1. Introduction Traditions That Are Once Invented in One Generation Tend To

Home , Dushyanta

I. (A) Personal Details Role Name Affiliation Principal Investigator Prof. Sumita Parmar Allahabad University, Allahabad Paper Coordinator Prof. Reicha Tanwar Kurukshetra Univesity, Kurukshetra Content Writer/Author (CW) Dr. Manjeet Bhatia Delhi University, Delhi Content Reviewer (CR) Prof Reicha Tanwar Kurukshetra University Kurukshetra Language Editor (LE) Dr. Sonal Parmar Independent Editor , New Delhi

(B) Description of Module

Items Description of Module Subject Name Women’s Studies Paper Name The Discipline of Women’s Studies Module Name/ Title Women and issues of culture: religion and ideology Some Cases –Shah Bano, Roop Kanwar

Module ID Paper-1 Unit-2 Module-7 Pre-requisites The reader is expected to have the knowledge of structure of society, religious and marriage practices; politics and religion; role of law and judiciary in cultural practices. Objectives To familiarize the reader with the Cultural status of Indian women based on the traditions sanctioned by religious practices. Keywords Culture, Religion, Judiciary, Traditions, Uniform Civil Code

II.

1. Introduction

Traditions that are once invented in one generation tend to pass on to the following generations. They usually have religious sanction. These traditions get modified and changed according to new contexts. As per their current utility, traditions are appropriated. Romila Thapari gives an interesting example to understand this modification of traditions. In the Mahabharata version of Shakuntala, King Dushyanta meets her and proposes gandharva marriage after having an open discussion with her. She lays down a condition that the son born out of this marriage would be declared heir to Dushyanta’s throne. The Mahabharata version had a large audience and indicated the powerful agency of women that could ensure her rights. On the contrary, Kalidas’s version of Shakuntala is the story of ‘a submissive, obedient, retiring young woman who is so overwhelmed by her love for Dushyanta that she is incapable of arguing for her rights.’ Nowadays, when we talk about Shakuntala we talk about the submissive one of Kalidas rather than the one of the Mahabharta whereas, when it was

written, the Kalidas’s version was available only to a small court circle. We choose this version in the name of tradition because it is more useful for our society today; a shy, obedient beautiful women over an assertive one that insists on a condition before accepting a marriage proposal. It depicts the present day attitude towards woman and her status in society. Traditions treat women as naturally subservient to men. Whereas, feminist have put forth well developed scholarship to ground home the understanding that such a view is socially constructed. Fredrick Englesii established that women are not by nature born as weaker sex, there is a history to relegating women to the status of the second sex.

2. Women, Religion, Culture and Changing Contexts

In the history of independent India there are two cases that especially stand witness to the cultural status of women and the vested interests of communities in retaining religious identities and the status-quo. Instead of beginning with culture alone, which is an amorphous framework, I draw on the women’s issues within culture starting with the Shah Bano case.

2.1 Shah Bano

ShahaBano , a 73 year old Muslim women was married to Ahmed Khan in 1932. They had three sons and two daughters out of this wedlock. In 1975, Ahmed Khan drove Shah Bano and their children out of the matrimonial home. In April 1978, she filed a petition against her husband for maintenance under section 125 of the Criminal Procedure Code, 1973. Responding to this, on 6th November 1978, Ahmed Khan using the three times utterance way of Talaq under Shariatiii, divorced his wifeiv. He married another woman and had two children.

Ahmed Khan was an advocate and had a flourishing practice. He pleaded that under Muslim laws, Shah bano was a divorced wife, and he had fulfilled his obligation towards her as a divorced wife by paying meherv, which was a sum of - 3000/- in the iddatvi period and therefore he was under no obligation to maintain her. This amount that was the agreed mehrvii. was 3000 silver coins according to Shaha Bano and not rupees

The practice underscores the vulnerability of Muslim women who can be driven out of their homes and made destitute on the whims of their husbands.

Under Muslim law they are authorized just the mehr and nothing more with which they have to maintain themselves. The magistrate and court gave a verdict in favour of Shah Bano and directed Ahmed Khan to pay -25/-per month to her. The amount was enhanced by the High Court in the revision application to - 179.20/- per month.

It was a verdict that recognized Muslim women’s rights though, Ahmed Khan moved the Supreme Court against this judgment. At that time, the distinction between maintenance on destitution (section125), and maintenance on divorce was quite blurred. So was the distinction between criminal (sec-125) and personal (civil)viii . The question of destitution of Muslim women was outside the purview of the court. Ahmed Khan argued that :

1. The High court had exceeded its jurisdiction and violated Muslim personal law as laid down by Shariat. 2. Shah Bano’s application for maintenance fell under the Muslim personal laws of marriage and divorce. Her case should be judged only under this law. 3. If questions of marriage, divorce and maintenance fell under personal laws, criminal laws should be kept out of it. He produced written statements from the Muslim Law Board, that said that under Shariat the husband was obliged to maintain only up till three months after divorce (iddat). Shariat did not deal with how the woman would maintain herself after the iddat period, so the question was outside the purview of the court.

The matter went before the Chief Justice of India. Justice Chandrachud referred to many verses from the Holy Quran

According to the said Aiyat 241 and 242 of Prophet Mohammed, there is an obligation on Muslim husband to provide for the divorced wife.

Aiyat 241 of SURA II of the Holy Quran

Wali’l motallaqatay For divorced women Mata un Maintenance (should be provided) Bil maroofay On a reasonable (scale) Haqqan This is a duty Alal muttaqueena on the righteous

Ayat 242 Kazaleka yuba Thus doth God Iyyanullaho Lakum ayatehee la Make clear His signs Allakum Taqeloon To you: in order that you may understand

In short, the Holy Quran supported a fair deal for divorced women and this was a direction from God.

Under Section 125 of the Cr.p.c., a wife who was without any income and has no source of income and was neglected by her husband was entitled to maintenance, which included a divorced wife who was not remarried. It was said that, if a divorced wife was unable to maintain herself, the husband’s duty to provide maintenance did not cease with the expiration of the iddat period and she could take the recourse of section 125 of the Cr.p.c.. Thus the judgment laid out very clearly that there was no conflict between the provision of section 125 and those of Muslim personal laws on the question of a Muslim husband’s obligation to provide maintenance for a divorced wife who was unable to maintain herself

Ahmed Khan argued in the court that since he had paid the whole of amount that he was liable to pay under the customary or personal law that applied to the parties at the time of divorce, so the petition under section 125 was liable to be dismissed.

According to the judgment, the ‘mehr’ or dowry paid at the time of marriage to a wife was a mark of respect and if paid at the time of divorce would not be considered in the category of mehr or dowry. Thus the detailed judgment dismissed the appeal and upheld the HC judgment in favour of Shah Bano.

After the Judgment was made public, radical Muslims took it as an assault on their personal laws. Moderate and progressive Muslims who were in favour of reform in personal laws in order to support Muslim women’s rights got sidelined by the radical forces of Muslin and Hindu communities taking centre stage.

Earlier Muslim women had used sec-125 of Cr p.c. to get maintenance. In these cases Chief Justice Krishna Iyer had delivered judgments. In his judgments he had expressed the need for judicial reform in Muslim personal

laws. Whereas, in the Shah Bano case judgment had gone ahead and ruled that section 125 Cr. P. C., and Shariat were mutually consistent, ‘in any case, section 125 being part of criminal law, cut across the ‘barriers’ of religion.’ix and ‘ A common civil code would help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies’x was interpreted by the Muslim community as an assault on their religious identity.

Muslim religious leaders came together and the Ulema (Scholar-Priests) issued a fatwa (proclamation) that this judgment was against the teaching of Islam. Wide publicity was given to this fatwa and the issue took the form of a communal agitation almost, as if Islam was in danger. Hindu communalists supported the judgment and further attacked Muslim personal laws. Muslim demanded the repeal of the judgment and Muslim women be kept out of sec- 125 Cr. p. c. Such a stand got a fillip from the judicial order to open the Babri Masjid site (which was laying sealed under the Babri Masjid- Janmabhoomi controversy with the case in court), even for Hindu worship.

The Visva Hindu Parishad, (a radical Hindu organization), celebrated the District Magistrate’s decree by taking out a victory procession to which Muslims retaliated by taking out a ‘mourning procession’. Soon there were Hindu- Muslim clashes that escalated into riots in many Indian cities. The Congress government which was in power feared loss of credibility. The environment was communally charged through the contentious Babri Masjid- Janmabhoomi case with the DM’s decree to open the shrine for Hindu worship. By 1986, the Shah Bano and Babri Masjid cases began to be linked

Muslim liberals, feminists and social reformers started their campaigns all over India in favour of the Judgment demanding improvements in the legal rights of Muslim women. However, the question of women’s rights, got lost in the politics of minority appeasement by the then government. The government of Shri Rajiv Gandhi, in order to appease the Muslims, passed the Bill- Muslim Women (protection of Rights on divorce Act, 1986) thus diffusing the provisions the Supreme Court judgment had made for Muslim women’s rights. Her relatives and in their inability or absence, the State Wakf Board established under section 9 of the Wakf Act, 1954 was to pay her maintenance. Thus, diluting the responsibility of the husband towards her and denying her the right in her own capacity. However, moderate forces retained their influence as judicial interpretations in the subsequent cases of the Act worked in favour of Muslim women.xi

Shah Bano withdrew her case and did not take the benefits due to her in order to retain the identity of a true Muslim woman. Both the political and community leadership had concerns other than those of defending rights of Muslim women. Religion was interpreted to safe guard the minority identity of the Muslim community and the government gave in for the sake of political expediency.

2.2 Tradition of Sati Does the Hindu religion and the ideology based on it treat Hindu women any better? The issue of Sati in Indian culture points to the contrary. Sati though does not have Vedic sanction; it is a practice that prevailed in some regions of India. Historically, such practices are linked to heroism and Kshatriya-isationxii of communities seeking status while the process of tribe to jati transition was underway in marginal areas. Up till first the millennium the notion of sati was restricted to the Kashtriya caste, but that changed in the early second millennium.

Romila Thapar substantiates that Mitakshra, a legal text dealing with family law, argued that all women be permitted as against only the kshatrya women, to be Sati and niyogaxiii be prohibited. There had been opposition to the religious text by Shakta sect. The MahnirvanaTantra states-‘A wife should not be burnt with the dead husband. Every woman is the embodiment of goddess. ‘ xiv it also states that such a woman who becomes sati would go to hell. Such a stand was in direct opposition to the Kshatrya ethic, interestingly from those who were initially regarded as of ‘lesser status but constituting the larger percentage of people’. This, Thapar opines, may have encouraged putting Sati on a pedestal. Thus, the compensatory notion of Sati becoming, goddess must have gained currency in the later period of the second millennium. The link between sati continuing her life with her husband and remaining suhagan, probably also got weakened as Brahmin women were encouraged to immolate themselves. With this entrance of the new category deification must have been an important compensation.

Families of wealthy traders took to this practice as they shared close links with political power. It was particularly so in Rajasthan. Many kingdoms earned substantial revenues from traders. Possibly this link is responsible for the new sati memorials taking the form of sati temples that generated regular revenue. Jhunjhunu, for instance, has a huge temple ‘where Marwari talent for finance has combined with Rajput notions of honour.’ Appropriation of the custom by other upper caste was known by 18th Century but it was not prevalent in the whole caste or the extended family.

The major reason behind the rise in widow immolation in the 19th century had been the Dayabhaga legal system that prevailed in eastern India under which women were entitled to a share of immovable property on the death of her husband. Thus a Kshatriya custom associated with heroism and honour was conveniently converted in to a tool for eliminating an inheritor. Also, due to the large skewed sex ratio of males/ females among Kuleen Brahmin families, kuleen Brhamin were required to marry many women of different families. Widow immolation would have been the obvious outcome.

In 1829, the British Indian government supported by Ram Mohan Roy prohibited widow immolation in the areas ruled by them. Prohibition was later adopted by the Jaipur kingdom of Rajasthan.

The customary practice associated with heroism, to goddess to materialism was never supported by Hindu scriptures; and as shown above was adopted by the powerful for different interests. Roop Kanwar’s case brings this out clearly.

2.3 Roop Kawar Roop Kanwar was a young bride of 18 years who in the name of tradition of Sati was made to immolate herself on the 4th September, 1987 at Deorala, district Sikar, Rajasthan after her husband’s sudden death.

Roop Kanwar, daughter of a school teacher had studied up till the 10th Standard. In her short married life she stayed only for 20 days with her husband. After her husband’s death it was decided that Roop kanwar would ‘become ‘sati. The event was announced in advance as Sati is a public spectacle. As in such cases, her parents who were only two hours away by road journey were not informed. According to information that could be gathered by different agencies later, ‘some of her neighbours said that she ran away and tried to hide in a barn before the ceremony, but was dragged out, pumped full of drugs, dressed in her bridal finery and put on the pyre, with logs and coconust heaped upon her.’xv. She was burnt alive in spite of the law that bans Sati.

The administration seemed paralyzed. No action was taken to collect evidence against the crime till two weeks. In this period the immolation site was converted into a well organized business site. Roop kanwar’s father-in-law, a prominent man of the village, together with other members of the newly formed Sati Dharm Raksha Samiti, (later modified to Dharm Raksha Samiti), formed a trust to run the site and collect donation. Within three weeks the trust collected around 50 lakhxvi.

Chunri mahotsav, (veil festival), a veil rotual after the woman’s death was never ever celebrated, it is tradition observed while mourning. In this case Sati Dharm Raksha Samiti, formed at Jaipur by influential educated and land owning men together with the Deorala Trust announced this tradition to be celebrated as a festival. Feminisst moved the HC court against such celebration of murder. The High court ordered the state administration to prevent such a celebration but the administration did not do anything more than stopping the vehicle going to the site beyond a point. The ‘festival’ was held and devotional songs were replaced by slogans by swords wielding youth guarding the sati- sthal. The State government did not take any action as the issue had become associated with the identity of the influential Rajput community.

2.4 Material basis of Revival of Sati

Feminist scholars have argued that it is the old relations between Rajputs and Mahajans that gained new energy through the revival of the tradition of sati. Sudesh Vaidxvii argues that sati-tradition was created in shekhavati region post independence to regain lost authority. It is important to note that it is in this region that almost three quarters of the recorded post independence sati have happened.

The authority of the erstwhile chiefdoms and princely states got eroded with the abolition of the princely states and zamindari and jagirdari systems of land relations. These relations were based on certain taxes that the Thakur/ chief would impose, agrarian as well as non-agrarians. Non-agrarains were in form of gifst for the Thakur’s (chief rajput), mother, gifts at the marriage of Thakur’s daughter etc. These practices not only gave the Thakurs a lot of authority they also bonded the boomias (those commanding small land holdings) with rajputs and gave them a sense of community identity.

It is this community whose interests were affected with land reforms and they came together to agitate and get some relief and in this context re-forged the rajput identity in changing contexts. Revival of the Sati tradition thus would not only reinforce their Rajput identity but all that was linked with this identity including links with the Mahajans.

The glorification of sati was funded by banias, particularly, Marwaris. They rebuilt old sati temples and founded the Rani Sati Sarva Sangh that runs around 105 sati temples all over Indiaxviii.

The Pro- Sati Procession in Jaipur after Roop Knawr’s immolation, by young Rajput men who had come from many cities of India was a departure from tradition. They were in celebrative mood. Whereas the anti-sati rally by women in Jaipur was a silent procession. Scholars arguedxix That the sati cult, the way it was witnessed in this case was coming together of many interests and was far removed from the village based tradition. It was ‘a phony religiosity’ accompanied by the new found prosperity that had been supported by political leadership. Sati temples continue to hold annual melas that earn lot of revenue for the temple trusts.

3. Issue of Uniform Civil Code (UCC)

In India, communities are governed by personal laws on many civil matters such as marriage, divorce, religious practices etc. The need for a uniform civil code governing such matters to do away with discrepancies in such treatments have been expressed by different groups. Feminists in particular have been demanding UCC to address discrimination and subjugation, especially against Muslim women. Even Judges have categorically desired such legislation to this effect while delivering judgments pertaining to women’s rights. Demand for UCC though, had always been communalized by radical groups. As a result, the issue of women’s rights have not been able to be worked out though a direct strategy of working out a UCC. Judicial interpretations of legal cases, however, have struck some equality in matters relating to traditions.

4. Conclusion Discussion around the two important cases in the history of independent India clearly brings forth the way religion is adopted, modified, interpreted to suit patriarchy and community and are used for political gains. Both Shah Bano and Roop Kanwar are seminal cases that pulled the lid off from these practices and exposed the vested interests of the communities in the continuation of such practices. Both these cases bring out how the practices which are contrary to religious text are propagated in the name of religion and more importantly, are a reflection of the low cultural status of Indian women

Religion is usually used to hoodwink common people to perpetuate structures of power and keep women subservient. Indian communities, no matter which religion they practice prefer sons to daughters. Sons get the best of nutrition, education, property as compared to daughters. Gender inequality is prevalent in the subcontinent in the name of cultural traditions based on religion. Modification of these traditions in different context reinforces the understanding that these rituals are patriarchal practices that control social, cultural structures to the determinant to women’s growth and treatment as individuals.

References

i Romlai Thapar in conversation with Madhu Kiswar and Rith Vanita, Tradition versus Misconception, Manushi, number.42, 1987 ii Engels, Friedrich, The Origin of the family, Private Property and the State (1884) iii Shariat – lays down Muslim ways of conduct that is followed by Muslim for their personal laws in India. iv There had been debates around this way of divorce, where Muslim women are at the receiving end and have faced injustices in many ways. v Mehr- an amount offered to the bride at the time of marriage vi Iddat- a period of three months after talaq vii See Ratha kumar’s- Doing History, Kali for women, 1993, New Delhi viii As stated by Radha Kumar in Doing History, Ibid. p.162. ix Ibid. p.163 x S.C. 945 Para.32 as refereed by Radha Kumar, ibid. p.163. xi Judiciary interpreted the Act as for protecting her rights than denying them. For details see Flavia Agnes’, ‘From Shah Bano to Kausar Bano; Contextualizing the ‘Muslim woman’ within a communalized Polity’, South Asian Feminisms, Ania Loomba and Ritty A. Lukose (eds), Duke Universityy Press, Durham and London, 2012

xii Please see RomilaThapar’s- ‘In History’, in Seminar, no.342, 1988 xiii Niyoga was an alliance allowed to a widow to obtain son. xiv Ibid. xv Statesman, 18-20.9.1987 as referred by Radha Kumar in History of Doin, Kali for women, 1993, New Delhi, p.181. xvi Times of India, 17.9.1987, ibid. xvii Suadesh vaid, ‘politics of widow immolation’, Seminar, no. 342 xviii Kumar, Radha, Doing History, ibid. p.176 xix Kiswar, Madhu and Ruth Vanita, ‘The burning of Roop Kanwar’, Manushi,,no-42-43, 1987