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Women’s Rights, Muslim Family Law, and the Politics of Consent

Publication Date: 
December, 2011

An interview with Lila Abu-Lughod and Anupama Rao, editors, Women’s Rights, Muslim Family Law, and the Politics of Consent. Special issue of SOCIALDIFFERENCE-ONLINE (December 2011).

[SOCIALDIFFERENCE-ONLINE is a publication of the Center for the Critical Analysis of Social Difference at Columbia University, an advanced study center that promotes innovative interdisciplinary scholarship on the role of gender, sexuality, ethnicity, and race in global dynamics of power and inequality.]

Jadaliyya (J): What made you organize the workshop that led to this special issue?

Lila Abu-Lughod and Anupama Rao (LA-L and AR): The workshop grew out of a project called “Who’s Afraid of Sharia?” that we have both been involved with over the past few years through Columbia’s Center for the Critical Analysis of Social Difference. Our goal was to think about how the rich and multifaceted tradition of Islamic law has become collapsed into a critique of women’s rights deficits in the Muslim world, generating new loci of intervention and activism.

By analyzing the way that debates over Islamic law—in both the “East” and “West”—reflect broad anxieties about sexual freedom, women’s rights, and changing social relations of the family, we wanted to offer an antidote to both fear-mongering on the part of right-wing pundits and simplistic moralizing on the part of Islamists, each reproducing arguments about a civilizational divide. As scholars, we thought the best antidote would be close and careful study of the complex effects of religious law on the everyday lives of Muslim women, and on perceptions of gender rights more broadly.

Beyond that, we were interested in how contemporary models of legal pluralism in the Muslim world—from Africa, India, Indonesia, and the Middle East—challenge normative ideas of legal uniformity and provide viable models for linking state, civil, and personal status laws in the interest of gender equity. The sharia project addressed in particular the relationship between the legal regulation of gender and neoliberal governance as it is being played out in new initiatives around Islamic law by international funders and human rights activists, as well as by nation-states and local-level (feminist) activists in the Muslim world today.

The first workshop in the series, held three years ago, was on “Gender, Rights, and the Practices of Law.” It brought together anthropologists, historians, human rights activists, and specialists on Islamic law to explore how debates over sharia and human rights law play against or work within postcolonial discourse, contemporary critiques of western liberalism, and reform projects in the Muslim world. A guiding question was: “What happens if we look at forms of law, including sharia, not only in terms of norms in texts but in practice: over time, and as applied in courts, advocacy work, interventions of human rights organizations, and lobbying efforts at major international conventions?”

J: What particular topics, issues, and literatures does this publication address?

LA-L and AR: This first volume of SOCIALDIFFERENCE-ONLINE makes available to a wide public some of the papers written for a workshop we convened in April 2011 at Columbia University’s Global Center in Amman. We brought together twenty-one extraordinary scholars and activists who work in various regions to discuss “Religious Law, Local Practice, and Global Debates about Muslim Women’s Rights: The Politics of Consent.”  We used consent as an organizing theme because this term plays a key role in liberal ideals of freedom and individual rights, but is also fundamental to ideas about marriage as contract in Muslim family law. What are the overlaps? What can this tell us about sharia? What does this illuminate with regard to broader debates about legal pluralism? These were some questions that inspired us.

The five themes that organized the papers written for the workshop give you a sense of the range of issues: “Marriage, Consent, Contract”; “Everyday Practices and Violations of Consent”; “Religion, State, and Social Difference: Whose Law?”; “Personal Status Law Reform—The Way Forward?”; and “The International Politics of Consent.”

We can’t do justice to what happened in the two full days of the workshop in Amman, but we can point to three breakthroughs reflected in the few papers we chose to publish in this volume. First, we began to see how debates over Muslim personal status law are always deeply political, but differently so in different contexts—where Muslims are minorities or a majority, or where feminists are staunchly secular or open to religious reform. Second, we discovered that careful historical and anthropological research on the everyday life of Islamic law—in courts, in marriages, in legal texts, in mosques, and in parliaments—reveals surprising things about how Islamic law works in relation to women’s choices and power. Third, because it is a fact that different legal systems operate side by side in the Muslim world, there are unexpected openings and strategies for those interested in challenging inequalities and injustice. And yet sometimes women are not served well by any of these.

The publication consists of six articles by feminist scholars deeply knowledgeable about law and gender relations in particular Muslim communities, but attentive to the place of debates about Muslim family law in international and national conflicts. What’s exciting is that they treat issues based on long years of research and activism, whether in India, Palestine/Israel, Bangladesh, the Arab world, or Indonesia.

Three of the articles focus particularly on marriage in Muslim family law. Lynn Welchman, a leading expert on Islamic family law, takes us through the meanings and guarantees of consent in changing personal status laws in various Arab countries. Welchman addresses the complex ramifications of consent as a social practice that involves family and kin networks, and thus challenges the equation of consent with female agency. Flavia Agnes, on the other hand, looks carefully at the history of personal status laws in India, comparing marriage in Hindu, Christian, and Muslim personal status law as a corrective to communal biases that, within the Indian context of debates about reform of Personal Status Laws, have articulated Muslim personal status law as particularly archaic, sexist, and obscurantist. If Muslim marriage is “secular” while commonplace Christian and Hindu understandings of marriage treat it as “sacrament,” how does the centrality of consent in Muslim marriage confound the usual divisions of modern/secular and traditional/religious? Agnes addresses the postcolonial and more recent biases against the Muslim community, arguing that these views of personal status law have wider repercussions within the current Indian political scene, providing the justification for violence committed against the Muslim community in recent communal conflicts. By examining the actual workings of certain reforms meant to be progressive, such as efforts introduced about ages of consent, she implicates feminist reform with extending normative ideas of female sexuality and with seeking simple answers in legal reform.

A. Suneetha’s paper on the campaign for a model Muslim marriage contract complements Agnes’ study by assessing the debates on Muslim personal law that emerged among the Indian Muslim communities in the 1980s and 1990s, after the famous Shah Bano case and in response to feminist efforts to institute a Universal Civil Code. By placing these debates in the long history of Indian secularism, she contends that the debate is a substantive instance of democratic debate on law reform in the Indian context.

Jacqueline Aquino Siapno and Dina M. Siddiqi both interrogate the shallow sensationalism of international human rights reports purporting to defend Muslim women’s rights. They analyze the misreadings of complex local situations that arise from a lack of historical, ethnographic, or geopolitical contextualization. The details Siapno gives about the history of gender in Aceh and the dynamics of regional and state power shed new light on a phenomenon—the imposition of sharia law in Aceh—that Human Rights Watch and many others see in black and white terms. Siddiqi, on the other hand, shows that fear of Islam produces analytical blind spots in analyses/representations of violence against women in Muslim societies. Framing women’s injuries as exclusively or primarily rooted in religion not only feeds into Islamophobic discourse, but also forecloses attention to other dynamics and dimensions of power. She argues that these fears undermine the possibility for effective activist interventions, using as evidence a careful look at the legal strategies of some highly publicized cases in Bangladesh of young women allegedly forced to marry their rapists.

[Jacqueline Aquino Siapno. Photo by Yahia Shaheen, via the Amman Global Center.]

Like Siddiqi and Agnes, Nadera Shalhoub-Kevorkian is concerned with women’s agency within legal systems. By taking a close look at the dynamics of several Palestinian cases of rape, she shows how women are victimized not just by the initial act but by their experiences of working within the multiple legal systems or paths open to them for redress. Moving between the Israeli legal system and police and local community forms of dealing with (and avoiding) the situation, whether religious or customary, these women, she argues, are re-victimized. No system of law works cleanly.

The volume gives only a small taste of what we discussed in the workshop, which included a lively session on the proposed reforms of Jordanian Personal Status Law, discussion of the work of Islamic feminist organizations like Musawah dedicated to legal reform, the complex meanings of “conversion” in the unique system of personal status laws in Lebanon (in the brilliant work of Jadaliyya editor Maya Mikdashi), and more.

J: How does this work connect to and/or depart from each of your previous research and writing?

LA-L and AR: Neither of us is a specialist on Muslim family law, yet we are both interested in critiques of liberalism. We thought that exploring the charged topic of “sharia” might be a good way to develop these critiques concretely, since Islam serves as one of liberalism’s classic “others.” We have worked and taught together for many years, sharpening our understandings of the differences between the Middle East and South Asia regarding secularism, religion, and law. We also share deep concerns about the colonial echoes of transnational feminism.

J: Who do you hope will read this special issue, and what sort of impact would you like it to have?

LA-L and AR: These are papers that question conventional wisdom, trace little known histories, and uncover in sympathetic detail the cases of actual women going through legal systems looking for redress against violations, escapes from bad marriages, and better lives. They provide evidence that the liberal assumptions of many feminists and rights advocates are as flawed as the pernicious prejudices of those who generalize about and condemn Islamic law or family law without understanding its histories and workings in courts and families and communities. So it is not just scholars of the Middle East, South Asia, or Southeast Asia who will find these exciting, but anyone thinking about Muslim Personal Status Law and the “Sharia Question.” This publication proves the value of legal anthropology and history for understanding contemporary issues of Muslim women’s rights.

J: Could you say a bit more about the politics of consent, which serves as an important theme that connects up the different contributions to this issue?

LA-L and AR: Three observations led us to think it might be fruitful to organize the workshop around the kinds of questions that the concept of consent raises. Lila Abu-Lughod had noticed in her fieldwork in Egypt that over the past twenty years, consent had become an enabling force for young Muslim women who increasingly saw it as a “right” that allowed them to challenge the customary arrangement of marriages by families. Simultaneously, we all knew that parallel efforts are underway across the Muslim world by feminist reformers of various sorts (from secular to Islamic) to make choice, consent, and contract the instruments for guaranteeing women’s rights, especially in marriage. For example, in North Africa, as in India, feminist reformers developed model marriage contracts that could, among other things, build in requirements of consent for a husband’s decision to take a second wife. There have also been campaigns for legal reform of Islamic family law to enable women to initiate divorce, as in Egypt, again on the basis of whether women consent to their marriages. In yet other quarters, there are campaigns to challenge conservative Muslim clerics and regimes seeking to lower the age of consent or marriage age for girls. The right of consent has thus become a key site for deciding the legitimacy (and equity) of Muslim marriage.

Second, global discourses on the “oppressed Muslim woman” consistently stage the theme of forced marriage and forced sex, obliquely invoking slavery to generate outrage or pity. Because the themes of “rescue” and “protection” that are central to international human and women’s rights activists are predicated on fantasies of (sexual) consent and coercion, international debates about consent have become a way to distinguish women “with” and “without” rights, and thus to justify interventions to rescue and protect.

Third, although consent conjures ideas of individual autonomy and equality, historical and ethnographic studies of marriage in the Muslim world and elsewhere suggest a more complex field where community pressure, financial incentives, and the power of patriarchy—that is, the social determination of individual choices—trouble the equation of consent with female freedom. Looking closely at marriage forces us to recognize the radical unknowability that plagues decisions regarding intimate relationships, desires, and the future for women. This has inspired scholars and activists to think about the adequacy of “consent” in demands for gender equality, on the one hand, and for describing the complex workings of all forms of intimacy, on the other. How might the notion of consent enable or block our ability to understand gender and sexual rights in their specificity, and as demands around which feminists can mobilize competing views and practices of Islam?

J: What other projects are you each working on now?

LA-L and AR: We are continuing to pursue questions about the politics of Muslim women’s rights by forming an international working group through the new global initiative on “Women Creating Change” of the Center for the Critical Analysis of Social Difference. The group will consist of experts on feminism, Islamism, and a variety of Muslim communities in Europe and the Middle East. Our goal will be to explore the divergences and points of contact between the flourishing work of those who could be termed “Islamic feminists” and the locally but widely appealing work of those who might best be called “Islamist women.” 

The working group takes as a starting point the fact that over the past two decades, women’s activism has taken creative new forms across the Muslim world. Working within the frame of Islamic piety and engaging fully with the Muslim tradition, women have been deliberately distancing themselves from the largely secular feminist projects of social reform, legal rights, or empowerment-through-development that have dominated the social field of women’s activism in most post-independence nations across the Muslim world. Yet these efforts by women to work within an explicitly religious framework in order to transform society, refashion their roles as women, redefine their authority, and participate more fully in public debates and political fields have taken radically different paths. The working group will examine these activist projects in light of the everyday lives of the women in between to whom they seek to appeal.

Drawing on our efforts to address the globality and the deep specificity of the problem of Muslim women’s rights as a model, and together with other colleagues at CCASD, we are also developing a new project on “Risk, Migration, and Vulnerability” that takes the gendered experience of neoliberal governance as the starting point for asking about new formations of urban precarity—from poverty, to the impact of securocratic regimes in redefining lived space, and new forms of collective action and publicity.

At the same time, each of us is engaged in our own individual scholarship and teaching.

Anupama Rao has just returned from a stint as a Fellow at the Center for Advanced Study in the Behavioral Sciences at Stanford University, followed by six months of research in Mumbai, India after publishing The Caste Question: Dalits and the Politics of Modern India. The fellowship and research leave were in aid of a new project, tentatively entitled Dalit Bombay: Stigma, Precarity, and Everyday Life, which addresses the local itineraries of global Marxism in its confrontation with the resistant materiality of caste as stigma and a form of detritus life in Mumbai, the epicenter of India’s working-class radicalism for most of the twentieth century. The project explores the relationship between spatial practice and the social experience of “embodied difference” by addressing the twentieth century history of episodic and precarious labor as reflecting the social experience of colonial and postcolonial urbanity more broadly, and linking such forms of inhabitation with caste-specific practices of spatial and social segregation—and the pervasiveness of the “slum”—in particular. At its broadest level Dalit Bombay is an exploration of the politics of precarity and personhood in the aftermath of collective utopias of emancipation, and in the wake of neoliberal governance and the accelerated urbanization of the global South.

Lila Abu-Lughod is just finishing Saving Muslim Women, a book on the ethics and politics of the international circulation of discourses on Muslim women’s rights. It was in the course of writing this book, forthcoming with Harvard University Press, that she developed not only her interest in the hysteria around Muslim Family Law, but also the salience of consent in the debates. Consent and issues of freedom and bondage are key to the genre of pulp-nonfiction about abused Muslim girls that informs popular understandings of women’s rights and Islam. This genre dominates airport bookstores and is instantly recognizable by the copycat covers—veiled women with just their eyes looking out at you, imprisoned.

Excerpts from Women’s Rights, Muslim Family Law, and the Politics of Consent

From Jacqueline Aquino Siapno, “Sharia Moral Policing and the Politics of Consent in Aceh”

With the passing of Laws No. 25, No. 22, and No. 44 in 1999, sharia law was implemented. But in the years following, a number of human rights reports about Aceh were published by Amnesty International, International Crisis Group, and Human Rights Watch, in addition to local and national organizations in Aceh and Jakarta, including KOMNAS HAM, LBH APIK-Lhokseumawe, and others. As I was reading these reports, I reflected back on my ethnographic fieldwork in different regions of Aceh. My interest in studying Aceh began with my PhD research fieldwork and dissertation which became a book on Acehnese and Malay hikayats, oral histories, and manuscript literature on the traditional kingdoms since the fifteenth century.

So it is striking to me that one of the things missing in the human rights reports is a long-term historical perspective on Acehnese families, the imposition of Muslim family law, and Acehnese women’s oral histories. For one, there is no engagement at all with the anthropological studies on masculinities or men and boys in Atjehnese families, such as by scholar James Siegel in his book, The Rope of God. And before that, of careful studies by Dutch scholar-administrators like Snouck Hurgronje, who wrote extensively about Acehnese life. Though Hugronje’s text was written with a view to “reforming the Acehnese family” to suit the needs of colonial taxation, it nonetheless makes for fascinating reading on pre-colonial gender systems in Aceh.

Nor is there any reading or reference to the works of other scholars such as Nancy Tanner on “matrifocality” and matrilocal societies; Daniel Lev on Islamic courts; and many other studies and forms of knowledge production that are not framed in the “development” and “human rights” languages currently so trendy in Aceh. Interestingly, in analyzing the circulation of these discourses, I came across some development reports on Aceh citing my work and that of the late anthropologist Nancy Tanner. However these reports only refer to these studies, but conduct few in-depth studies of Acehnese history, culture, and politics of their own. This is quite common with foreign advisers and “rule of experts” who tend to rely on English-language materials without taking the trouble to learn more about local knowledges in local languages. There are some reports that refer to ethnography and historical studies, but only as “references,” with little in-depth analysis nor the ability to convert, translate, wed, or integrate this ethnographic research into global governance policies that respect Acehnese culture and gender systems. Between global governance paradigms and Acehnese cultures, there is a disconnection. Serious attention to ethnography and history can bridge the gaps.

Tanner describes the following distinctive features of matrifocality in Aceh and Sumatra more generally: “1) kinship systems in which a) the role of the mother is structurally, culturally, and affectively central and b) this multidimensional centrality is legitimate; 2) the societies in which these features coexist, where a) the relationships between the sexes is relatively egalitarian and b) both women and men are important actors in the economic and ritual spheres.”

Anthony Reid, citing James Siegel’s ethnographic work, writes:

Inheritance is bilateral, but houses are exclusively passed to daughters, so that the wife is “the one who owns the house” (njang po rumoh)….The house is therefore female space in large measure, and men feel like “guests in the houses of their wives.” Young men and adolescents often leave home for religious studies, and mature men are frequently away trading, growing cash-crops in more distant and sparsely-settled areas, or in modern times serving in war or in government. The Islamic commitment, that all Acehnese feel is part of their identity, has never reduced the economic independence of women, and in turn their relative autonomy.

This last sentence is especially enlightening with regard to the current situation in Aceh where sharia police are enforcing constraints on Acehnese women’s mobility, independence, and autonomy in the name of “Islamic commitment.”

It may be too much to ask for women’s and human’s rights reports to become in-depth ethnographic and historical studies, as they tend to have short-term deadlines. But any human rights, women’s rights, and development worker in Aceh must at least make the minimal effort to be aware of this literature that outlines the complexity (and fluidity) of Aceh’s sex/gender system instead of ignoring it, and pretending it doesn’t exist.

From Dina M. Siddiqi, “Crime and Punishment: Laws of Seduction, Consent, and Rape in Bangladesh”

In February 2010, an international list-serve specializing in Muslim women carried a story with the headline “Bangladesh: Court Orders Protection for Muslim Girl Punished for Being Raped.” The horror of the double victimization of the girl, who endures not only the violence of rape but then is punished for an act to which by definition she did not consent, immediately draws in the reader. Calling to mind prevailing tropes of barbarity and misogyny in Islamic law, and framed within a set of familiar binaries (human rights law versus culture/Islam, state protection versus community violence, and so on), the headline hints at the contents of the story. Without reading any further, the informed global feminist—whether or not she can locate Bangladesh on a map—can draw on available templates to construct the contours of an intelligible narrative of rape and its consequences in the Muslim world. As legal theorist Leti Volpp observes in the context of the United States, “certain narratives have traction because of already existing scripts about gender, culture [...] and Islam.” Stumbling across this story, the casual web browser might be forgiven for assuming that girls in Bangladesh, at least those who are Muslim, are routinely issued fatwas and flogged for the “crime” of being raped.

Yet, the information laid out in the text itself suggests a qualitatively different chain of events, not as easily accommodated into globally circulating scripts for understanding Muslim women’s lives or the violence enacted on their bodies. The report notes that in April 2009, a sixteen-year-old girl was raped by a young man who had been stalking her for some time. The rape resulted in a pregnancy, at which point the girl’s parents hastily arranged her marriage with a man in a neighboring village. This marriage fell apart as soon as the husband’s family discovered, after a medical test, that the girl had been several months pregnant when she got married. Summarily divorced, the girl had an abortion and returned to her village. In January 2010, eight months after the sexual assault, a number of locally influential men convened an informal tribunal or shalish at which they issued a fatwa ordering the girl to be whipped 101 times, fined her father the equivalent of $15, and issued another fatwa threatening the family with permanent ostracism if the fine was not paid. The girl was charged not with the crime of being raped but for immoral behavior. (Field investigators later discovered the girl had been in a relationship with her “rapist” that ended as soon as she became pregnant.) The girl was whipped in public until she fell unconsciousness. Intimidation and threats from the same powerful villagers who convened the tribunal prevented the girl’s family from lodging a formal complaint with the police. It was only newspaper reports that alerted rights activists who then took up the case.

It bears noting, however, that when women face community punishment for “daring” to file a rape complaint and “refusing” the sexual advances of a relative, they are not being charged with sexual crimes. These are not conventional transgressions of the moral code or sharia prescriptions but direct challenges to social hierarchy. They are actions that defy gendered structures of inequality at their core; they are, arguably, indicative of new modes of dissent, sharpening inequalities and instabilities in the social order. For, as exercises in power, shalish encounters in rural Bangladesh rarely involve social equals; they are as much about maintaining class domination as they are about the policing of gender and sexual norms.

Such details seem to have no bearing on the overall framing of the report. The document moves seamlessly from the particular case of Bangladesh to the universal world of Muslim countries. A section entitled “Flogging, Forced Marriage and Isolation” begins with the assertion that, “[p]unishing rape victims under Sharia (Islamic law) is not restricted to Bangladesh.” Two examples, one from Saudi Arabia and the other from Pakistan, follow to support this point. As an aside, the report adds that all three countries are members of the UN Human Rights Council. The latter statement may have been intended to underline the frequently heard charge that a fatally flawed membership renders the activities of the Council meaningless.

Bangladesh is also described as “the world’s third most populous Muslim-majority state, an Islamic state where sharia has ‘an influential role in civil matters pertaining to the Muslim community.’” Although Islam is the state religion, Bangladesh is not an Islamic state. To the lay reader this may not be a significant distinction but it is one that is critical for the operation of law. As in so many postcolonial states, religious law is confined to the “personal sphere.” Matters such as rape are criminal offences so that, in theory at least, the applicability or not of sharia does not arise. For that matter, being raped is not categorized as a crime in sharia. Here the writer appears to be deeply influenced by the infamous Hudood Ordinances that have systematically blurred distinctions between rape and consensual sex outside of marriage in the version of Islamic law propagated in Pakistan, and generalizes from this. The distillation of the three distinct socio-political environments of Saudi Arabia, Pakistan, and Bangladesh into a singular analytic frame—of sharia driven and misogynist cultural practice—essentializes Muslim societies and erases historical specificity and power dynamics. It also feeds directly into an assortment of geopolitical struggles of the discursive kind that have significant material consequences.

From A. Suneetha, “Indian Secularism and Muslim Personal Law: The Story of Model Nikahnama”

Reasonable skepticism about the utility and efficacy of a re-designed or gender-just nikahnama [marriage contract] exists. Studies on marriage practices among North Indian Muslims have pointed out that nikahnama is either absent in many marriages or is rarely taken seriously, making the issue irrelevant. Sabiha Hussain’s study of Darul Qaza also came up with a dismal picture of their willingness or ability to help Muslim women obtain their rights in sharia. However, Muslim activists in Hyderabad, South India suggest that that nikahnama has a presence and has been used in the resolutions of disputes by Muslim women, especially to re-claim dowry and gifts after separation or talaq. As such, both the use of nikahnama during the marriage, and the implementation of its provisions in marriage and in the cases concerning breakdown of marriage appear to be context-specific. They depend on the historical, political, and social factors determining marriage practices of Muslim communities, as well as the cultural and moral economy in which nikahnama operates in specific instances.

Given such a complex scenario, it is difficult to simply interpret the inclusion or non-inclusion of the provisions in the different nikahnamas as the affirmation or resistance, or as an indication of either the progressive or retrogressive attitude of ulama and Muslim communities in general to the question of Muslim women’s “rights” in marriage. The actual use and efficacy of such a nikahnama would invariably depend on the prevailing practices, the presence and work of the women’s organizations, or the prior histories of such reformist discourse in each location. For instance, reports suggest that the Darul Qaza in urban areas of Gujarat such as Ahmedabad, started by the Personal Law Board, are active in popularizing nikahnamas among the trading Bohra community, who have responded well. A bridegroom interviewed for the report said that by signing this nikahnama he would be ensuring his wife’s safety in the marital home. More important is the experience of Bharatiya Muslim Mahila Andolan, a Muslim women’s organization that consistently advocated reforms of personal laws. Within the framework of the sharia it has also prepared and used “gender-just” nikahnamas in the marriages that it officiated. It performed forty marriages in Mumbai and nearly two hundred group marriages in various locations in Gujarat, including Juhapura district. The mehr amounts in these marriages ranged from the usual Rs. 5000 [$110] to a high of Rs. 1 lakh [$2,200]. Instead of the usual “forgiving of mehr,” or small amounts of cash, many women got property and jewelry in the form of mehr. They claim that, “while a codified Muslim law is the long term goal, this nikahnama has already helped Muslim women in ensuring her legal rights.”

While BMMA’s experience suggests how useful the nikahnama can be, the real significance of the nikahnama debate comes alive only when it is placed in the longer history of Indian secularism and Muslim personal law. After the passage of the Muslim Sharia Act 1937 and Marriage Dissolution Act [MMDA] in 1939, where a wide array of Muslim formations (political, religious, and women’s groups) worked together, this is another rare instance where a democratic discussion about desirable marriage practices and women’s entitlements took place among Indian Muslim communities. Even though such discussions took place during the debate on Uniform Civil Code in the 1990s, its interlocutor was largely the feminist community and the state, rather than the community itself. Nikahnama as an instrument also occupies a socio-legal terrain, distinguishing it from these earlier state-directed initiatives. The MMDA became a law and UCC was to become so. Nikahnama, posited instead as “community reform,” prevented the consolidation of conservative Muslim opinion against the state, and resumed the (contested) conversation among “religious” and “secular” domains on marriage practices, even as it intervened in “secular” feminists’ concerns with dowry and the immiseration of married women due to desertion. Islamic and secular idioms got inextricably mixed up, and dowry got redefined as un-Islamic, rather than an illegal practice, while mehr was increasingly viewed as the “right” of Muslim women. Perhaps its significance lay here.

[Excerpted from Women’s Rights, Muslim Family Law, and the Politics of Consent by permission of the editors. © 2011 by SOCIALDIFFERENCE-ONLINE, a publication of the Center for the Critical Analysis of Social Difference at Columbia University. To read the full issue online, click here.]