Interlegality and Gender Justice: Mapping the Diversity of Muslim Family Law in northern India

This dissertation attempts to challenge liberal and modernist tendencies in the scholarship on Islam, gender and law in South Asia, which posit women’s rights as incompatible with Islamic legal thought and practice. It is an ethnographic study of several Muslim women’s organisations in north India, which articulate ideas of gender-justice within an explicitly Islamic framework. It seeks to situate the workings of these non-state institutions within a complex landscape of legal pluralism using Boaventura de Sousa Santos’s concept of “interlegality" (Santos 1987, 2002). This is to understand the entanglements (Randeria 2002, 2004) between state and non-state law, between secular and religious norms and legal forums, which should not be conceptualised as discrete, bounded and parallel systems. By questioning the monopoly of the state as the only site for the production of law, the idea of interlegality allows one to examine the workings of non-state normative orders. Moreover, it permits an understanding of the porosity and fluidity of legal (and social) boundaries as it conceptualises law as fragmented rather than unitary and normative orders as overlapping rather than distinct (1987: 298). For viewing the practices of Muslim institutions only in relation to a presumably homogenous, traditional Islamic family law obscures the thick web of entanglements with secular state law, on the one hand, and with informal courts of orthodox/conservative Muslim clergy, on the other, within which these institutions established by Muslim women function in everyday practice. This dissertation contributes to a nascent discussion of interlegality in the context of South Asia. A discussion that places the apparent dichotomy of Islam and liberal concepts of women’s rights within a context where religious based non-state institutions are understood as a part of a complex and thick landscape of legal pluralism characterised by its inter-relations and overlap.The study delineates the heterogeneity and tensions in the workings of Islamic family law in post-colonial India. Based on empirical data gathered in the city of Lucknow northern India, during 8 months, it explores (i) current discourses and practices on Muslim women’s rights in order to critique the normativity of discourses on the homogeneity of Islamic practice and ideology in the field of family law, and (ii) the blurring of boundaries between secular and religious norms and practices as well as secular and religious legal authority. It focuses on attempts by progressive and secular Muslim women’s organisations in the city to create a space for claims regarding Muslim women’s rights and gender-equality within the framework of Islam. In so doing, it foregrounds the work of three unusual women’s organisations in the city: the All India Muslim Women’s Personal Law Board, the Indian Muslim Women’s Movement (Bhartiya Muslim Mahila Andolan) and the Women’s Club (Bazme Khawateen). Whereas the last mentioned was founded in 1937 under British colonial rule, the former two organisations are new and have only been established recently in 2005 and 2007. None of them have been studied. Progressive Muslim women have founded these all-female institutions in order to challenge the interpretations of the Quran, the Shariat and the Hadith offered by the Muslim religious authorities as well as the monopoly of the clergy over these interpretations. These forums are neither part of the formal state legal system nor of the informal Shariat-courts manned by the Qazi. These well-educated middle class women who preside over these Muslim women’s organisations in Lucknow, however, cooperate to a different extent with the male-dominated religious institutions on the one hand and the state on the other. In so doing, they do not see themselves as clutched in-between a religious or secular interpretation of women’s rights. Rather, they view the Indian Constitution and the Quran as sources of synergy and not conflict. They offer alternative spaces for the negotiation of women’s rights and gender equity from a Muslim feminist point of view. Thereby, female sexuality and the conjugal relationships emerge as primary sites, where religious and legal authority as well as varying norms of women’s autonomy and gender justice is negotiated. Notwithstanding the general assumption that religious-based legal institutions are primarily addressed by the poorer section of society, my data show, that both, Muslim women’s organisations and the Shariat-courts are frequented by women from different socio-economic strata including the middle-, lower-middle and the lower class. Interestingly, it is within the premises of the state-led Family Court, however, where the due of lower-class women is the highest.