Books

THE INDIAN LEGAL SYSTEM: An Enquiry by Mahendra Pal Singh and Niraj Kumar. Oxford University Press, New Delhi, 2019.

THE book under review is an ‘enquiry’ that seeks to bring to the fore some salient features of the ‘Indian legal system’ that remain crucial to understanding its true nature and identity. There are myriad factors and influences to which a legal system owes its identity. Historical antecedents are one of such influential factors that play a crucial role in shaping the content and deciding the nature of any legal system. Many of these historical antecedents are often ‘transplanted’ from a foreign shore, more so in case of a legal system that has remained under colonial rule for a considerably long period. Given the fact that the past casts its indelible imprint upon the present, it is but axiomatic that the ways to read the legal past sometimes may create an occasion to debate on some of the salient aspects of a legal system.

Tracing the roots of the legal system, therefore, becomes integral to the ways one may read the ‘legal past’. As regards the Indian legal system, many a scholarly effort has been made to explore the deeper roots and myriad facets that remain operative and alive in India today. The book under review makes certain definite assertions that tend to deviate from the well settled and well taken assumptions about the legal system in India and thus, adds to the rich corpus of scholarly efforts made over the years. It offers new insights and perspectives that may make the reader feel askance as to the true essence of the Indian legal system when it is seen as a confluence of many legal systems or traditions that have remained alive and thriving apparently or imperceptibly.

The book comprises of four chapters along with richly informational appendices on ‘judicial engagement with customary law in India’ and ‘state profiles indicating reliance on traditional non-state legal systems’ respectively. The book makes a prefatory assertion in the Preface to the effect that ‘India having an unbroken history of over 4,000 years during which the country was governed by several empires’, must have had legal systems that left behind an ‘impact’, a fact that cannot be brushed aside or forgotten given the fact that the British ‘ruled India effectively for less than a century.’ Doing so will be like turning a Nelson’s eye to a crucial historical fact of great legal implication.

The book begins with a ‘summary of arguments’ which sets the tone, followed by an Introduction that provides the backdrop for the ensuing chapters. It gives a brief overview of the chapters along with a well articulated research design and an introductory account of how common law ‘garnered its roots in India.’ It seems to persuasively suggest that all this could be possible in that ‘common law-trained judges, lawyers of the Privy Council, and the higher judiciary in India were brought to bear the imprint of the English outlook and techniques upon the judicial administration of India’, and it was natural that they would look to the legal tradition that they have been ‘accustomed for a lifetime.’ Moreover, the doctrine of stare decisis did play an important role in helping the common law firmly spread its roots in India. It is a well settled fact that ‘principles of English law infiltrated the jurisprudence administrated by the courts in the guise of rules of ‘justice, equity and good conscience.’ The authors argue that in addition to the aforesaid, ‘a planned effort was made, beginning in 1833, to introduce English law in India through Codification.’

Having set the stage in the Introduction, chapter one traces the history of the legal system in India. The foundational premise of this chapter is reflected in the opening sentences where the authors assert that ‘there exists an amalgamation of different understandings of the legalities that have existed in the subcontinent over the years.’ ‘Dominant legal systems’ pre-existed the East India Company, which brought about ‘colonial legal change.’ This had far reaching impacts. The Indian legal order was compelled, by changing circumstances, to move from a ‘plural system’ that had place for ‘indigenous legal authorities’ to a type of state law that relied upon English legal texts, sources and procedures. This signified, in the years to come, an ‘absorption of an indigenous legal system by a European legal order.’ The process of absorption and the consequent transformation of the then existing legal practices is one such aspect of the Indian legal system that remains significant.

There are few examples or historical instances that the authors discuss to bring home the point that such existing or ancient legal systems had their own framework that differed significantly from the colonial legal order that brought about a transformation of the existing legal system to such an extent and of such nature that was epochal and of great consequence. One such transformation took place when Warren Hastings initiated a metamorphosis that the then existing Hindu legal tradition had to undergo, and it sounds ironical that proclamations were made to the effect that the British had taken upon themselves ‘to give Indians their own law.’ The metamorphosis resulted in an ‘Anglo-Hindu legal hybrid.’

Moreover, as the authors point out, prior to the British, there was another legal system, known as the Sultanate System, which was carried forward and modified by the Mughals. It is interesting that the judicial administration under these two systems ‘brought into India models of judicial administration from Persia, Arabia, Egypt and Syria, and effected changes in order to fit Indian needs.’ Besides the major and well known legal orders, there did exist ‘sophisticated and crystallised state legal systems in southern parts of India.’ The Maratha Empire and Vijayanagara kingdom glaringly exemplify such legal systems. We cannot ignore the unique system of judicial administration that the Wodeyar and Travancore kingdoms had developed.

The authors make a succinct yet significant survey of different legal systems at the beginning of the colonial era, and it may impel one to think that Indian legal history reflects a plurality that was palpable ‘with contrasting sets of people’ in a legal set up marked by the ‘prevalence of customary informal bodies at the village and tribal levels.’ Harmony prevailed at all levels of the state. Therefore, the legal ‘chaos’ and ‘vacuum’ that the British talked about while justifying the transplantation of English Common Law in India, seems not so well placed in view of the fact that there existed ‘a highly evolved and complex legal system’ that was deeply rooted in and connected with the ‘socio-cultural needs and aspirations of the Indian populace.’ The Indian legal landscape was ‘diverse’ and ‘pluralistic’. However, as the authors conclude, that though efforts were made by the British to superimpose their laws upon the existing legal systems, it would be ‘illogical’ to assume they ‘could have penetrated deeply or profoundly into Indian society.’

Chapter two explores the historical and contemporary deviations from the state legal system in India. These deviations are reflective of the existence of non-state legal systems that were in existence during the colonial as well as post-colonial period. The multiplicity of legal systems amid legal pluralism is one such aspect of the prevailing legal system that the dominant and ‘superimposed’ state-legal system can ill-afford to ignore. However, there is no denying the fact that this duality of state and non-state legal systems occasions an exploration of the twin processes of transplantation (of ‘English law’) and metamorphosis (of indigenous laws). The process was instrumental in ensuring that the state law was successful to seep through the corpus of ‘unwritten’ and customary laws, aided by multiple factors.

The authors in this chapter endeavour to showcase the dynamics of the process through which state law slowly yet steadily gained prevalence and dominance vis-à-vis multiplicity of other indigenous legal orders that pre-dated the state law. For instance, diffusion of common law tradition into Indian society, that was to be the dominant legal tradition in the years to come, was possible owing to three noteworthy developments: establishment of English modelled legal institutions, legislative transplants and codification.

Colonization entailed ‘massive legal transplant of western law into India’ which, as the authors put it, was ‘designed to facilitate transactions of British colonies and traders, and thereby maintain its imperial dominance over India. The implementation of these laws along with the establishment of British legal institutions, were efforts in the furtherance of the omniscience of the state legal system over all other legal cultures.’ Be that as it may, there were laws that enjoyed ‘non-interference’ by the British. Personal laws were one such set of laws which the British found to be ‘chaotic and confusing.’

These laws mark a prominent deviation from the state legal systems. Such deviations are indicative of the fact that there is space for laws other than state law. One comes across other prominent deviations in the post-constitutional period as well, so notably recognized under Article 13(3) of the Constitution that includes ‘customs and usages’ within the ambit of ‘law’ in force in India. The authors remind the readers of ‘constitutional provisions that allow for the protection of customary’ through a ‘system of protection of tribal communities and their customs through Articles 244, 244-A, 342, 371-A, the Fifth and Sixth Schedules, and so on.’ Constitutional recognition of customary laws and usages is also a recognition of deviations that exist in the form alternative legal systems.

All told, chapter two concludes that engagement of the state legal system with other legal systems and traditions can be analysed by exploring the three facets that the aforesaid engagement subsumes. The first facet would be the ‘scope, nature and interpretation’ of Article 13. The second facet can be seen in the ‘assimilation versus autonomy’ struggle of tribal people, more so in view of the recognition that ‘there exist other parallel systems among tribal communities that continue to operate without having to concern themselves with the state law.’ The constitutional scheme pertaining to tribal law and self-governance is an acceptance of the ‘prevalence of multiple legal systems’ aside from the state legal system. The third facet, as the authors explicate in some detail, ‘lies in the village-based legal traditions and practices, which the state has constantly engaged with by way of numerous legislations and policies.’

However, I find one observation in the beginning of the chapter that summarizes its essence. It says that the state and non-state law as being constitutive of Indian law, may be seen ‘as the two sides of the same coin in the context of the earlier development of the system during British and post-independence periods.’ Both sides are representative of different yet inseparable values and pedigree. One side, represented by state law, cannot be seen in isolation of the other side that comprises of personal laws, tribal laws, and village based legal systems and so on. The other side, however, does represent a deviation from the state legal system.

Chapter three ‘questions the common understanding that within the territorial divisions of India, people ascribe, for the most part, to a predominant common law tradition, which automatically makes alternate legal traditions either superfluous or at the most secondary.’ This chapter is an insightful ‘enquiry’ of the customary and personal laws under the Constitution, bringing to fore the judicial engagement with non-state legal practices in view of the ‘privileges’ given specifically to tribal groups in India. The authors make a delightful detour that touches upon some of the hitherto ignored discussions on personal laws, customary laws, tribal laws and village based laws within and beyond the confines of constitutional text and spirit.

Customs and personal laws, the authors proclaim, are ‘deviations that are waiting to be unified into a single whole’; however, they appear askance as to achieving the same through a uniform civil code in view of the degree of pluralistic vigour India encompasses.’ As regards the ‘tribal legal system’, the view seems to be that ‘autonomy to tribal communities in our Constitution constitutes a "recognition" of the other legal systems…’ However, I find one observation in this context worth pondering: ‘if a legal system is an element or attribute within the meaning of the term "culture", then it can be compared with other legal systems surrounding it (in this case, the state legal system), even if it cannot be viewed in absolute isolation from culture’s other elements and attributes.’ Moreover, granting of administrative autonomy under the Constitution to such a legal system may well be seen as an ‘expression of deference towards the tribal cultural system’ more so given the fact that ‘a legal system is but a part of this tribal culture.’

The final chapter makes certain conclusive assertions based on deliberations made in the foregoing chapters. First, British incursion into Indian laws resulted in Indian traditions often getting replaced and transformed. Second, an independent Indian nation state also furthered the distance between law and society. Third, despite the constitutionally laid out hierarchy in justice delivery, there exist traditional legal orders, either ‘state sanctioned’ or ‘informal’, based on tribal customs. Fourth, the state legal system, in several cases, accounts for the operation of other legal systems and, as a result, may be described as a mixed legal system. Fifth, India does not ‘fit’ into the category of a common law system.

This book coherently brings together many known and not so well known streams of constitutional antecedents and legal practices to a point of confluence that makes the reader feel informed and enlightened. Conceptual fluidity and lexical simplicity pervade the argumentative texture of the book. In many ways, it is a worthy addition to the existing literature that boasts of seminal works such as M.C. Setalvad’s ‘The Common Law in India’ (1960). It adds an interesting dimension to the debate on the true nature of the Indian legal system. In a subtle and succinct manner, it uncovers the tangled past and present practices to elucidate, arguably, the true essence and nature of the Indian legal system. Therefore, it is a valuable addition to a law library.

Rabindra Kr. Pathak

Assistant Professor, NUSRL, Ranchi

 

STATE, VIOLENCE AND LEGITIMACY IN INDIA by Santana Khanikar. Oxford University Press, Delhi, 2018.

TAKING the state as a collection of definite, local and personified institutions, Santana Khanikar’s, State, Violence and Legitimacy in India, studies civilian police in Delhi and the army’s presence in Lakhipathar, Assam. Shot as they are with practices of coercion and violence, Khanikarexplores the inevitability of the state’s presence – through the police and the army – in the lives of people.The presence of state violence in their lives might lead to people registering its laws as illegitimate, but violence does not erode the legitimacy of the state in their eyes; in fact, for Khanikar, violence is a principal means, in a territorial-national space, through which legitimacy is constructed and maintained by the state (p. 3). In delineating violence, Khanikar is working with an understanding of it finding instantiation in infliction of bodily harm on a person (p. 15).

The book is written in two parts and is based on fieldwork conducted between October 2011 and October 2012 in Delhi and Lakhipathar. Khanikar draws on Veena Das and Deborah Poole’s1 notion of the state’s margins to explain the connection between the two field sites. Delhi’s slums, she argues, are both an essential part of the city’s geography and, also, its margins – understood as they are as sites of ‘disorder and danger’, with routinization of police intervention (p. 239). Lakhipathar in Assam, on the other hand, is a margin in the more literal sense of the word because of its geographical remoteness and cultural distinctness, but has occupied political centrality with the continuing presence of the Indian Army in the area since 1990.

The question that sits at the heart of Khanikar’s book is the co-production of the state and its legitimacy by its institutions and people, with its foundational violence, following Benjamin, becoming an ongoing project for securing legitimacy. The state’s legitimacy, she argues, is marked by two signifiers: beliefs and norms of a society, and expression of consent. In its drive for production of legitimacy, the state is influenced by ‘values, norms and the material culture of a society’, and people continue to ‘invest themselves in the list of the state’ even as they otherwise speak of it as ‘illegitimate or corrupt’ (pp. 28-29).

In the first four chapters of the book, which are dedicated to her work with the police in Delhi, Khanikar’s argument is premised on the imagination of the police of the city’s slums as places of filth and danger (pp. 92-95). But before she comes to the inhabitants of the city, she dwells on the ordinary working of the police in a city police station. Interestingly, quite like Khanikar herself draws on the foundational violence of the state to delineate the production of the state’s legitimacy, one of the police officials too emphasizes that, ‘the police was the foundation of society…’ (p. 39). Here, I would have liked Khanikar to have extrapolated on what she makes of such a contention since it resonates with her general argument as well. She painstakingly explains how entries in the Daily Diary (DD) register or roz-namchaa, which is maintained by all police stations of the city and is a chronological inventory of public calls, visits, incidents in the police station area, arrests, detention, registration of FIRs and movement of police officials, are manipulated by a simultaneous maintenance of a rough or kuccha diary. Entries from the kuccha diary are copied onto the main diary at a much later point, thereby allowing officials to manipulate the timing of their own movement in and out of the police station.

Khanikar does not tell us whether the fairing out of the DD happens on a daily basis or once a week or even a month later. This has consequences for the argument she makes connecting DD entries with custodial violence in the police station. One of the police officials, for instance, tells her that although the law requires a detained person to be produced before a magistrate within 24 hours along with a medical report, if a detainee is beaten up, then he is produced in a court only after his injuries have healed. Khanikar does not follow this up, so we are left wondering how and when an incident such a this would make an appearance in the DD. Her argument, therefore, that ‘the extraordinary is intricately bound with the everyday ways of policing and practices of law’ is well taken, but it is not supported by her ethnographic vignettes, which makes the reading quite frustrating. In her use, extraordinariness can be located not just at the level of a suspension of the rule of law and application of extraordinary laws, but also where ‘laws (either ordinary or extraordinary) are violated/executed… by petty sovereigns operating at the locales, that is, at the level of execution’ and violators ‘go without being tried or punished within the limits of law’ because the state allows ‘acts to be condoned or overlooked’ (p. 73).It is not clear what might conceptually be at stake here in using extra-ordinariness and not impunity as a tool to think with.

The burden of chapter 2 is to explicate how humiliating violence, even as it is ‘wasteful’ and ‘ineffective’ for the purposes of law and order, works towards empowering police officials who perpetrate it. Bodily violence, Khanikar contends, ‘confirms the identity of the perpetrators’ (p. 61). Again, this is a point well taken, but Khanikar goes on to argue that in so far as violence affirms the masculinity of police officials, a violent act could be seen as assuming a ‘sacrificial character’ (p. 61). This does not follow because sacrifice immediately brings us into the realm of the sacred, while humiliation is conceptually bound to defilement. Since Khanikar does not develop the argument any further, it becomes difficult to understand her thoughts on the issue. Meanwhile, following humiliation, a large section of this chapter tells stories about police hierarchy, working in the organization, long hours of work, lack of facilities, familial life and humiliation faced at the hands of senior officers. However, Khanikar fails to take note of these moments in her stories. These moments are important precisely because they would have allowed her to think whether questions of labour inflect police practices.

Chapter 3 elaborates her contention that what ties Delhi with Lakhipathar is the production of the ‘other’ in these spaces. Delhi’s slums are a discursive other because they are outside the ‘ethos of civil community’ while residents of Lakhipathar remain outside the ‘ethos of the political community’ (p. 80). This is a well charted debate in scholarship on South Asia; what interests me in this chapter is Khanikar’s contention that the ‘narratives of producing an "other" …tells us the sources of legitimacy of a State that is violent’ (p. 79). In a short discussion on a Delhi Police advertisement on training youth from the slums, which read: ‘Help him learn how to chop an onion. Before someone teaches him how to chop a head. The only hope is timely intervention’, Khanikar powerfully illustrates how state-talk sustains the idea of a ‘dangerous other’ (p. 97). What does not follow is her other contention – ‘they (read state-talk)…legitimize police use of torture and save the perpetrators/police from accepting any responsibility…’ (p. 97). The advertisement itself was withdrawn after Delhi Police received a notice from the Delhi Commission for Protection of Child Rights. While I understood the sentiment in Khanikar’s text, the argument on legitimacy is not carefully delineated with the evidence. The state does not speak in the same voice as is clear from her own discussion.

Meanwhile, the next chapter on Delhi explicates the manner in which people from the slums reach out to the police. Here, drawing on a discussion centred on three incidents, Khanikar argues that it seemed that people wanted the police to ‘oversee’ fights between conflicting parties. She asks why people from the margins would call upon the police, particularly in minor matters, when they are also, simultaneously, distrustful of the police’s ability to be non-partisan (p. 104). Her answer is that in calling the police in this way allows us to see that ‘the marginal sections may have some amount of agency to utilize the institutions of the State, on their own terms, to work for them’ (p. 104, 109). The police’s capacity to be coercive and violent, argues Khanikar, makes it possible for it to be accepted and recognized as a state institution (p. 110). But are acceptance and recognition conceptual equivalents of legitimacy? Again, it remains unclear why Khanikar does not dwell on the inclination of neighbours to call the police, in relatively minor matters, as instantiations, also, of their capacity to use violence against each other. Since Veena Das is an important interlocutor for Khanikar, it would have brought depth to her argument here to underscore the violence that resides in the everyday. It also means that the easy distinction that Khanikar makes between the police (violent) and people (abject, but also agential) would have had to be rendered in much more complex ways. In instances where Khanikar speaks with neighbours and kin of two persons who died in police custody, she finds that while they were reluctant to speak of the dead and the circumstances in which the deaths took place, they spoke about how people in the slums need to constantly negotiate with state authorities for recognition, whether it is for regularization of slums or for seeking other forms of identification documents. In the present, the two custodial deaths had little meaning because ‘on everyday matters, they (the people) have to coordinate and engage with the police’ (p. 125). Chatterjee’s argument on political society and negotiations are not entirely irrelevant here, but we do not see a discussion in the text on this issue or for that matter about the ground having shifted for people since the two deaths. The police in Delhi’s slums and the army is Lakhipathar today is part of people’s sociality in the form of RWA meetings (Delhi) or organizing cultural festivals and football matches (Lakhipathar) (p. 176, 219). None of these activities erase either past violence or the possibility of future violence as Khanikar herself notes, but again, what remains unconvincing is the legitimacy of the state premised on violence or its memory.

The Indian Army was deployed in Lakhipathar in 1990-91, in a violent operation against the ULFA called Operation Bajrang, and it continues to be a permanent part of people’s sociality. The violence of the Indian Army in the region is well documented. To have been able to conduct fieldwork in an area like Lakhipathar is in itself quite exemplary and Khanikar tells us stories of violence endured by people, both at the hands of ULFA and the army, with great care and sensitivity in the later chapters of the book. From organizing festivals, football matches and mediating local disputes, the immersion of the army in the lives of people is quite substantial. Unlike the police in Delhi, which is spoken of with contempt, Khanikar argues that the army is looked upon with awe and reverence (p. 222). She also tells us that there appears to be a ‘clear break’ in how people render their violent past with the army and the contemporary, where it is their everyday routine that takes precedence.

Still others, who were politically active once and had faced enormous violence at the hands of the army, now live a life of resignation (pp. 231-232). For Khanikar, the role and status of both the ULFA and army in Lakhipathar could be made sense of through a ‘Machiavellian logic of a good army leading to good laws…’ (p. 236). The stronger army, she contends, is ‘believed to be capable of giving better protection and thus leaving less space for lawlessness’ (p. 237). Khanikar’s contention towards the end of the book is that the foundation for the legitimacy of the army rested on the once effective use of violence on bodies, which ‘replaced other material and nonmaterial benefits, inducing people to collaborate with the ULFA’ (p. 238). Violence too socializes people, but will it necessarily enable legitimacy without at least an incremental paring down of force, is a question that Khanikar does not tackle adequately.

Since Khanikar is not working with a conception of the state understood as a transcendental source of power relations in society, the absence of any discussion on Foucault needs justification. Similarly, to not have any discussion on power is also a major lacuna in the text. Perhaps, a discussion on power would have enabled an understanding about why ‘people who suffer in the hands of State institutions also often value these institutions’ (p. 245). The question that should have been asked was: what are the terms on which people value their relationship with the state? As a question of method and analysis, is there nothing at stake in delineating the difference between the police and the army? We get one sentence in the book – ‘one (police) looks for disciplining criminality to protect civil society, whereas the other (army) looks for disciplining political imaginations to protect the sanctity of the nation-state. However both these disciplines merge at a point where it attempts to produce people that belong’ (p. 241) – explicating the difference and similarity!

In the relatively small scholarship on policing and defence forces in South Asia, Khanikar’s work is a welcome addition, but the book is compromised principally because the evidence from fieldwork does not support the relationship between violence and legitimacy.

Pooja Satyogi

Assistant Professor, Ambedkar University, Delhi

 

Footnote:

1. Veena Das and Deborah Poole (eds.), Anthropology in the Margins of the State. School for Advanced Research Press, Santa Fe, 2004.

 

MARRIAGE AND ITS DISCONTENTS: Women, Islam and the Law in India by Sylvia Vatuk. Women Unlimited, New Delhi, 2017.

THE book under review, Marriage and its Discontents: Women, Islam and the Law in India by Sylvia Vatuk, explores the impact of the Muslim Personal Law (hereinafter MPL) on the lives of Muslim women. It is based on ethnographic research conducted by her in Hyderabad and Chennai. It captures the concerns of a Muslim woman when she encounters the technicalities of MPL, whether in the civil courts, the jamaat, the imam of their neighbourhood mosque or the office of the local qazi. Such research is an important input to the scarce body of literature which may help us unpack the complex contestations between allegedly competing claims of cultural autonomy and gender justice.

The author begins by highlighting the ‘paternalistic’ approach adopted by the lower courts while dealing with personal laws. While making a structural critique of the Family Courts Act, 1984, she brings out the contradiction in the act itself. She states that though the main purpose of the FCA, 1984, is to promote conciliation and secure speedy trial in marriage disputes, the judges are selected on the basis of their commitment to ‘protect and preserve the institution of marriage.’ She asserts that even when the couple is sent to counselling, it is the sacrosanct nature of the institution of marriage and not the welfare of the women which takes precedence. In most of the cases, she contends, a gendered compromise is brokered. In these cases, the inclination to save the marriage is higher than the welfare of the woman; in fact, both are seen to be akin to each other.

She examines the bearings of MPL on the lived realities of Muslim women in the second chapter. She avers that Muslim litigants file a suit in the family court as a last resort only after all efforts at reconciliation have failed, whether it is for divorce or maintenance. Further, she observes that even in extra-judicial divorces most husbands and wives were living apart. Hence, unlike the popular view, the act of divorcing one’s wife is seldom committed in the heat of anger or based on the whims of the husband. In fact, the data collected by the author suggests that more than half of all the extra-judicial divorces registered were khula (divorce at wife’s initiative). This, however, she states might be a consequence of either non-mandatory registration of talaq or the stigma attached with divorce in the Indian society. The author then goes on to discuss the reaction of MPL to the pleas of maintenance. Since the data pertains to the 1990s, the implications of the changes brought about by the Daniel Latifi v. UIO is not clear. She points out that in most of the cases the husband is not in a position to offer enough, be it the Muslim Women’s Act, 1986 or the qazi courts.

In the third chapter, the author traces the historical background of the practice of dowry and the manner in which it plays out in contemporary Muslim society. She points out that in the 19th century, dowry was a predominantly Hindu practice. However, there was the practice of jahej, which constituted giving of jewellery, bed, furniture, slaves and some animals. Further, in 1960s and ’80s also, though the practice of giving the daughter as substantial a gift as possible was present, payment of cash was unknown in the Muslim community. She states that the jahej is increasingly being dictated by expectations of substantial amounts of cash and other items. She asserts that the concept of ‘len-den’ which was traditionally a neutral term, had by the 1990s become akin to the concept of dowry. This chapter clearly illustrates a strange enmeshment of Hindu and Muslim culture. However, the author by creating a fallacious distinction on the basis of years, does not appreciate the continuum in the transactional aspect of marriage per se which includes Muslim marriage. In failing to recognize that ‘len-den’ has been at the very heart of marriage, she misses an opportunity to present a broader critique of the institution of marriage and its economic underpinnings.

The fourth chapter challenges the two dominant discourses of the Muslim woman being a passive object in the process of divorce, as opposed to having an equivalent right to give divorce as the Muslim man. It is important to note that though the Muslim woman has a right to divorce (khula), she has to forgo her mehr and in some cases even the maintenance. She contends that numerically large numbers of women take recourse to extra-judicial divorces and the Dissolution of Muslim Marriage Act, 1939, is used only as a last resort. However, she does not stipulate the reason for the same. She points out that when a Muslim woman approaches a qazi, she is generally asked to consider reconciliation and has to grapple with paternalistic attitudes. Therefore, when read in conjunction with Chapter 1, we can clearly infer that the distinction between the judicial and extra-judicial divorce is virtually obliterated. It is only when the husband is not ready for either reconciliation or talaq, that the qazi ‘urges’ him to grant khula to the wife. According to her research, men are generally reluctant to pronounce talaq, contrary to the popular view, because of the stigma attached to divorce in Indian society. Hence, she concludes that there may be a likelihood of manipulation by the husband. However, due to a paucity of data in this regard, such a statement cannot be generalized.

The author then goes on to delineate the growth and development of the Islamic feminist movement and their negotiations with the MPL in the fifth chapter. These feminists are those who identify themselves as devout Muslims and critically engage with foundational religious texts to bring about parity among sexes. She further points out the dichotomy of thought that exists in the movement on the question of going beyond shariyat to attain the goal of women’s empowerment, even though both sides challenge the exclusive right of male clerics to interpret shariyat. However, Vatuk seems to perceive this as a mere strategic approach to avoid community antagonism and ‘the most effective choice.’ She does not engage with the complexity associated with multilayered identities. She fails to understand the conception of equality as being informed by the difference in experiences of the women. It has to be understood that equality is neither abstract nor apolitical, in fact it can sometimes become hegemonic and may perpetrate more violence than it purports to dispel.

In the sixth chapter, Vatuk outlines the patterns of marital alliance in one Muslim family and the consequent changes in it with a change in the family’s socio-economic conditions. She mentions the recurring and strong tendency within this family to marry within kinship, which continues even today when many of them are settled in the United States. However, this chapter does not seem to correspond to the larger scheme of the book which is about Muslim women’s interaction with MPL.

In the seventh chapter, Vatuk uses narratives of men and women going through divorce to draw a critique of the institution of marriage. Through interviews and court documents, she unmasks the gender roles embedded in the institution and the manner it affects the parties. She points out that the key terms of a Muslim marriage contract are ‘that husband must meet his wife’s material needs and she, in return, must obey his wishes.’ Drawing on Carol Pateman’s critique of marriage, she explores the subjectivity of the Muslim woman who in exchange of ‘exclusive access to her body and submission of her will’ desires financial support. Further, she brings out the contradiction between the cultural mores of Muslim society and the subjective expectation of exclusivity from the male partner, though Islam allows for polygamy.

The last chapter discusses the implications of the Muslim Women Act, 1986, specifically the clause that mandates ‘reasonable and fair provision’ to be made for maintenance of the divorced wife. She asserts that this provision has proved to be beneficial to middle class women but not to women from the lower class. She contends, contrary to Flavia Agnes, that a man from a low income group is unlikely to be in a financial position to pay a lump sum amount. The monthly allowance under Section 125 of the CrPC might have been a more plausible course of action. Though she acknowledges the provisions relating to the Waqf board and the state funds providing for these women, while discussing the problem of maintenance she turns a blind eye to the narrative of those women who would not have wanted to take recourse to a secular law. For example, an Islamic woman may contest patriarchal regimes of Quaranic interpretation at home, while at the same time articulating a sort of global solidarity.1 An engagement with the provisions of the act based solely on the rhetoric of financial constraints, does not provide space assertion of such complex identities of Muslim women. With the memory of the aftermath of Shah Bano still alive, such an oversight seems naïve.

As a lawyer entering the realm of anthropological research, Vatuk’s book is a diligent effort towards creating a database for a multidisciplinary understanding of law. Further, it goes a long way in obliterating the much debated distinction between the condition of Hindu and Muslim women and the implication of secular law vis-à-vis MPL. The empirical research may push the reader to displace the prevailing rhetoric of specific victimization of Muslim women. However, there is little critical engagement with the complexity of matrimonial litigations specifically for Muslim women who are seen as doubly alien by the courts.

The author talks about the women litigant only in broad strokes, in fact, her narrative becomes ancillary to statistics. Further, the book does not explore the plethora of literature relating to the subjectivity of Muslim women and the intersectional nature of her multilayered identity. The book is a bird’s-eye view of the lives of Muslim women and hence runs the danger of becoming another universalistic project that reduces the multifaceted problems of Muslim women to either poverty or victimization.

Avantika Tiwari

Assistant Research Officer, IIHED, Jindal Global University; Member, Compost Heap

 

Footnote:

1. Upendra Baxi, Future of Human Rights. Oxford University Press, New Delhi, 2008.