I (2005), 1

Women, Legal Reform and Muslim Identity in South Asia (*)

Gail Minault

In Urdu writings of the late nineteenth century, Muslim reformers as diverse as Syed Ahmad Khan of Aligarh (1817-1898), Maulana Ashraf Ali Thanavi of Deoband (1864-1943), and Syed Mumtaz Ali of Lahore (1860-1935) evolved a critique of contemporary Muslim life and culture in response to the pressures of colonial rule. The themes of this critique were threefold. First was the consciousness of the decline brought about by the loss of political power to foreign rule. Second was the analysis of the causes of that decline that included the squandering of power and resources by the military and landed élites, and the loss of religious and cultural vitality. Third was the evolution of a programme of reform that would remedy that decline. Foremost in this programme of reform was the need for improved education. Whether that education was a Western curriculum that included an Islamic element for the male leaders of the community (Sir Syed), or a reformed Islamic curriculum for the religious guides of the community (Deoband), or else a literary and practical education for both men and women (Mumtaz Ali), was a matter of considerable controversy.

There was nevertheless one point upon which all reformers could agree: the status of Muslim women required amelioration. In this, their discourse resembled that of Hindu social reformers of the time. Both Hindu and Muslim social reformers saw the roots of decline in a subsoil of rituals and customs that they regarded as unnecessary accretions, corruptions of a pure standard embodied in a reinterpreted past. For both Hindu and Muslim reformers, the solution to their current decline included the purification and rectification of religious life, and to that end, the reform of the role of women who were viewed - paradoxically - as both the chief perpetrators of wasteful and invidious customs and as the chief victims of such customs. For the reformers, therefore, women needed to be rescued from ignorance and superstition and also from abuse. Social reform, as articulated in the late nineteenth century, was thus the responsibility of men. Women were to be the beneficiaries of the actions of men, not actors on their own behalf. Women became symbolic, not only of all that was wrong with cultural and religious life, but also all that was worth preserving.

If their discourse was similar, however, Hindus and Muslims looked to different textual sources for their inspiration. For Hindus, the golden age was variously Shastric or Vedic, but certainly pre-Muslim. For Muslims it was scriptural, prophetic and non-Indic. As their discourses concerning the reform of women's intellectual and religious lives evolved, Hindus and Muslims either revived or created certain norms and boundaries for their communities. Reformers thus helped to articulate separate identities, to define what it meant to be either a Hindu or a Muslim, for both men and women. (1)

Discourses of Muslim Reform: Custom vs. Shariat

Syed Ahmad Khan, regarded as the father of Indo-Muslim reform, was a champion of Western education for Muslim men. He regarded such education for women as premature, but was in favour of home education for Muslim women and, to his further credit, felt that the custom of purdah, as practised in India, had been carried to extremes. Such isolation, he argued, was the cause of women's ignorance. They were credulous and clung stubbornly to outmoded customs; they made men's lives difficult. In the great days of early Islam, he claimed, women had been educated. They could inherit property and had to be able to manage it. Hence, they needed to know not only how to read the scriptures, but also how to write and calculate. Islamic civilization had fallen on evil days and thus the status and rights of women had been abridged. This was not true Islam, but the result of adherence to bad custom. (2)

Sir Syed's argument found echoes among other reformers, younger men who were even more outspoken about the potential benefits of education for women. Education would break down women's isolation, and combat superstition and bad custom. This was a line of reasoning heard again and again in Muslim reformist discourse. Muslims thus seemed to accept the British cultural critique that Indian weakness was a result of moral as well as political collapse. (3) But such an argument had been present in Muslim discourse well before the British displaced Mughal power. Shah Waliullah in the eighteenth century, and before him, Shaikh Ahmad Sirhindi in the seventeenth, had lamented the loss of religious compass in the Muslim elite and linked it to the loss of political power. (4) Re-establishing the authority of God's law (Shariat) as opposed to spurious custom in Muslim lives was thus a prelude to regaining political and cultural ascendancy. By the late nineteenth century, women were viewed as an essential part of this process.

For Muslims in favour of change, challenges - whether external or internal - had to be met by arguing for a return to a pristine Islam, as variously interpreted. For Muslim reformers as for Hindu, social and religious change did not mean aping the West, but rather arguing for a revitalization of tradition. The ulama were very much a part of this effort. Indian ulama in the late nineteenth century, in the absence of a Muslim state, resorted to two main strategies to perpetrate Islamic learning. The first was to institutionalize founding a number of madarsas that were not only repositories of the Islamic curriculum, but that incorporated ideas derived from Western institutions such as academic departments, examinations and the offering of degrees. The second was to emphasize individual piety and dedication to the faith, based not on custom but on personal knowledge of the scriptures and the laws. That, of course, involved literacy. The ulama were heavily involved in publication: popular guides to religious practice, polemical pamphlets, scholarly quarterlies and less scholarly monthlies. A number of madarsas had their own lithographic presses that contributed to the expansion of Urdu as a medium of public discourse. (5)

The Deoband madarsa was one of the major manifestations of these trends. Deobandis sought to purify personal religious observance and to spread the knowledge of the Shariat more widely among Muslims in India. To advance this project, some ulama also championed women's education. To purify household rituals, to increase knowledge and observance of scriptural religion as opposed to folk customs, and to improve individual piety in the Muslim community, it was important for women to be educated in their religion. (6)

Maulana Ashraf Ali Thanavi of Deoband accordingly decided to write a compendium of useful knowledge for women, a guide not only to learning, but to the pious life. (7) He began by citing a tradition of the Prophet Mohammad: "It is a duty incumbent on every Muslim man and every Muslim women to acquire knowledge". (8) This Hadith was frequently cited by Muslim educational reformers as evidence that the Prophet himself favoured education for women. Maulana Thanavi then went on to explain the rationale for this book, Bihishti Zevar (The Ornaments of Paradise):

For many years, I watched the ruination of the religion of the women of Hindustan and was heartsick because of it. I struggled to find a cure, worried because that ruin was not limited to religion but had spread to everyday matters as well. It went beyond the women to their children and in many respects even had its effects on their husbands. To judge from the speed with which it progressed, it seemed that if reform did not come soon, the disease would be nearly incurable ... [T]he cause of this ruination is nothing other than woman's ignorance of the religious sciences. This lack [sic] corrupts their beliefs, their deeds, their dealing with other people, their character, and the whole manner of their social life ... I have for some time, therefore, realized that in order to manage women, it is absolutely necessary to teach them the science of religion-even if it must be through the medium of Urdu. (9)

Maulana Thanavi here echoes a number of themes articulated by other reformers. Women's ignorance of religion is a problem for the society as a whole, for they infect their children and husbands with a contagion of indiscipline, ignorance and decline. Women are singled out as the carriers of that illness, an imagery suggesting the need to treat not just symptoms, but the root causes of the contagion. In evidence here is a second idea: that what happens in the home is of importance to the society at large, and that through social relations, women's influence extends well beyond the home. There is also the idea of control. Women need to be 'managed' via proper instruction in Islam. According to this reasoning, women are deficient, but this deficiency can be remedied by discipline and instruction. Women are, therefore, potentially equal to men in their capacity for understanding, and hence their reform and 'management' is central to the religious reform of all Muslims.

Given Maulana Thanavi's egalitarian assumption, which derives from the preaching of Islam, if women have inferior status, it is not due to their inherent inferiority - for their souls are the equal of men's - but because of degenerate custom, falsely identified as religion. Bihishti Zevar devotes alot of space to attacking and rooting out false custom, as did other reformers. Thanavi's concerns are religious, although one also hears echoes of economic concerns about excessive expense and ostentation. The material and spiritual consequences of useless custom are closely allied for both middle class reformers and reformist 'ulama'. Maulana Thanavi describes marriage customs:

[T]he women of the family gather and confine the girl in a corner... Etiquette calls for the girl to be seated on a low platform, for ointment to be placed on her right hand, and for her lap to be filled with rice and sweets. Rice and sweets are also distributed among those present. From that day on, the women continually rub the girl with ointments. This custom involves much foolishness. The first objection is to the requirement of seating the' girl alone. Whether it is hot, whether it is stuffy, whether all the doctors and physicians in the world say she will get sick... this obligation must not be missed. This entails the evil of strict adherence to set customs. ... [P]lacing the ointment on her right hand and felting her lap with puffed rice and sweetmeats seem to be some kind of omens or superstitious acts. If this is so, it is polytheism. What Muslim does not know that that is opposed to the Shariat? (10)

The rich composite of Hindu and Muslim observances that evolved over the centuries in the zenana in connection with marriage and childbirth is here attacked as both wasteful and un-Islamic.

Maulana Thanavi goes on to object to ostentatious charity and to the use of silver implements and silken garments also as wasteful and irreligious, particularly the latter. The mark of a pious Muslim is his or her devotion to God's will, not these vestiges of the nawabi lifestyle which, in his view, convey false status. (11) Thanavi's insistence on the egalitarian message of Islam has striking implications for the Islamic society as a whole, implications that the Maulana - even with his theme of women's need to become more like men in matters of self control and religious observance - does not fully explore. His emphasis on individual piety meets the needs of a time when an aristocratic culture based on birth was gradually being displaced by a middle-class culture based on individual achievement. This ethic of individual achievement for both men and women was rendered more possible by the culture of print, which made easier the dissemination of works such as Bihishti Zevar. But the equal status of all believers when face-to-face with God was, in practice, superseded by the hierarchical relationships of the society. Members of the middle-class service elite, generally speaking, remained preoccupied with status, both among social groups and within families. (12)

One reformer whose views on women's status were egalitarian in practice as well as in theory was Sayyid Mumtaz Ali of Lahore, founder in 1898 of one of the first Urdu journals for women, the weekly newspaper Tahzib un-Niswan. It was edited by his wife, Muhammadi Begum. Mumtaz Ale was also the author of Huquq un-Niswan (Women's Rights), a treatise in defence of women's rights in Islamic law, inspired by both his early Deobandi education and his experience of debating with Christian missionaries in Lahore. The missionaries criticized Islam, as well as other Indian religions, for the low status accorded to women and blamed these religions for the lack of education among Indian women. Mumtaz Ali knew that the position of women in Islamic law was theoretically higher than their actual current status. The cause of this discrepancy he felt, was adherence to false customs - in this as we have seen he was not alone. Answering missionaries with theoretical arguments, however, was not enough. Changing Muslim practice had to be the highest priority. Women's adherence to false custom had to be combatted, but so too did the views of men, who felt that keeping women in ignorance and isolation was part of their religion. To attain these aims, he wrote Huquq un-Niswan. (13)

Mumtaz Ali denied all English influence upon his writing, arguing that anyone who knew the Shariat and who followed the example of the Prophet and his family must be prepared to reject ignorant customs. He thus placed himself firmly within the framework of Deobandi reform, seeking to revalidate Islamic law and prophetic example in Muslim dally life, and to eradicate superstitious customary accretions. The first section of Huquq un-Niswan addressed all the various reasons why men are considered superior to women. He showed that the distinctions made between men and women that are justified on religious grounds are, in fact, the products of social custom. If these distinctions were subjected to the scrutiny of reason, well bolstered by a knowledge of the religious sciences, the fallacy and injustice of male supremacy would become clear. (14)

Mumtaz Ali points out that even though men and women have different physiques and fulfil different biological functions, both are human and hence equal in God's sight. Mumtaz Ali's arguments, however, go beyond the equality of souls found in Ashraf Ali Thanavi's Bihishti Zevar and encompass greater egalitarianism in gender relations as well. While admitting that men have greater physical strength than women, he states that this does not automatically give men the right to rule over women. A donkey can carry more on its back than a man, but does that mean that donkeys are superior to men? Perhaps in the dark ages, 'might made right', but with the advance of civilization, rulers needed to have more understanding and compassion. Thus the right to rule should belong not to the strong, but to the wise. As for men's supposed greater intellectual capacity, he notes that men and women are of the same species. Any differentiation between the brain powers of the two genders must be something that the society has attributed to them, not chat God has created. Indeed, if the intelligence of women were less than that of men, the human race would rapidly become stupid, for intelligence would be transmitted in lesser degree to each succeeding generation.

Mumtaz Ali argues for a broad, humanistic education for women, not a narrow, household-centred one. Based on the assumption that men and women have equal rational and moral faculties, the education of women needs to be as complete as that of men, with some additional emphasis on household skills. (15) He also discusses purdah in Islamic law, maintaining that purdah as practised by Indian Muslims goes far beyond anything that the Shariat intended. Such customs have debilitating social results, but, he admits, they are very difficult to dislodge. Arguing from verses in the Koran that refer to the need for modest behaviour, and from Hadith in which the Prophet ruled on various aspects of social interaction, Mumtaz Ali draws a clear distinction between what is customary - and thus subject to change - and what is normative or desirable according to the Shariat. He does not argue for the abolition of purdah, but rather for a pattern of Shariat-inspired modest behaviour on the part of both men and women and for allowing women greater freedom of movement and social discourse, as befits their status as responsible human beings. (16)

Mumtaz Ali then discusses marriage, and here too his emphasis is egalitarian. (17) He notes that the Prophet decreed that a marriage contracted without the consent of the partners is unlawful, but that this consent is usually simply assumed. The boy is cajoled by his parents; the girl is supposed to sit passively during the ceremony, mutely accepting her fate. These customs go completely against the Shariat. He also discusses certain reforms in the payment of dower (mahr) and in the granting of divorce (talaq). In Islamic law, the wife has a right to the payment of mahr by the husband, part of which is given upon marriage and part of which can be defected. Parents often demand a huge dower at the outset, in the hope that this will discourage divorce, but this only embitters family relationships. More beneficial in terms of protecting the wife's interests is the placing of stipulations in the marriage contract (nikahnama). For example, the husband might agree to pay a higher amount only in the event of a divorce or a second marriage, and the wife would agree not to demand payment except under such circumstances. In this way, there would be mutual understanding, and both partners would benefit. The wife would have security without demanding ruinous mahr, and the husband would know that he would not be liable to a high payment except under certain specific conditions. (18) Other stipulations in the marriage contract could limit polygamy and give the wife more control over her fate, i.e. the husband could agree to give his wife the right to divorce if he took a second wife. She would thus retain her right to mahr, but also the right to initiate divorce under certain conditions. (19) These suggested reforms are fully in line with the Shariat. Some benefit the wife, some the husband, but all emphasize the need for mutual agreement and equality in contractual dealings, which are absolutely necessary to ensure equitable and happy marriage based on the free choice of the partners.

Mumtaz Ali's approach to marriage emphasizes close adherence to Islamic law, and human relations based on mutual respect between men and women and understanding between the families concerned. Such considerations carry over into his discussion of relations between spouses. When men recognize that women's rights in Islamic law are equal to their own and grant them an education commensurate with their abilities, then it will not be necessary to consider the problem of marital relations, he maintains - rather too optimistically - since he feels that the problem will disappear of itself. He admits, however, that this is not currently the case. The cure for injustice is for men to become more enlightened and to realize that their wives are human, he argues. Until women are treated like human beings, it is no use blaming them for not living up to their potential. Mumtaz Ali, who heretofore had emphasized mutual responsibility for improving marital relationships, here places greater responsibility upon men for bringing about social change.

He also emphasizes that simply talking about the need for change in public is not enough; men must begin by setting an example in their private lives. Educated men, government servants, professionals, and the like who talk about the need for self-government in India should realize the connection: if they are unwilling to grant greater education and rights to their women, how can they, in all seriousness, demand greater self-determination for themselves? The educated sections of the community must lead the way in recognizing the rights given to women in the Shariat, which have been forgotten. One of the legal reforms that Mumtaz All advocates in Huquq un-Niswan is the passage of a divorce law that would recognize a Muslim woman's right to initiate divorce (khula). This right is present in the Shariat, provided the woman gives up her right to the payment of mahr, but it is not in force in India. He thus anticipates by some forty years the Dissolution of Muslim Marriage Act of 1939. (20)

Legal Reform and Muslim Political Identity

The discourses of Muslim reformers deprecated useless custom, particularly as observed by women, and placed heavy emphasis on the need to observe the Shariat in everyday life. The recommendations of these reformers involved changing personal habits and eliminating household rituals. In some cases, however, reformers advocated legislative enactments in order to bring Muslim personal law closer to the spirit of the scriptures, as well as to improve women's rights in the context of family relations. Mumtaz Ali's thoughts on the need for a reformed divorce law was one such instance. Other reformers were concerned about British legal actions invalidating certain types of waqf (pious endowments) that had been used in the past to support the donor's surviving family members - frequently women. Thus, the revalidation of such auqaf would benefit indigent Muslim women.

Another matter that concerned reformers was succession to property. Under the Shariat a daughter is entitled to inherit a share of her father's property - half that of a son, to be sure - but nevertheless her right to property is specified in the Koran and Hadith. In many places in British India, however, 'customary law' was enforced, custom that favoured sons to the exclusion of daughters. This was to the benefit of rural landed magnates, cultivated as political allies by the British, in the interests of keeping landholdings intact. The nature of rural landholdings varied greatly from place to place, but in general, the issue of Shariat versus custom among Muslims pitted rural landholders against urban reformers and some ulama.

In the early part of the twentieth century, therefore, an unlikely coalition of ulama, Muslim middle-class reformers, and Westernized politicians with nationalist leanings came together - for very diverse reasons - to enact a series of legal reforms. The Waqf Validating Actof 1913, the Muslim Personal Law (Shariat) Application Act of 1937, and the Muslim Dissolution of Marriage Act of 1939 were laws that specifically applied to Muslims. In this period also the Sarda, or Child Marriage Restraint Act of 1929, was enacted that applied to all religious communities. The latter was heartily endorsed by the All-India Women's Conference (AIWC), founded in 1927, representative of the growing voice of Indian women in the social and educational reform arena. (21)

In addition, a growing body of opinion among Muslim women, whether writing in Urdu magazines or speaking from the platforms of women's associations, objected to polygamy and unilateral divorce, and supported greater property rights for women and the right of a women to initiate divorce when her marriage was cruel or insupportable. Muslim women's resistance to legal inequities included a resolution against polygamy passed by the All-India Muslim Ladies' Conference (Anjuman-i Khavatin-i Islam) at its annual meeting in Lahore in 1918 that caused considerable outrage in the Muslim press. (22) In addition, a movement in favour of 'delegated divorce' (talaq-i tafwid) was spearheaded by Mrs Sharifa Hamid Ali, who served as President of the AIWC in the late 1930s. Mrs Hamid Ali, the wife of a Muslim member of the Indian Civil Service who was a member of the distinguished Tyabji family of Bombay, had a draft prepared of a Muslim marriage contract containing stipulations allowing the woman to divorce under certain conditions. She urged educated Muslim women to see that such stipulations were incorporated into all marriage contracts. (23) Such delegated divorce was permitted under Hanafi law, the school of Muslim law most prevalent among Indian Muslims, and the least latitudinarian in matters of divorce for women. Under talaq-i tafwid, for example, the contract could specify that if a man married a second wife, the first could seek a divorce without forfeiting her mahr. This was significant, for if a woman initiated divorce (khula), she would lose her right to mahr, often her only means of support after divorce. This was a major disincentive to women seeking divorce, even in dire circumstances; whereas delegated divorce gave women a way out of marriage that preserved her right to some support. (24)

Such evidence of women's resistance to legal inequities caused some consternation among men and added to pressures in favour of reform. Mumtaz Ali had anticipated a number of these laws, but it is unlikely that these would have been passed if reformers like him had been their only advocates. Without the evolution of opinion that produced the coalition of men who favoured legal reforms, the chances of an improvement in Muslim women's rights would have been slim. A brief examination of the debates among men that led to the passage of the waqf, Shariat and divorce legislation is necessary in order to ascertain the impact of those laws both on women's rights and on the emergence of Muslim political identity.

The Waqf Validating Act of 1913, proposed by Mohammad Ali Jinnah, sought to reinstate endowments that benefited the donors' families. This type of waqf, as opposed to endowments for public religious and charitable purposes, had been voided by a Privy Council judgment. Jinnah's bill sought to undo what the Privy Council had wrought. In this effort, Jinnah secured the support of a number of leading ulama and Muslim politicians, including representatives of the madarsas of Deoband, Firangi Mahal, and Nadwat al-ulama (achieving agreement among such diverse ulamawas no small featin itself), plus Mian Mohammad Shaft of Punjab (a Muslim Leaguer), Hasan Imam of Bihar (Muslim League and later Congress), and Aftab Ahmad Khan of Aligarh (generally, loyal to the British). Others, however, felt that Jinnah was simply using the issue to further his political career by establishing himself as a spokesman for Indian Muslim opinion, a collectivity that he and other Muslim leaders of the day sought to bring into being. (25)

In a discussion of the passage of the waqf legislation Kozlowski points out that Jinnah, like the British jurists whose ruling he sought to undo, emphasized the ancient and unchanging nature of Muslim religious law. As this line of reasoning confirmed British suppositions, it was effective. Muslim politicians thus participated in the tendency, prevalent under British rule, to codify-and hence to rigidify-what was understood as Islamic law. (26) In the process of negotiating with colonial authorities, Muslim political leaders represented both Islamic law and their own community as more unified than they actually were, or had ever been. But, Kozlowski wryly notes: "Muslim leaders could not be blamed for choosing the line of argument most likely to obtain their goal". He further argues that:

Jinnah and the others might have chosen another away of presenting their case, one which did not depend on so abstract a reading of Islam or the people who professed it. Sir Syed, for example, tried to place the institution [of waqf] in the context of changing economic conditions in the Muslim world and India in particular. Sir Syed readily admitted that the use of endowments as family settlements suited the conditions created by British rule. (27)

Jinnah, as a British-trained lawyer, had a considerably more abstract understanding of Islamic law than did Sir Syed.

The Shariat Application Act of 1937 also addressed economic conditions created by British rule, particularly in the Punjab. In that important agrarian province, British authority rested firmly upon the recognition and codification of 'tribal' custom, wherein women were deprived of rights to inherit immovable property. As pointed out earlier, customary law tended to keep landholdings intact, or at least more intact than if daughters could inherit land along with sons. The recognition of custom, by tying the interests of landholders to that of the British administration, was a cornerstone of British policy in the Punjab, but it contravened the Shariat, which gave a daughter a share of her father's property, albeit half that inherited by a son. For Muslim women, therefore, support for the Shariat had definite, if limited, advantages. (28)

In such a situation, support for the Shariat not only denoted ties to the Islamic moral order, but also implied support for nationalist aspirations. In the 1930s in the Punjab, support for customary law was found in the Unionist Party, composed of large rural landholders of various religious communities, who generally spoke in favour of the British connection. Support for the Shariat emerged among the Muslim League, which was urban and (relatively speaking) more nationalistic. The Jamiyat al-ulama, the political party representing many Indian ulama, supported legislation to validate the Shariat for both religious and nationalistic reasons. A Bill to apply the Shariat in the Punjab, which specifically sought to improve women's rights to land inheritance, was blocked by the Unionists in the provincial Legislative Council in the mid-1930s, but the issue persisted, and in 1937, Muslim League members introduced a similar measure in the Central Legislative Assembly, which ultimately passed.

During the legislative debates, the point was repeatedly stressed that this Bill, representing a consensus of Muslims throughout India to have their personal lives guided by the Shariat, would grant women greater rights. Speakers as diverse as Sir Mohammad Yaqub from Moradabad, (29) Dr Ziauddin Ahmad from Aligarh, (30) the poet and journalist Zafar Ali Khan from Lahore, the former Khilafat leader Maulana Shaukat Ali, (31) the urbane Congress lawyer Asaf Ali from Delhi, the even more urbane M.A. Jinnah from Bombay, and regional leaders such as Maulvi Syed Murtaza of Madras, Maulvi Mohammad Abdul Ghani from East Bengal and Abdul Qayyum from the North-West Frontier Province all voiced their sympathy for downtrodden Muslim women and their desire to see their lot bettered. Jinnah was able to secure passage of the Bill, however, only after a number of major compromises left adoptions, wills, and legacies entirely up to individual Muslims. On the inheritance of agricultural land, furthermore, the Bill was silent, for under the Government of India Act of 1935, this was a subject reserved for the provinces and outside the scope of central legislation. The Shariat Application Act of 1937, for all the sympathetic rhetoric of the debate, had an extremely limited effect on Muslim women's rights. It did, however, express a consciousness of Muslim identity in the legal structure of the state and further enhanced Jinnah's claims to speak for that collectivity. (32)

The debate on the Sarda, or Child Marriage Restraint Act of 1929 showed a similar concern to apply the Shariat as a generalized scriptural prescription and to represent Muslims as an undifferentiated community. A number of Muslims, including Jinnah, at first opposed the application of the Sarda Act to Muslims, on the grounds that it was irrelevant, as child marriage had no sanction in Islam. T.A.K. Sherwani argued that if Muslims in India did practice child marriage, it was because they were following a Hindu custom - a familiar reformist argument, though not always stated so blatantly. Ultimately, Jinnah and other Muslim representatives were convinced by the select committee's report that child marriages were also common among Muslims, to vote in favour of the Act. Muslim women members of the AIWC also strongly supported the Act, which outlawed marriages under the age of fourteen in all communities. (33)

The legal reform that had the most significant impact on Muslim women' rights was the Muslim Dissolution of Marriage Act of 1939. Major credit for its passage must go to Maulana Ashraf Ali Thanavi whose writings were an enabling factor in assembling the coalition that backed the legislation. As a background, in 1913, Maulana Thanavi had issued a fatwa in a case involving a Muslim husband who had applied to a British court in India for restitution of conjugal rights. The wife's family refused, on the grounds that she had renounced Islam and her marriage was no longer valid. The judge asked the claimant to secure a fatwa clarifying this point in Islamic law, and Maulana Thanavi ruled that the marriage was indeed annulled as a result of the wife's apostasy. (34)

As previously noted, the Hanafi school of Islamic jurisprudence, followed by a majority of Muslims in the subcontinent, is strictest in matters of divorce and gives a wife almost no grounds for initiating the dissolution of her marriage. In the early twentieth century, the number of Muslim women who resorted to the device of renouncing Islam in order to secure judicial divorces increased alarmingly. This was partly a result of missionary activity, but partly because many Muslim women found no other way out of cruel and abusive marriages. The press took notice of this phenomenon and the influential voice of the poet Iqbal urged Muslim scholars to reform Hanafi law, in order to find a solution within Islam for this problem, so that Muslim women would not have to adopt this desperate tactic. (35)

Ashraf Ali Thanavi, therefore, returned to the subject of his 1913 fatwa and consulted with a number of other ulama, including Mufti Kifayatullah of Delhi, Husain Ahmad Madani of Deoband, and various Maliki ulama in Arabia. In 1931, he issued a lengthy revision of his earlier fatwa: Al-Hilat un-Najiza li'l-Halitat al-'Ajiza('A Successful Legal Device for the Helpless Wife'). (36) He ruled that apostasy did not annul a Muslim marriage, but that a wife might obtain a judicial divorce based on grounds permitted by the Maliki school of Muslim jurisprudence. This device of jurisprudential eclecticism (takhayyur), recognized by some legal scholars and commentators, opened the way to a reform of Muslim divorce law. The Jamiyat al-ulama seconded Maulana Thanavi's view, after which Qazi Mohammad Ahmad Kazmi, a lawyer from Meerut and a Jamiyat al-Mama member of the Central Legislative Assembly, in 1936 introduced the Bill that became the Muslim Dissolution of Marriage Act. The Bill was first referred to a Select Committee composed of a majority of Muslims, then debated thoroughly in the assembly and finally passed in 1939. (37) The Act provided that apostasy of the wife did not annul a Muslim marriage, a point greeted with some relief by Asaf Ali who was married to a Hindu and was shocked to hear that a marriage between a Muslim and a non-Muslim might be considered invalid ab initio. (38)

The Act permitted the wife to seek a judicial divorce on grounds permitted by the Malikis, including the husband's cruelty, insanity, impotence, disappearance, or imprisonment and his failure to perform his marital obligations or to provide maintenance-for specified periods of time ranging from two to seven years. The Act also provided for divorce based on the 'option of puberty', that is: if a woman had been married off by her elders before puberty, and the marriage had not been consummated, she could ask for its dissolution. (39) It is worth remarking that the legislative debate and the law as enacted were concerned with the suffering of Muslim women that resulted from the inability of men to fulfil their marital duties, or from custom that permitted her to be married off without a choice. This vision of women as victims is familiar, and in this context, very useful politically. Begum Hamid Ali, on the other hand, in her campaign in favour of stipulations in marriage contracts was working to empower women, as well as their relations, in marital negotiations.

The Act differed in several respects from the recommendations of the ulama, most notably in not reserving jurisdiction in cases of Muslim divorce to Muslim judges. It was also made to apply to all Muslims, not only Sunnis, but Shias as well. Consequently, Maulana Thanavi and the other divines who had originally urged reform of the divorce law were displeased with the Act in its final form and condemned the Muslim Dissolution of Marriage Act as un-Islamic. (40) More secular parliamentarians, however, including Abdul Qayyum of the North-West Frontier and Asaf Ali from Delhi, were loath to risk governmental defeat of the Act by amending it to reserve jurisdiction to Muslim judges and they accepted its application to Shias as well in the interest of maintaining their claim to represent the interests of Muslims as a whole. (41) Once again, compromises in the legislature made for a law that was passable, if not strictly shari'i. For all its strange bedfellows, this episode showed that reformers, politicians and ulama could work together to bring about the reform of Muslim personal law in a parliamentary context, even where Muslims were in a minority. The evidence of Muslim women's discontent and their resistance to the existing state of affairs, whether within elite organizations such as the AIWC or via apostasy, had acted as a catalyst. Maulana Thanavi's careful scholarship, broad consultation and invocation of the principle of jurisprudential eclecticism had made consideration of divorce reform possible.

The waqf, Shariat and divorce laws had several results that were cumulative: (1) They recognized that women had certain rights in Islamic law. (One should be careful, however, not to regard these laws as a victory for individual rights, but rather as a recognition of rights that were women's by virtue of their being members of families as well as Muslims.) (2) They created a distinct body of law, within the context of the state, with which both Muslim men and women could identify. (3) They created a fragile political coalition in support of issues that were clearly labelled Islamic. These laws, with their concern for women in the family, with demarcating boundaries around the Muslim community and defining its legal system in religious terms, and with bringing together Muslims of different ideological persuasions on the basis of their Islamic identity, fitted well into the structure of the British colonial state that allowed considerable latitude for organization around 'private' matters such as religion. It also appealed to the coalition-building skills of the man who shepherded the first two bills through the central legislature, Mohammad Ali Jinnah. (42)

This is not to suggest that Jinnah's political career was mainly associated with the movement for Muslim women's reform, nor still less with the movement for scriptural reform. He was, however, able to articulate issues raised by those interlocking movements within a political and legislative context. It is significant that his most successful efforts at coalition-building among Muslims prior to the Pakistan resolution of 1940 were those focused on legal issues that linked women and family life to Islamic legal identity, and that further linked the concerns of urban and small-town professionals and ulama at the expense of rural landed interests. The defence of the Muslim family and the definition of the Muslim community in India as a legal entity were issues at stake in the enactment of these laws. They were also issues that had linked these two important groups of educated Muslims since the late nineteenth century, groups whose support was essential to Jinnah and the Muslim League's claim to be the political representatives of all Indian Muslims. This linkage among concerns for women's status within the family, Muslim personal law and Muslims' sense of distinctive identity persists into the present.

Conclusion

The writings of Muslim social reformers in the late nineteenth century portrayed women as embodying all that was wrong with their culture as well as all that which was worth preserving. Most of what was wrong could be summed up by the phrase 'useless custom' (fazul rasum). Women were its practitioners as well as its victims. The solution to the ambivalence of the reformist message was provided by a return to a purified practice of the faith which, in turn, would improve and preserve the family life that reformers both valued and found deficient. Part of that return to the faith involved a reassertion of scriptural religion over household ritual, another involved the revived observance of the Shariat in matters such as the inheritance of property (including charitable endowments), marriage and divorce.

All of the legal reforms that were enacted in the early part of the twentieth century are extensions of this ideology of reform. Scriptural authority, as reinterpreted in the colonial context - increasingly restricted to certain specific texts and clearly defined readings of them - was asserted over customary practice. Since reformers viewed the female and the indigenous as the bases of such customary practice, their educational, social and later legal reforms increasingly asserted male control and values over women's lives. On the other hand, women were central to the family, and their dignity and honoured roles essential both to the preservation of family life and to its improvement. Legal reforms were thus a logical extension of men's concerns to improve women's status and their adherence to the faith of Islam. Women were the symbols of what men wanted their community to be. Women, when consulted, were expected to agree. Concern for Muslim women's rights, as individuals, was another matter. From a feminist perspective one may fault the reformers for doing little to improve Muslim women's rights, (43) but that was not their main concern. Their concern was with establishing norms for community behaviour, and in the process, establishing an irreducible Muslim identity within the political process.

Notes

*. From M. Hasan (ed.), Islam, Communities and the Nation. Muslim Identities in South Asia and Beyond, Delhi: Manohar Publishers, 1998, pp. 139-58. The essay is being re-published with the kind permission of Manohar Publisher.

1. Other discussions of community and boundary definition include Roasalind O'Hanlon, 'Historical approaches to Communalism: Perspectives from Western India', in Peter Robb (ed.), Society and Ideology: Essays in South Asian History (Delhi, 1993), pp. 247-66; and Sudhir Chandra, The Oppressive Present. Literature and Social Consciousness in Colonial India (Delhi, 1992).

2. Syed Ahmad Khan, 'Hindustan ke Auraton ki Halat,' and 'Auraton ke Huquq', in M. Ismail Panipati (ed.), Maqalat-i-Sir Syed, vol. 5 (Lahore, 1962), pp. 188-99; on Sir Syed's educational reforms, see David Lelyveld, Aligarh's First Generation (Princeton, N.J., 1978).

3. Good summaries of this critique appear in Francis Hutchins, The Illusion of Permanence (Princeton, NJ., 1967), pp. 3-19; and Gauri Viswanathan, Masks of Conquest (New York, 1989), pp. 118-41.

4. Waliullah and his line are the subject of a voluminous literature. One useful summary is Barbara Metcalf, Islamic Revival in British India (Princeton, NJ., 1982), pp. 16-63; see also Aziz Ahmad, 'The Political and Religious Ideas of Shah Waliullah of Delhi', Muslim World, 52, 1962, pp. 22-30.

5. Metcalf, Islamic Revival, pp. 87-137, 198-234;Francis Robinson, `Technology and Religious Change: Islam and the Impact of Print', Modern Asian Studies (MAS), 27, 1, 1993, pp. 229-51.

6. Metcalf, Islamic Revival, pp, 146-52; idem., 'The Madrasa at Deoband: AModel for Religious Education in Muslim India', MAS, 12, 1978, pp. 111-34.

7. Ashraf Alt Thanavi, Bihishti Zevar (Lahore, n.d.). I am greatly indebted to Barbara Metcalf's partial translation of this work, entitled: Perfecting Women (PW)(Berkeley, 1990).

8. PW, p. 47.

9. PW, pp. 47-9; Metcalf calls attention to Thanavi' s implication that using Urdu is second best (to learning about religion in Arabic), but necessary in order to reach a popular audience.

10. PW, p. 116.

11. Ibid., p. 107.

12. Ibid., pp. 21, 79-83; a congruent case in the European reformation is discussed by Natalie Zemon Davis, 'City Women and Religious Change', in her Society and Culture in Early Modern France (Stanford, 1975), pp. 65-95. As she shows, it was one thing for women to be learned in the scriptures; it was quite another for them to challenge the male hierarchy in the society and the church.

13. Abu Athar Hafiz Jalandhari, 'Maulvi Syed Mumtaz Ali', Tahzib un-Niswan, 38, 6 July 1935, pp. 607-17; Huquq un-Niswan (HN) (Lahore, 1898).

14. HN, pp. 3-42.

15. HN, pp, 42-60.

16. Ibid., pp. 60-102.

17. Ibid., pp. 102-42.

18. The Hanafi school of Muslim law divides the mahr into prompt and deferred payments, the latter due upon termination of the marriage. Mumtaz Ali's recommendation differs only slightly from standard Hanafi prescription. Cf. John L. Esposito, Women in Muslim Family Law (Syracuse, NY, 1982), pp. 246.

19. Cf. Lucy Carroll, 'Talaq-i-Tafwid and stipulations in a Muslim Marriage Contract: Important Means of Protecting the Position of the South Asian Muslim Wife', MAS, 16, 2, 1982, pp. 277-309.

20. HN, pp. 142-88.

21. Amrita Basu and Bharati Ray, Women's Struggle: A History of the All-India Women's Conference, 1927-1990 (New Delhi, 1990); Janaki Nair, Women and Law in Colonial India (New Delhi, 1996), pp. 79-84.

22. For a detailed examination of this resolution and the response to it, see GailMinault, 'Sisterhood or Separatism? The All-India Muslim Ladies' Conference and the Nationalist Movement', in Gail Minault (ed.), The Extended Family. Women's Political Participation in India and Pakistan (Delhi, 1981), pp. 83-108.

23. Basu and Ray, Women's Struggle, p. 188.

24. Lucy Carroll, 'Talaq-i-Tafwid ... ', MAS, 16, 2, 1982, pp. 277-309; Azim Beg Chughtai, Tafwiz (Karachi, 1957,1st pub. 1932).

25. For a full discussion of the passage of this legislation, see Gregory Kozlowski, Muslim Endowments in British India (Cambridge, 1985), pp. 177-91.

26. This tendency is analysed in Michael Anderson, 'Islamic Law and the Colonial Encounter in British India', in Chibli Mallat and Jane Connors (eds.), Islamic Family Law (Boston, 1990), pp. 205-23.

27. Kozlowski, Muslim Endowments, p. 186.

28. David Gilmartin, 'Customary Law and Shari'at in British Punjab', in Katherine Ewing (ed.), Shari'at and Ambiguity in South Asian Islam (Berkeley, 1988), pp. 43-62;idem., 'Kinship, Women and Politics inTwentieth-Century Punjab', in Minault (ed.), The Extended Family, pp. 151-73.

29. He was not, incidentally, the son-in-law ofMumtaz Ali. Hislate wife, Wahida Begum Yaqub, was Mumtaz Ali's daughter by hisfirst marriage and a former editor of the Urdu newspaper for women, Tahzib un-Niswan of Lahore, managed by her father.

30. On his career, see David Lelyveld, 'Three Aligarh Students: Aftab Ahmad Khan, Ziauddin Ahmad and Mohamed Ali', MAS, vol. 9, 1975, pp. 103-16.

31. For these two, see Gail Minault, The Khilafat Movement (New York and Delhi, 1982).

32. Gilmartin, 'Kinship, Women, and Politics', pp. 166-9; Archana Parashar Women and Family Law Reform in India (New Delhi, 1992), pp. 146-50; Govt. of India, Legislative Assembly Debates, 1937, vol. 3, pp. 2528-44; 1937, vol. 5, pp. 1426-48, 1819-65.

33. Geraldine Forties, 'Women an Modernity: The Issue of Child Marriage in India', Women's Studies International Quarterly (1979), pp. 407-19.

34. M. Khalid Masud, Brinkely Messick and David S. Powers (eds.), Islamic Legal Interpretation. Muftis and their Fatwas (Cambridge MA, 1996), pp. 193-203;Ashraf Ali Thanavi, Imdad ul-Fatawa, Ma'ruf be Fatawa-i-Ashrafiya (Deoband, n.d.), vol. 2, pp. 55-77.

35. Khalid Masud,'Apostasy and Judicial Separation; idem., Iqbal's Reconstruction of Ijtihad (Lahore, 1995), pp. 155-78; cf. Furqan Ahmad, `Contribution of Maulana Ashraf Ali Thanavi to the Protection and Development of Islamic Law in the Indian Subcontinent', Islamic and Comparative Law Quarterly, 6, 1, March 1986, pp. 71-9.

36. A new edition of this treatise, ed. by Taqi Usmani, is: Ashraf Ali Thanavi, Hilat-i-Najiza, ya'ni: Auraton ka Haqq-i-Tansikh-i-Nikah (Karachi, 1987).

37. Debate on the Bill is contained in Govt. of India, Legislative Assembly Debates, 1938, vol. 1, pp. 318-23, 509-13; 1938, vol. 5, pp. 1090-1124, 1951-88; 1938, vol. 6, pp. 2831-43; 1939, vol. 1, pp. 615-54, 863-95.

38. Ibid., 1938, vol. 5, p. 1113.

39. Masud, 'Apostasy', Parashar, Women and Family Law Reform (Delhi, 1992), pp. 151-8.

40. Masud, Apostasy'; the text of the law is contained in B.R. Verma, Muslim Marriage and Dissolution (Allahabad, 1971), pp. 251-97.

41. Govt. of India, Legislative Assembly Debates, 1939, vol. 1, pp. 621-2.

42. Jinnah took no part in the debate over the Muslim Dissolution of Marriage Act.

43. As do, for example, Janaki Nair and Archana Parashar in their insightful works cited earlier.