisions, but the essence of their reformative thoughts and actions is inescapably religious, including those articulated in judicial language. The book is one of its kind addressing not only the complexity surrounding the rights of Muslim women, but also how laden is activism on these issues.
The book is also important for the questions or issues that emerge from Tschalaer’s work. One such question is related to ‘Bargaining with Patriarchy’. Can activists conform to, and observe gender norms of dress or conduct to gain legitimacy or acceptance in the community for their work towards gender justice without in fact legitimizing such norms? Would it not create a category of women within the community who are considered inherently unworthy of assistance or justice because they do not conform to such norms? What does legal pluralism mean to such women, and where would they ‘forum-shop’ for justice?
A related issue is of concepts of freedom, autonomy and agency—that these are liberal western notions alien to Muslim women. It is not as if Muslim women prefer to be bonded, are passive and do not have options in life. Rather they assign meanings to these concepts within the known parameters of their community life. These meanings may however again conform to the gender norms of the community. For instance, many Muslim women subjectively choose to be veiled to experience freedom and enable agency to pursue their interest that may otherwise be forbidden. Such assigned meanings already conform to gender norms of respectability and proper conduct for women and therefore enjoy force of religion and acceptance of community. Women who share these assigned meanings would then enjoy negotiated freedom, autonomy and agency. Muslim women who assign different meanings which have neither force of religion nor any acceptance in community are then de-legitimized as liberal western women if based in urban areas, or rebellious women in rural areas. They are effectively denied subjectivity in defining freedom, autonomy and agency for themselves. While the former agency-lending subjectivity is heartening and welcome, it is the latter agency-denying subjectivity that movements for advancing rights of women must engage with and challenge.
Another issue is around movement building or in this case, building of Muslim women’s movement. Movements by definition are ever changing, dynamic processes which pass through several milestones until they mature, and often have a moving goalpost. In 1986, when the Muslim Women (Protection) on Divorce Act was passed following the controversy around the Shah Bano Judgment, there was hardly any women’s group working on rights of Muslim women. Today, there are many of them working on these issues all over the country and Muslim women lead most of them. Tschalaer’s book argues that this proliferation of women’s groups over a period of about thirty years raising issues of rights upon marriage and divorce, right to access and to occupy public and religious spaces, issue of education and employment among Muslim girls is yet to be recognized as a movement.
The question, therefore, is what constitutes a movement. Do movement participants necessarily share common objectives, strategies and means at all times, or does a common purpose suffice? Are collaboration and consultation the key characteristics of movements? Women or groups that are part of the larger women’s movement in India share the common purpose of women’s empowerment and gender justice. Beyond that, groups differ on the means to achieve gender justice, strategies to be employed and action to be initiated. There are fierce debates on issues of inclusion and exclusion. Some groups collaborate and consult with each other more than others. Indeed, these aspects make movements dynamic and propel them to the next level or fizzle out.
Through the voices of the leaders in the book emerge other striking questions relating to secularism, constitutionalism and state. What, for instance, does the oxymoronic sounding ‘codify Quran from secular point of view’ mean? Does it mean to secularize Quran or to locate the Constitution within it? What would such an exercise entail and what purpose would it serve? How is the contemporary political context—where ‘secularism’ and ‘socialism’ are under attack; where the ‘othering’ of Muslims by way of ‘love jihad’, ‘ghar wapasi’, and ‘beef-lynching’ among other things is systematic and intentional; where the Right-Wing Hindutva government is all too keen to ‘save’ Muslim women from Muslim men by criminalizing the practice of unilateral triple talaq—negotiated and analysed within the movement for the rights of Muslim women?
Tschalaer’s book is unparalleled in many ways—the ethnographic accounts of lives of leaders of Muslim women’s organizations, the creative use of analytical tools to explain complex details of strategies and actions of the leaders, the fact of legal pluralism and the interplay between justice dispensed by family courts, clergy and women’s organizations and more importantly, the number of related issues it throws up for further research and enquiry.
Boaventura, De Sousa Santos, Law: A Map of Misreading. Toward a Postmodern Conception of Law (14 Journal of Law and Society, 1987), 279.
Deniz Kandiyoti, ‘Bargaining with Patriarchy’ in Judith Lorber and Susann A Farrell (edited), The Social Construction of Gender (Sage, 1991), 86.
Gopika Solanki, Adjudication in Religious Family Laws: Cultural Accommodation, Legal Pluralism, and Gender Equality in India (Cambridge University Press, 2011).
Sally Engle Merry and Peggy Levitt, Vernacularization on the Ground: Local Uses of Global Women’s Rights in Peru, China, India and the United States (9, Global Networks, 2009), 441.
Vahida Nainar has done advocacy/research on issues of women’s rights and human rights violation for the past twenty-five years. She is currently a Doctoral Scholar at the Tata Institute of Social Sciences, Mumbai.