Issue of Women’s Rights in South Asia

A woman’s individual identity is often questioned and compromised in South Asia. Family law in this region which ought to encompass areas of women’s rights also accommodates gender discrimination. The center of society is the family unit, yet woman, the main character, is often ignored in getting acknowledgement socially as well as legally. Family law here has provided ground for debate for feminists in search of laws with respect to gender.

In South Asia, complex personal laws that cater to marriage, inheritance, divorce and custody are in practice and are influenced by cultural and religious traditions. Secular laws also exist that try to homogenize rights on the basis of citizens rather than religion or community. However, in the South Asian context, since community and family have always been a priority, existence of secular and religion-based laws has negatively affected women’s development and their legal protection.

The South Asian judiciary, in the absence of legislation reflecting Ijma or consensus of Muslim community, has given a proactive interpretation to family law within the Islamic framework. It is interesting to see that the South Asian judiciary has proved that it is beneficial for entire societies to adapt to the need of a forward-looking Muslim society. Alamgir M. Serajuddin, in this book “Muslim Family Law, Secular Courts and Muslim Women of South Asia: A study on judicial activism” provides an in-depth analysis of South Asian countries where Muslim family laws are in practice in combination with modern civil laws.

The book comprises five chapters and concluding observations. The author provides an overview of the existing legal system in the Muslim countries of South Asia and problems faced by women due to narrow interpretation of the laws based on Sharia. In such a situation, judicial activism has brought a ray of hope for women in Muslim countries where Muslim family laws were drafted keeping in view the needs and changing situations of the contemporary world.

To explain the basic argument in the book, the author has made interesting observations on the Muslim legal system in South Asia, “It might have been expected that in the secular Republic of India, judicial interpretation would take the path of activism and liberalism, and in the Islamic Republic of Pakistan passivity and conservatism. In fact, in 1950s and 1960s the opposite was the case. While the Indian courts held that they were bound by the doctrine of precedents to follow the rules of interpretation laid down by the Privy Council in Aga Mahomed v. Koolsom Bee Bee and Baker Ali Khan v. Anjuman Ara, the Pakistan courts refused to abide by these decisions and claimed and exercised the right of independent interpretation of the rules of Sharia law. This has interesting results; Muslim personal law remained more or less rigid and conservative in India but became flexible and progressive in Pakistan. No wonder, the law in Pakistan and Bangladesh has diverged in a good many areas from that in India.”

It is good to see that the author has separately dealt with Muslim laws in India, Pakistan and Bangladesh instead of generalizing them under a South Asian category. Due to different systems of governments and policies in the center, the judicial system in different South Asian societies did get its share of influences of the center on its working. Individual country case studies give an idea about the situation in each country and the difference in obstacles that Muslim women face in different socio-political settings across the region.
Muslim-majority countries follow a dual court system where, if the government is secular, Muslims can choose to bring familial and financial disputes to Sharia courts. The exact jurisdiction of these courts varies from country to country, but usually includes marriage, divorce, inheritance, and guardianship. Family relations in India are largely governed by personal laws based on religious and cultural practices even as the state has tried to establish secular laws to homogenize the rights of people according to citizenship rather than religion or community. Article 44 of the Indian Constitution provides that the state shall endeavor to secure for its citizens a uniform civil code (UCC). The Indian constitution, apart from being secular in character, is also sensitive to the cultural and religious plurality; hence, the state had to balance rights under personal law against the need to grant equality to all Indians.

The legal age of marriage is considered to be an area where women’s decision-making is taken into account by the law. Child Marriage Restraint Act, 1929 (amended 1979), increased the age of marriage to18 for girls and 21 for boys. The impact has been marginal though, given that child marriage is largely a cultural and rural phenomenon and families marry off young children in order to save money. Secular law unfortunately has little impact when it comes to personal laws like the Muslim personal law that allows the marriage of minors to be contracted by guardians. The Christian Marriage Act permits the marriage of a minor provided a guardian has consented to it.

While discussing Muslim personal laws in Pakistan, the author speaks very highly of the judiciary in post-independence Pakistan. He is of the view that the superior courts boldly claimed and exercised the power of ijtihad and openly asserted two rights which no courts in other Muslim countries had done, first, their right to independent interpretation of the Quran and second their right to differ from the doctrines of traditionally authoritative legal texts which are not based on any specific injunctions of the Quran and Sunnah. The four sources of law were also discussed freely and refused to follow Muslim laws as laid down by the Privy Council in the pre-independence India. However, the Islamization process and Hudood Ordinance put the fate of Muslim Family Law ordinance in jeopardy, where a lot of politicization and narrow interpretation during Gen. Zia’s regime negatively affected the progressive judicial system. 

In case of Bangladesh, most of the laws were followed under the Muslim Family laws Ordinance.  The ordinance or the progressive, liberal role of the judiciary did not face any serious threat and the ordinance remains in force in Bangladesh without any amendment or alteration. Though the ulema continue to oppose it as un-Islamic and some of them have attempted to make it a political issue, none has challenged its legality in a court of law. Since 1971, Bangladeshi courts have accepted all the progressive interpretations and decisions of Pakistani courts given before the creation of Bangladesh in 1971, but they have also considered the new social needs and realities.

The book concludes by stating that judicial activism has brought about beneficial changes in many areas of Muslim personal law in India, Pakistan and Bangladesh, though they have not gone unchallenged. Despite this, the judges have interpreted and applied the law to promote the cause of justice. Judicial activism has significantly enlarged the dimension of women’s rights under that law and bridged the gap between a woman’s theoretical legal rights and her actual position in society.  

Arshi Saleem Hashmi is Assistant Professor, Peace and Conflict Studies Department, National Defence University, Islamabad. She is a member of Women in International Security (WIIS,) Edmund A. Walsh School, Georgetown University and has also worked at the United States Institute of Peace (USIP), Pew Forum on Religion and Public Policy and Middle East Institute, Washington DC.

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