T.K. Rajalakshmi , Front Line Magazine, Jan. 27-Feb. 09, 2007
A recent three-country study of the United Nations Development Fund For Women (UNIFEM) explores how the intersections of constitutional and statutory laws, the CEDAW, customary practices and social spaces impact on women's human rights within these plural jurisdictions. The study, located in the context of the 1979 U.N. Convention on the Elimination of All Forms of Discrimination Against Women with specific reference to the status of Muslim women, has brought out many interesting details.
The study of Muslim women in India, "Inching Towards Equality", by Kirti Singh, Sumaiya Musharraf and Maimoona Mollah reveals that Muslim Personal Law (MPL) as practised in India contravenes the CEDAW in several respects. The study traces the evolution of MPL and locates it in the Indian political context, where political expediency has been held responsible for the erosion of Muslim women's rights. Reform in the MPL has been an arduous and complex process.
The reservations of the Indian government on certain Articles of the CEDAW that guarantee equal rights in marriage and family have militated against women in general and Muslim women in particular. Article 5(a) of the CEDAW asks all states to take appropriate measures to achieve the "elimination of prejudices and customary and other practices which are based on the idea of the inferiority or superiority of either of the sexes or on stereotype rules for men and women".
Even though India ratified the CEDAW in 1993, it made a declaration on its reservations on Article 5(a) and 16(i) in conformity with its policy of non-interference in the "personal affairs" of any community without its initiative and consent. Even if this position was correct, the understanding of what constitutes "community" has been limited, confining itself to the notion of male leadership only. The women in the community and women's organisations dealing with the myriad problems faced by Muslim women have seldom formed part of the grand definition of "community" in the view of the government. The same logic, more or less, has been extended to India's declaration under Article 16(ii). This CEDAW Article stipulates that child marriage will have no legal affect and mandates and enjoins state parties to make the registration of marriages in an official register compulsory.
The Indian government's stand is that in principle it supports fully the compulsory registration of marriages, but to implement it is not "practical in a vast country like India with its variety of customs, religions and level of illiteracy". Child marriages at best can be regulated, not banned. India's latest position, as articulated in the 37th session of the CEDAW committee, continued to be the same, causing experts to wonder why there was so much discrepancy between the constitutional provisions of equality and the prevalence of unequal and gender-biased customary practices.
Muslim women, the authors argue in their study, do not have equal rights regarding marriage or divorce. They do not have the unilateral right to divorce, or the right to choose a spouse; neither is their contribution to the building up of the matrimonial home recognised. Their matrimonial rights stand dissolved with the dissolution of marriage. Even if their right to maintenance has been established in courts, the amount has invariably been insufficient for survival.
The authors say the way in which MPL is practised in India goes against the basic Shariat tenets of equality and justice for women.
There is also a distinction between women of other minority and majority groups and Muslim women. While the former also suffer from the consequences of subordinate status, Muslim women are more vulnerable owing to the deeper and different layers of discrimination.
The study highlights the poor political, cultural and socio-economic status of Muslim women in India. Apart from secondary sources, including the National Family Health Survey – II, the study draws upon the findings of four workshops conducted by the Indian School of Women's Studies and Development, in which 174 Muslim women participated.
In conclusion, the authors say that women's organisations and others interested in personal law reforms have often explored possibilities to bring about progressive changes in personal laws so that they are in consonance with both the equality provisions in the Indian Constitution and the CEDAW Articles.