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Narendra Subramanian

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631

Law & Social Inquiry

Volume 33, Issue 3, 631–672, Summer 2008

Original Articles

Legal Change and Gender InequalityLAW & SOCIAL INQUIRY

Legal Change and Gender Inequality:

Changes in Muslim Family Law

in India

Narendra Subramanian

Group-speciﬁc family laws are said to provide women fewer rights

and impede policy change. India’s family law systems speciﬁc to religious

groups underwent important gender-equalizing changes over the last

generation. The changes in the laws of the religious minorities were unexpected,

as conservative elites had considerable indirect inﬂuence over these laws.

Policy elites changed minority law only if they found credible justiﬁcation

for change in group laws, group norms, and group initiatives, not only

in constitutional rights and transnational human rights law. Muslim alimony

and divorce laws were changed on this basis, giving women more rights

without abandoning cultural accommodation. Legal mobilization and the

outlook of policy makers—speciﬁcally their approach to regulating family

life, their understanding of group norms, and their normative vision of

family life—shaped the major changes in Indian Muslim law. More gender-

equalizing legal changes are possible based on the same sources.

Narendra Subramanian

is an associate professor of political science at McGill University;

he can be reached at narendra.subramanian@mcgill.ca.

The author wishes to thank Josh Cohen, Lawrence Cohen, David Gilmartin, Akhil Gupta,

Wael Hallaq, Donald Horowitz, Nazia Yusuf Izuddin, Werner Menski, K. Sivaramakrishnan,

Sanjay Subrahmanyam, Sylvia Vatuk, and four anonymous referees for their comments on earlier

drafts; and Ashok Kotwal, Tuli Banerjee, K. Sivaramakrishnan, Akhil Gupta, and Tambirajah

Ponnuthurai for providing opportunities to present the article. Research support came from the

Social Sciences and Humanities Research Council of Canada, the International Development

Research Centre, and the

Fonds pour la Formation de Chercheurs et l’Aide a la Recherche

. Research

was undertaken in full accord with all pertinent Canadian regulations governing the conduct

of human subjects’ research. Earlier versions of the article were presented at the Association

for Asian Studies Annual Meeting (March 5, 2004), the University of British Columbia (April

15, 2004), the Association for the Study of Nationalities Convention (April 14–16, 2005),

the Workshop on the Post-Liberalization Indian State, Stanford University (June 5–6, 2005),

and the Massachusetts Institute of Technology (February 23, 2006).

LAW & SOCIAL INQUIRY632

INTRODUCTION

The application of distinct family laws to speciﬁc cultural groups is a

way in which cultural diversity is recognized. Multicultural institutions often

provide unequal rights to citizens, violate individual rights, impede policy

change, and restrict cultural exchange. Some argue that such outcomes are

inevitable aspects of multiculturalism. Such criticisms are particularly leveled

at plural family law systems.

This is because the norms of most groups give

the genders unequal rights in family life, or at least did so when plural family

law systems initially took shape. Policy makers particularly incorporated

gender-unequal norms into group law during crucial phases of state-formation

when they did not consider gender equality an important goal (Kandiyoti

1991; Glendon 1989; Hooker 1975).

Multicultural institutions and policies are particularly important in

accommodating India’s cultural diversities along axes such as religion,

language, caste, sect, and region. The use of distinct family laws to govern

various religious groups and some tribal groups is one of the ways in which

culturally inﬂected interests are represented. The colonial state introduced

a somewhat centralized system of plural family laws, in which the powers

of adjudication were shared by the state courts and various community courts.

The postcolonial political elite retained much of colonial-era family law to

accommodate the cultural minorities, especially Muslims. There were ten-

sions between this choice and constitutional commitments to promote gender

equality, as all of India’s family law systems provide unequal gender rights

in many respects. Although the Indian constitution included a directive to

homogenize family law in the indeﬁnite future, leading to a Uniform Civil

Code (UCC), policy makers have not followed this course. The judiciary

also resisted appeals to systematically reform the various family laws with

reference to constitutional rights and transnational human rights law.

The plural family law system is the most widely criticized of India’s

multicultural institutions. One of the criticisms of this system is that

it provides limited scope for legal change. The claim that group law is unable

to keep abreast of social change seems to apply particularly to the laws of the

cultural minorities. This is because policy makers claim that the concerned

groups ought to initiate changes in these laws, but conservative religious and

political elites are often regarded as the relevant group representatives and

they are usually unwilling to initiate such changes (Sunder Rajan 2003;

Jacobsohn 2003; Menon 1998; Cossman and Kapur1996; Parashar 1992).

The major family laws underwent greater change over the last generation

than its critics suggest. The changes came primarily through judicial initiative

1. Okin et al. (1999) offered a controversial version of this claim, to which many offered

critical responses in the same volume. Parekh (2006) presented a more balanced account.

Legal Change and Gender Inequality 633

and secondarily through legislation. Although the legislature focused on

changes in the laws of the Hindu religious majority in the ﬁrst postcolonial

decade, the legal changes since the 1970s also extended to the laws of the

religious minorities and reduced the extent of gender inequality in these laws.

They produced convergence in some features of the different group laws,

although these legal systems continued to differ in many of their provisions

and rested on somewhat different jurisprudential foundations.

Criticisms of Indian family law particularly focus on Muslim law for

various reasons. Muslim elites voiced the most assertive demands for the

continued recognition of group law during the transition from colonial rule

and thereafter,

and the laws governing Muslims are less codiﬁed than those

applied to India’s other major religious groups. Thus, earlier religious texts

and traditions are standards of reference much more often in debates about

Muslim law than about India’s other family law systems. This leads such critics

to assume that Muslim laws give women the least rights and change the

least. However, Muslim laws neither give women fewer rights than India’s

other family law systems in every respect, nor are they more resistant to

change. For instance, Muslim women had greater rights to control shares

of ancestral property than Hindu women did in much of India until Hindu

inheritance law was changed in 2006.

(However, Hindu daughters have

rights to greater shares of their parents’ “self-earned” property than Muslim

daughters.) Additionally, it is easier for Muslim women than for Hindu

women to get divorce decrees in community courts. Moreover, Indian Muslim

law changed over the last generation to give women permanent alimony,

to restrict men’s right to unilaterally repudiate their wives, and to give earlier

wives the right to get a divorce if their husbands practice polygamy.

The experience of Indian Muslim law does not appear unusual when

viewed in a comparative perspective. Religious law is dynamic in many societies

when incorporated into contemporary state institutions. Women gained

greater rights over the last half century even while religious law and religious

norms remained inﬂuential in diverse countries such as Italy, Chile, Tunisia,

India, and Indonesia. Moreover, the versions of Islamic law, which contemporary

states recognize, vary considerably in the rights they grant women. While

some contemporary Islamic states give women greater rights than in India

(e.g., Tunisia, Libya, Jordan, Bangladesh, Indonesia), others give women fewer

rights (e.g., Algeria, Nigeria, Sudan, Iran, and until recently, Morocco).

2. See the contributions of Muslim political elites to the relevant sections of India’s

Constituent Assembly debates in Constituent Assembly Debates Ofﬁcial Report (1999,

vol. 7, 540–52, 829–39).

3. The Hindu Succession Act was earlier amended along these lines in four states: Andhra

Pradesh (1986), Tamil Nadu (1988), Karnataka (1990), and Maharashtra (1994). (The legal

abolition of the joint family in Kerala in 1975 had a similar effect on the inheritance prospects

of Hindu and Christian daughters.) Even after this change was extended to the rest of India

in 2006, the rights of Muslim daughters to ancestral property remained stronger than those

of Hindu daughters.

LAW & SOCIAL INQUIRY634

It is worth noting that Muslims account for the majority of the popu-

lation in all the countries just mentioned. Similarly, Islamic law grants women

greater rights in India than in some other Muslim-minority countries (e.g.,

Sri Lanka, Britain) but fewer rights than in others (e.g., Israel). This negates

the frequently expressed view that the constraints are greater to promoting

women’s rights within Islamic law in countries where Muslims are a minority

or where the

ulama

(Muslim religious scholars, the most inﬂuential of whom

serve as religious leaders) are allowed more inﬂuence over state-recognized

Islamic law.

The variations in the versions of Islamic law that policy makers

recognize, the practices that Islamic law governs, the entities engaged in

Islamic adjudication, and the interaction of Islamic law with other sources

of law do not correspond with the percentage of Muslims in the population.

Islamic law governs only family life in countries like India and Sri Lanka

but extends to aspects of crime and commerce in other countries such as

Nigeria and Pakistan. The main adjudicative bodies are state courts in which

the judges are mostly non-Muslim and mainly trained in Western law in

Britain; state courts in which judges are Muslims trained in Islamic law in

Malaysia; community courts in Israel; and both state courts and community

courts in India. Moreover, the extent of women’s rights does not correspond

with the

madhab

(school of Islamic law/jurisprudence) that governs particular

groups, since the earlier texts of these schools are interpreted very differently,

especially in contemporary state institutions. For instance, the school of

Maliki

law gives women many more rights in Tunisia and Libya than in Algeria,

while the school of

Hanaﬁ

law gives women more rights in Jordan and Iraq

than in Pakistan and India.

Legal mobilization inﬂuences women’s rights

under Islamic law. So do policy makers’ orientations, especially these elites’

approach to regulating family life, their normative vision of family life, their

valuation of cultural accommodation in family law, their understanding of

Islamic legal and cultural repertoires, and the extent to which they wish to

contain the authority of Muslim religious elites (Yilmaz 2005; Berman 2002;

An-Na’im 2002; Charrad 2001; Mir-Hosseini 2000).

This article outlines the major changes in Muslim law in India over

the last generation and the sources which fed these changes. It explains these

changes with reference to the patterns of legal mobilization and three features

of policy makers’ outlook: their approach to regulating family life, their

understanding of group norms, and their normative vision of family life. Policy

makers’ valuation of cultural accommodation in family law and their

4. The four main schools of Sunni jurisprudence are the Shaﬁ’i, Maliki, Hanaﬁ, and

Hanbali schools. The Hanaﬁ school applies to the majority of Indian Sunnis, among whom

smaller numbers are governed by the Shaﬁ’i school and the more recent Ahl-i-Hadith school,

which claims to be guided solely by Islam’s founding texts, the Quran and the Hadith. The

main Shia school of jurisprudence is the Ithna Ashari, which governs the majority of Indian

Shias. The Musta’lian Isma’ili school governs some Indian Shias.

Legal Change and Gender Inequality 635

inclination to contain Muslim religious authority have not changed much

since India’s independence in 1947, so they have not inﬂuenced the recent

legal changes.

Many observers claim that the passage of the Muslim Women’s

Protection of Rights Upon Divorce Act (MWPRDA) in 1986 arrested efforts

to reform Indian Muslim law by overturning a prominent instance of such

reform: the Supreme Court judgment in

Mohammad Ahmed Khan v. Shah

Bano Begum

(1985). This article corrects this misperception by demonstrating

that the state courts have been amending Muslim alimony and divorce laws

from the 1970s to present day and indeed that the Supreme Court actually

upheld the

Shah Bano Begum

judgment in its subsequent landmark verdict

on Muslim alimony in

Danial Latiﬁ v. Union of India

(2001). However, the

article conﬁrms that there are limits to change in Indian Muslim law. It shows

that changes have been introduced in Muslim law when policy makers found

credible justiﬁcation in group laws, group norms, and group initiatives but

not when such justiﬁcation has been found lacking. That is, gender-equalizing

changes were introduced but without abandoning concerns of cultural accom-

modation. Reformers did not change Muslim family law or the family laws

of other religious minorities—for example, Christians and Parsis—when they

found justiﬁcation

only

in the sources of law applicable to all Indians. So,

policy makers did not introduce the far-reaching changes for which the Indian

constitution might offer support.

Section I outlines the major features of Indian family law, its sources,

and the most important changes introduced since the 1970s, especially in

Muslim law. Section II identiﬁes the limitations of two interpretations of

these changes. Section III describes the changes in Muslim law in the state

courts and the sources of judicial reform. Section IV identiﬁes the variables

that caused changes in Muslim law and elaborates on the changes in legal

mobilization and the outlook of policy makers that shaped these changes.

Section V points to the interactions of law reform with the orientations of the

organizations engaged in the formation of Muslim law. Section VI summarizes

the argument and indicates its implications for likely future changes.

I. INDIAN FAMILY LAW: OUTLINES AND RECENT

CHANGES

System of Adjudication

Different family laws apply to most of India’s religious groups (Hindus,

Muslims, Christians, Parsis, and Jews) and some groups classiﬁed as tribes.

5. Hindu law governs Hindus as well as Sikhs, Buddhists, and Jains, but it is not applied

to tribal groups, some of whom the census considers Hindu.

LAW & SOCIAL INQUIRY636

The legislatures and courts share law-making authority. The powers of

adjudication are shared by state courts (whose personnel are not recruited

according to group membership) and community courts such as caste

associations, village councils, tribal councils, popularly recognized judges,

prayer groups, and churches. The judges in the state courts are primarily

trained in Western law, particularly in common-law traditions rather than

in religious law. Among the state courts, only the high courts of each state

and the Supreme Court may overrule sections of statutes. The decisions of

the Supreme Court set the deﬁnitive precedent for all other state courts,

and those of the high courts set precedents within the relevant state alone.

Only a higher bench of the Supreme Court, composed of more judges, can

override a prior Supreme Court decision.

High Court benches may depart

from the precedents of other benches of that court with fewer or the same

number of members.

Community courts do not rely on the same sources as the state courts

and do not necessarily follow the precedents set by state courts. But the

verdicts of community courts may be appealed in state courts, which uphold

some of these verdicts and overrule others. Litigants approach either state

courts or community courts initially; many approach community courts ﬁrst

as they have better links with them, and the cost and duration of cases tends

to be lower in these courts. This is particularly true of the residents of smaller

towns and villages. The social power of litigants inﬂuences judgments more

directly in community courts than in state courts. Community courts vary

in their level of institutionalization, ranging from irregular meetings presided

over by powerful men with local inﬂuence who rely on the threat of force

to the court systems of large religious institutions with many branches and

some ongoing authority. While community courts reduce the load on state

courts, some see them as threats to state authority.

Three kinds of community courts play important roles in Muslim

matrimonial cases: local mosque

jama’ats

(councils); popularly recognized

qazis

(judges), a few of whom are appointed by the executive branch; and

the more formally organized

dar’ul quzats

(courts) that are part of prominent

Muslim religious institutions (e.g., the Darul Uloom Deoband and the Darul

Uloom Manzar-e-Islam of Bareilly, both in Uttar Pradesh). The judges in

the

dar’ul quzats

are formally trained in Islamic jurisprudence, especially the

school of Islamic law upheld by the institution; most litigants recognize the

same legal school. The largest

dar’ul quzat

network is part of the Imarat-e-

Shariah, an institution formed in 1917 that also provides religious education

and medical services. It is based in Phulwari Sharif in Bihar and has many

branches in the eastern Indian states of Bihar, Jharkhand, Bengal, and Orissa.

6. A bench with a single judge may consider a Supreme Court case; its judgment may

later be overruled by benches with three, ﬁve, or seven judges.

Legal Change and Gender Inequality 637

Some Changes in Family Law

In the ﬁrst postcolonial generation, legislative change focused on Hindu

law as it was considered more appropriate for a predominantly Hindu

legislature to change the laws governing Hindus but not those applicable

to the other groups. Changes continued to be introduced thereafter in Hindu

law, in the criminal laws pertaining to family life and in the institutions

engaged in family law adjudication. Hindu daughters were given easier access

to their shares of ancestral property, indigent divorcees were given alimony

rights, and more stringent measures were adopted to punish those who

demanded dowry, received dowry, or inﬂicted domestic violence. Moreover,

family courts were established in many cities and towns to expedite matrimonial

adjudication (Agnes 1999; Menski 2001; Parashar 1992; Dhanda and Parashar

1999; Epp 1998).

The changes since the 1970s extended beyond Hindu law. The major

changes of this period gave Hindus, Christians, and Parsis the right to divorce

for a wider range of fault-based reasons, as well as on the basis of mutual

consent. Moreover, they gave these groups quicker access to divorce on the

grounds most frequently cited in divorce petitions such as cruelty, desertion,

or adultery. Additionally, unilateral male repudiation was less readily recognized

among Muslims, and Muslim divorcees gained permanent alimony rights.

The Major Sources of Family Law

The state courts draw from the following sources in family law cases:

(1) transnational “Western” law, (2) constitutional rights, (3) criminal laws

relevant to matrimonial life, (4) transnational Islamic law, (5) statutory

group-speciﬁc law, (6) uncodiﬁed group legal tradition, (7) other group norms,

(8) emergent group practices and initiatives, and (9) subgroup laws and customs.

(1)

Transnational Western law:

The most relevant features of transna-

tional “Western” law are the principles of the growing transnational human

rights regime and private international law. The Indian government signed

various transnational human rights agreements, including the Convention

on the Elimination of All Forms of Discrimination against Women

(CEDAW).

Rights organizations built networks with transnational human

rights institutions, and innovative lawyers used transnational law (Byrnes,

Connors, and Lum Bik 1996; Cook 1994; An-Na’im 1987–1988). However,

the globalization of law faced domestic constraints. When it signed the

CEDAW in 1980, as well as when it ratiﬁed it again in 1993, the Indian

government added the reservation that it would continue its policy of

7. http://www.un.org/womenwatch/daw/cedaw/text/econvention.htm (accessed April 6,

2008).

LAW & SOCIAL INQUIRY638

“non-interference in the personal affairs of any community without its

initiative and consent” (Merry 2006, 104–13). While the legislature did not

change family law in light of CEDAW, lawyers referred to CEDAW standards

in many family law cases, though without much effect.

(2)

Constitutional rights

: Many landmark family law judgments referred

to the fundamental rights in the Indian Constitution to amend statutes or

to depart from judicial precedent. The articles of the Indian Constitution

cited most frequently were Article14 (guarantees equality and equal pro-

tection), Article 15 (prohibits discrimination on various grounds including

sex and religion), and Article 21 (protects life and personal liberty, and has

been interpreted by the courts to also provide the rights to privacy and to

live in dignity). However, changes were not introduced based on constitutional

rights alone. The ruling of the Bombay High Court in

Narasu Appa Mali

v. the State of Bombay

(1952)—that unequal rights across religious groups

and gender, which Indian family law provided, were beyond the scope of

constitutional tests—shaped the approach of courts thereafter.

(3)

Criminal laws relevant to matrimonial life

: A good example is provided

by Section 125 of the Criminal Procedure Code (Cr. P. C.), requiring men

to support their wives, which became a major point of reference in alimony

cases after it was amended in 1973 to require husbands to maintain their

“ex-wives” too. Judges varied in the relative value they attached to the

criminal laws relevant to all Indians and to group-speciﬁc laws and traditions.

The two came into conﬂict with each other in Muslim alimony cases. Until

the above-mentioned criminal law amendment, the courts had given Muslim

divorcees maintenance only for

iddat

(a three-month period, after divorce

is initially pronounced, when men must support their ex-wives). Thereafter,

some decreed permanent alimony, following criminal law, while others

restricted maintenance to the three-month period, following precedents in

Muslim law.

(4)

Transnational Islamic law

: From the late 1970s, judgments and lawyers’

pleas have alluded more frequently to transnational Islamic law. They have

particularly referred to Islamic state law in countries where women enjoy

greater rights than in India, such as Tunisia, Libya, Jordan, Iraq, Indonesia,

and Malaysia, and sometimes to the innovative interpretations of Muslim

scholars in India and other countries.

(5)

Statutory group-speciﬁc law

: Statutes govern many aspects of family

life among Hindus, Sikhs, Jains, Buddhists, Christians, and Parsis. They govern

fewer features of family relations among Muslims and none among Jews.

8. Islamic law gives Muslim women more rights in Malaysia than in India in many respects

such as inheritance rights and constraints on unilateral male repudiation. But it inﬂuences

aspects of criminal law in Malaysia, unlike in India, and Islamic criminal law is particularly

gender-unequal in peninsular Malaysia’s eastern provinces of Kelantan and Terengganu, where

the Islamists are powerful. See Hooker (1983); Horowitz (1994); Siraj (1994).

Legal Change and Gender Inequality 639

(6)

Uncodiﬁed group legal tradition

: Precolonial legal texts inﬂuence many

aspects of family law in the state courts. Mitakshara and Hanaﬁ texts are

the main nonstatutory sources of Hindu and Muslim law in India. Mitakshara

law governs the majority of India’s Hindus, while Hanaﬁ law governs the

majority of India’s Muslims. Case law developed in the colonial courts

through a synthesis of religious and common-law traditions. Judges and lawyers

mainly rely on updated textbooks of colonial family law; they most often

cite Ameer Ali (1929), Mulla (1968), and Fyzee (1999) in Muslim law cases.

The state courts also recognize some laws speciﬁc to minority sects or schools

of law. Among Muslims, the Ithna Ashari (also called Jaf’ri) school of law

governs the majority of Shias, the Mustal’ian Ismai’li school governs a

minority of Shias, the Shaﬁ’i school governs a signiﬁcant minority of Sunnis

while the Ahl-e-Hadith school governs a smaller minority of Sunnis. Shia

women are allowed to retain their

mehar

(dower) after divorces they initiate,

contrary to the recognized practice of foregoing dower under the same

circumstances among Sunnis, who are the majority of Indian Muslims. Courts

do not often allow women governed by Shaﬁ’i law to retrospectively repudiate

marital alliances to which they did not consent, while allowing those

governed by Hanaﬁ law to do so until the consummation of their marriages

or until they turn eighteen.

Muslim community courts (especially the

dar’ul quzats

) rely more often

on precolonial legal texts. The Hanaﬁ courts mainly consult the

Hidayah

(Guidance, the classic Hanaﬁ juridical text of the twelfth century authored

by Burhan-ud-din Ali ben Abu Bakr al-Marghilani) and the

Fatawa-e-

Alamgiri

(the Compendium of Alamgir, composed in the seventeenth century

from the texts of various Islamic jurisprudential schools at the request of

the Mughal emperor Aurangzeb to guide the courts of the Mughal empire).

(7)

Other group norms

: The Qur’an, the Bible, and many early Hindu

texts provide guidelines for individual moral action. They are also considered

the foundations of later traditions of religious law. Some intellectuals and

activists argue that some of the guidelines in these texts should inﬂuence

legal regulation in contemporary contexts and such arguments inspired many

legal changes over the last century.

All schools of Islamic law claim that

they are based on the

sharia

, the moral guidelines indicated by the Qur’an

and the practices of the early Islamic community, which practicing Muslims

9. See Fyzee (1964). Based on interviews with Maulana Jaseemuddin, Chief Qazi, Imarat-

e-Shariah, August 1–2, 2006, in Phulwari Sharif, Bihar; and Maulana Mohammad Burhanuddin

Sambhali, Chief Qazi, Darul Uloom Nadwatul Ulama, August 10, 2006, in Lucknow, Uttar

Pradesh. The author conducted all the interviews cited in this article and has transcripts or

notes of these interviews.

10. Stowasser (1994) and Kvam and Ziegler (1999) discuss reformist interpretations of

the founding texts of the Semitic religions. Hooker (1983), Mir-Hosseini (2000), Charrad

(2001), An-Na’im (2002), and Yilmaz (2005) document the inﬂuence of such interpretations

on Islamic law in many countries.

LAW & SOCIAL INQUIRY640

take to be described in the

hadith

(oral traditions regarding the Prophet

Muhammad’s statements, actions, and endorsement of others’ actions).

However, they vary in their

ijtihad

(interpretation) of these sources, as well

as the freedom they give the religious literati and observant Muslims to

incorporate novel interpretations into

ﬁqh

(substantive law) and

usul al-ﬁqh

(jurisprudence/legal theory/method of legal reasoning).

Some recent reforms

in Indian Muslim law in the state courts were based on interpretations of

Islam’s founding texts which differ from those of most Hanaﬁ

ulama

(8)

Emergent group practices and initiatives

: Courts sometimes draw from

emergent group practices and initiatives. For instance, some drew from the

extensive practice and acceptance of divorce in Protestant churches and

among Christian laity to give Christians more extensive divorce rights in

the 1990s.

(9)

Subgroup laws and customs

: In less systematic ways, courts also con-

sider long-lasting customs speciﬁc to caste, sect, or region legitimate grounds

for departure from some of the laws of the religious groups to which these

subgroups belong.

The ﬁrst source is said to be universally applicable, and the second and

the third apply to all Indians. The last six govern only particular religious

or cultural groups, although some claim that the ethical considerations

underlying them have universal relevance. As none of the sources provides a

deﬁnite answer to every matrimonial dispute, and these sources frequently suggest

different judgments, there is considerable room for judicial interpretation.

The sources of family law judgments changed over time. In the colonial

and early postcolonial periods, these verdicts drew mostly from statutory law,

texts of Anglo-Indian religious law, and case precedent. Judges did not engage

in much independent interpretation of uncodiﬁed traditions. This was

speciﬁcally true in Muslim law cases as judges’ knowledge of Islamic traditions

and transnational Islamic law was limited and conservative Muslim elites

opposed novel interpretation, especially by those they did not consider

experts in Islamic law. The choice not to engage in independent interpretation

also drew authority from the injunctions of Sunni orthodoxy against the

reinterpretation of Islam’s founding texts. It had two implications relevant

to subsequent change. First, the courts restricted the obligation of Muslim

men to support their ex-wives only for the three-month

iddat

period, and

made the ex-wife’s natal kin or

waqf

boards (religious or community welfare

trusts) responsible to provide for her thereafter if she became indigent. They

did so although verses of the Qur’an suggest that the husband provide for

11. The Shia and the Ahl-i-Hadith

ulama

usually grant religious scholars and others the

right to engage in

ijtihad

more readily than do the majority of Sunni

ulama

. A variety of Sunni

ulama

and partly Westernized intellectuals have engaged more extensively and consciously in

ijtihad

since the nineteenth century.

Legal Change and Gender Inequality 641

the ex-wife’s future or require such provision according to some interpretations.

Second, the courts recognized the so-called triple

talaq

(men’s immediate

unilateral and irrevocable repudiation of their wives), typically pronounced

by the husband with the verbal or written statement “talaq, talaq, talaq”

(“I divorce you,” repeated thrice). The courts recognized this triple

talaq

procedure, although unilateral male repudiation was deemed

raja’i

(revocable)

in the early Islamic community, by some inﬂuential Hanaﬁ jurists and some

schools of Islamic law governing many Indians (the Ithna Ashari, Musta’lian

Isma’ili, and Ahl-i-Hadith schools). Other schools of Islamic law preferred

different divorce procedures. All schools of Islamic law prefer that the

husband’s initial pronouncement of divorce be considered revocable for a

three-month period, during which they recommend efforts at spousal

reconciliation. The restriction of the obligation of men to support their

ex-wives to a three-month period worked against the interests of Muslim

divorcees, as their heirs and natal kin were often unable or unwilling to

support them thereafter. The prospect of the husband’s unilateral repudiation

taking immediate effect could make marital relations seem very unstable,

especially for women of limited independent means. Only a small minority

of Muslim women enjoy the right to unilaterally terminate their marriages:

those whose husbands gave them the

talaq-e tafwid

(delegated divorce right)

in their

nikahnama

(marital contracts) (Carrol 1997).

Over the last generation, some judges in the higher courts became more

familiar with transnational Islamic law, Islamic legal and normative traditions,

and recent reformist interpretations of these traditions. The increased reliance

of rights organizations on such sources in propaganda and litigation, the

growth of links between these organizations and the legal elite, and the

increased involvement of some of India’s legal elite in transnational legal

networks contributed to this change. Moreover, some judges became more

inclined to promote gender equality. As a result, some recent landmark

judgments gave women more rights by drawing from Islamic legal and

normative traditions and transnational Islamic law. Some judgments that

granted permanent alimony drew from a Qur’anic verse and Islamic law in

the state courts of Tunisia, Jordan, Iraq, Indonesia, and Malaysia, and those

that ended the immediate recognition of unilateral male repudiation drew

from Qur’anic verses and recent commentaries.

II. INTERPRETATIONS OF INDIAN FAMILY LAW

Many scholars argue that the recognition of cultural diversity in Indian

family law seriously inhibited gender-equalizing change, especially in the laws

of the religious minorities. Indeed, Parashar (1992, 160) claims that “there

has been no reform of Islamic personal law in the independent state of India,”

and Singh (1994, 375) writes that most of India’s family laws “have either

LAW & SOCIAL INQUIRY642

remained static or have changed in retrogressive ways.” Reform is said to

have been inhibited by the authority of conservative elites and the close

links that many felt between group identity and group law (Parashar 1992;

Sunder Rajan 2003; Kapur and Cossman 1996; Jacobsohn 2003). This

interpretation suffers from many problems.

First, the above understanding ignores the changes in Muslim, Christian,

and Parsi law over the last generation. Second, it inaccurately suggests that

Hindu law gives women greater rights than other Indian family laws. Contrary

to this claim, Muslim and Christian women had greater rights to control

shares of ancestral property than Hindu women did in much of India, until

Hindu inheritance law was changed in 2006. Third, this approach does not

recognize or explain the partial convergence of India’s different family law

systems since the 1970s. For instance, divorce became more readily available

to both Hindus and Christians and on much the same grounds—mainly

cruelty, desertion, adultery, or mutual consent. Fourth, this view does not

adequately recognize the increased challenges to the gendered visions

of conservative minority religious elites. Challenges emerged from women’s

organizations and rights organizations among both Muslims and Christians.

They urged some Muslim religious elites to oppose the immediate recognition

of unilateral male repudiation and pressed Christian churches to accept more

equal and extensive divorce rights (Dhanda and Parashar 1999; Menski 2001;

Gandhi and Shah 1992).

Finally, this interpretation assumes that religious laws and group-speciﬁc

family laws are hard constraints to gender-equalizing change. Evidence from

various countries does not support this premise. Women gained greater rights

after decolonization in many countries where family laws were rooted

in religion. State elites found such legal changes a means to gain greater

autonomy from religious elites and kin structures in Tunisia, Jordan, and Iraq

(Charrad 2001; Joseph 2000; Joseph and Najmabadi 2005). Such changes

helped the state elites demonstrate their commitment to modernization in

a wider range of countries, including countries with plural legal systems like

Malaysia, Indonesia, Sri Lanka, and India (Hooker 1983; Agnes 1999;

Goonesekere 2004). While these changes fell well short of the aspirations

of the feminists of the time, this was due more to the limits to which policy

makers prioritized gender equality than because family laws were partly based

on religious traditions. The subsequent growth of women’s organizations and

other rights’ organizations led policy makers to grant women further rights

in some of these countries while retaining religious or plural legal systems.

Shankar (2002, n.d.) attributes the onset of reform in Indian Muslim law

to an increase in judicial autonomy. She claims that the judicial elite were not

in accord with the political elite’s prioritization of cultural accommodation

over gender equality—indeed that judiciaries in all liberal democracies

prioritized individual rights to political equality over practices based on group

culture. Once the judicial elite gained sufﬁcient autonomy from the political

Legal Change and Gender Inequality 643

elite in the 1990s, the Indian judiciary is said to have promoted women’s

rights in family law. This argument is seriously ﬂawed.

First, Shankar claims that judicial autonomy increased from 1996, when

multiparty coalition governments ruled India, but the judicial reform of

non-Hindu law actually started two decades earlier. The coalition governments

have been reasonably stable since 1999, and one of them signiﬁcantly

changed Christian divorce laws in light of judicial suggestions, some of which

date from the 1960s; another revised Hindu inheritance laws based on reforms

made by ﬁve state governments (the state reforms date from the 1980s).

Although the judiciary gained greater powers of judicial review starting in

the 1960s, it had enjoyed considerable autonomy in its interpretation

of family law since India’s independence in 1947. It had particularly great

autonomy in the adjudication of Muslim law cases because of the limited

codiﬁcation of Muslim law. The most important legislation regarding Muslim

law, the Muslim Personal Law Application Act of 1937, merely stated that

the Sharia governs Muslims in family matters without specifying which

version of Islamic law it recognized. Of the other two Muslim law acts (the

Dissolution of Muslim Marriages Act and the MWPRDA), the latter took

effect only in 1986. So, much of the content of India’s Muslim law was left

to the judiciary’s discretion (Mahmood 1997; Agnes 1999; Verma 2002;

An-Na’im 2002).

Second, judiciaries accepted sharp inequalities across race, gender, and

religious group in various liberal democracies. The acceptance of racialized

slavery and then racial segregation in the United States is particularly notable

(Kluger 2004; Cottrol, Diamond, and Ware 2003). In India, judges accepted

unequal rights across religious group and gender in family life since

Narasu

Appa Mali v. the State of Bombay

(1952), although they had the autonomy

to rule otherwise. They did so because they valued cultural accommodation

in family law, much as the legislators did, and because they felt it was more

appropriate that the executive and the legislature decide whether and when

to override recognized cultural norms to promote equality. Third, the reform

of minority law was mainly grounded in the group-speciﬁc sources of law.

III. CHANGES IN MUSLIM LAW

Alimony

Through the colonial and early postcolonial periods, the courts required

Muslim men to provide for their ex-wives only for three months, in addition

to returning their dower, which the man’s family typically controlled while

the couple was married. Maintenance was decreed for longer periods only

in exceptional cases when marriage contracts required this (

Muhammad Muin-

ud-din v. Jamal Fatima

1921). The period through which the man was obliged

LAW & SOCIAL INQUIRY644

to support his ex-wife was dependent upon when the courts ruled the divorce

took effect. Courts varied in when they ruled unilateral male repudiation

(the most frequent form of divorce among Indian Muslims) took effect, which

was when witnesses attested that the man pronounced divorce (even if in

the wife’s absence), when the man wrote a divorce statement, when the woman

was informed of the divorce, or when the man stated in court that he

had repudiated the woman. The men were then required to provide main-

tenance until three months after the date on which the divorce took effect.

The amendment of Section 125 of the Cr. P. C. in 1973, requiring men

to pay permanent alimony, was meant to apply to all religious groups. But

Section 127(3)(b) of the Cr. P. C. deducted any amount the husband may

have already given his ex-wife—following the requirements of the personal

law governing the couple—from the payment the husband owed. This clause

was introduced in response to the demands of some Muslim legislators for

the deduction of the dower from the maintenance obligations of Muslim

men (Parashar 1992, 164–68).

However, some Muslim men argued that

the clause meant that they were obliged to support their ex-wives only for

three months.

The state high courts varied in their responses to such pleas between

1973 and 1985. The husbands were required to pay permanent alimony in

more of these cases until 1985, and three judgments of the Supreme Court

from 1979 to 1985, including one by a Constitution Bench, lent this inter-

pretation authority.

The courts required Hindu husbands to pay permanent

alimony in all maintenance cases after 1973, in contrast with their varying

responses in similar cases involving Muslims. In some, but not all, cases,

they deducted the maintenance payments that Hindu husbands had already

made, based on statutory or uncodiﬁed Hindu law, from the further amount

the husband owed the wife.

12. The divorce was dated when the man declared that he divorced the woman in

Sarabai

v. Rabiabai

(1905),

Ma Mi v. Kallander Ammal

(1927), and

Ahmad Giri v. Masarat Begha

(1955);

on the date of the man’s written divorce statement in

Asmata Ullah v. Khatun-unnisa

(1939),

Chandbi v. Bandesha (1961), Mohammad Haneefa v. Pathummal Beevi (1972), and Jaitunbi

Mubarak Shaikh v. Mubarak Fakruddin Shaikh (1999); when the woman learned of the divorce

in Kathiyamma v. Urathel Marakkar (1931) and Abdul Khader v. Aziza Bee (1944); and the

day the man told the court that he had divorced the woman in Syed Jamaluddin v. Valian Be

(1975) and Shaikh Jalil v. Bibi Safrunnisa (1977).

13. Conservative Muslim legislators did so although Islamic legal traditions clearly

distinguish the husband’s obligation to pay dower from his maintenance obligations. Judges

nevertheless distinguished between the two obligations in Hamira Bibi v. Zubaide Bibi (1916),

Syed Sabir Husain v. Farzand Hasan (1938), Mohammad Ahmed Khan v. Shah Bano Begum (1985),

and Abdul Khader v. Smt. Razia Begum (1990).

14. Some of the high court cases following this pattern were Khurshid Khan Amin Khan

v. Husnabanu (1976) and Mehbubabi Nasir Shaikh v. Nasir Farid Shaikh, (1976). The relevant

Supreme Court judgments were Bai Tahira v. Ali Hussain Fisalli Chothi (1979), Fuzlunbi v. Khader

Vali (1980), and Mohammad Ahmed Khan v. Shah Bano Begum (1985). The courts required

the payment of maintenance for just three months in other cases such as Rukhsana Parvin v.

Sheikh Mohammad Hussain (1977) and Aluri Sambaiah v. Shaikh Zahirabi (1977).

Legal Change and Gender Inequality 645

The verdicts between 1973 and 1985, granting Muslim women permanent

alimony, relied on the argument that legislators meant the criminal law

requiring permanent alimony to apply to all Indians, as well as on interpreting

verses of the Qur’an to require husbands to provide permanent maintenance.15

The use of the ﬁrst standard appeared to give criminal law primacy over

Muslim law. But the reference to the Qur’an justiﬁed permanent alimony

with reference to Islamic norms. For instance, the Supreme Court’s Shah Bano

Begum judgment relied on the interpretations of some Qur’anic verses offered

by Arthur Arberry (renowned British scholar of Arabic and Islamic studies)

and Allamah Khadim Rahmani Nuri (the author of a widely cited commentary

on the Qura’n) to require husbands to provide for their ex-wives and rejected

the claims that this was a requirement only for the particularly righteous

rather than for all Muslim men. Additionally, the judgment added that Islam

disregarded women’s dignity, that a UCC should be introduced, and that

instead of wasting their energies in exerting theological and political

pressure in order to secure an “immunity” for their traditional personal

law from the State’s legislative jurisdiction, the Muslims will do well

to begin exploring and demonstrating how the true Islamic laws, purged

of their time-worn and anachronistic interpretations, can enrich the

common civil code of India. (Mohammad Ahmed Khan v. Shah Bano

Begum 1985, 959)

Conservative Muslims responded to this judgment with the most

extensive legal mobilization seen in India since the 1950s. They opposed

the following features of the judgment: commonly applicable laws overriding

provisions of group law, the courts presuming to interpret the Qur’an rather

than following recognized commentaries, the recommendation that the

legislature introduce a UCC, and the characterization of Islam as incompatible

with women’s dignity.

The Indian Parliament passed the MWPRDA in 1986 to contain con-

servative Muslim mobilization against the 1985 Shah Bano Begum judgment.

Although conservative Muslim leaders participated in framing this act and

supported it, some of the act’s provisions did not clearly ﬁt their position

that Muslim husbands should be required to pay alimony only through the

iddat period.16 While Section 3 restricted the husband’s maintenance

15. The relevant verses in the Qur’an read: “For divorced women, maintenance should

be provided on a reasonable scale” (Sura 2 (Baqara): 240– 42) and “Let the divorced women

dwell where ye dwell, according to your means, and do not harm them, to reduce them to

straits” (Sura 65 (Medinah): 5).

16. Makhan Lal Fotedar, who was an adviser to Prime Minister Rajiv Gandhi, is said to

have pressed the conservative Muslim leaders into accepting the act’s ambiguous wording, using

the threat that the act would not be placed before parliament unless it was approved in the

form that the Law Ministry had drafted it. Interview: Yusuf Hatim Muchhala, Convenor, All India

Muslim Personal Law Board (AIMPLB) Legal Committee, July 1, 14, and 31, 2007, in Delhi.

LAW & SOCIAL INQUIRY646

obligations to the iddat period, Sections 3(1)(a) and 4 called for the husband

to pay for his ex-wife’s “fair and reasonable provision” (perhaps in addition

to maintenance) for an unspeciﬁed length of time “within the iddat period.”

The intent of legislators, as reﬂected in the positions taken by most of the

act’s supporters and opponents in the Indian Parliament, was to restrict the

husband’s economic obligations to his ex-wife to just three months.17 However,

the act lent itself readily to the interpretation that the husband should make

a lump-sum payment to support his ex-wife for an indeﬁnite period within

three months of pronouncing divorce. So, the passage of the MWPRDA

did not end contestation in the courts over Muslim alimony regulations.

Lawyers contested the MWPRDA’s possible restriction of the husband’s

maintenance obligations to the iddat period in a number of maintenance

cases ﬁled on behalf of Muslim divorcees between 1986 and 2001. They did

so with reference to the wording of the MWPRDA, which they took to dictate

permanent maintenance, the alleged incompatibility of inadequate provision

for indigent women with the constitutional rights to life and dignity (Article

21) and the presumed incompatibility of authorizing different alimony rights

according to religious group membership with the rights to equality and non-

discrimination (Articles 14 and 15). In addition, they reiterated the claims

made in similar cases ﬁled before the MWPRDA’s passage regarding the

legislative intent behind the 1973 amendment of Article 125 of the Cr. P. C.

The high courts responded differently to these permanent alimony

plaints, much as they had before the MWPRDA was passed. Minimalist courts

interpreted the MWPRDA to require nothing of the ex-husband but

maintenance during iddat and the payment of dower, resisted interpreting

the Qur’an otherwise, and left it to legislators to resolve tensions between

such alimony guidelines and the Constitution.18 Some of them drew more

from uncodiﬁed Muslim law than the MWPRDA to restrict alimony rights

(Usman Khan Bahamani v. Fathimunnisa Begum 1990), while others granted

maintenance for just three months, even if the marriage was conducted before

17. However, some women legislators who supported the act did suggest that the act

would enable satisfactory provision for Muslim divorcees. Some conservative Muslim leaders

say that they foresaw the dangers in the draft wording and suggested to Rajiv Gandhi, then

Indian Prime Minister, that the phrase “for the iddat period” replace “within the iddat period”

to clarify the period for which provision was required. Interviews (all conducted in Delhi):

Dr. Qasim Rasool Ilyas, Secretary, AIMPLB, April 10, 2003; Maulana Jalaluddin Umri, Vice-

President, Jamaat-i-Islami Hind, April 10, 2003; Yusuf Hatim Muchhala, Convenor, AIMPLB

Legal Committee, July 14, 2007; Zafaryab Jilani, AIMPLB lawyer, July 23, 2006; Syed

Shahabuddin, former President, Muslim Majlis-e-Mushawarat, July 24, 2006.

18. See Ramzan v. Smt. Salma (1987), Abid Ali v. Mst. Rasia Begum (1988), Mohamed

Ibrahim v. Ramzan Begum (1993), Mrs. Nazimunnissa Begum v. Abdul Majeeth (1994), Shaikh

Dada Saheb v. Shaikh Mastan Bee (1995), Noor Jehan v. State of Maharashtra (1996), Abdul

Haq v. Yasmin Talat (1998), and Aziza Khan v. Dr. Amir Hussain (1999). Some courts allowed

divorcees to enjoy parts of their husband’s immovable property until the husband paid the

dower (Md. Nayeem Khan v. Union Law Secretary, Government of India 2002).

Legal Change and Gender Inequality 647

the passage of the MWPRDA (G. M. Jeelani v. Shanswar Kulsum 1992),

though not if lower courts had ruled in favor of permanent alimony before

the MWPRDA was passed (M. H. Hameed v. Arif Jan, alias Shahida Begum

1990; Abdul Khader v. Smt. Razia Begum 1990). In most of these cases, the

courts did not direct the divorcee’s heirs or waqf boards to support the woman,

although the MWPRDA called for one or the other to assume maintenance

responsibilities after iddat. In the few cases in which the courts required this,

they did not ensure that this responsibility was fulﬁlled (Syed Fazal Pookaya

Thangal v. Union of India 1993; Sadique Ali v. Apar Sessions Naiyai Dheesh 1995).

Other courts ruled in favor of more generous provisions for Muslim

divorcees. The majority of them found justiﬁcation for their verdicts in the

MWPRDA’s call for “fair and reasonable provision,” which they took to apply

to the period until the divorcee’s remarriage or death, the claims to protect

Muslim women’s rights in the act’s preamble, and by reading the act in light

of the Constitution’s guarantees of the rights to life, dignity, and equality.19

Some courts considered such provision compatible with the Qur’an (for

instance, Arab Ahmedhia Abdullah v. Arab Bail Mohmuna Saiyadbhai 1988;

Danial Latiﬁ v. Union of India 2001), and others took the MWPRDA to supersede

uncodiﬁed Muslim law in this context, if the latter indeed restricted alimony

rights to the iddat period (Ali v. Sufaira 1988; Aliyar v. Pathu 1988). Yet

other courts grounded permanent alimony decrees for Muslim divorcees on

the argument that the mandate of Section 125 of the Cr. P. C. (that husbands

provide permanent maintenance) overrode the MWPRDA (Abdullah Rauf

Khan v. Halemon Bibi 1989; Noor Saba Khatoon v. Mohammad Quasim 1997).

In some of the cases in which women were given maintenance beyond iddat,

the maintenance payments were well in excess of the maximum amount

decreed under Section 125 of the Cr. P. C. for non-Muslim divorcees, which

was ﬁve hundred Indian rupees per month (about $10 U.S.). This was crucial

as, with the passage of time, inﬂation had rendered 500 rupees per month

insufﬁcient for an individual’s maintenance.

The Supreme Court resolved the differing signals given by high courts

in Danial Latiﬁ v. Union of India (2001), in which the lead lawyers who had

represented Shah Bano Begum earlier successfully argued that Muslim men

owed their ex-wives permanent alimony even after the passage of the

MWPRDA. This made the alimony claims of Muslim women potentially

stronger than those of non-Muslim divorcees as the judgment placed

no ceiling on maintenance payments for Muslim divorcees. Only a legislative

amendment to Section 125 of the Cr. P. C., passed later in 2001, removed

19. Some of the high court judgments along these lines were Ahmed v. Aysha (1990),

Abdul Khader v. Smt. Razia Begum (1990), Jaitunbi Mubarak Shaikh v. Mubarak Shaikh (1993),

Kunhammed Haji v. K.Amina (1995), Kaka v. Hassan Bano (1998), Shaikh Babbu v. Sayeda

Masarat Begum (1999), Karim Abdul Rehman Shaikh v. Shehnaz Karim Shaikh (2000), Abdul

Latif Mondal v. Anuwara Khatun (2001), Hasenara Begum v. Fazar Ali (2002).

LAW & SOCIAL INQUIRY648

the ceiling on maintenance payments and brought the alimony rights of

non-Muslim women on par once again with those of Muslim women.

Nevertheless, books published as late as 2003 said the MWPRDA was “regressive”

(Sunder Rajan 2003, 148–49), and an important political philosopher

claimed it should be called the “The Protection of Muslim Husbands’ Rights

on Divorce Bill” (Okin 2001).

The court’s full bench in the Danial Latiﬁ case justiﬁed permanent

alimony with reference to the MWPRDA, the Qur’an, the Indian Constitution,

and Islamic law as applied in Tunisia, Jordan, Iraq, Indonesia, and Malaysia.

It proclaimed the Shah Bano Begum judgment a deﬁnitive precedent even

after the passage of the MWPRDA, although the MWPRDA seemed

intended to overrule the latter judgment. Justice S. Rajendra Babu, the author

of the main Danial Latiﬁ judgment, indicated that the bench was unlikely

to have decreed permanent alimony in this case on the basis of constitutional

provisions alone, but litigants and prior judgments had made the bench aware

that the MWPRDA lent itself to being interpreted in favor of the verdict

and that verses of the Qur’an could be read to favor permanent alimony.20

This restrained exercise in judicial reform resisted pleas to invalidate sections

of the MWPRDA, although this act seemed intended to deny Muslim women

permanent alimony, as well as to rule some features of uncodiﬁed Islamic

law irrelevant. The court’s restraint in the Danial Latiﬁ case was in contrast

with the calls of earlier Supreme Court Benches for a UCC in Shah Bano

Begum and Sarla Mudgal. It was in keeping with the court’s approach in more

recent cases in which activist lawyers demanded widespread changes in family

law: Ahmedabad Women’s Action Group v. Union of India (1997) and Lily

Thomas v. Union of India (2000). These later judgments underlined that the

courts were willing to amend features of group-speciﬁc law but not to

introduce far-reaching changes based on constitutional principles.21

20. Interviews in Delhi: Justice S. Rajendra Babu, former Chief Justice of India and Chair,

National Human Rights Commission, July 2–3, 2007; Justice Shivaraj Patil, former Supreme

Court judge, on Danial Latiﬁ bench, June 21, 2007; Justice G. B. Pattanaik, former Supreme

Court judge, on Danial Latiﬁ bench, June 30, 2007; Justice M. B. Shah, former judge on Gujarat

high court and Supreme Court, author of Arab Ahmedhia Abdullah (1988), the ﬁrst high court

judgment to award permanent alimony to a Muslim divorcee after the passage of the Muslim

Women’s Act, July 5, 2007. Interview in Chennai: Justice Doraiswamy Raju, former Supreme

Court judge, on Danial Latiﬁ bench, August 7, 2007. Justice Rajendra Babu said that some

members of the bench might have been inclined to overrule aspects of the Muslim Women’s

Act based on constitutional rights, even if reasons for reform were not found in the wording

of the act and Islamic norms. But, he added, it could have been difﬁcult to achieve consensus

on the bench under these circumstances, and the political elite might have found it difﬁcult

to support such a judgment in the face of the strong opposition it was likely to have faced

from many Muslims.

21. Interviews in Delhi (all are lawyers): Sona Khan, April 28 and May 1, 2003; Indira

Jaising, July 20, 2006; Kirti Singh, April 11, 2003.

Legal Change and Gender Inequality 649

The Danial Latiﬁ judgment did not evoke conservative Muslim

mobilization for the legislature to overrule it, as the Shah Bano Begum and

Sarla Mudgal judgments had, partly because of its restraint. Conservative

mobilization was also deterred by the changed political context since Shah

Bano Begum in 1985—by the greater strength of Hindu nationalism, the

increase in violence against Muslims, and the Bharatiya Janata party (BJP)

leading the national coalition government. The lack of concerted conservative

opposition to the Danial Latiﬁ judgment makes it unlikely that Muslim women

will lose their rights to permanent alimony in the higher state courts. The

knowledge of judges and lawyers in the lower courts is uneven about such

recent landmark judgments, however, and some lower courts continue to

restrict maintenance for Muslim divorcees to a three-month period.

If, in the future, the judiciary interprets the MWPRDA’s requirement

that Muslim men provide “fair and reasonable provision” to their ex-wives

to give them shares in matrimonial property, this would place Muslim

divorcees in a stronger position than non-Muslim divorcees. (The Protection

of Women from Domestic Violence Act, which the parliament passed in

2006, gives all Indian women the right to reside in the matrimonial home.

But this is still far short of a right to share in all matrimonial property.)

The considerable sums that the courts awarded a few Muslim divorcees with

wealthy ex-husbands suggest that this might be possible. The language of

the MWPRDA lends itself to such an interpretation, while Section 125 of

the Cr. P. C. (which governs non-Muslims, and in light of the conﬂicts in

case law already discussed, perhaps Muslims too) does not.

Unilateral Male Repudiation

Courts often assessed the validity of unilateral male repudiation when

considering the claims of Muslim women for maintenance from their

husbands. This was because until 1973 all courts recognized maintenance

rights beyond a three-month period only if the marriage continued to exist

in the court’s view, and many courts took that position even thereafter,

especially between 1986 and 2001. The man often minimized his obligations

in such maintenance cases by declaring that he had already divorced the

woman or that he was divorcing her immediately. The effects of the courts

accepting the validity of unilateral male repudiation varied. Women litigants

lost post-iddat maintenance in all cases until 1973 and in many cases between

1986 and 2001. But in some cases after 1986, the MWPRDA was interpreted

to require the men to give their ex-wives substantial provision for the future,

while leaving the women free to marry someone else. The invalidation of

unilateral male repudiation sometimes favored men, as it did in Furzund

Hossein v. Janu Bibee (1878), in which the man gained the right to his wife’s

conjugal company.

LAW & SOCIAL INQUIRY650

The judiciary initially recognized unilateral male repudiation uncondi-

tionally and later introduced some conditions for its validity. Adjudication

on this issue was based on uncodiﬁed Muslim legal traditions, the Qur’an,

and colonial precedent, not on legislation or the constitution. Indeed, there

was no legislation about male repudiation. Judges recognized unilateral male

repudiation to be irrevocable in colonial times, although this neither

concurred with their normative vision of durable marital bonds nor with

the practices valued in the early Islamic community and by all schools of

Islamic law. A judgment in 1905 standardized the rationale for this position,

saying that the irrevocability of the triple talaq was “good in law, though

bad in theology” (Sarabai v. Rabiabai 1905, 537). The courts followed

this precedent until 1978, varying only on whether the divorce may be

pronounced in the wife’s absence and the standards of proof (from none to

oral or written evidence).

Some judges expressed misgivings about the ready availability of

unilateral male repudiation, yet recognized the practice on the claim that

Islamic tradition provided no alternative (Sarabai v. Rabiabai 1905, Asha Bibi

v. Kadir Ibrahim 1909). In doing so, they based their decisions on the rules

of the Hanaﬁ school, which governs most Indian Muslims, rather than

promote the durability of the conjugal family by drawing from other schools

(the Ithna Ashari, Musta’lian Isma’ili, and Ahl-i-Hadith), which govern a

signiﬁcant minority of Indian Muslims.22 Colonial judges did not resort to

such eclecticism, although talﬁq (an eclectic method of borrowing from other

Islamic legal schools) was widely recognized for a long time in Islamic

jurisprudence, if done judiciously by highly trained Islamic jurists. Muslim

religious elites occasionally resorted to talﬁq to help frame reformist legisla-

tion, notably in drawing from Maliki law to provide women greater divorce

rights in the Dissolution of Muslim Marriages Act of 1939, but not to restrict

unilateral repudiation (Zaman 2002).

Some judges ruled in the 1970s that the talaq-ul ba’in was incompatible

with Islamic traditions. Justice Krishna Iyer opined so in an obiter dictum in

A.Yousuf Rawther v. Sowramma (1971), and Justice Baharul Islam further ruled

22. Courts sometimes recognize the different treatment of the triple talaq in Shia

jurisprudence, if urged by lawyers, but do not do so in a systematic fashion. This is in contrast

with the more systematic application of different inheritance laws to Shias. Some Shia ulama

and the recently formed Shia Personal Law Board demand that courts recognize the

distinctiveness of Shia law more systematically. The triple talaq seems to be widely practiced

among Indian Shias, much as it is among the Sunnis, although the schools of Shia law do

not support this practice. Interviews in Lucknow: Shiko Azad, founder, Shia Personal Law Board,

August 10, 2006; Maulana Kalbe Sadiq, Vice-President, AIMPLB and the most prominent

Shia leader of the AIMPLB, August 11, 2006. Interviews in Delhi: Yusuf Hatim Muchhala,

Convenor, AIMPLB Legal Committee, July 1, 14, and 31, 2007; Justice Aziz M. Ahmadi,

former Chief Justice of India and the most prominent Shia judge, July 17, 2007; Maulana

Aqeel al-Gharavi, Shia religious scholar, AIMPLB member, and Vice President, Muslim Majlis-

e-Mushawarat, July 30, 2007.

Legal Change and Gender Inequality 651

in Jiauddin Ahmed v. Anwar Begum (1978) that the triple talaq is revocable.

The latter judgment quoted relevant verses from the Qur’an, and some

commentators, to conclude that:

the correct law of talaq as ordained by the Holy Qur’an is that talaq

must be for a reasonable cause and be preceded by attempts at re-

conciliation between the husband and the wife by two arbiters—one

from the wife’s family and the other from the husband’s. If the attempts

fail, talaq may be effected. (Jiauddin Ahmed v. Anwar Begum 1978, 388)

It established two conditions for the validity of repudiation—the

husband indicating a reasonable cause and an attempt having been made

at reconciliation.

The verdict against the irrevocable nature of the triple talaq initiated

not only similar verdicts from some other high courts but also declarations

of support from some conservative Muslim religious institutions (Jamaat

Ahl-i-Hadith) and political organizations (Muslim Majlis-e-Mushawarat).

Conservative Muslim elites were less unanimous in their opposition to the

restriction of unilateral repudiation than to permanent alimony because the

Qur’an provided a clearer basis for the ﬁrst than for the second (Jamaat

Ahl-i-Hadith 1994; Shahabuddin 1992; Mahmood 1998; All India Muslim

Personal Law Board 2002).23 As a result, the All India Muslim Personal Law

Board (AIMPLB), the most important defender of Muslim law precedent,

did not intervene in the cases in which the validity of the triple talaq was

contested. Smaller associations of Muslim religious elites or lawyers defended

the maintenance of precedent in some of these cases but had fewer resources

at their disposal.24 The support of some conservative Muslim elites lowered

the obstacles to the consolidation of Muslim divorce law reform.

The high courts responded differently to cases regarding the validity

of unilateral male repudiation from 1978 until the Supreme Court delivered

23. Interviews in Delhi: Maulana Abdul Wahab Khilji, former General Secretary, Jamaat

Ahl-i-Hadith, May 4, 2003; Syed Shahabuddin, former President, Muslim Majlis-e-Mushawarat,

July 24, 2006; Justice Badr Durrez Ahmed, author of a judgment against the triple talaq, August

1, 2007. Interviews in Chennai: Habeebulla Basha (lawyer), January 24, 2003; Justice S. A.

Kader, February 2, 2003; Justice A. Abdul Hadi, February 24, 2003.

24. For instance, the Islamic Shariat Board (based in Kerala) intervened in Shamim Ara,

and the Tamil Nadu Advocates Meelad Forum intervened in Parveen Akhtar. Interviews in

Delhi: Justice Ramesh Chandra Lahoti, former Chief Justice of India and author of the Shamim

Ara judgment, June 26, 2007; Justice P. Venkatarama Reddi, former Supreme Court judge,

who sat on the Shamim Ara bench, July 2, 2007; Dr. Tahir Mahmood, prominent scholar of

Islamic law and religious law in India, Member, Law Commission, former Chairman, National

Commission for Minorities, and former member, National Human Rights Commission, April

5, 2003 and July 21, 2006. Interviews in Chennai: Zaffarullah Khan (lawyer), February 6, 2003;

Habeebulla Basha (lawyer), January 24, 2003; Bader Sayeed (lawyer) January 20, 2003; P. V.

S. Giridhar (laywer), February 6, 2003; K.A. Sukkur (litigant), February 18, 2003; Justice S.

A. Kader, February 2, 2003.

LAW & SOCIAL INQUIRY652

its deﬁnitive verdict in Shamim Ara in 2002.25 (The ﬁrst two judgments

restricting the acceptance of unilateral male repudiation were not widely

noticed and the next one was issued over a decade later, in 1993.) Even

after recent increased awareness among some judges about Islamic traditions,

judges remained far more aware of legislation. Hence, more judges were

willing to decree post-iddat maintenance based primarily on the MWPRDA

or Section 125 of the Cr. P. C. than to invalidate divorces pronounced

through the triple talaq. Thus, there were twenty-two reported cases of high

court decrees of post-iddat maintenance in the ﬁfteen years between the pas-

sage of the MWPRDA and the deﬁnitive Supreme Court judgment in 2001,

but only ten reported cases in which the triple talaq was deemed revocable

in the twenty-four years between the ﬁrst such high court decree and the

Supreme Court judgment in 2002. Between 1978 and 2002, the high courts

accepted the irrevocability of the triple talaq in the majority of cases in which

it was challenged, in contrast with their permanent alimony decrees in a

little over a half of such cases between 1986 and 2001 (see notes 18, 19,

and 25). This was the case even though conservative opposition to legal

reform was weaker regarding repudiation than regarding alimony.

The Shamim Ara judgment settled the question for the formal courts

in 2002, repeating the conditions speciﬁed in Jiauddin Ahmed v. Anwar Begum

(1978) for the validity of male repudiation. Neither this judgment nor the

preceding high court judgments clariﬁed how courts would interpret these

conditions before they accepted the validity of male repudiation, partly

because these verdicts invalidated divorce claims. They did not indicate what

would be considered good reasons for a Muslim man to want to divorce his

wife—for instance, whether they would be the same grounds on which

Muslim women are permitted judicially mediated divorce (in which case

divorce could be equally accessible to men and women) or if men could

repudiate for a wider range of reasons. These verdicts left unclear the course

courts should follow if they determined that appropriate efforts had not been

made to effect spousal reconciliation—whether to merely refuse to recognize

the repudiation or to appoint mediators to attempt reconciliation. The lower

courts will need to address these questions over the next few years, while

25. The following judgments deemed the talaq-ul ba’in invalid in this period: Rukia Khatun

v. Abdul Khalique Laskar (1981), Zeenat Fatema Rashid v. Md. Iqbal Anwar (1993), Motiur Raha-

man v. Sabina Khatun (1994), Rahmat Ullah v. State of U. P. (1994), Shaikh Mobin v. State of

Maharashtra (1996), Saleem Basha v. Mumtaz Begum (1998), Kadar Mian v. Jahera Khatun (1998),

Sairo Bano v. Mohd. Aslam Ghulam Mustafa Khan (1999), Zulekha Begum alias Rahmathunnisa

Begum v. Abdul Raheem (2000), Shamim Ara v. State of U. P. (2002). The triple talaq was still

considered irrevocable in the majority of such cases, including Ramzan v. Smt. Salma (1987),

Abid Ali v. Mst. Rasia Begum (1988), Sayed Newaj Ali alias Neti v. Rasida Begum (1991), Jaitunbi

Mubarak Shaikh v. Mubarak Fakruddin Shaikh (1993), Sheikh Saber Ali v. Smt. Sahmim Banu

(1996), Aziza Khan v. Dr. Amir Hussain (1999). The lower courts seem to have accepted the

triple talaq in a higher proportion of cases.

Legal Change and Gender Inequality 653

basing judgments upon the Shamim Ara precedent. However, my interviews

show that some judges and lawyers in the lower courts were either unaware

of or misunderstood this landmark judgment.

The courts regarding the triple talaq as revocable made for partial con-

vergence with Hindu divorce law. While Hindu law statutes do not recognize

unilateral divorce, a legislative amendment in 1964 enabled litigants to base

their divorce claims on their own choice to live apart from their spouses

for two years, after decrees of judicial separation, or for the restitution of

conjugal rights. This meant that disaffected spouses could unilaterally end

their marriages, though only after living separately for two years (reduced

to one year in 1976), an option used almost entirely by men.26 The constraints

placed on the validity of unilateral male repudiation may have a similar effect

by requiring the passage of some time before Muslim men can unilaterally

gain divorces.27

Patterns and Limits of Change in Muslim Law in the State Courts

The courts justiﬁed the changes they introduced in Muslim law over

the last generation with reference to features of statutory Muslim law, Islamic

legal and normative traditions, and transnational Islamic law. They also

alluded to constitutional rights, but departed from precedent only when they

felt that group law and group norms also offered plausible support.

Judges’ perceptions of group norms limited the extent of legal change.

Their perceptions restrained judges from invalidating unilateral male

repudiation altogether, allowing either woman-initiated no-fault divorce

through judicial mediation or unilateral female repudiation, giving separated

and divorced women shares in matrimonial property, and extending daughters’

shares of familial property equal to those of sons. These perceptions led judges

to recognize the inheritance rights of agnatic kin despite the ongoing

nuclearization of families.28 Islamic normative repertoire limited reform in

all these respects.

26. Section 23(1)(a) of the Hindu Marriage Act required judges to ensure that people

petitioning for divorce were not taking advantage of their “own wrong,” such as refusal to

follow a judicial order to resume cohabitation. However, judges only began to pay more systematic

attention to this requirement from the 1980s, granting divorce only if they found that the

petitioner had not caused the couple to live apart (Menski 2003, 450; 2001, 115–19).

27. I am grateful to Werner Menski for alerting me to convergence in this regard.

28. Some Indians of all religious groups favor their daughters over their siblings and nephews

as successors due to family nuclearization. As a result, some Muslim couples with daughters

but no sons register their marriages under the Special Marriage Act (as all Indian couples

may, but very few do), to be able to will their property to their daughters alone. Interviews

in Chennai: Justice S. A. Kader, February 2, 2003; Bader Sayeed (lawyer), January 20, 2003;

Zaffarullah Khan (lawyer), February 6, 2003. Interview in Delhi: Sona Khan (lawyer), April

28 and May 1, 2003.

LAW & SOCIAL INQUIRY654

However, cultural accommodation was not the sole constraint to legal

change. This is illustrated by the more modest scope of Islamic law reform

in India than in Tunisia, Libya, Jordan, Iraq, Bangladesh, Indonesia, or

Malaysia. Moreover, the Indian courts rejected many lawyers’ pleas based

on reformist interpretations of Islamic tradition. Some of the reformist

demands justiﬁed in terms of Islamic tradition, which policy elites did not

accept, are a ban on polygamy, a requirement that male repudiation take

effect only upon judicial approval, and the extension of rights to inherit

agricultural land to women in all states. Additionally, the courts did not

recognize the matrilineal inheritance practices of some Muslim groups that

live in Kerala. These demands were not accepted because they were not

backed by sufﬁcient mobilization and litigation, judges did not consider them

part of a widely shared sense of group tradition among Indian Muslims, or judges’

normative vision of family life did not urge them to accept these demands.

The limited accommodation of demands made on the basis of group

tradition shows that there is considerable room for further gender-equalizing

change within the constraints set by cultural accommodation. The diversity

of Indian Muslim traditions and the imaginative ways in which scholars and

activists appropriate and transform cultural traditions indicate that the

bounds set by tradition will keep shifting.

IV. EXPLAINING THE PATTERN OF CHANGE IN MUSLIM

FAMILY LAW

Why did Indian Muslim law change as it did over the last generation?

The following factors inﬂuenced the patterns of adjudication and legislation:

(1) legal mobilization, especially by women’s organizations and other rights

organizations for women’s rights and cultural pluralism, and by community

organizations to promote visions of group identity and to uphold particular

versions of group law; and (2) policy makers’ orientations toward the regulation

of family life, their understanding of group norms and group initiatives, and their

normative vision of family life. Changes in these factors over the last generation

contributed to gender-equalizing changes in the laws of India’s religious

minorities.

Legal Mobilization

Changes in social practice and public opinion do not determine legal

change because the inﬂuence of groups and opinions over policy varies.

Legal change depends speciﬁcally on legal mobilization; that is, on the

movements for social change that mobilize the law in new directions, the

patterns of litigation associated with these movements, the nature of

Legal Change and Gender Inequality 655

implementation of court decrees, and the visions of the concerned activists

(McCann 1994; Rosenberg 1991).

Women’s organizations increased in number and membership, and more

of them became autonomous of political parties and religious elites starting

in the 1970s. Until then, the main women’s organizations had been afﬁliated

with political parties and had focused on urging their parties to introduce

gender-equalizing legislative changes. This strategy enjoyed limited success

as these organizations had limited inﬂuence over voting patterns and their

representatives enjoyed limited voice within political parties. This outcome

urged women’s organizations to become more autonomous of political parties,

engage in more grassroots mobilization, and gain greater direct input into

policy making. Other rights’ organizations also grew and built networks with

legislators, judges, and bureaucrats (Gandhi and Shah 1992; Epp 1998).

Legal mobilization increased among women’s organizations, rights’

organizations, and community organizations starting in the 1970s. Women’s

organizations made this shift as they gained considerable inﬂuence over the

legal elite and the bureaucracies engaged in gender-relevant policy making.

Intellectuals associated with these organizations became members of the Law

Commission and the newly formed Women’s Commission and thereby pressed

their demands. Women’s organizations also attended more to litigation to urge

the judiciary to grant women more rights, and many of them established

legal aid cells to help women facing matrimonial problems. This led to the

resolution of some disputes through informal arbitration and in community

courts, and gave more women good legal representation if they approached

the state courts (Mazumdar 1999; Gandhi and Shah 1992).

Some community organizations also paid greater attention to family law.

Various conservative Muslim elites formed the AIMPLB in 1972 to defend

judicial precedent in Muslim law, to prevent the introduction of a UCC,

and, more immediately, to block the uniform adoption law that the parliament

was then considering, despite the absence of provisions for adoption in

Islamic law. The AIMPLB coordinated conservative Muslim legal mobilization

thereafter and intervened in crucial matrimonial cases (All India Muslim

Personal Law Board 2001).29

Hindu nationalists particularly criticized gender-unequal practices

among Muslims and some gender-unequal features of Muslim law, but did

not mention the prevalence of similar practices among Hindus and the

recognition of some of these practices in Hindu law. They gave increased

attention to a demand for a UCC as a means to consolidate the Indian nation

behind their cultural vision of Hindutva (Hindu-ness). They especially did

29. Also see the All India Muslim Personal Law Board Web site, at http://www.aimplboard.org/

introduction.html (accessed April 6, 2008).

LAW & SOCIAL INQUIRY656

so after the Supreme Court’s 1985 permanent alimony verdict in Shah Bano

Begum, though without devising concrete proposals.30

More direct and extensive challenges to the authority of conservative

Muslim elites emerged over the last generation. Associations of Muslim

women and liberal Muslims grew and demanded extensive changes both in

Muslim law and in many gendered practices. Most of these associations were

based in major cities but had activists in smaller towns. The All India Muslim

Women’s Rights Network, the Muslim Women’s Forum, the Awaaz-e-Niswan,

the Committee for the Protection of the Rights of Muslim Women, the Tamil

Nadu Muslim Women’s Jama’at Committee, STEPS Women’s Development

Group, the Bazm-i Shama-i Niswaan, the Progressive Muslim Association,

the Hindustani Muslim Forum, and the Muslim Satyashodhak Samaj were

among these organizations.

These organizations advocated the reforms that the state courts later

granted in alimony and divorce laws. But their demands were more ambitious,

including the invalidation and perhaps the criminalization of polygamous

marriages, an end to the recognition of unilateral male repudiation or the

inclusion of the woman’s right to unilateral repudiation in all marital

contracts, the extension of inheritance rights in agricultural land to women

in all Indian states, the abandonment of the requirement that Sunni women

forego their dower if they initiate divorce claims in community courts, a

substantial increase in dower amounts, giving women control over their dower

after their marriages rather than leaving the dower in the control of their

husbands’ natal families, an end to the practice of dowry, giving women the

right to reject marital alliances forged by family patriarchs against their will

or when they were minors, community courts becoming more open to

women’s pleas for divorce (both in the form of khul’ (with the husband’s

consent) and faskh-i-nikah (without the husband’s consent)), and the

inclusion of women in prayer groups and thus in mosque councils (or the

establishment of separate mosques for women). Some of them incorporated

their proposals into model marital contracts for Muslim couples to adopt.

The ﬁrst such initiative came from the Women’s Research and Action Group

in Mumbai in 1993, beginning a debate among Muslims about the appropriate

rules to govern marriages.

Four new organizations were formed in 2005 to offer perspectives

different from that of the AIMPLB regarding Muslim law. In response to

representatives of the inﬂuential Darul Uloom Deoband dominating the

AIMPLB, two alternative boards emerged, which claim to represent the

followers of the Darul Uloom Manzar-e-Islam of Bareilly—the All India

Muslim (Jadeed) Personal Law Board and the Shias’ All India Shia Personal

30. Ram Jethmalani and Arun Jaitley, who were the law ministers when the Hindu nationalist

BJP led the national coalition government, admitted that they had no concrete plans for a

UCC. Interviews in Delhi: Ram Jethmalani, July 24, 2006; Arun Jaitley, April 15, 2003.

Legal Change and Gender Inequality 657

Law Board. These organizations have signiﬁcant support in northern India,

especially in Uttar Pradesh. Moreover, two other boards emerged to represent

the concerns of Muslim women. One board, the Muslim Women’s Personal

Law Board is active in parts of Uttar Pradesh and Delhi, and established a

women’s court that considered some matrimonial cases; the second board,

the Shia Women’s Personal Law Board, is currently inactive (Deccan Herald

2005; Ali 2005; Radiance Viewsweekly 2005; Sikland 2005; Sharma 2005).31

The new organizations weakened the claim of the AIMPLB to represent

Muslim opinion, although the AIMPLB is much stronger than these other

organizations.

The growth of reformist mobilization among Muslims urged conservative

Muslim elites to engage with community reformists in order to retain their

support among Muslims. Moreover, the increased inﬂuence of Hindu

nationalism pressed these elites to cultivate greater respect for Muslims among

non-Muslims. The most inﬂuential Islamic religious organizations, the Darul

Uloom Deoband and the Darul Uloom Manzar-e-Islam, launched a social

reform movement in the 1990s in which they highlighted their opposition

to some practices that they did not consider rooted in Islamic tradition,

notably dowry and caste endogamy. Many inﬂuential Muslim religious

scholars formed the Islamic Fiqh Academy in 1989 to build a loose consensus

on social practices and adjudicative approaches. This academy adopted

ﬂexible approaches to legal reasoning. It readily accepted ijtihad (the inter-

pretation of Islamic law in view of contemporary circumstances), contrary

to the tendency of most Sunni ulama to largely rely, until recently, on author-

itative commentaries on the Qur’an, the major texts of speciﬁc madhabs

(schools of Islamic law), and qiyas (reasoning by analogy). It advocated that

women gain the rights to reject marital partners chosen by family patriarchs

and to inherit agricultural land in all Indian states; that the dower be speciﬁed

in gold, silver, or shares of property; and that provisions in marital contracts—

allowing the practice of dowry or absolving husbands of alimony obligations—

be deemed invalid.32 This represented a departure from the positions taken

31. Deccan Herald (2005); Sharma (2005). Interviews in Lucknow: Shiko Azad, founder,

All India Shia Personal Law Board, August 10, 2006; Maulana Mohammad Burhanuddin Sam-

bhali, President, Fiqh Committee, AIMPLB, August 10, 2006; Maulana Khalid Rashid, Naib

Imam, Firangi Mahal, August 10, 2006; Shaista Amber, President, All India Muslim Women’s

Personal Law Board, August 11, 2006. Interviews in Delhi: Abdul Rahmin Quraishi, Secretary,

AIMPLB, July 22, 2006; Syeda Saiyadain Hameed, former President, Muslim Women’s Forum,

July 16, 2006; Dr. Sughra Mehdi, President, Muslim Women’s Forum, July 18, 2006. Interview

in Chennai: Daud Sharifa Khanam, President, STEPS Women’s Development Group.

32. Islamic Fiqh Academy (http://ifa-india.org/english/importantDecisions.html, accessed

April 10, 2008); Islamic Fiqh Academy 2004; Qalandar (http://www.islaminterfaith.org/

march2005/article2.htm, accessed March 5, 2006, site no longer active). Interviews in Delhi:

Maulana Amin Osmani, Vice-President, Islamic Fiqh Academy, July 18 and 29, 2006; Maulana

Khalid Saifullah Rahmani, President, Islamic Fiqh Academy and Convenor, AIMPLB

Nikahnama Committee, July 16, 2007; Dr. Tahir Mahmood, scholar of Islamic law and Member,

Law Commission, April 5, 2003 and July 21, 2006.

LAW & SOCIAL INQUIRY658

by the conservative ulama, although the leaders of the Islamic Fiqh Academy

emerged from this group.

The AIMPLB formally consulted reformist Muslim women activists for

the ﬁrst time in 2002. Although the women activists were disappointed with

the Board’s failure to sustain such consultation, the AIMPLB began to

demand that all Muslim women be given inheritance rights in agricultural

land and a share in family agricultural income. Additionally, in 1999 it pub-

lished a booklet specifying the forms of family life and Islamic adjudication

it favored, as well as publishing a model marital contract in 2005.33 The

booklet did not support major changes in adjudicative precedent; for instance,

it expressed the preference that unilateral male repudiation be initially

deemed revocable, but did not support the invalidation of the triple talaq.

The initial draft of the AIMPLB’s model marital contract gave women the

right to unilateral repudiation, added to the conditions under which women

may seek divorce in community courts, required the approval of community

courts if men were to legitimately engage in bigamy, gave wives the right

to a separate home if their husbands married someone else while married

to them, and gave divorcees the right to retain all the gifts they received

while they were married. These provisions were included to respond credibly

to the more gender-equal marital contracts that reformist organizations had

proposed earlier. However, these clauses of the initial draft were deleted

after internal debate because of the resistance of more conservative ulama.

Moreover, the board’s model nikahnama did not inﬂuence adjudication in

India’s largest dar’ul quzat network, associated with the Imarat-e-Shariah,

whose leaders are part of the AIMPLB.34

Some other conservative Muslim organizations supported more extensive

reform than did the AIMPLB. For instance, the Shia Personal Law Board

advocated divorcees being given alimony until they become self-sufﬁcient

and entitling women to seek divorce on grounds such as husbands restricting

their efforts to gain education or employment. The Muslim Majlis-e-

Mushawarat (a political organization) and the Jamaat Ahl-i-Hadith (a

minor religious school) highlighted their opposition to unilateral, irrevocable

male repudiation via the triple talaq. As a result, the AIMPLB did not

33. Interview in Delhi: Syeda Saiyidain Hameed, former President, Muslim Women’s

Forum, July 16, 2006. Interview in Lucknow: Maulana Ateeq Ahmed Bastvi, Convenor, Darul

Qaza Committee, AIMPLB, August 10, 2006. See All India Muslim Personal Law Board (2002);

Telegraph (2005); Hameed (2001).

34. Indeed, Maulana Jaseemuddin, the Chief Qazi of the Imarat-e-Shariah, admitted that

the central dar’ul quzat of the Imarat-e-Shariah did not have a copy of this model marital

contract. Interview in Phulwari Sharif, Bihar: Maulana Jaseemuddin, Chief Qazi, Imarat-e-

Shariah, August 2, 2006. Interviews in Delhi: Maulana Nizamuddin, President, Imarat-e-Shariah,

July 23, 2007; Maulana Khalid Saifullah Rahmani, Convenor, AIMPLB Nikahnama Committee

and President, Islamic Fiqh Academy, July 16, 2007. Interview in Lucknow: Begum Naseem

Iqtedar Ali, only female member, AIMPLB Executive Committee, August 11, 2006.

Legal Change and Gender Inequality 659

intervene in the crucial case in which the irrevocability of male repudiation

was contested in the Supreme Court, contrary to the board’s usual practice of

defending conservative precedent (Jamaat Ahl-i-Hadith 1994; Shahabuddin

1992; Mahmood 1998; Sikand 2005a).35

Hindu nationalist growth also inﬂuenced conservative Muslim leaders

by forcing them to shift their attention from Muslim law to responses to

Hindu nationalist attacks against Muslims and their places of worship

(notably the Babri Masjid, a mosque, in Ayodya, northern India, which was

destroyed in 1992). Even the AIMPLB shifted its attention over the last

decade from defending Muslim law precedent to preventing the construction

of a Hindu temple at the former site of the Babri Masjid.36

Changes in organizations not primarily based among Muslims also

contributed to Muslim law reform. Many women’s organizations, other rights’

organizations, and reformist lawyers’ associations came to value cultural

accommodation more since the 1980s in response to the growth of Hindu

nationalism, the attendant increase in attacks on non-Hindus, and the

increased emphasis of Hindu nationalists on the need for a UCC. They

speciﬁcally recognized the relevance of cultural accommodation in family

law and ceased to consider a UCC feasible in the foreseeable future. So,

in the 1980s, these organizations shifted their immediate goal from the

introduction of a UCC to the reform of group-speciﬁc family laws. Some

of the activists of these organizations explored the richness and variation

in Islamic traditions to rebut Hindu nationalist criticisms of these traditions

and to incorporate their more gender-equal features in family law. The

reliance of these organizations on the more gender-equal features of group

tradition restricted the conservative elites from effectively opposing these

reforms as attacks on group identity (Mazumdar 1999; Agnes 1999; All India

Democratic Women’s Association 2000).37 The plaints of reformist lawyers

referred more often to the more gender-equal features of group norms and

transnational Islamic law.

35. Interviews in Delhi: Maulana Abdul Wahab Khilji, former General Secretary, Jamaat

Ahl-i-Hadith, May 4, 2003; Syed Shahabuddin, former President, Muslim Majlis-e-Mushawarat,

July 24, 2006.

36. Interview in Lucknow: Maulana Syed Mohammad Rabey Hasni Nadwi, President,

AIMPLB and Rector, Darul Uloom Nadwatul Ulama, August 10, 2006. Interviews in Delhi:

Dr. Qasim Rasool Ilyas, Convenor, AIMPLB Babri Masjid Committee, April 10, 2003; Maulana

Jalaluddin Umri, Vice-President, Jamaat-i-Islami-Hind, April 10, 2003; Maulana Mehmood

Madani, President, Jamiat ulema-i-Hind, July 7, 2007; Maulana Abdul Wahab Khilji, President,

All India Milli Council, May 4, 2003.

37. Interviews in Delhi: Jyotsna Chatterjee, former President, Joint Women’s Programme,

July 19, 24 and 31, 2006; Subhashini Ali, Vice-President, All India Democratic Women’s

Association, August 4, 2006; Maimoona Mollah, Convenor, Muslim Women Sub-Committee,

All India Democratic Women’s Association, April 1, 2003; Pramila Loomba, National Federation

of Indian Women, June 16, 2007; Mary Khemchand, former President, Young Women’s Christian

Association, August 14, 2006.

LAW & SOCIAL INQUIRY660

The Outlook of Policy Makers

Intentionalist analysis recognizes that policy makers are autonomous of

social change and legal mobilization, and highlights the signiﬁcance of the

ideas familiar to policy elites and the ends these elites value (Watson 1982–

1983; Horowitz 1994; Rueschemeyer and Skocpol 1996). The increased

inclination among the judiciary to change family law, the growing awareness

of some policy makers regarding the legal and normative traditions of the

concerned groups, and the normative vision of family life among the policy

elite inﬂuenced the changes introduced in the family laws of India’s religious

minorities.

Orientations Toward the Regulation of Family Life

The changes in legal mobilization and the experience of the authoritarian

interlude of the mid-1970s (called the Emergency) urged greater judicial

activism in support of the rights of weaker groups, including women. As a

result, judges changed family law more often. They did so to promote the

ends they valued, which did not always coincide with the promotion of gender

equality. As many legislators remained resistant to women’s empowerment,

legislative reform was more restrained than judicial reform.

Understanding of Group Norms and Group Initiatives

Policy makers continued to feel that the family laws of the religious

minorities had to recognize group norms and be linked to group demands.

So, the nature of change in these laws depended on policy makers’ under-

standing of group norms and group initiatives. The increased emphasis of

reformist mobilizers and reformist litigation on the normative traditions of

the religious minorities and the growth of transnational legal networks made

some policy elites more aware of Islamic traditions. Such policy makers

became especially aware of the reformist interpretations of these traditions,

particularly those interpretations that some governments had recognized.

These individuals did not account for the majority of the judiciary or

the legal policy bureaucracy, but they played important roles in legal change.

They included both observant Muslims who felt that the social climate gave

them more space to draw on their reformist understandings of Islamic

tradition, and non-Muslims whose knowledge of Islamic tradition had grown.

Justice Baharul Islam is a good example of a Muslim reformist judge. Justice

Islam developed his reformist interpretation of authoritative Islamic texts

through his extensive reading of the relevant scholarship. He provided the

ﬁrst High Court judgments invalidating unilateral male repudiation and later

Legal Change and Gender Inequality 661

became a Supreme Court justice. Justice V. R. Krishna Iyer, a non-Muslim,

belonged in the latter category. He was the ﬁrst judge to observe, from a

bench of the Kerala High Court, that irrevocable unilateral male repudiation

was contrary to early Islamic traditions, and later authored the ﬁrst two

Supreme Court verdicts in favor of permanent alimony for Muslim women.38

Justice Krishna Iyer was a widely known forerunner of judicial activism, whose

judgments advanced the rights of various underprivileged groups, including

prisoners, urban squatters, and tribal forest dwellers. He had extensive contact

with rights activists during his long career in the judiciary. This helped him

develop considerable knowledge of transnational law and some awareness

of Islamic tradition. As a result, he incorporated his reformist understanding

of the conditions for the validity of unilateral male repudiation as an obiter

dictum in his judgment in A. Yousuf Rowther v. Sowramma (1971) while he

served in the Kerala High Court. Other central ﬁgures in landmark Muslim

law cases, like Justice S. Rajendra Babu (who authored the authoritative

Supreme Court judgment on permanent alimony), were neither consistent

reformists nor particularly knowledgeable about Islamic traditions. However,

they carefully crafted verdicts grounded in group norms by drawing from the

record of pertinent judicial reform that had accumulated by the time of their

verdicts and basing their rulings on interpreting the statutes of Indian Muslim

law in light of constitutional rights.39

The sources cited in some recent landmark judgments indicate the

growth of understanding of Islamic legal and normative traditions among

some legal elites. Reformist interpretations of Islamic law ﬁnd more extensive

mention in recently authored textbooks of Indian Muslim law, such as Verma

(2002), Kader (1998), and Mahmood (1997), than in those that the state

courts most often used in Muslim law cases through much of the twentieth

century (cf. Ameer Ali 1929; Mulla 1968; Fyzee 1999). The benches of the

higher courts referred with some frequency to the more recently authored

textbooks and directly consulted some of these authors in Muslim law cases.

The BJP led the national coalition government from 1998 to 2004, and

Hindu nationalism’s inﬂuence has been signiﬁcant among the legal elite for

over a decade (Cossman and Kapur 2002). Those with Hindu nationalist

sympathies were not attentive to non-Hindu norms; nevertheless, some of

them enabled the reform of non-Hindu law, sometimes claiming that these

38. The relevant judgments of Justice Baharul Islam were Jiauddin Ahmed v. Anwar Begum

(1978) and Rukia Khatun v. Abdul Khalique Laskar (1981). Those of Justice Krishna Iyer were

A. Yousuf Rawther v. Sowramma (1971), Bai Tahira v. Ali Hussain Fisalli Chothia (1979), and

Fuzlunbi v. Khader Vali (1980). Krishna Iyer (1992) provides a glimpse of the author’s under-

standing of Islamic law.

39. Interview in Delhi: Justice S. Rajendra Babu, July 2–3, 2007. Interview in Kochi:

Justice V. R. Krishna Iyer, August 29, 2006. Interview in Chennai: Justice K. Chandru, December

15, 2002.

LAW & SOCIAL INQUIRY662

changes were steps towards a UCC. The most prominent Hindu nationalist

who piloted non-Hindu law reform was Arun Jaitley, the law minister from

2000 to 2004. In 2001, he pushed through the legislative changes in Christian

law that signiﬁcantly increased divorce rights and equalized them across

gender.40

The Hindu nationalist sympathies of some judges urged them towards

reformist judgments, in the course of which they attacked Muslim practices

and called for a UCC. This was true of the Supreme Court judgment in

favor of permanent alimony in Shah Bano Begum and the judgment of the

Allahabad high court against the irrevocability of the triple talaq in Rahmat

Ullah v. State of U. P. (1994).41 However, Hindu nationalist inclinations urged

other legal elites to block Muslim law reform as a means to reinforce their

critique of Muslims. The Attorney General of India is said to have acknowledged

that this was one reason why he opposed efforts in 2001 to urge the Supreme

Court to grant Muslim women permanent alimony in Danial Latiﬁ, when

the BJP led the national government.42

Normative Vision of Family Life

Of the demands raised with reference to group tradition, judges and

legislators accommodated only those that promoted the forms of family life

they especially valued. Policy makers’ normative vision of family life changed,

to give greater value to the heterosexual, monogamous, nuclear family and

conjugal autonomy. Conjugal autonomy is the autonomy that individuals

enjoy from kin elders, social elites, and community norms in their choice

of mates, regarding the nature of their conjugal relationships and the duration

of these relationships. Policy makers’ normative vision of family life was based

substantially on the predominant orientation of family law in North America

and Western Europe in the late nineteenth and early twentieth centuries

(Glendon 1989; Goode 1993; Diduck 2003).

Policy makers’ normative vision shaped Hindu law even in the 1950s

but acquired signiﬁcant inﬂuence over Muslim law only starting in the late

40. Interviews in Delhi: Arun Jaitley, April 15, 2003; Jyotsna Chatterjee, former President,

Joint Women’s Programme, July 19, 24 and 31, 2006; Dr. John Dayal, President, All India

Catholic Union, July 26 and 29, 2006; Dr. Julian Francis, Legal Counsel, National Council

of Churches of India, July 24, 2006; Jos Chiromel, Legal Counsel, Catholic Bishops Conference

of India, August 5, 2006; Rev. Richard Howell, President, Evangelical Fellowship of India,

August 19, 2006 and July 4, 2007; Justice Vikramjit Sen, July 24, 2007.

41. See Rahmat Ullah v. State of U. P. (1994). Interview in Delhi: Dr. Rajeev Dhavan

(lawyer in Rahmat Ullah), April 1 and 3, 2003 and July 8, 2006.

42. Interviews in Delhi: Sona Khan (lawyer in Danial Latiﬁ), April 28 and May 1, 2003;

Dr. Tahir Mahmood, April 5, 2003 and July 21, 2006.

Legal Change and Gender Inequality 663

1970s. The vision underlying the Hindu law reform proposals of the modernist

legislators of the ﬁrst postcolonial decade, such as Jawaharlal Nehru (India’s

ﬁrst postcolonial prime minister) and B. R. Ambedkar (the ﬁrst law minister),

was similar to the outlook driving the later reforms of non-Hindu law.43 Only

some of these proposals were adopted in the 1950s due to the need to accom-

modate conservative resistance. Polygamy was banned, intercaste marriages

were accepted, the previously stringent restrictions on marital partners were

relaxed, divorce rights were introduced, and the inheritance rights of many

Hindu women were increased. But the control of joint-family coparcenaries

over much of ancestral property was retained, and divorce was made possible

only after a period of judicial separation in most contexts.

The reformist vision expressed in the policy debates of the 1950s

inﬂuenced further gradual changes in Hindu law and in some criminal laws

relevant to family life between the 1950s and the late 1970s. Not only was

mutual consent divorce made available, divorce became available immedi-

ately to Hindus on the grounds of cruelty, desertion, or adultery. The criminal

law was amended to give divorcees rights to permanent alimony. Judges set

lower standards for ﬁndings of cruelty and adultery. This reﬂected a shift

from emphasizing the maintenance of the nuclear family to valuing conjugal

autonomy. The preference to maintain the nuclear family remained salient,

however, and restricted legislators and judges from granting divorces under

conditions of marital breakdown in the absence of mutual consent. Policy

makers did not promote conjugal autonomy systematically either, as shown

in their continued recognition of a right to the conjugal company of a reluctant

spouse.

The vision of desirable forms of family life reﬂected in Hindu law and

criminal law since the 1970s inﬂuenced the changes introduced in Muslim

law. It led to the requirement in Muslim law of permanent alimony, the

restriction of the right to unilateral male repudiation, and the recognition

of the divorce claims of earlier wives if their husbands engaged in polygamy.

These changes had the potential to strengthen the position of women in

marriages and upon divorce. However, a variety of other demands justiﬁed in

terms of group tradition were not accepted. Although they valued monogamy

and required it among non-Muslims, policy makers did not ban Muslim

polygamy, as they considered the right to engage in polygamy part of a sense

of group tradition among Indian Muslims. They were wary of closely

regulating divorce because they were aware of the legal system’s limited

capacity to regulate this practice and so wished to grant social institutions

some autonomy to do so. As a result, they did not require the judicial approval

of male repudiation among Muslims, much as they recognized customary

43. See the Hindu Code Bill debated in the Indian Parliament from 1948 to 1951. See

Constituent Assembly of India (Legislative) Debates (1948, 1949) and Parliamentary Debates

(1950, 1951), all listed under “Statutes Cited.”

LAW & SOCIAL INQUIRY664

divorce among all religious groups, albeit inconsistently. As their normative

vision of family life did not urge them to enable the division of family

property, they did not extend rights to inherit agricultural land to Muslim

women in all Indian states.

Some features of policy makers’ normative vision may restrain the future

promotion of gender equality. Among these are the maintenance of the

nuclear family (which abridges women’s access to divorce) and state non-

intervention in familial authority relations (which constraints action in favor

of free choice of conjugal partners and against domestic violence). The recent

reform of Hindu law to enable daughters to claim their shares of ancestral

property shows that policy makers have become less opposed to the division

of family property. This suggests that Muslim women may soon gain the right

to inherit agricultural land.

V. EFFECTS OF LAW REFORM ON ACTIVIST

ORIENTATIONS AND SOCIAL PRACTICE

Reformist organizations did not demobilize after some of their demands

were met, as the changes fell well short of their aspirations. Rather, there

are signs that legal mobilization changed activist notions of what Islamic

law ought to be. Such mobilized aspirations maintain pressure for further

gender-equalizing change and continue to challenge conservative elites.

Conservative Muslim opposition to the reform of state law became

weaker. Some conservative Muslim elites accepted the reforms for which they

found a credible basis in Islam’s founding texts, such as the constraints on

the validity of unilateral male repudiation. A larger proportion voiced their

opposition to the practice of triple talaq without either supporting judicial

reform along these lines or urging community courts to follow this precedent

set in state courts. They also supported other social changes, such as increases

in the amount of the dower and the abandonment of the practice of dowry,

though without effectively promoting these changes. Even these limited and

half-hearted changes showed the weakening of conservative opposition to

reform.

In response to their losses in the state courts, conservative Muslim elites

urged Muslims to take matrimonial disputes to the community courts, over

which they had far more inﬂuence, particularly the more institutionalized

dar’ul quzats. The AIMPLB urged this preference since its inception but gave

this added emphasis from 1993 onward, after more than a decade of judicial

reform. Some conservative Muslim elites also demanded that the state give

Sharia courts exclusive jurisdiction over Muslim family law cases. These

Sharia courts would perhaps be an expanded network of the current dar’ul

quzats. If this happens, state courts would have no role in Muslim law cases

but would share the adjudication of other family law cases with community

Legal Change and Gender Inequality 665

courts.44 Legislators are unlikely to accept this demand, as much of India’s

political elite shows no inclination to give Muslim institutions greater

autonomy. In recognition of this, some conservative Muslims accept the dual

authority of state courts and community courts, but demand that state courts

recognize all community court verdicts and direct the police to aid their

implementation. The state courts are most likely to continue considering

appeals of community court verdicts. However, the efforts to urge Muslims

to seek community courts may meet with some success, as community courts

are more embedded among less privileged social groups, and the cost and

duration of cases are lower in these courts than in state courts.

The limited number of court cases since the recent reformist judgments,

and the patchy knowledge of these judgments among judges and lawyers in

the lower courts, makes it difﬁcult to estimate the likely effects of these

reforms on patterns of adjudication in the lower courts. Tracing the impact

of judicial reform on matrimonial relations is further complicated as litigants

in family law cases initially approach either the lower state courts or

community courts. Community courts vary more in their approaches than

do the formal courts and do not follow the precedents of state courts (Imtiaz

Ahmad 2003; Vatuk 2001). If the ongoing efforts of conservative Muslim

elites to urge Muslim litigants to community courts succeed, the recent judicial

reforms may have a relatively limited effect on the way many matrimonial

disputes among Muslims are resolved. Litigants who are disappointed with

the verdicts of community courts may then approach the formal courts.

Nevertheless, if Muslims resort to community courts often, verdicts along

the lines of the recent reformist judgments would at least be delayed. The

state courts have limited powers of implementation, and the executive and

the police show no strong commitment to the effective implementation of

the recent reforms. So, the changes in state law are likely to only slowly

inﬂuence gender relations in society.

VI. PATTERNS, SOURCES, AND EFFECTS OF CHANGE IN

INDIAN MUSLIM LAW

This article showed that the crucial factors shaping changes in Muslim

law in India’s state courts were legal mobilization, both within and beyond

44. While the AIMPLB’s ﬁrst President, Maulana Qari Muhammad Tayyeb, consistently

raised this demand, some AIMPLB leaders have stressed it more over the last two years. But

some other conservative Muslim elites fear that this arrangement may lead to greater state

control over Muslim religious institutions (Communalism Watch 2005; Sikand 2005b; Dhimmi

Watch 2007). Interview in Lucknow: Maulana Mohammad Burhanuddin Sambhali, Convenor,

AIMPLB Fiqh Council, August 10, 2006. Interviews in Delhi: Dr. Qasim Rasool Ilyas, Secretary,

AIMPLB, April 10, 2003; Maulana Jalaluddin Umri, Vice-President, Jamaat-i-Islami-Hind,

April 10, 2003.

LAW & SOCIAL INQUIRY666

the Muslim community, and changes in policy makers’ orientations. The

features of the policy makers that mattered most were their orientations

toward the regulation of family life, their understanding of Muslim norms

and initiatives, and their normative vision of family life. As cultural

accommodation remained a crucial consideration in family law, policy

makers only introduced gender-equalizing legal changes if legal mobilization,

litigation, and transnational legal networks brought to their attention

a credible basis for change in group law, group norms, and group initiatives.

Judges and legislators introduced only those changes that they felt were sorely

needed, rejecting various demands grounded in group tradition. Their visions

of the desirable forms of family life especially deterred them from giving

women greater access to property.

The changes that took place in some features of Muslim law resulted

in partial convergence with India’s other major family laws—Hindu law and

Christian law. There was convergence in divorce rights and alimony rights,

though not in inheritance rights. As visions of group norms shape legal

change and Muslim law rests on rather different jurisprudential foundations,

the partial convergence we have seen is unlikely to start the homogenization

of family law.

The basis of policy making inﬂuenced the choice of many reformers to

press their demands in terms of group norms. However, the limits of policy

change did not restrain reformist ambition. The piecemeal changes weakened

direct conservative resistance to changes in state law, but they also encouraged

conservative efforts to urge litigants away from state courts. These trends

suggest that both the pressures for further gender-equalizing legal change and

the efforts to urge the avoidance of state courts are likely to get stronger.

The patterns of change since the 1970s suggest that some changes in

policy makers’ visions may soften the constraints within which Indian Muslim

law is made. These are changes in policy makers’ visions of group norms,

desirable forms of family life, and patterns of regulation of family life. Ongoing

legal mobilization will contribute importantly to these changes.

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