Adjudicating Muslim Families in Contemporary Delhi
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At the Margins of Law: Adjudicating Muslim Families in Contemporary Delhi By Katherine Lemons A dissertation submitted in partial satisfaction of the Requirements for the degree of Doctor of Philosophy in Anthropology in the Graduate Division of the University of California, Berkeley Committee in charge: Professor Saba Mahmood, Co-Chair Professor Lawrence Cohen, Co-Chair Professor Marianne Constable Fall 2010 At the Margins of Law: Adjudicating Muslim Families in Contemporary Delhi Copyright 2010 by Katherine Lemons Abstract At the Margins of Law: Adjudicating Muslim Families in Contemporary Delhi by Katherine Lemons Doctor of Philosophy in Anthropology University of California, Berkeley Professor Saba Mahmood, Co-Chair Professor Lawrence Cohen, Co-Chair This dissertation explores questions of religion, law and gender in contemporary Delhi. The dissertation is based on eighteen months of fieldwork I conducted in four types of Muslim family law institutions: sharia courts (dar ul qaza institutions), women’s arbitration centers (mahila panchayats), a mufti’s authoritative legal advice (fatawa), and a mufti’s healing practice. All of these institutions adjudicate cases and attend to problems that fall under the definition of “Personal Law.” According to the Indian legal system, Personal Law covers matters of marriage, divorce, maintenance, inheritance, succession, and adoption. Within the state’s legal system, secular judges adjudicate Personal Law cases according to a codified version of the religious law of the disputants. Although the institutions I studied hear cases that fall within the sphere of Personal Law, and are thereby shaped by the Indian state’s legal structure, they are run by Muslim clerics and lay Muslims rather than by lawyers, and their judgments are not considered binding by the state. Their judgments cannot be appealed in the state’s courts nor can they be enforced by the coercive arm of the state. Detailing the methods of hearing and responding to cases particular to each of these institutions, I show that each draws on and refigures a broader discursive Islamic legal tradition even as it works within and in dialogue with state law. The first major argument of the dissertation emerges from this analysis: although these institutions are technically extra-legal, together with the state institutions they constitute a form of legal pluralism and are, therefore, a significant part of the legal landscape for Delhi Muslims. For historical and structural reasons I analyze in the dissertation, the institutions I studied primarily adjudicate Personal Law matters. Women and men both approach these institutions with complaints, but women in particular have a high success rate. Women’s presentations of their cases and their troubles demonstrate that they approach these institutions for a variety of legal, religious, and strategic reasons with the specific aim of reconfiguring their domestic arrangements. The second argument I make in the dissertation draws on this observation. I show that these particularly Indian Islamic legal institutions are significant sites at which men and women negotiate domestic expectations and marital disputes. As in the state courts, the processes and outcomes of these 1 discussions are rife with tensions and contradictions, but the modes and logics of mediation offer notably different possibilities than state courts can. Together, these three main arguments—that these institutions constitute a single legal landscape along with the state’s courts even as they draw on and reconfigure Islamic traditions of dispute; that Muslim men and women approach these institutions for a variety of legal, religious, and strategic reasons; and that the organization of gender is central to the work of these courts—open up new ways of thinking about the ways in which law is constituted through religious and gendered norms in the context of postcolonial India. 2 CONTENTS Abstract……………………………………………………………….....1 Acknowledgments………………………………………………………..iii Chapter One: Introduction………………………………………………..1 Courting Geography………………………………………………….1 Historical Context: A Brief Genealogy of Islamic Law in India……..5 Gender, Religion, and Colonial Law………………………………....7 Postcolonial Law: Gender, Religion, and the Private Sphere…….......13 Perfected Personal Law or a Uniform Civil Code?...............................17 Alternative Dispute Resolution: Lok Adalats…………………………17 Legal Pluralism in Postcolonial India…………………………………20 Gendered Subjectivities, Dispute, and the Problem of Agency……….24 Law and Healing……………………………………………………....26 Conclusion………………………………………………………….…27 Chapter Two: Divorce and Property: Between Judge and Qazi…………..28 Introduction: A Parallel Legal System?.................................................28 Delhi’s Dar ul Qaza Institutions………………………………………29 Mehndi: Marriage as Negotiated Terrain……………………………....34 Faskh Nikah: Perseverance and Property……………………………...36 Morality and Law in the Dar ul Qaza…………………………………45 Before the Dar ul Qaza—Beyond the Law?..........................................49 Conclusion: Gender in the Dar ul Qaza.................................................56 Chapter Three: Feminist Aims and Legal Limits: Dispute Adjudication in a Muslim Mahila Panchayat……………………………………………58 Introduction……………………………………………………………58 Action India: From Exploitation to Dispute…………………………...60 History of the Panchayat Form………………………………………...61 Unity of Purpose and Procedure…………………………………….…63 Unified by Training and Documents…………………………………..67 Atheism, Marriage, Feminism……………………………………....…70 The Muslim Mahila Panchayat………………………………………..72 Religion, Atheism, and the Mahila Panchayat Network…………....…76 The Protection of Women from Domestic Violence Act………………85 Conclusion……………………………………………………………..88 Interude: Introduction to the Mufti…………………………………………89 Chapter Four: Gender and Property in One Mufti’s Fatawa………………97 The Fatwa: A Brief Introduction………………………………………97 The Public Life of Fatawa……………………………………………..98 Giving Fatawa at the Dar ul Ifta………………………………………103 i Circulating Disputes: The Place of Fatawa……………………………104 The Mufti’s Fatawa: Form and Mode………………………………111 Contested Divorce: Triple Talaq……………………………………118 Fatawa of Settlement: On Inheritance……………………………....125 Conclusion……………………………………………...…………...132 Chapter Five: Fun Amliyat: Healing Disputes……………...…………...139 Introduction………………………………………………………….139 Islamic Healing: Religion or Magic?..................................................142 The Healer’s Manual………………………………………………...148 Gender and Trouble in the Mufti’s Office…………………………...150 Mediating Trouble: The Remedies…………………………………..156 Circulations…………………………………………………………..163 “Words ka Impact”…………………………………………………..164 Conclusion…………………………………………………………...167 Conclusion……………………………………………………………….169 ii Acknowledgments Authorship is an odd thing to claim. Although I conducted interviews and observations, typed and banged my head against the wall to produce this dissertation, it is the product of support and input from people too numerous to name in these acknowledgments. My advisors at U.C. Berkeley—Saba Mahmood, Lawrence Cohen, and Marianne Constable—have pushed, shaped, and inspired me through constructive criticisms, generous engagements with my work, and demonstrations of intellectual verve. The many things I have learned from them permeate the dissertation in ways both apparent and subterranean. The fieldwork in India was possible only with the help of friends and interlocutors, among them Harpreet Anand, Hartosh Bal, Leo Coleman, Nonica Datta, Shalini Grover, the Hashmi family, Deepak Mehta, Chitra Padmanabhan, Venu Padmanabhan, and Ananya Vajpeyi. The qazis, muftis, and mahila panchayat leaders and participants about whom I write here were gracious and patient with me and my many questions. The people who shared their thoughts with me, the family who hosted me, and the many who brought me home for tea have provided the generosity that enables anthropologists to work. Without their help there would be no dissertation. I would like to thank the friends, colleagues, and mentors who have read this dissertation, in part and in full: Joyce Burkhalter Flueckiger, Shalini Grover, Saida Hodzic, Riyad Koya, Barbara Metcalf, Janaki Nair, Stefania Pandolfo, and Sylvia Vatuk. Dace Dzenovska and Cindy Huang read the rough first drafts of nearly every chapter in this dissertation, and their patient and incisive comments sharpened it immeasurably. Many friends and colleagues have made my time at Berkeley challenging, pleasurable, and replete with spectacular cuisine. Among them are Diana Anders, Nima Bassiri, Michelle Dizon, Alice Kim, Patricia Purtschert, Lucinda Ramberg, Pete Skafish, Annika Thiem, Andrew Weiner, Benjamin Yost, and Benjamin Young. During the last long haul Sonali Chakravarti, Joshua Chambers-Letson, and Joseph Fitzpatrick have cheered me on. Dace Dzenovska has been a friend, confidante, and co-conspirator from the first. Yves Winter has kept me well fed throughout this process. His stubborn belief in my ability to complete this task and his perspicacious sense of when it was time for a long bike ride have made it possible. The support of Ada Winter, Andre and Karin Winter, and Jaron Winter has been unwavering. My parents, Mary Smucker Lemons and Daniel Lemons, and my siblings, Sarah and Peter Lemons, showed sufficient interest in my project that they followed me through the crowded back alleys of Old Delhi to see where I was doing my fieldwork. My maternal grandfather, Ernest Smucker, may have been the source of