Seeking greater equality, Indian women turn to unexpected source: Shariah courts

MUMBAI, India — Khatoon Shaikh had no formal education, never worked outside the home and lived in the kind of neighborhood that many people might call a slum.

But when Shaikh witnessed her sister-in-law victimized, first at the hands of a violent husband, and again by a patriarchal justice system, she took charge.

Shaikh started her own Shariah adalat, a court based on Islamic law, just for women.

“We needed a place where women’s voices could be heard,” the mother of seven said.

That was 20 years ago. Since then, the court has moved from Shaikh’s home to a two-room office in the north Mumbai neighborhood of Bandra. And it now operates within a broader organization called BMMA, or Indian Muslim Women’s Movement, which Shaikh helped form in 2007.

But Shaikh is setting her sights still higher: By the end of this year, BMMA plans to bring her vision for a gender-equal Shariah law all the way to the Indian Parliament.

“We want to challenge the legal concept of Shariah law and reclaim it for ourselves,” said Noorjehan Safia Niaz, one of the co-founders of BMMA who is drafting the bill. She has worked as an adjudicator in Shaikh’s all-female court since its inception.

In India, all Muslims are entitled to resolve issues of family law — marriage, divorce and questions of inheritance, alimony and child support — according to Shariah, the moral and religious code described in the Quran.

This right has been guaranteed since 1937, when Muslims sought to legitimize and protect their identity in India, which is majority Hindu. And it was followed two years later by a second act regulating the use of Shariah in Muslim family law.

But shortly after partition with Pakistan in 1947, efforts to reform Shariah in India became secondary to the new country’s primary goals of economic development and national unity.

Beyond a few scant stipulations on the circumstances under which women may file for divorce and the terms of alimony and child support, Islamic law today remains largely open to interpretation by the people who practice it.

Even within the Muslim community, there is little consensus on how issues such as polygamy or the minimum age of marriage or male-initiated divorce should be treated.

The majority of cases are tried in community courts run by male religious leaders who all too often end up enforcing their own, frequently misogynistic, understanding of Shariah.

For example, under the current system, Shariah courts recognize the right of Muslim men to unilateral oral and written divorce. This means a man can divorce his wife without her consent simply by repeating the words “I divorce you” three times in front of witnesses.

There are also reports of husbands divorcing their wives via email and text message, or through registered mail. When the women sign their names to accept the letter, they unwittingly agree to the divorce.

“It’s a very patriarchal system,” said Niaz. “In some places women aren’t even allowed into the courtroom.”

That’s what happened to Samina Chisty recently. After she found out about her husband’s extramarital affairs, he obtained an oral divorce without her presence or consent.

“He just gave me a piece of paper that said we’re divorced,” Chisty told the all-female Shariah court in Bandra.

According to Chisty, the fact that she worked outside the home makes her a “bad Muslim” — and unworthy of justice — in the eyes of the conservative Islamic judges.

BMMA aims to put a stop to this gender-based discrimination by introducing new legislation to codify India’s Shariah system.

The proposal would write into Indian law an unambiguous definition of how Muslim men and women can obtain divorces (informed two-party consent), the minimum age of marriage (18), the community’s stance on polygamy (illegal) and every other aspect of Shariah that pertains to family law.

Shaikh and Niaz say their interpretation of Shariah is still firmly rooted in Quranic teachings. They simply read Scripture from a feminist perspective.

“As women and as people who believe in equality, we cannot believe that God created women inferior to men,” Niaz said.

Gopika Solanki, a professor of political science at Carleton University in Ottawa who has studied India’s family laws, says codification remains a controversial topic in India.

“Clergy are not open to reform experiences which are pro-women,” wrote Solanki. “Muslim women in Pakistan enjoy more legal protection than Indian Muslim women.”

Pakistan has codified its Islamic law, along with Iran, Tunisia and most other Muslim countries.

Hindu nationalists, those who argue that India is culturally and historically rooted in Hinduism, oppose the use of Shariah as well.

Under the mantle of secularism, they aim to replace religious-based laws with a Uniform Civil Code, which Solanki described as “a tool to construct a Hindu nation in which Muslims and other minorities would assimilate.”

The political party pushing hardest for adoption of the Uniform Civil Code is also the front-runner in India’s current election: the nationalist Bharatiya Janata Party.

Niaz said the BMMA might reconsider introducing its legislation this year if the BJP comes into power. But she and Shaikh won’t give up. Gender-based discrimination, they said, must end.