Nation and Family: Personal Law, Cultural Pluralism, and Gendered Citizenship in India (36 page)

From the mid-nineteenth century, the
ulama
built larger religious institutions, notably the Darul Uloom Deoband (DUD), the Ahle Sunnat wal Jama’at and its Darul Uloom Manzar-e-Islam (DUMI) of Bareilly, the Darul Uloom Nadwatul Ulama of Lucknow, and the Jama’at Ahl-e-Hadith, to develop understandings of the normative Islamic practices appropriate for the times, urge Muslims to adopt such practices, and build groups of similarly trained scholars. They initially resisted the colonial state’s restriction of the application of Islamic law to personal life, but shifted from the late nineteenth century to a defense of Muslim personal law as it operated in the state courts. Some
ulama
trained in the DUD also built institutionalized religious court systems and urged Muslims to take their disputes to these courts, in which the judges reasoned primarily based on Islamic jurisprudence—in which they were well trained, unlike the judges in the state courts. The largest of these was the Imarat-e-Shariah, headquartered in Phulwari Sharif in Bihar, northern India. Some
ulama
demanded that the government establish such a system of sharia courts.
⁴

Many
ulama
sought to build a more certain religious-law system, perhaps in response to such expectations emerging from the colonial legal system. They promoted a return to authoritative religious texts and texts of religious law, and a reduction in the recognition of customs that did not enjoy clear support in these texts. This was a move away from the extensive reliance of
qadis
, through Islamic history in many regions, on customs not clearly contrary to Islamic legal traditions in their adjudication. Some texts of the seventeenth and eighteenth centuries that advocated such a reliance on custom, notably the work of the Arab scholar ibn Abidin, influenced many adherents of the Hanafi school in the Arab world, Central Asia, and South Asia. Although ibn Abidin’s work remained influential among the
ulama
, the majority of them, including those belonging to the networks centered around the DUD and the DUMI, came to consider it crucial to distinguish the laws governing India’s Muslims from the laws of non-Muslims, and reduce the prevalence of customs shared with Hindus, purify Islamic practice, build Muslim solidarity, and sharpen religious boundaries.
⁵
Many influential
ulama
supported certain customs that found direct support only in Hindu texts, but were also widely practiced by South Asian Muslims—even while they framed their efforts as abridging such customs. But they felt pressed to find support for these practices in classical Islamic texts, as Maulana Ashraf Ali Thanawi did for caste endogamy in the
hadith
.
⁶

The majority of the Jamiyat Ulama-i-Hind’s members supported Indian nationalism after the organization was formed in 1919, and a minority supported the Pakistan movement in the last colonial decade. Engaging such visions of territorially rooted political communities did not make them any more receptive, however, to South Asian customs not based in classical Islamic norms. By way of contrast, many
ulama
in various Muslim-majority societies in the Arab world and Southeast Asia incorporated more local customs not clearly supported by authoritative Islamic texts in Islamic law, to give Islamic traditions stronger indigenous roots.

Certain groups that account for the majority of Indian Muslims, the
ajlaf
and
arzal
(plebeian/lower-middle caste and lower-caste Muslims), did not claim ancestry in West and Central Asia, as the
ashraf
(elite/upper-caste Muslims) did. Their movements, such as the Momin Tehreek, focused on the
experiences of caste-based subordination that these groups shared with castes of similar status among the Hindus, Christians, and Sikhs. This created the potential for them to imagine Indian Muslim law to include South Asian practices that cross religious boundaries and do not have clear roots in classical Islamic norms. This potential was not realized, because these movements did not articulate distinct religious discourses or address personal law, and gained much less support than the organizations of similarly ranked castes affiliated with India’s other religions.
⁷

Many Muslim professional elites aimed to abridge regional customs too, but unlike the
ulama
they thereby sought to promote Muslim political solidarity more than to purify Islamic practice. They joined forces with the
ulama
to demand a reduction in the recognition of such customs, which the colonial courts especially applied to inheritance in many regions. These efforts resulted in the passage in 1937 of the Shariat Act, which made Islamic law rather than local custom the basis on which to regulate the personal lives of Muslims. Support for this goal extended across the emerging divide between the supporters of Indian nationalism and the Pakistan movement. Indeed, although Mohammad Ali Jinnah was by then the main leader of the Pakistan movement, his piloting the act through the Central Assembly did not reduce its support among Muslim Indian nationalists. Despite the act’s abridgement of the recognition of regional customs, it was framed through a compromise with the powerful votaries of particular customs. Landholding elites ensured that customs that gave patrilineages control over property would continue to govern the inheritance of agricultural land among Muslims in much of India, rather than individual kin being allowed to inherit such land following the prescriptions of Islamic law. The political elites that piloted the act claimed that the inheritance of agricultural land was exempted from the purview of Islamic law because the provincial legislatures had authority over this subject, whereas it was the Central Assembly that passed the Shariat Act. However, the path to the compromise was paved in the Punjab earlier, where the large landholders who led the ruling Unionist Party had blocked the efforts of the Jamiyat Ulama-i-Hind and the Muslim League to end the application of Punjabi customary law to land inheritance a few years earlier.
⁸

Muslim political elites prioritized broad coalitions more once the demand for Pakistan emerged, whether they supported or opposed it. This inclined
those that proposed the Shariat Act to accommodate the preference of landed elites, who were their important supporters. While
ulama
were less concerned with coalition building, they too were influenced by their dependence on the patronage of landed groups. Thus, when Islamic law was applied to the inheritance of agricultural land in various regions (in Bengal, Assam, and Bombay Presidency in the 1900s, in the Northwest Frontier Province and the princely state of Hyderabad in the 1930s, in Madras Presidency in 1949, and in Kerala in 1963), neither major
ulama
nor most Muslim political elites pressed for this change. Moreover,
ulama
remained reluctant to press vigorously for this reform even later. The main organization that organized their personal law initiatives since its formation in 1972, the All India Muslim Personal Law Board (AIMPLB), supported the Shariat Act’s application to agricultural land from the outset, but did not demand this change of the government until 2006 and did not mobilize much for this goal at any point.

Both professional elites and
ulama
supported the Mussulman Wakf Validating Act (MWVA) in 1913 and the Dissolution of Muslim Marriages Act (DMMA) in 1939. The MWVA approved bequests to family members, which parents sometimes used to give property to their daughters rather than to extended kin. The DMMA increased women’s divorce rights by borrowing certain rules from Maliki law, which governed virtually no Indian Muslims. It declared that a marriage would not be annulled by the apostasy of a party to the marriage (contrary to the predominant view in Hanafi law, which governs the vast majority of Indian Muslims), and enabled women to obtain divorces on other grounds at a time when Hindu law did not provide divorce rights.
⁹
While women gained new rights thereby, the main motive of this act’s sponsors was to ensure that Muslim women would not feel pressed to resort to apostasy to gain divorces, as they feared this would reduce the Muslim community’s numerical strength and blur its boundaries.

The engagement of certain
ulama
in increasing women’s rights through the legislation of the 1930s, albeit only in very specific circumstances and with a view to enabling group consolidation, contrasted with the opposition of major Hindu religious leaders at the time to proposals to reform Hindu law. These initiatives strengthened the conviction of many Muslims that a body of authoritative
ulama
could derive effective responses to contemporary predicaments from Islamic traditions through collective
ijtihad
. Despite the
ulama
’s
success in influencing legislation, their demand that Muslim judges alone should consider Muslim divorce cases was not accommodated. This reinforced their inclination to urge their followers to seek community courts.

Some Muslims, particularly the increasing numbers of women active in public life, called for more extensive Muslim law reforms in the last colonial decades. Muslim women’s organizations such as the Anjuman-i-Khavatin-i-Islam, Muslim women’s journals such as
Tahzib un-Niswan
,
Sharif Bibi
,
Khatun
and
Avaz-i-Niswan
, and Muslim leaders of the All India Women’s Conference (AIWC) particularly voiced these demands. The Anjuman-i-Khavatin-i-Islam demanded that polygamy and unilateral male repudiation no longer be recognized and that the minimum marriage age be increased from fourteen to sixteen; it drew support from various male Muslim public intellectuals. While she was president of the AIWC in the 1930s, Begum Sharifa Hamid Ali prepared a model
nikahnama
(marriage contract) that gave women the
talaq-i-tafwid
(delegated divorce right) if their husbands married other women without their consent or failed to fulfill other conditions stipulated in the contract, without requiring these women to forfeit their
mahr
(dower), as Hanafi law required if women initiated divorce petitions. Baji Rashida Latif, Begum Hafeezuddin, and Begum Qudsia Aizaz Rasul, leaders of the Muslim League (the last of whom joined the Congress Party after in dependence), demanded the application of Islamic law to the inheritance of agricultural land too.
¹⁰
These demands gained greater support once organizations representing women, and Muslim women in particular, became stronger from the 1970s.

Early postcolonial policy did not engage with these vigorous initiatives for Muslim law reform. The involvement of many Muslims in the Congress Party could have lent the party’s Muslim leaders a greater voice in shaping the ways in which Muslims were accommodated. The likes of Azad wanted to maintain the momentum behind Muslim law reform, give Muslim cultural practices greater representation in official nationalist discourses, and perhaps incorporate features of Islamic legal tradition in a future UCC if it were left optional. However, the party’s most influential leaders, particularly Nehru, understood these concerns poorly. They accommodated the preference of the Congress Party’s Muslim leaders to retain a distinct Muslim law,
but missed the opportunity to involve them in framing further culturally grounded changes in these laws and promoting Muslim support for these reforms.

B. Christian Mobilization

Christian groups did not address personal law in the late colonial decades, but some differences between Christian and Muslim mobilization through these years influenced the approaches these groups took to personal law later. Although Christians were much smaller in number than the Muslims (these groups accounted for 2.0 percent and 24.3 percent respectively of the Indian population in the last colonial census of 1941), the Christians were more diverse than the Muslims in their religious organization and forms of worship. Many Christian denominations were present in India, and the evangelical churches had especially grown rapidly since the late nineteenth century, increasing the Christian share of the population from 0.7 percent in 1881 to 2 percent in 1941.
¹¹
There were significant differences in religious practice, social organization, and social status between the Orthodox, Catholic, and Protestant churches, between groups that converted to Christianity during British rule and those that had become Christian several centuries earlier, and between different castes. The earlier converts, especially those belonging to the Orthodox churches, belonged predominantly to the upper and upper-middle castes, and recent converts and evangelicals belonged more to the lower castes and tribal groups. Groups that had became Christian well before British rule had developed distinct indigenous religious practices and indigenous clergies, and were mostly Orthodox and Catholic. The groups that converted during British rule and later were predominantly Protestant, and their largely Europe an and American episcopal hierarchies initially transplanted the religious practices of their churches from Europe and the United States. But the Catholics among these groups retained many pre-Christian practices. The many lower and lower-middle castes that had converted to Islam aligned themselves with the upper-caste-led Muslim religious organizations formed in the nineteenth century. In contrast, most lower caste and tribal Christians belonged to distinct churches, and did not support the efforts of Christian elites to mobilize a national Christian community, for instance behind the
All India Conference of Indian Christians.
¹²
Moreover, the Indian nationalist movement mobilized only a minority of Christians because of the affinity that some Christians felt with the colonial state, the opposition of many Indian nationalist leaders (particularly Gandhi) to the conversion of lower caste and tribal groups to Christianity, and the limited mobilization of lower caste and tribal groups that were particularly numerous among the Christians.
¹³
The low levels of mobilization of Christians as a national community led Hindu hegemonists to see them as less of a threat than Muslims; but their lower support for Indian nationalism and greater recent success in converting Hindus contributed to Hindu fears of their transnational links and public influence.