Islamic Law and Practice

Islamic Law and Practice

1988 3 March 23-29 Islamic Law and Practice (2561) Popular Misconception The incident of 18 year-old Roop Kanwar’s self immolation on September 4, 1987, at Deorala (Sikar, Rajasthan) was, indeed, tragic, and it is little wonder that all over the country, the voices of the serious-minded were raised in protest. We have no quarrel with the vehement condemnation of the Sati tradition which this incident called forth; what we do object to is the ill-judged bracketing of this tradition with Islamic convention.

A case in point is an observation made by India’s former Minister for Information and Broadcasting, Mr. 1.K. Gujral, in the course of an otherwise pertinent article, “Widow Burning – A National Shame,” which appeared in The Telegraph of October 20, 1987. Having pointed out that “the obnoxious act of widow-burning – euphemistically called Sati – in a remote village of Rajasthan, has highlighted the prevalence of this mediaeval barbarity in our country even today,” he goes on to say that “unless nipped in the bud, fundamentalism can take on militant dimensions.” Up to this point, there was nothing to dispute in what Mr. Gujral had to say. But what of his ensuing remark, “The Muslim fundamentalists had succeeded in browbeating the leadership to get a law enacted that gave them the traditional rights to maltreat female divorcees of their community”?

(The law referred to by Mr. Gujral is that of the Muslim Women Protection of Rights on Divorce, enacted in 1986) The words “to maltreat female divorcees of their community” having been placed between inverted comas by the author would lead the unwary reader into believing that this is part of the wording of the Bill, but at no point in the text do these words appear. Neither is the evil suggested by these words an integral feature of either Islamic law or practice.

This act, which has been the subject of so much heated controversy, can be briefly summed up in terms of the provisions to be made for a divorced Muslim woman. After the lddah period (3 months and 13 days) the responsibility for her monthly expenses does not in normal circumstances fall to the former husband. Her maintenance is to be provided for by the property she is entitled to inherit (moveable and immoveable) from both parents ‘and her parents-in-law, – a practice which has religious sanction. In the case of there being no such provision, and none of her relatives to shoulder this responsibility the Waqf Board of the State is responsible for her expenses. This is enforceable by law through a magistrate.

One of the reasons for couples beginning to ignore the marriage bond in Western countries is the prospect of the husband being financially ruined by the never-ending payments of alimony which the law requires him to make to his ex-wife.

How then can a shift of responsibility from the husband to others be called maltreatment? Suppose the husband is earning very little, or nothing at all, or he expires shortly after the divorce, doesn’t his ex-wife stand to gain from such an Act? It may seem paradoxical, but the whole institution of marriage is strengthened by there being no inordinate financial burden placed upon the husband at the time of separation. One of the reasons for couples beginning to ignore the marriage bond in Western countries is the prospect of the husband being financially ruined by the never-ending payments of alimony which the law requires him to make to his ex-wife.

A more important feature of Islamic convention, perhaps, is that there is no taboo on a widow-remarrying, in which case, a divorced woman would no longer be in need of any of the above-mentioned provision.

Very different is Hindu tradition, according to which a widow cannot re-marry. But what is worse is that, once widowed, the Hindu woman cannot hope to lead an honourable life in her own society. One reason is the commonly held belief that if her husband died, it was because her presence in the family was inauspicious.

In most parts of India, the widow is considered to be a kulakshani (evil omen) or a daaken (one who eats her husband). The treatment she receives from her deceased husband’s family is, therefore, degrading in the extreme. She is forced to perform menial tasks, keep her person and clothing devoid of colour, eat frugally, stay out of sight and keep away from traditional celebrations. If she speaks to anyone, particularly a man, she is cursed and treated as a loose woman. Among the Rajputs, a widow is given no bread for the first 10 days after her husband’s death. A widow from Manipuri is reported to have been locked up without food for 10 days in a darkened room.

Such restrictions and taboos are intended to kill all hope and desire. It is the worst kind of systematic enslavement. The trauma of widowhood mainly stems from the fact that women are so conditioned that their entire psyche is built upon the husband’s identity.

The parallel which Mr. Gujral sought to establish simply falls to the ground when we consider this inhuman treatment customarily meted out to Hindu widows, not to speak of the stigma attaching to the modern divorcee. There can surely be no parallel between widow-burning, widow-victimization and the non-provision of maintenance for a divorced woman by her ex-husband, particularly when it is not a question of the woman receiving that maintenance at all but of her simply receiving that maintenance from alternative sources under Islamic law. In what sense is such an arrangement maltreatment? It is to outdated Hindu practices alone that such a term as ‘maltreatment’ should be applied.

Consider the innumerable widows who, entirely at the mercy of their in-laws, continue to suffer in silence, while thousands of others who are driven out by their in-laws, or even their own relatives, migrate to holy places such as Hardwar, Rishikesh, Kashi, and Vrindaban in search of human dignity, and religious solace and ultimately salvation.

In most parts of India, the widow is considered to be a kulakshani (evil omen) or a daaken (one who eats her husband). The treatment she receives from her deceased husband’s family is, therefore, degrading in the extreme. She is forced to perform menial tasks, keep her person and clothing devoid of colour, eat frugally, stay out of sight and keep away from traditional celebrations.

Go any time to Vrindaban and you will find about 2000 Bengali widows lodged in temples, in hovels, begging for a meagre living, working as menials and often the consorts of pandas and religious mountebanks.

A 70-year old widow from Nadia, married at 11 and at 35, impoverished by paying for medical care for two sons who eventually died, can barely walk because of a broken leg. She says that she has no desires at all, lives from day to day and prays to God to take her away. Another widow in Vrindaban came to stay there, because she had made the mistake of selling her own home and entrusting the proceeds to her daughter, whereupon she was so mistreated by her daughter and son-in-law that she vowed rather to beg in Vrindaban than lead such a life of indignity.

For such widows, the ‘holy’ place is a living hell from which death is the only exit. When they eventually die – sometimes in the streets – their bodies are unceremoniously cast into the Yamuna by the town scavengers. “For a widow, there is nothing. There is only God the only solace.”

Naghubhai, 82, is a shaven Madhava Brahmin widow who lives in Bangalore. Her husband, Srinavasa died 20 years ago. She is barefoot, draped in the Kernpusere and her emaciated, wizened form is a testimony to years of self-denial. Asked why she shaved her head, Naghubhai says: “According to the shastras (Scriptures) I had to do it. This way we can avoid the eyes of man. If even one strand of a widow’s hair falls on the ground, her husband will go to hell.”

The common superstition is that seeing a widow, particularly a shaven one, is a bad omen. In other words, whatever task you have undertaken will not be fulfilled. Those who believe in the superstition go back home to pray before God. Two common words of abuse in Kannada are rnundernaga and bolirnaga which mean ‘son of a shaven widow’ (an illicit offspring).

Consider the innumerable widows who, entirely at the mercy of their in-laws, continue to suffer in silence, while thousands of others who are driven out by their in-laws, or even their own relatives, migrate to holy places such as Hardwar, Rishikesh, Kashi, and Vrindaban in search of human dignity, and religious solace and ultimately salvation.

Indeed, it was the unreasoning force of Hindu attitudes which gave rise to the practice of sati in the first place; the poor widows no doubt felt that being burnt just once was a lesser evil than ‘burning’ for the rest of their lives. This view is supported by a report drawn up by a Bombay Union of Journalists based on a visit made by a study team to Deorala in Rajasthan in October, 1987.

Re-marriage for the Hindu widow of an orthodox family is simply not within the realms of possibility. It is considered even more disgraceful than leaving one’s husband for another man. Among some Brahmin castes, it is considered sacrilegious and invites total excommunication. Where naata is allowed, the woman is not even considered married. She remains a naata even when the man decides to marry another woman. Among several castes, the in-laws, under the jhagra system, simply auction off the widow to the highest bidder.

Indeed, it was the unreasoning force of Hindu attitudes which gave rise to the practice of sati in the first place; the poor widows no doubt felt that being burnt just once was a lesser evil than ‘burning’ for the rest of their lives.

This is the plight of women who have to live out their lives in the terrible shadow of Hindu tradition. Islamic tradition by contrast, creates no such problems for a Muslim widow or divorcee. The door to re-marriage is held wide open for her. It is true that in pre-Islamic society, widows and divorcees were looked down upon but the Prophet himself married widows so that this pernicious attitude might finally be eradicated. The other reason that the Muslim widow or divorcees is not forced into a life of humiliation and degradation is that Islamic law clearly gives her the right to inherit family property. The same right makes it possible for her to live honourably without entering into another marriage, should she wish to remain single.

Even though the law – the Hindu succession Act – confers ‘equal property and inheritance rights on women, Hindu widows are rarely given their fair share. In rural India, it is common for patwaris and tehsildars to help contenders for property left to a widow by transfering it to other names. The usually illiterate women, traumatised by the loss of their husbands, are hardly in a position to take up legal battles. They can fight neither against their brothers-in-law nor against their own brothers. Poor rural widows are generally either kept as free domestic labour, or are encouraged to go to ashrams so that in-laws can seize their property.

It is a seldom appreciated fact that according to Islamic tradition, there is no difference in the status of a widow, wife, divorcee or spinster. But the main fact which has gone unheeded is that with adequate provision having been made for divorcee under Islamic law, there is no need for here to seek maintenance from her ex-husband. In the now infamous Shah Bano case, subsequent events proved that the divorced woman had sought maintenance not out of necessity, but out of vengefulness for, after the divorce, it was found that her needs were being fully met in her own parents’ home.

It is a seldom appreciated fact that according to Islamic tradition, there is no difference in the status of a widow, wife, divorcee or spinster.

The options before a Hindu widow in a traditional environment are limited to two: either commit Sati or live at the mercy of others. The latter course is one of such degrading self-effacement that it is no wonder that Sati often seems infinitely preferable. Take the case of young Brahman widows in Karnataka who must shave their heads, walk barefoot, remain completely unadorned except for a red sari (without a blouse) and sleep on the floor. Their shadows must not fall on the havan (sacred fire) at puja ceremonies, and they are expected, as in other parts of the country, to subsist on one meal a day and to stay away from auspicious occasions and ceremonies. The widow is seen as a mailege (soiled person) till, through years of self-denial and prayer, she becomes pure. It sometimes happens that young widows enter into illicit relationships. Although this is frowned upon it is considered preferable to re-marriage which is nothing short of sacrilegious.

Even in a modern, more enlightened environment, where widows are decently taken care of, there is a feeling of unease, if not unhappiness. A certain widow in this position, when asked about the quality of her life, replied, “Pradhin Sapnehu Sukh naahin.” (A dependant woman knows no peace, even in her dreams). But this does not apply in the case of Muslim divorcees. Their having been given property rights by Islam gives them that feeling of self-esteem and confidence so necessary to the leading of a normal, happy, energetic existence, If they choose to live in the family circle, they do so as a matter of right, and not with the feeling of being there on sufferance and eternally at the beck and call of others.

In the late 19th century, the renowned educationist, Pundita Ramabai Saravati (1858-1922), who studied the plight of Brahmin widows, wrote that the life of a Hindu widow, “destitute as it is of the least literary knowledge, void of all hope, empty of every pleasure and social advantage, becomes intolerable, a curse to herself and society at large.” She concludes, “Remarriage is not available, nor would it be at all times desirable as mitigation of the sufferer’s lot. So the poor, helpless human, with the one chance of ending her miseries in the Sati rite taken away from her, remains as in ages past, with none to help.” Nearly a century later, little seems to have changed.

The options before a Hindu widow in a traditional environment are limited to two: either commit Sati or live at the mercy of others. The latter course is one of such degrading self-effacement that it is no wonder that Sati often seems infinitely preferable.

The striking difference in the respective living conditions of Hindu and Muslim women was highlighted by a statement made by Mr. Rajendar Sachchar in the course of a speech at a New Delhi function in April last year: “... that, historically, Islam had been very liberal and progressive in granting property rights to women. It is a fact that there were no property rights given to Hindu women until 1956 when the Hindu Code Bill was passed, whereas Islam had granted these rights to women over 1400 years ago.” (The Statesman, Delhi, April 26, 1986)

Based on a special feature on Hindu widows in India Today, November 15, 1987.