The Fragile Position of Women in Muslim Marriage in North India In

C. Vreede-de Stuers Churi: the fragile position of women in muslim marriage in North India

In: Bijdragen tot de Taal-, Land- en Volkenkunde 148 (1992), no: 2, Leiden, 270-286

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CHURI; THE FRAGILE POSITION OF WOMEN IN MUSLIM MARRIAGE IN NORTH INDIA

'A set of glass bridal bangles (churî) was also included in the presents brought in. It is essential for women to wear some kind of glass bangles. These were of exquisite workmanship . . . The bangles were small and they hurt Zohra, slightly bruising her hand, but she suppressed al1 cries of pain in the presence of her susral, her in-laws.' (Fatehally 195 157.)

'The car slid by the gleaming bangle-shops. He observed "The bangle,trade seems to flourish here". "We have a mania for bangles", she said, "and happily enough, they are also essential. If I went about without them, Ammajan (Dear Mother) would be more homfied than even by that white sari (of a widow). You know, bare wrists signify widowhood."' (Fatehally 195 1: 173- 174.)

Introduction This article is the outcome of my continuing close study of the specialized literature on the attitudes and aspirations of Indian women with regard to certain aspects of family life in general, and Muslim marriage in particular. The questions that arose in this connection were: what are the social factors determining these aspirations, and to what extent are they influenced by their immediate surroundings? The article illustrates how in certain circles the ideal image of women as daughters, wives and mothers is reaffirmed and propagated by the wedding customs described in it. For this I drew on the material of my own research among Muslims in North India in the 1960s and compared my data with those provided by the ever-growing body of literature on Muslim family life. Al1 this plainly testifies how traditional patrilineal joint-family relations continue to be looked to as the ideal to be perpetuated, even where growing individualism as a result of more forma1 education and employment favours independent residence in nuclear households. I have not expatiated on the conflicts that arise between the ideal and the real situation as kinship roles and behavioural patterns in both joint and nuclear households change. But there are implicit indications of conflict

CORA VREEDE-DE STUERS is a retired Reader in Family Sociology at the University of Amsterdam, who obtained her Ph.D. in sociology at the Sorbonne in Paris. Her two principal publications are The Indonesian woman; Sfruggles and achievements, The Hague 1960, and Parda; A study of Muslim women's life in northern India, AssenINew York 1968.

Downloaded from Brill.com09/24/2021 04:10:51AM via free access Chue The Fragile Position of Women in Muslim Marriage 271 situations in my discussion of the problems presenting themselves in Muslim marriages where young people, and in particular women, rebel against the traditional interpretation of the Muslim personal law, and more specifically such practices as dower and unilateral divorce and the present system of alimony. Now that the average age at marriage for girls in India no longer is below 17, as is clear from the latest census figures, and many girls from the middle and upper classes are given the opportunity to earn their own living as a result of forma1 education, new patterns in the outlook and behaviour of women are emerging. This article wil1 only allude to the subdued protests of this new generation, without reference to the copious body of fiction on the subject, as in the case of my book on Indonesian women (Vreede-de Stuers 1960), notably the first chapter, 'Adat and Islamic Law', and the fourth chapter, 'The Indonesian Novel: Reflexions of the Old and Glimpses of the New'. It has been my intention to demonstrate in the present article.how Islam, through the inextricable interwovenness of bda and Islamic law and the bewildering variety of contradictions with and adaptations to changing circumstances, is providing alternative interpretations of the law, in accordance with either the 'modernist' or the 'traditionalist' outlook of its adherents. In the process, I have tried to identify the problems created by the disparate attitudes among Indian Muslims with regard to the principle and the practice in their matrimonia1 relations and family life.

The arrangement of marriages An Islamic legal marriage - essentially the conclusion of a contract including various provisions specified by Koranic law - requires a mini- mum of formalities. The main restrictions on marriage are provided by: l. relationship by consanguinity and affinity; 2. the permissible number of simultaneous legitimate wives; 3. the obligation to come to an agreement before the marriage about the size of the dower (mahr); and 4. the obligation to comply with the principle of kafa'a, or equality as determined by lineage, religion, occupation, mora1 character and economic situation. This principle of kafa'a with respect to nasab (lineage) has become so important that it has resulted (among the middle-class ashrap families in northern India with whom I became acquainted) in forms of endogamy similar to the caste endogamy of the Hindus. The only difference is that among the Muslims in India there are no ritual sanctions attached to violation of these rules.

1 The ashraf section of Muslirn society in India cornpnses the various categories of Muslims clairning foreign ancestry, narnely the Sayyad, the Shaikh, the Ansari, the Siddiqi and the Abbasi. Non-ashraf are the descendants of converts frorn among the lower ranks of the Hindu caste systern. See Ansari 1960.

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If a khandan marriage, i.e., a marriage within the kuf or group of near relations, has proved impossible, a wider endogamous circle is sought. These marriage circles (biahdhan) consisting of families of the Same socio-economic status existed only among the middle-class ashraf families I studied. The careful selection of partners for a marriage in these families, in which differences between categories are .very pronounced, implied a strong patrilocal and patrilineal family organization. The authority of the head of such a patriarchal family and the strict hierarchy obtaining among the various members are evident from the classificatory kinship termin- ology, used by both Hindus and Muslims of the Same family background as part of a rigidly institutionalized frame of rules governing kinship behaviour and gender relations (Vreede-de Stuers 1968:8-10; Misra 1964:154-55). Marriage for al1 such families is a 'gala affair', as Misra calls it; it is an important family event arranged and organized according to the specific requirements by the family elders (Misra 1964:78 and 150). The strictly Islamic centra1 part of the wedding ceremonies and festivities, namely the aqd-i-nikah, i.e., the formality of the drawing up and signing of the marriage contract, takes place in rigorous conformity with canon law; it occupies a short time and involves little ceremony. From the social point of view the other, traditional ceremonies derive from ancestral customs peculiar to the region where the wedding takes place. Signifi- cantly designated Sm'-achar'(women's customs), they constitute the most popular part of the celebrations of a mamage. Especially middle-class families, who can afford the expense, are very much attached to these - often very costly - festivities, which involve a conspicuous show of the wealth and status of the hosts. In the description of a Muslim wedding oneneeds to distinguish between the preliminary festivities (shadi), held at the bride's house before the pivotal formality of the nikah, and the concluding festivities, staged partly at the bride's and partly at the groom's home. During al1 the various wedding ceremonies, girls, who have yet to enter the domain of mamage, and widows, who have already passed through it, must remain inconspi- cuously aloof.

The shadi or preparatory ceremonies The period of the progressive isolation of the bride (mayan) starts with a purification ceremony performed by the married women whose husbands are still alive (suhagan). The marriage songs (suhag) sung during the preparatory ceremonies, which are passed down from mother to daughter, describe the qualities of the bride and the love and sorrow of her mother at seeing herchild leave. The wife of Prof. Moh. Mujeeb, Vice-Chancellor of Jamia Millia Islamia (Okhla, near Delhi) at the time I was there, noted down in Urdu the texts of several of these songs for me. She called them 'Songs of .the Mother'. Although old-fashioned, they are still chanted without alteration. The translation of one of them is as follows:

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'My daughter is innocent, let her grow! She does not know how to relish pindi! And has to fasten her belt, let her grow! Father wants to marry her off early, But Mother is reluctant: let her grow! Her eyes are sweet, her bangles are loose.' [Then follows an,enumeration of the several traditional ornaments that a bride is supposed to wear. The song ends with the mother's worried exclamation:] 'Oh! my inn~cent~daughter,your bangles are loose!'

The bride is too young to get married, objects the mother. The pindi referred to here are balls of sweetened rice flour, which are as indispens- able at Muslim feasts as at Hindu ones, but lack the ritual value attached to them at the latter. The multi-coloured bangles about which the mother objects that they are tooloose are the churi, made of very thin glass, which are offered to al1 Indian brides, Hindu and Muslim alike, by the groom's family. Whenever an Indian woman has to buy new ones she will, out of sheer vanity, get as naGow a fit as possible, prepared to suffer the pain of squeezing and kneading her hands to let the fragile bangles pass without breaking. As opposed to this, the bangles in the song slip too easily over the hand of the young bride, a mere child. The song is still sung in the Same form today, even though,'as the 1971 Census informs US,the average age at marriage for Indian w'omen in the decade 196 1- 197 1 rose to a little over 17 years.

Another preparatory ceremony, called sachaq or ban (in Lakhnau), takes place on the day before the nikah. The female members of the groom's family gather before their house to collect the traditional gifts which are to be carried in procession to the bride's house. These presents include a big piece of red cloth to be made up by the women of the bride's zenana (women's quarters) into the bridal dress within the 24 hours left until the nikah ceremony is due to take place. I was told by elderly ladies how in their youth these 24 hours had been the most hectic moments they had experienced during their wedding festivities. Nowadays the bride's dress is ordered at the dressmaker's or presented ready-made by the groom's family, together with the other traditional gifts, including the sehra, or net of silver threads intertwined with garlands of flower buds to cover the bride's face during the ceremonial meeting at her house. Another indis- pensable gift is the pan-supari, or areca nut with betel leaves, to be distributed among the women of the zenana. In the meantime the jahiz (Arabic: jihaz), or bride's trousseau as a gift from her parents, which has been prepared by the women of her house, is sent to her susral (in-laws) - after having been displayed in the courtyard

Downloaded from Brill.com09/24/2021 04:10:51AM via free access 274 Cora Vreede-de Stuers of her zenana for al1 the women to admire2 - together with the traditional presents, from the bride's family to. their son-in-law. They comprise his wedding outfit, rit-ka-jora, together with several other costumes, jewellery and sweets, as wel1 as a sum of money, which theoretically is very modest, but in reality often amounts to several thousands of rupees, which are offered by the bride's parents in payment of the groom's university education, or to enable him to do a course of training at some other institution at home or abroad. On the day of the wedding the bride is ceremonially bathed and dressed by a suhagan. While she remains in the zenana in her red dress, where she is covered with a red veil, the preparations for the principal ceremony take place in the mardana, or men's quarters. Meanwhile the barat (procession of the groom, which is formed at his house) has set out. It includes the entire family, the khandan (consanguineal kingroup), and sometimes even the biradari ('brotherhood', or association of kinsmen), coming to several hundred people, both men and women. The groom has his face covered with streamers of sehra flowers, like a Hindu bridegroom. Upon their arrival at the bride's house, the women of the barat are accommodated in the zenana of the bride's family. The men are lodged in a rented house or a temporary structure erected especially for the occasion.

The aqd-i-nikah or signing of the marriuge contract The witnesses to this ceremony first go to the bride's zenana to obtain her explicit consent for the marriage. hese witnesses are generally the wakil or representative of the bride, in most cases her wali or guardian, and two othergawah (witnesses), and are chosen such that they are allowed to enter the zenana. In other words, they are from among her own brothers or uncles, so that they are mahram, i.e., ineligible to many her. After obtaining the bride's consent, they go to the kazi(registrar of Muslim marriages), who delivers a khutba (pious address). This includes the kalima, which has to be repeated by the bridegroom, and several verses from the Koran. The women-whom I asked about the verses chosen for this, never having been present at such a ceremony, could not inform me about this. A maulavi (traditional Islamic law scholar) from Delhi, however, recited the three most popular texts for this occasion to me at my request; they are 111, 10 1 (Al-i-'Imran), IV, 1 (An-Nisa), and XXXIJJ, 70-7 1 (Al-Ahzab). After that the kazi explains the contents of the contract to the respective parties. The printed form of the marriage contract (nikah-nama) is signed by the groom and the bride's wakil and the other witnesses. It is handed over to those concerned after the kazi has filled in the amount of the mahr

I have been invited more than once to admire such displays myself. See also Towards Equality (1974:4.82), which states: 'The practice of displaying the dowry by parents of the bride vr the bndegroom is prevalent in some parts of India', and (3.224) 'If public display of gifts is banned, it may hold unhealthy competition in check'.

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(dower)3, specifying the portion that is to be paid immediately and that which is to be paid later, the items of the jahiz in kind and in cash, and the amount of pocket-money to be given the bride (kharch-i-pandan = 'money of the betel-box') (cf. Fyzee 1955:107, Chapter VII, 'Maintenance'). Sev- era1 women I met possessed a copy of this document, but for many others belonging to orthodox families, a copy of the nikah-nama had not been drawn up. All, however, were sure that the marriage had been registered by the kazi on duty. Sometimes a second document is attached to the nikah-nama, namely the iqrar-nama, in which are enumerated in detail the obligations of the husband in case of divorce. This document, of which I have been allowed to see two specimens, is generally used among the working classes. The nikah-nama is more common and is found among both the ashraf (upper) and non-ashraf (lower, working) classes. But the orthodox among them consider the issuing of a written copy of the iqrar-nama an insult to the trustworthiness of the verba1 offer and acceptance before the kazi, as prescribed by the tradition of Islamic contracts. In the iqrar-nama mention may be made of the bridegroom's promise to provide ample nafaqa (maintenance) in the event of a divorce and not.to claim the traditional presents given to his bride, nor to allow any of his heirs after his death to claim them. Along with this there may be an explicit statement that mahr- ma'afi, i.e., the renunciation by the wife of her right to the dower, may not take place, except with the full knowledge and in the presence of her relatives; this is meant as a safeguard for the wife. Finally, there is a specification that also if the wife leaves her husband because he has broken any of his promises, he must provide her with sufficient money for her maintenance (nafaqa) as agreed; if he fails to do so, his wife may sue for a divorce (khul').She wil1 then forfeit her right to the part of her mahr that is still unpaid. While such ma'af kama (exoneration) is often resorted to in emergencies, such as the serious illness of either the husband or the wife or of a child - something against which a wife should be protected - the renunciation by a wife of her mahr in the case of khul' has a different implication, as wil1 be shown below.

The cuncluding ceremonies During the days that follow the nikah formalities, and before the bride is due to leave her home to go and live with her susral, one final festivity, the

3 The word mahr refers to the individual gift of money presented by the bridegroom to the bride and is usually translated into English as 'dower' (see Towards Equality 1974:3.218 and 3.219). The word 'dowry' as used in this article, on the other hand, refers to the gifts offered by the bride's parents to the bridegroom, the jora sent in procession to the house of the groom's family, and the bride's jahiz. In the English literature the term 'dowry' is sometimes used rather loosely for different kinds of gifts. The remark in Towards Equalify (1974:3.191) that 'There are baffling regional variations in people's understanding of dowry' seems to confirm my view.

Downloaded from Brill.com09/24/2021 04:10:51AM via free access 276 Cora Vreede-de Stuers ceremony of a'ina (or arshl? mushif(the mirror and the Holy Koran) wil1 take place in the bride's zenana. Wearing her bridal dress, she is surrounded by the married women who have husbands still alive (suhagan). After the groom arrives, both he and his bride are seated facing each other beside a mirror, their heads covered with a large red veil. The Koran is placed between them and opened at Sura Al Ikhlas, which reads:

'Say, He is God, One, God, the Everlasting Refuge, Who has not begotten, and has not been begotten, and equal to Him is not any one.' (Arberry 1955.)

. . ..

Tar I. Arshi Mushif Song

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After silently reading this sacred text, the groom begs his legally wedded wife to open her eyes. This she will do after he has repeated his request, and she will then see her husband in the mirror. At that moment the women present will start singing the appropriate customary songs. The one reproduced here as an illustration (see Text 1) was recited in Delhi and noted down for me, along with the other songs mentioned, by Mme. Mujeeb. In the French translation I made of this for my article on Muslim marriage (Vreede-de Stuers 1963) and the English translation for my book Parda (Vreede-de Stuers 1968:23) I rendered the first sentence as 'Ma jolie, leve ton voile' and 'My sweetheart, lift thy veil' respectively. But a literal rendering of the word haryali with 'ma verte' and 'my green one' would have been more correct, referring as it does more precisely to the youth and innocence of the young bride. In this respect this song is also dated, like the suhag I mentioned earlier. It again reminds US of the time when child-marriages were the rule rather than an exception. Other sentences, such as 'I offer thee a lakh, nay two lakhs' (of rupees as dower), stress the prestige of the bride's family. The haunting frequency of the wordghunghat (veil) in the recurrent request by the groom to 'lift thy veil' and his promise to be the father of her children suggests the mood of excited expectancy while he is waiting for the bride to be uncovered by the lifting of her veil. At this point the final send-off for the bride leaving her parents' home takes place. The songs of departure (rukhsati, called more specifically babul, songs for the father of the bride at her departure from her home and kin to be taken to her new home in the in-laws' house; see Text 2) express the general sorrow of those staying behind. The songs that were reported to me in Delhi and Aligarh again betrayed their early origin: dolls are said to be left behind when the bride is led to the palanquin in which she will be taken to her susral. Girls are likened to birds flying away, or to cows led to a foreign byre. At the point where the palanquin carrying the bride moves off, the song mentions a neem tree, which is known for its bitter taste. As usual, the family's izzat is stressed by means of words praising thè bride's father, viz.: 'Oh! bride's father, you have made superb arrangements for your daughter's wedding. You have won the praise of even the wealthiest.' In another song the word babul is repeated as a refrain (in the Same way as one finds this in old English poetry), stressing the sorrowful mood, like the word ghunghat in the song described above. As translation of the words lakhi babul, lit. 'dear father with lakhs of rupees', I would suggest 'Oh, my millionaire daddy'.

The reciprocal gifts Al1 the preparatory and concluding wedding ceremonies, of which I have described the most spectacular ones above, form part of the 'ada or 'urf

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Tert 2. Bride's Departure Song

(local or regional customs). They al1 include exchanges of different cate- gorie~of traditionally prescribed gifts, such as: l. Gifs exchanged between the two families involved a. sachaq, given by the groom's family to the bride; they include jewellery, dress materials, perfumes, flowers and pastries; b. the bride's jahiz (trousseau), sent with her to her susral; c. jora, offered by the bride's parents to the bridegroom; it is made up of his official wedding costume and other articles of dress, a wrist- watch, a radio or T.V. set, a motor cycle or car, or money covering the costs of his education at home or abroad; d. coins and pan-supari, presented several times in the course of the wedding ceremonies either to the bridegroom and his companions in the house of the bride's relatives or to the bride and her companions in the house of the bridegroom's family;

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e. walima, or ceremonial feasts, offered by the families to each other in turns, alternately in the house of the bride and in that of the bridegroom. 2. The obligatory contributions to the wedding expenses by the different relatives These are given according to the latter's distance in relationship to the parents of the bride or bridegroom, and include: a. contributions to the bride's trousseau (jahiz) in the form of several sets of clothes, jewellery and furniture, the value of which among urban middle-class families may range between Rs. 5,000 and Rs. 10,000; b. contributions for the walima (obligatory festive meals) to which they are invited. In order to avoid misunderstanding as regards the different kinds of payments involved, and at the risk of being repetitive, I would stress that a Muslim bride's mahr, or dower, is not to be confused with any other kind of gift or payment in connection with marriage in India, be it Hindu or Muslim. The payment of dower (which has no equivalent in Brahmanic marriage) is not the primary concern of a Muslim bride's father, but is an obligation on the bridegroom as a Muslim. The payment of what in English is called 'dowry', on the other hand, is a Hindu bride's father's duty. He has to provide not only his daughter's stndhan (exclusive property of a Hindu wife, including her trousseau, called jahiz in the case of Muslims) but also, and above all, this dowry, or varadakshina (bridegroom-wealth), claimed by his future son-in-law (cf. Vreede-de Stuers 1970:136, note 9). 'The settlement of dowry', the Report of the Committee on the Status of Women in India informs US,'has al1 the characteristics of a market transaction'. Al1 over India the compilers of this Report heard the com- plaint that dowry was on the increase and had penetrated communities and regions where this practice had never been observed before. 'In several regions the Muslims and the Christians have taken over the custom of giving cash to the bridegroom, being a heavy pressure on the bride's parents' (Towards Equali~1974:3.205 and 3.206). Further down, this Report notes that:

'Dowry is an all-India phenomenon . . . There are some communities who have been relatively free from the menace of this custom . . . Most Muslim communities, the non-Catholic Christian groups and the Parsees do not have dowry . . . But now, even among the Muslims dowry is demanded though it may be in a subtle form [my italics, C.V.-de S.]. There is in fact no difference now in the pattern and motives for conspicuous consumption and dowry, either regionwise or castewise.' (Towards Equality 1974:3.2 18.)

In the italicized sentence, I would point out again, it is not dower, mahr,

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that is at issue, but the accumulated expenses for the daughter's jahiz, the son-in-law's jora, and the traditional walima, which together 'in a subtle form' constitute the dowry.

Considering the various amounts involved in al1 these payments and gifts, to which should be added the expenses of hiring personnel on both sides, it becomes clear that the scales are turned heavily against the father of the bride.

The position of women in maniage and divorce It wil1 be clear from the above description that the various customs in connection with marriage in Muslim ashraf circles in northern India are quite similar to those observed by Hindus from the Same socio-economic class and living in the same region. In both communities, it is the parents who decide on the choice of marriage partners for their children. And in both, people expect the bride to be younger than the groom, and her family to be of slightly lower status than his4, thus viewing the couple within the context of the two families involved rather than as two individuals entering int0 a new partnership. My remark (Vreede-de Stuers 1968:27) that the difference between a Muslim woman's way of life and that of her Hindu counterpart from the Same socio-economic background and geographical area is often less pronounced than that between the different classes of society, has since als0 been confirmed by Ahmad (1976:XXV).The latter writes: 'The imprint of the regional environment on Muslim kinship and marriage patterns is not restricted to family norms and role relationship alone. It extends to marriage customs and practices.' Although for Hindus marriage is a sacrament, while for Muslims it is a contract, both communities in India insist on the importance of marriage and family life as a woman's primary destination. As Lateef (1990:126) observes: 'The institutional importance of marriage and family and its centrality in women's lives is an enduring belief in India. This is demon- strated by cultural practices and religious and social traditions which continue to support role differentiation, marriage and family.'

The possibility for Muslim women of divorce by khul', effected at the instance of the wife.- who thereby relinquishes the right to her mahr - may seem to some extent to imply a recognition of the relative personal inde- pendence of women in making decisions. But this is not the case in reality, particularly where there is question of a customary dower (mahr rivaji) fixed in accordance with the social status of the bride's family, which is found among families of former landowners. Despite their social decline

4 Towards Equaliry (1974:3.155) says about this: 'The "seed", people believe, is more important, than the "field'.

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since Partition, these families have continued to pledge fabulous sums as mahr in their nikah-nama. These mahr pledges obviously involve no check on the powers of the husband, however, and offer no protection for the wife. This is illustrated by the following quotation.

'When I asked a simple middle-aged clerk, belonging to an old Sayyad family and employed in the Municipality-office of Delhi, if he would pay his wife the mahr of twenty thousand rupees inscribed in their nikah-nama several years ago, he laughed and said: "how could I ever pay such an amount in my situation! It is only a question of family prestige. Nobody expects it. Anyway my wife will dis- charge me of the duty to pay it."' (Vreede-de Stuers 1968:14.)

Instead of affording the wife protection in a strictly economic sense, the mahr has become a sign of the constant preoccupation with izzat, family prestige. This comes int0 play when fixing the amount of a daughter's mahr - to which at the same time she is obliged to renounce her right. When one reads the following statement by the Committee on the Status of Women in India, one gets the impression that the situation has not improved since my observations in the sixties.

'Muslim Law had always recognised that in some cases the wife may be able to get a divorce. To the uncodified law the Dissolution of Muslim Marriages Act 1939 has added further grounds. But the power of the husband to pronounce talaq unilaterally remains, and has in no way been curtailed either judicially or through legislation. As long as this absolute and unlimited right remains, the position of the Muslim wife will remain insecure and her status cannot be raised. We totally disagree with the view that . . . with her right to obtain divorce by "Khul", a Muslim woman's rights "are brought into approximation with those of the man".' (Towards Equalis, 1974:4.1O 1.)

The last sentence of this statement reminds US of the fact that the unre- stricted power of a husband to pronounce talaq, or repudiation (formula), unilaterally remains. As long as this continues to be the case, the position of Indian Muslim wives will remain insecure. Therefore the argument that the payment of mahr as practised today safeguards wives against arbitrary treatment by their husbands has no validity, because, apart from the l practice of maúf karna (exoneration, that is, renunciation of her right to her dower) on the part of the wife, the amount of the mahr is not pro- portionate to his financial situation.

Before discussing one particular aspect of this unilateral pronunciation of the talaq, I should mention yet another ground for divorce for a woman,

Downloaded from Brill.com09/24/2021 04:10:51AM via free access 282 Cora Vreede-de Stuers namely incompatibility of temperaments. In Indonesia, where I first came to know about this, it is known as hukum shiqaq (hukum = law, shiqaq = break-up) (Vreede-de Stuers 1960:36-37). In India it is called faskh, meaning 'annulment of a marriage by the kazi on the application of the wife in the case of incompatibility'. As in Indonesia, the kazi's powers in this respect are known as being based on the Koran, Sura 4:39, which says:

'And if you fear a breach between the two, Bring forth an arbiter from his people and from her people an arbiter if they desire to set things right.' (Arberry 1955.)

This passage has given rise to several different interpretations, however. Only the passing of the Dissolution of Muslim Marriages Act of 1939, which is applicable to al1 Muslims in India, irrespective of the madhhab to which they belong, 'restored to wives an important right accorded them by the Shari'at' (Fyzee 1955:44). The particular use of talaq (repudiation) which I wish to discuss is talaq- at-tafwid (delegated divorce). This delegated divorce, which in Indonesia is called talik-at-talak (suspended repudiation), has become fairly common in India, where it is specified in the nikah-nama. It, says Fyzee, is perhaps the most potent weapon in the hands of a Muslim wife in her effort to obtain her freedom without the intervention of any court. Fyzee mentions the text of a talaq-i-tafwid ensuring a Muslim wife the right to obtain her freedom which was drafted in English in Bombay. He adds that it is in fairly wide use in Bombay but not well-known in India in genera1 (this was at the time of publication of his book; see Fyzee 1955:app.B). Bevan-Jones, moreover, reports that at the Al1 India Women's Conference (AIWC) of 1937 there was mention of a printed model of a nikah-nama in which the groom agreed that, in the event of his marrying a second wife, his present wife might obtain a divorce by appealing to the relevant passage in the nikah-nama (Bevan-Jones 194 1235, note 2). In my study of Indonesian women (Vreede-de Stuers 1960) I mentioned the thirty texts of this talaq, varying according to region, which the Dutch Oriental scholar C. Snouck Hurgronje collected in the Dutch East Indies in the last decade of the 19th century, and which he put at the disposal of A. van Ophuijsen in 1907 (Snouck Hurgronje 1907). These texts are mostly Javanese or Sundanese, except for the Malay one that is reproduced in my book (Vreede-de Stuers 1960). In addition there are two Indonesian- language versions, one edited by the Ministry of Religious Affairs of the Republic of Indonesia (1955), and the other proposed by the women's association PERWARI (1956), with English translations added.

In recapitulation of what has been said about mahr and divorce among Muslims in India, it may be underlined that the rights of husbands and

Downloaded from Brill.com09/24/2021 04:10:51AM via free access Churi; The Fragile Positwn of Women in Muslim Maniage 283 wives here are not equal, mainly as a result of the accretions and interpretations that custom has added to the Koranic prescriptions. A woman admittedly does have certain rights when it comes to obtaining a divorce. But she must ask for this and pay for it by forgoing her rights to mahr. Or, as Bhatty puts it: 'A woman cannot give a divorce to her husband, she must seek it and the husband must agree to give it' (Bhatty 1990). The conclusion seems justified, therefore, that a married woman in these circles not only has little control over her dower, but also is insufficiently able to assert her individual rights as a daughter and as a wife, divorcee, or widow. This is illustrated by the famous and controversial Shahbano5 case, in which the Supreme Court of India decided in 1985 to award Shahbano Begum maintenance even though she was divorced from her husband. This was possible after the enactment of the Muslim Women's Protection of Rights in Divorce Bil1 in February 1986.6 This new Muslim Women's Act prescribed that women should be entitled to maintenance during the period of iddat (waiting period before a widow or divorced woman may remarry) after divorce, as also to their mahr and any property given them by their husband and his family. If after the iddat period a woman is unable to provide for herself, she can apply to the magistrate for an injunction for her own family to support her. The Act was introduced with a view to protecting women's rights: if a husband refused to support her, a Muslim wife could fa11 back on the protection of her consanguineal kin, and failing that, of the Wakf (charity and endowment) Board. However, in necessitating litigation, involving expenditure, the provisions for the protection of Muslim women make a mockery of the Koranic provisions on maintenance (Al-Baqra 24 1 and 242), which prescribe:

'And those of you who die, leaving wives, let them make testaments for their wives, provision for a year without expulsion; but if they go forth, there is no fault in you what they may do with themselves honourably: God is All-mighty, All-wise. There shall be for divorced women provision honourable - an obligation on the Godfearing.' (Arberry 1955:62.)

5 Shahbano Begum, a 73-year-old daughter of a police constable, was repudiated by her husband, Mohammad Ahmed Khan, after 40 years of marriage, in which the couple had had several children, through his pronouncing the tahq three times. She subsequently went to court to claim maintenance. 6 The complicated legal situation, in which several legal systems operate side by side, has provoked unrest and resistance. There is in India first of al1 the Muslim personal law, which is relevant in particular for women. Then there is the Constitution of Independent India of 1949, which has continuedl0 recognize this personal law. Divorced and repudiated women of al1 faiths have since 1872 usually appealed for maintenance to the Code of Criminal Procedure, however. This latter Code as revised in 1973 has more recently become popular with divorced women again, as criminal law procedures proved quicker and more effective than civil law ones. In this way numerous divorced women.from al1 the various communities have bypassed the personal law system of their particular religion.

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The Muslim Women's Act thus was retrogressive in the sense that under its provisions a woman remains subordinate as a wife and kinswoman, especially, as is testified by the case of Shahbano - a poor woman in need of economic assistance - if she belongs to the lower classes (cf. Pathak and Rajan 1989). For when Shahbano Begum, after having first put her case before a lower court, which allowed her a very meagre alimony, appealed to the High Court of India, her upper-class Muslim sisters despised her for her lack of self-respect in fighting for money after she had become a divorcee and the man who had repudiated her a ctranger.'

Conclusion Prof. Jacques Berque, incumbent of the chair of the social history of contemporary Islam at the Collège de France, wrote in his preface to my study on Indonesian women (Vreede-de Stuers 1960): 'Islam, whose an- cient history has revealed its ability to absorb the heterogeneous, faces up to itself against one of the most profound changes of modern times: the awakening conscience of the individual along with that of class and nation'. No signs of such an 'awakening conscience of the individual' have become evident in this study of traditional marriage customs and practices. These are still very much alive today, indicating the intention of the privileged classes to perpetuate the ideals which they wish, and can afford, to preserve, and the wish of the less privileged, having acquired by hard work the necessary skills and means, to appropriate them in a genera1 effort to imitate the lifestyle of these classes. The customs have declined with the increase in the number of nuclear households in urban areas, but have not been discarded. The above description. of the various time- and money-consurning marriage ceremonies demonstrates how furthermore these customs and practices continue to underline the role differentiation between brides and bridegrooms from families in which relations are still regulated according to the rules of a strict hierarchy based on sex, age and generational seniority. These ceremonies, in which the unequal categorization on the basis of sex and seniority is continually accentuated, are meticulously obsemed especially by the female members of the two families concerned. These women thus continue to indoctrinate the new generation in the implicit ideology of asymmetry between bridegivers and bridetakers, in the sense that a marriage automatically gives expression to the lower status of the former. Modern education and employment opportunities have formed a younger generation of girls and boys with a new identity, namely as individuals facing up to the problems and difficulties of their new responsibilities as independent people. As Shibani Roy has remarked, 'Both brides and

7 From among the copious literature on the Shahbano case that has come to my notice, I have cited the following three: Chhachhi 1991, Lateef 1990, and Pathak and Rajan 1989.

Downloaded from Brill.com09/24/2021 04:10:51AM via free access Chu* The Fragile Positwn of Women in Muslim Maniage 285 grooms are now under the crosscurrents of differring ideals and practices' (Roy 1979:24). But an inherent contradiction lies in the inability of girls to choose their husbands in the same circles in which today they are allowed to become educated, and where marriage is deferred until they reach the age of discrimination. Hence fathers, too, will have to learn to cope with the new roles that their daughters may choose. As long as young wives, after growing up in the protected environment of their natal home, continue to be regarded as a subordinate party, who needs to be 'protected' by her husband, who is responsible for her maintenance as long as the two remain married, no change wil occur automatically when couples start living independently in nuclear households. A genuine change in the position of women as 'protected wife' may occur when higher education offers women prospects of a well-paid and pres- tigious job. And this will be not only because a woman will then be able to stand on her own two feet economically, but especially because 'from a mere wife, she tends to become her husband's companion' (Roy 1979:126). This latter is still a very rare phenomenon, however. At the present juncture the notorious Shahbano controversy is more representative of the real situation. It completes the picture of inequality between the sexes, which continues to reinforce the patriarchal character of Muslim family life.

Ahmad, Imtiaz, ed., 1976, Family, kinship and marriage among Muslims in India. Ansan, Ghaus, 1960, 'Muslim caste in Uttar Pradesh; A study of culture contact', The Eastern Anthropologist XIII-2 (Special Issue, Dec. 1959 - Febr. 1960):l-83. Arbeny, A.J., 1955, The Koran intetpreted, 2 vols, London: Unwin. Bevan-Jones, V.R., and L. -, 1941, Woman in Islam, Lucknow. Bhatty, Zarina, 1990, 'Status of Muslim women and social change', in: B.R. Nanda (ed.), Indian women, Delhi: Vikas. Chhachhi, Amnta, 199 1, 'Forced identities; The State, communalism, fundarnentalism and women in India', in: Deniz Kandiyoti (ed.), Women, Islam and the State, Philadelphia: Temple U.P. Fatehally, Zeenuth, 1951, Zohra; A novel, Bombay: Hind Kitabs. Fyzee, A.A.A., 1955, Outlines of Muhammadan law, London: Oxford University Press. Lateef, Shahida, 1990, Muslim women in India: 1890s-1980s, New Delhi. Misra, Satish C., 1964, Muslim communities in Gujarat; Preliminary studies in their history and social organization, Bombay. Pathak, Zakia, and R. Sunder Rajan, 1989, 'Shahbano', Signs 14-3, Chicago. Roy, Shibani, 1979, The status of Muslim women in northern India, Delhi: B.R. Publ. Snouck Hurgronje, C., 1907, 'Collection of thirty forrnulas of the ta'lik-at'talak',in: A.H. van Ophuijsen (ed.), De huwelijksordonnantie en hare uitvoering. Towards Equality, 1974, Report of the Cornmittee on the Status of Women in India, New Delhi: Governrnent of India.

8 I am greatly indebted to Ms. Kathinka S. Kerkhoff for her tireless tracing of references in response to my queries.

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Vreede-de Stuers, Cora, 1960, 7'he Indonesian woman; Struggles and achievements, The Hague: Mouton. -, 1963, 'Le mariage chez les Musulmans de condition ashraf dans I'lnde du Nord', Orient. -, 1968, Parda; A srudy ofMlini women S life in Northern India, AssenINew York: Humani- ties Press. -, 1970, Girl students in Jaipur; A study in attitudes towarhfamilj life, mmarriage and cureer, Assen: Van Gorcum.

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