JUNE 2017

    Yüksel Sezgin

Reforming Muslim family laws in countries where Muslims live as minorities has been a challenging task for the proponents of reform. Those who demand reform in such minority settings — ie, women’s rights groups — often find themselves in a precarious position. They are often accused of putting their gendered interest before the community’s needs and aspirations and of allegedly collaborating with the majority institutions and actors in destroying the culture and identity of their own communities. In the face of such blatant accusations and attacks, women’s rights group were forced to innovate nuanced strategies to advance their individual and familial rights under religious laws while ensuring authenticity of their messages and securing the trust of their ethno-religious communities. Against this backdrop, this article will look at the case of state-enforced Muslim family laws in Israel and India, analyse the impact of these laws on women’s rights and freedoms and provide further insight into the ways in which Muslim women have overcome the aforementioned socio-political and ideological challenges and contested and reformed religious family laws particularly pertaining to postnuptial maintenance (nafaqa).

Israel; India; shariʿa; Muslim family law; reform; women’s rights; marriage; divorce; maintenance; alimony
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Whether in the Middle East, or in secular Western democracies, reform in family law has always generated resistance and controversy among those who shared competing visions of state–religion and family–nation relations as well as the place and responsibilities of women (both as mothers and wives) in the society. Resistance to reforming family laws, especially when they were religiously inspired, has been most pronounced within ethno-religious communities which held a minority position vis-à-vis the state whose institutional ethos visibly reflected the majority community’s ethno-religious values and culture. Those who demanded reform (ie, women) in such minority communities have been usually alienated and accused of treachery for allegedly putting their own (gendered) interest before those of their religion and the political aspirations of their ethnic communities. No matter where and when, challenges women’s rights activists in minority settings encountered and charges levelled at them have born striking resemblances: “Is this the right time to raise the issue of women’s rights or demand reform in our customs or ‘God-given’ laws while the homeland remained under occupation? We need to stay united as a people and be alert against the enemy who employs the ‘feminist agents’ to undermine our collective identity and divide us from within...”. These accusations meant that women within such communities have had to innovate nuanced strategies to advance their familial rights under religious laws while ensuring authenticity of their messages and keeping the trust of their communities. Against this backdrop, the following comparison of the cases of India and Israel — where the Muslim minorities’ relationships with the state are extremely politicised — provides insight into the ways in which Muslim women have attempted to overcome aforementioned challenges and tried to contest and reform state-enforced Muslim family laws (ie, marriage, divorce, and maintenance in particular).

In both Israel and India, marriage and divorce are regulated according to the family laws of ethno-religious communities: Muslims are thus subject to shariʿa, Christians to canon law, Jews to halakhah, Hindus to Hindu law and so forth. In Israel, religious family laws are applied directly by communal judges at religious courts (eg, qudah at mahakim sharʿiyya or dayanim at battei din), whereas in India, they are implemented by civil judges at secular courts. Israel does not have a uniform civil family code applicable to all citizens; in family law, the Israeli government recognises only religious law. The Indian state, however, which claims to be a socialist, secular and democratic republic, does provide citizens with a secular alternative: the Special Marriage Act of 1954 allows individuals who do not want to be subject to religious laws to contract civil marriage and divorce.

Such legal systems, where individuals are subject to the jurisdiction of their ethno-religious communities in matters of family law, are known as personal status systems. Historically, personal status systems had been employed by imperial powers (eg, the Ottoman Empire, the French in Syria, the Dutch in Indonesia) to categorise their colonial subjects into ethno-religious groupings, excluding subaltern groups from power by denying them terms of equal membership in the political community.1 Yet, personal status laws are not solely an antiquated system of legal and political ordering; from Morocco to Indonesia, many countries still continue to employ such pluri-legal systems to regulate familial relations among their subject populations.